Handley v. Barrett

Opinion bt

Mr. Justice Green,

When the plaintiffs took their deed in September, 1891, from the Lackawanna Coal & Iron Company, for the tract of land which embraces, as a part of it, the land in dispute in this action, it was with the stipulation contained in the deed that it was made expressly subject to all claims on the part of the defendants by reason of occupancy and adverse possession. Further the plaintiffs expressly released their grantor “from any and all claims of every kind and nature whatsoever on account of any such encroachments upon the land hereby conveyed, or any claims of the aforesaid J. J. Gordon, Catherine Blewitt and Ellen Barrett and those claiming under them or the claim of any other persons with reference to a right of property in and to any portion of said land.” The claims of the defendants by adverse occupancy and possession of the land in dispute were also expressly excepted from the operation of the warranty clause of the deed.

It thus appears not only that the plaintiffs took their deed with express notice of the claim of title by the defendants to a part of the land conveyed to the plaintiffs, but also with express notice that this claim of adverse possession was fully known to their grantor, the Iron & Coal Company, and that the company refused to include it within the operation of their deed, or to warrant any title to it on their part. In view of this positive recognition of the adverse title of the defendants, and their very long acquiescence in it, and of their never having brought any action of ejectment to recover it, it is difficult to perceive any ground for the assertion that the title of the defendants was held by the permission of the Coal & Iron Company and not adversely to them.

Nor did the testimony show any such state of facts. An effort was made to prove that there was by a legal implication such a permissive occupancy, having the force of subserviency to the title of the Coal & Iron Company, as to the land in dispute, but it was entirely abortive, and'the offer of the testimony was properly rejected by the court below. It was an offer to prove that there was a memorandum on the Coal & Iron Company’s sales book, followed by an account on their ledger, to the effect that there was a sale on September 1, 1851, to Barrett and Gordon of a lot fifty feet on Carbon street and fifteen feet on the rear. Of course a contract for the sale of land cannot be proved in any such manner as that, but even if the evidence had heen admitted, it could not possibly have justified any inference that the defendants took title to the land in dispute here, which was no part of the land referred to in the memorandum, in subserviency to the title of the Coal & Iron Company. ' Moreover the contract, whatever it was, became merged in the deed which was subsequently made, and which was given in evidence on the trial. Hence the plaintiffs had all the benefit they could have had if the memorandum on the sales hook had been received in evidence. We cannot however accept the proposition that where a deed is taken for land which is part of a larger tract belonging to the vendor, the vendee cannot acquire by adverse possession land outside of his deed which was a part of the tract from which his purchase was made. Granting that he knew that such outside land belonged to his grantor, we cannot understand why he might not occupy it adversely, and if such occupation was permanent, continuous, visible and notorious, and was at all times in hostility to the right of the owner, and was maintained during the full period of twenty-one years, we know of no reason why such a possession will not confer a good title.

The learned court below in the charge to the jury explained this entire subject carefully, minutely and with entire correctness, and the jury found by their verdict that a good title to the land in question was acquired by the defendants by adverse possession. That the whole matter was exclusively for the jury is too plain for argument. The testimony to a continuous occupation of the land in question by the defendants and those under whom they claimed, for purposes of residence in part, and for domestic uses for a period of nearly or quite forty years, without interruption was voluminous, precise, definite and positive. It was amply sufficient not only to warrant its submission but to justify tbe verdict. It would have been most serious error to withdraw it from the jury and we can see no reason to question the propriety of the verdict. We cannot sustain any of the assignments of error.

Judgment affirmed.