The opinion of the court was delivered by
Gibson, C. J.There are two material subjects of error on which the jury were misdirected—presumption of ouster from lapse of time, and recital of seisin in the common ancestor.
Before entering into a particular examinati'on of these, it is proper to premise that John’s title, whatever it may have been, was not concluded by the decree of confirmation in the proceedings in partition. He was not a party to those proceedings, which were indeed not inter partes at all; and a decree in rem, though it concludes all the world as to matters properly determinable by it, concludes not rights determinable inter partes; and such was the right set up by John to hold the part of which he was possessed in severalty. It was an ordinary subject of ejectment by the other children, and the orphans’ court could not take cognizance of it. It has been said that it came in question incidentally, and that jurisdiction of it was consequential and necessary. Shall not, however, the party to be affected have a trial by jury? He may have it by an issue directed to the common pleas. But why do incidentally what may be better done directly? I know not how a court can determine a matter indirectly of which it may not take cognizance immediately. The argument, however, disclaims a power in the orphans’ court to take cognizance of a contest for title at. all, and declares that it must be remitted to the common pleas. The very fact that it does so, shows that the orphans’ court has neither incidental nor direct jurisdiction of it; and how the decree of a court can conclude a party as to a matter which it does not pretend to have tried, and which it confesses that it is incompetent to try, is what I cannot comprehend. But the party might be concluded by the verdict and judgment on the collateral issue. It is decisive against this suggestion, that jurisdiction, thus exercised, would conclude the party by one verdict and judgment in a common law matter, proper to be decided in an action of ejectment. The statutory partition is evidently adapted to, and, therefore, intended for, an intestate’s several estate actually possessed by him at his death, and indisputably held in common by his children. The preliminary course of proceeding where he has held in common in his life time, was pointed out in Strohecker v. Feather, 3 Penn. Rep. 505, in which it was ruled, that the orphans’ court cannot make partition . betwixt the children and their father’s co-tenant, and among the children themselves. For the same reason, it is necessary, first, to settle, before the proper tribunal, a question of joint or several tenure between the children themselves, where one is made, and then to make partition in the orphans’ court of the whole or a part, according to the event; and this is admitted to be the proper course where the disputant is a stranger. But it is sug*377gested that John, who was a son of the common ancestor, cannot be viewed as such. He might, however, make himself a stranger, as he did, by claiming adversely and disclaiming an interest as a son. Cum duo jura in una persona concurrunt, sequum ac si essent in diversis. He had no day in court by the proceeding; and, though he was ruled in, to exercise a supposed right of election, he disclaimed it. The partition, therefore, stands clear of collision with his title.
If, then, he originally entered as a tenant in common, but held the contested part in severalty, he may have held it adversely. There was evidence that he entered as early as 1794, and occupied it in severalty as a man would occupy his own. There was no positive evidence of ouster before 1818, when he procured a warrant for it in his own right; but might not an ouster be presumed from lapse of time? In Fisher v. Prosser, Cowp. 318, it was presumed, betwixt tenants in common, from uninterrupted possession without counter claim for thirty-six years; but, in Frederick v. Gray, 10 Serg. & Rawle 187, the time was reduced to the naked period of the statute of limitation. Now John began to occupy in 1794, or before it; the partitioii was consummated in 1818; and if he had then gained a separate title by the statute, the land sought to be charged had ceased to be a part of the intestate’s estate; and, not being a part of what was decreed to the cognizor, was not bound by her recognizance. The rule laid down in Frederick v. Gray is, that the statute bars the right of a co-tenant out of actual possession, where his fellow has exclusively claimed the whole for twenty-one years; but by exclusive claim is not to be understood a formal denial of the other’s right; on the contrary, it was deemed sufficient that the occupant had manifested, by her acts, that she considered herself owner of the whole. Can it be doubted that John had so considered himself? There certainly was evidence that he had separately farmed his part according to a line of division betwixt it and the rest of the tract. Too much stress it would; therefore, seem was laid on the want of a positive denial of the title; and, in this respect, the direction tended to mislead the jury by impressing on them a belief that it was indispensable. The difference betwixt the English rule and ours, regards the period, not the circumstances or quality, of the enjoyment: and, though Lord Mansfield admitted, in Fisher v. Prosser, that refusal to pay is not enough without denial of title where profits have been demanded, yet he said that, where none had been demanded, or payment of rents has not been made, or where there has been no claim by the outstanding tenant, and no actual acknowledgment of his title, it is sufficient for a jury to presume,, not indeed a forcible dispossession by the shoulders, but what is nevertheless an actual ouster. The circumstances of the enjoyment, in our case, very much resemble those in Frederick v. Gray, where the heir at law, as well as the tenant herself, had considered her the owner. There seems to have *378been an entire acquiescence in John’s possession by the rest of the children; and Sarah Allison testified, that “it was hard to say whether he claimed a separate right or not, that he was sometimes peaceable about parts of the fields and sometimes otherwise.” That looks very much like an assertion of exclusive right. But it is decisive that, from the exception of John’s possession, he took the profits without participation and without objection. Sarah indeed testified, that “Andrew fanned fields which they (John’s children) noio claim on that side of the place;” but she further said, “they have now got the whole place but the lot I live on.”. The question, however, regards not subsequent encroachments, but what John had held exclusively; and there was not a spark of evidence that his brothers or sisters had claimed a right to farm the ground on his side of the line except at sufferance; so that a legal presumption of ouster having arisen from a peaceable and an exclusive perception of the profits, it lay upon the plaintiff to rebut it.
In affirmance of another of the plaintiff’s points, it was also delivered to the jury, that John was a tenant in common with the others, unless a legal transfer of title was made to him by his father; that under such circumstances, the possession is not presumable to have been adverse; and that lapse of time would not vest an exclusive right in him. His possession, however, may have been adverse, though he were legally seized only in common; and according to Fisher v. Prosser, and Frederick v. Gray, it might be presumed so from a peaceable and exclusive perception of the profits.
The jury were further instructed in affirmance of another point, that an ejectment brought by Margaret against John in ISIS, as soon as the shares of the other children had been decreed to her, prevented the running of the statute from that time; and that the recital in the deed lo Eby in 1807, in which John had joined, with other proofs in the cause, repelled any presumption of adverse holding at the date of it. The point was partly irrelevant; for the character of the possession at the institution of the ejectment, had ceased to be material betwixt the parties to the recognizance. If the title to John’s part was already dissevered by the statute from the title, to the rest of the intestate’s estate, a simple admission of it, as still abiding in those who had been his co-tenants, would not restore it; but if it was not thus dissevered, it passed to Margaret by the confirmation of her election to take the estate at the valuation, and was bound by the recognizance, against which time ran in no shape, but to raise a presumption of payment when the period should arrive. Against Margaret, indeed, the statute might have run to maturity, had it not reached it before; but the land would continue bound by her recognizance without regard to the persons in whose hands the several parts of it might be, or the character of their possession of it as against each other. But this part of the direction, touching as it did an immaterial question, could no further prejudice the defendants, than by confounding the jury and concealing the true point on *379which the cause turned; yet even- that may have done them a substantial injury; and the same may be said of the prayer for direction, that during the pendency of her ejectment, Margaret might disclaim an interest under the decree of the orphans’ court: the drift of which is unintelligible. But the repellant properties ascribed to the recital in the deed to Eby, operating, as they did, if at all, before the decree of confirmation, and before the statute could have run its course, were of decisive importance. The fact recited is no more than “ that Thomas, the father, died seized and possessed of a tract of land in the township, county and slate aforesaid, bounded by lands now of David Eby, Gilson Craighead, the Yellow Breeches creek and others:” whence an inference of seisin by the father at the time of his death—a fact entirely consistent with a subsequent ad verse, possession of a part of it by one of his sons. The time of his death is not stated .by any of the witnesses; but it is said in the petition for an inquest, to have been subsequent to 1794. Still it follows not that John’s possession had not become adverse in time to complete the statutory bar at the confirmation in ISIS. But the recital fails to indicate precisely whether the father died seized of the whole, or only of Andrew’s part, from which was taken the parcel included in Eby’s conveyance. It may be asked why did John join in the conveyance, if the recital regarded only the latter? It may have been to confirm the title, and quiet a doubt entertained by the purchaser; or it may have been for any one of a thousand reasons which can not now be imagined. These recitals, though certainly competent evidence of the fact, yet being usually the work of the scrivener, as was remarked in Good v. Good, are entitled to less respect than oral confessions, which are particularly present to the mind of the party at the time. So far are they from being conclusive, that they are entitled to as little respect by a jury in regard to every thing else, as they were declared in Geddis v. Hawke, 1 Watts 287, to be entitled in regard to payment of purchase-money. This recital, therefore, did not necessarily repel the presumption of ouster from perception of the profits; and the prayer for direction in respect to it, ought not to have been granted.
Judgment reversed, and a venire de novo awarded.