The opinion of the court was delivered by
Church, J.— The court below very properly ruled adversely to the alleged trust. The evidence was clearly insufficient to support that character of defence. Hence the only questions in this corn-t, arise out of the charge to the jury, touching the title set up under the Statute of Limitations, and upon the exceptions taken by the plaintiff to evidence admitted in the trial, on the same subject. These latter will be discussed first.
The portions of the deposition of Richardson, considered inadmissible, relate specially to the question of trust, but the court having peremptorily instructed the jury that this branch of the defence was not established, by the evidence in the cause, there would scarcely be propriety in reversing the judgment on this account. And some of the principles involved in the exceptions covered by the second, third, fourth and fifth specifications of *234error, could be disposed of here in like manner, but for others embraced in them having relation to the question upon the statute, and which consequently demand further notice and attention. It is an undoubted principle of evidence, that a defendant in ejectment may prove his own act of taking possession to show its character and extent, as well as his intention and object or purpose in doing so, as the same was at the time manifest from his own concurrent declarations; on the principle that they form an essential part of the act — the res gestee. But it is a well settled elementary doctrine, that such declarations are only competent because and vrhen they are contemporaneous with the act itself, and so immediately connected with it as to illustrate its true character with reasonable certainty. And, therefore, it is obvious, that declarations in the nature of a narrative of a past occurrence, cannot be received as evidence of such occurrence. 1 Stark. Ev. 302, 303; 1 Green. Ev. §§ 108, 110; Tompkins v. Saltmarsh, 14 S. & R. 280; Enos v. Tuttle, 3 Conn. Rep. 250. The admission, by the court below, of the testimony of the witnesses Luster, Boggs and Hiley, as the same appears in the exceptions and specifications of error, was a violation of these rules and principles of evidence. It was incompetent for the defendants to show, by the declarations of their ancestor, the circumstances of Ms previous possession. How and what he claimed and held then, at the time of his speaking, was the most they could thus be permitted to prove. The evidence received was beyond this limit.
That the previous verdict and judgment for the defendants was competent evidence for them, there could be no doubt. Koons v. Hartman, 7 W. 20, and Levers v. Van Buskirk, 4 Barr, 309, are authorities for it. But it was inadmissible for those purposes that are indicated in the sixth specification of error. The evidence, however, does not very distinctly appear to have been received, or the use of it by counsel permitted by the court, for any such purpose. The plaintiff’s paper book is defective in this respect. And the allegation is denied by defendants ; consequently the court would not reverse for an error depending on such an uncertainty as arises here.
The seventh specification of error, is neither in form nor substance, presented according to the rules of court, (6 Har. 578,) nor can it be otherwise rendered very intelligible. And the defendants having taken advantage of this defect or omission, the question supposed to be embraced in it will not be discussed. It is not, however, very probable that defendants can evade the effect of the rule upon them to produce these letters, by any such subterfuge as indicated by plaintiff. The character of the counsel concerned is such as to preclude all suspicion that he is involved in, or privy to any transaction of the kind.
*235And now we come to the consideration of the questions presented by the several specifications or assignments of error to the charge of the court in answer to plaintiiFs points. In the trial of complicated causes before a jimy, there may as much error sometimes result from the manner, as from the matter of the charge of the court. The former, however, can seldom be the subject of review and correction here. But tl*e latter is easily re-examined and controlled, by the practice of proposing points of law to the court, for instruction to the jury. And if these points, distinctly propounded, are pertinent, and material to the issue or questions involved, and legitimately arise from any portion of the evidence in the cause, direct and unequivocal answers must be given. Any material omission or evasion whatever, directly or indirectly, by way of argument, or otherwise, or a want of reasonable precision and distinctness in the answer, will be treated as error, except where a negative would have been proper. These views are supported, both by sound reason and an unbroken chain of authority. Brown v. Campbell, 1 S. & R. 176, 178; Shaeffer v. Landis, Ib. 449; Smith v. Thompson, 2 Id. 49; Powers v. McFarren, Ib. 44; Hamilton v. Menor, Ib. 70; Vincent v. Huff, 4 Id. 298; Slaymaker v. St. John, 5 W. 27; Noble v. McClintock, 6 W. & S. 58; Kitchen v. Deardorf, 2 Barr, 481. In our peculiar method and form of trial, wherein the verdict of a jury may be, in effect, decisive of the law and facts both, we shall have no settled rules whatever, but become a lawless people indeed, unless these two departments be kept so entirely separate and distinct, that the former may be fairly and definitely brought before the superior tribunal. Very careful attention, therefore, by the courts, to this rule of law, is of the utmost importance. And unless this court demand a strict practical adherence to it, there will be neither security for property, nor eertainty in the administration of justice.
The general principles of law, announced by the court, are not so obnoxious to criticism, nor subject to so much ground of complaint here, as the manner and connections with which these principles were enunciated, in answering the plaintiff’s points. This latter forms, indeed, the principal material substance of nearly all the errors assigned to the charge. The eighth specification of error, may be taken as a fair illustration. The proposition in the point was very clearly and distinctly presented, that whether the original, or subsequent entry of the defendant’s ancestor was, with the consent of, and under, plaintiff’s testator and devisor, was a question of fact for the jury; and if they should find he did so enter into possession, his subsequent declarations of ownership, payment of taxes, and making the kind of improvements he did on it, taken singly or collec*236tively, were insufficient in law to confer a title, under the Statute of Limitations. This was certainly a distinct legal proposition, pertinent to the case. But the court seem to have treated it as a matter of fact alone, and as such, submitted the question to the jury, under the instructions given in the general charge, to determine “ the character of the possession under all the evidence of the case.”
After a careful examination of the evidence before us, we entertain no doubt of the insufficiency of this answer. It does not cover the question proposed. A party has a right to demand specific instruction, on a point framed by him to meet any legitimate hypothesis, that arises out of any given portion of the testimony he may consider reliable, isolated from, and independent of, such as he deems not so. If this were not the rule, the question of credibility of witnesses, so peculiarly for the jury, might be effectually withdrawn from them; at least the party would be deprived of the fair advantages of it. That the question, whether McClelland Hood entered into possession under John M. Hood, was one of fact, will not be denied. 'And if he did so, after returning from the east, in 1824, (and this is a part of the proposition made,) we must ascertain the time subsequent, when he first made any definite declarations of notorious, independent dominion over the land, adverse and hostile to John M. Hood. In this inquiry, we must not overlook the principle, universally recognized, that the burden of clear and definite affirmative proof of all essential requisites to maintain it, is thrown upon the party who sets up title under the Statute of Limitations, against a legal one in writing, which is otherwise good and perfect. After the return of McClelland Hood, in 1824, 'the history of the case derived from the testimony, nowhere discloses, as we can discover, anything like declarations of the character already indicated as necessary, until within a period less than that which is required to perfect a title under the statute. The first definite period of subsequent unequivocal declarations of hostility to John M. Hood’s title, is in 1833, or 1834, and appears in the testimony of James Buff, where he says, he requested a place for a school-house, and of John Red-path, at the time he speaks of a stranger riding by, and inquiring whose farm it was, and whether for sale, a circumstance in itself of but little importance. And then, in 1839, as proved by Samuel Boggs, and at a still later period, as testified by John Merryman. There is nothing, that we perceive, in the mere fact of “the payment of taxes,” by McClelland Hood, nor in “ the making of improvements, such as he made,” inconsistent with the relation between the two brothers, in respect to the land, as the same is properly submitted in the point.
Instead of the affirmative answer that would have been proper, *237followed up as perhaps it might have been, by reference to other material and pertinent facts in evidence touching the same question, and not sufficiently embraced in the point, if any, the court not only refused the instruction demanded, as matter of law, but submitted the facts, to which in the point, special reference is made, not separately and with precision, but in connection with all the evidence in the case as a whole, and in a manner very liable to confuse and mislead the jury. It is very manifest therefore, the court 'erred in thus answering the plaintiff’s seventh point.
. The questions involved in the ninth and tenth specifications of error, are so much alike in principle, that they may well be disposed o^,together.
Whenever the possession of one person is shown to have once been in subordination to the title of another,- as is suggested in the plaintiff’s eighth and ninth points, it will not be adjudged afterwards adverse to such title, without clear and positive proof of its having distinctly become so; for every presumption is in favor of the possession continuing in the same subordination to the title. Rung v. Shoenberger, 2 W. 23, 27. What shall be considered clear and positive proof on the subject, has not as yet, we believe, been judicially determined by this court, as matter of law. In M‘Masters v. Bell, 2 Pa. R. 180, it is said to require some decisive act or declaration, to change the character of a possession. And in that case, some of the acts of ownership were, clearing the land, setting out and growing an orchard -and erecting buildings, — a two-story house, with stone chimney in it, — on the premises. But these, it seems, being among other things, submitted to the jury, did not prevail with them to support the title under the statute in that case. Hence it. might be, perhaps, fairly inferred, that the court did not adjudge these acts to be of that decisive character, as matter of law. In the later case of Martin v. Jackson, 3 Cas. R. 504, where the statute was set up against a mortgagee, the question is further discussed, and the preceding doctrine and cases recognized, and the following language used by Lewis, C. J., in delivering the opinion of this court, (p. 510, 511.) “ Unless, it [the act of . alleged hostility or disseisin,] was brought to the notice of the mortgagee, as a claim of title in hostility to his own, he is not to be affected by it as the commencement of an adverse possession. So long as the tenant who entered under his title, remains in possession, he has a right to presume that he continues there in'fidelity to the tenure.” And further, “But it is clear that he cannot be disseised by a secret act, which works no visible change in the possession, such as the payment of rent by the tenant in possession to another person, with the consent of the -mortgagor.” The soundness of these general views cannot be *238questioned. They are founded upon the principle in the law of evidence, that whenever a state of things, or a personal relation is once established in proof, its continuance is presumed, until affirmatively shown to be otherwise.
The position taken here by the plaintiff, requires express notice of the change in the previous character of the tenure, before the statute shall begin to run. This may be considered the general doctrine derived from the cases and principles cited. But then what is express notice ? • The literal meaning of the term is, plain and clear notice; and is certainly no more than actual notice. We think therefore, that the charge of the court below, on the subject, is substantially correct. The learned judge, who delivered it, very properly said, the statute would not begin to run, until the possession became adverse by some decisive acts or declarations, -showing the same to have become hostile, and, “ done or made in such a manner, and under such circumstances, as to leave no doubt on the mind of the jury, that they were brought home to the knowledge of John M. Hood, or his agent, if he had any.” We cannot say there is any material error in this answer. It is an exposition of the law, raised by a literal view of the language of these points. If not full enough to meet all the facts on the subject, the plaintiff could have varied the language, and thus required more definite instructions. It is no ground in general for reversal, that in answering the points, the court have omitted observations by way of application or explanation, that might have been very properly made, but which have not been specially required on the trial. The error, if any, has been more likely with the jury. Whether there was any sufficient evidence to justify the verdict rendered, is not a question for this court, on these specifications of error.
The exceptions taken in the court below, which are embraced in the eleventh, twelfth, and thirteenth specifications here, arise from evidence involving questions and principles very similar. Much that is applicable to these, has already been observed, in connection with the discussion of the eighth assignment or specification of error, and need not, therefore, be repeated. The plaintiffs tenth and eleventh points were very material, and there was certainly sufficient evidence to justify the submission of them. Therefore, according to the authorities already cited, and which are repeatedly recognized in other and subsequent cases, the plaintiff having fairly demanded it, was clearly entitled to a distinct and unqualified affirmative answer to both of them, and so that the principles and application of them could not well be misapprehended or misunderstood, by the jury. We look in vain for such throughout this charge. It is clear the statute had not run its course in 1828, and if the facts were found by the jury to be as assumed by plaintiff in these points, *239there is no question but the law resulting therefrom, would be as therein claimed also.
The force of the objection to the qualifying observation of the court, in affirming plaintiff’s twelfth point, depends upon whether there was any evidence that David acquired his eight acres from McClelland, instead of John M. Hood. If there was none, the court erred in submitting the question to the jury in the manner they have done.
The letter of January 5, 1828, from McClelland to John M. Hood, contains at least an implied recognition of the title of the latter, to this tract of land. It is also in evidence that McClelland was informed that John M. Hood was about to give a piece of the land to David, some time before the conveyance .was made, and also his disinclination "to do the same for him, and that he made no objections to the former, but murmuring some at the latter, seemed to acquiesce by looking out to buy elsewhere. David himself, testifies that he obtained the land from John M. Hood, and that this was known to M‘Clelland. He also says that long before the deed was given, he had by correspondence with John M. Hood, at Philadelphia, where he resided, received from him a promise of it from the back part of the place, but by further negotiation, he finally secured it on the road, where it was.surveyed off to him, by one Courtney, a surveyor, and the deed subsequently made to him for it by John •M. Hood, and all this well known to McClelland during the time, but progressing without any objection whatever on his part, and without even consulting with him on the subject, so far as the evidence indicates. This appears like very complete evidence that this piece of eight acres was acquired by David from John M. "We assume there is no other evidence in support of the hypothesis submitted by the court, than what is given by defendant’s paper book ; for the argument and discussion here has been wholly based upon that. It is all really contained in the testimony of Mrs. David Hood, where she says, “ McClelland helped to move my husband on the place,” and again “ McClelland marked it off for David.” Mrs. Baldwin’s understanding, without knowing from whom derived, except that it was not from the parties, nor when and where, amounts to nothing. From such evidence, a jury could not legally infer that it was McClelland, and not John M., who gave these eight acres to David. If this could be done, the title to land would depend upon shadows of evidence instead of substance. A position which no sound system of jurisprudence can sustain. It has always been adjudged error to permit a jury to pass upon a matter of alleged fact without evidence, or to submit evidence to a jury on instructions, that they may infer a given fact, when such inference cannot legally arise from it. Switland v. Holgate, 8 W. 385, 387; *240Gilchrist v. Rogers, 6 W. & S. 488. We think, therefore, the court erred in the suggestion or intimation given to the jury, that they might find it was M‘Clelland who gave the eight acres to David. The charge in this respect was erroneous, and the question presented by it material, from its relation to the point then under discussion.
The fourteenth and sixteenth specifications of error are not sustained. The plaintiff’s thirteenth point is substantially and properly answered affirmatively in the general charge. Although it is usually the better practice to answer the points directly, as such, in their proper connections, yet an omission to do so, will not ordinarily be a cause for reversal. There is no error in the answer to defendant’s eleventh point. The fifteenth error is assigned contrary to the rules of this court, 'and is, therefore, not considered. The principle involved in it, however, has already been sufficiently discussed.
Judgment reversed and a venire facias de novo awarded.