Pratt v. Eby , 67 Pa. 396 ( 1871 )

The opinion of the court was delivered,

by Sharswood, J.

A title depending on the bar'of the Statute of Limitation maybe a marketable title which a purchaser will be compelled to accept, provided it clearly appears that the entry of the real owner or owners is barred: Shober v. Dutton, 6 Phila. Rep. 185. As where there is an owner in fee under no disability at the time the title accrues as against whom the statute begins to run and of course continues to run as against all his alienees, whether of particular estates or otherwise, and twenty-one years elapse without entry, or what is equivalent thereto, twenty-two years elapse without an action brought founded upon an entry within the twenty-one years. By the Act of April 13th 1859, § 1, Pamph. L. 603, “ no entry upon lands shall arrest the running of the Statute of Limitations unless an action of ejectment be commenced therefor within one year thereafter.” Even if the owner be tenant in tail, at the time of the decision, and the bar becomes complete as to him, no entry can be made “ by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred; and whensoever the Statute of Limitations shall have begun or shall begin to run against the tenant in tail it shall continue to run against the issue, remainderman or reversioner, unless arrested by the act of the tenant in tail:” § 2 of the same act. If tjie owner, however, should be under a disability at the time the adverse possession commenced, then the Act of April 22d 1856, Pamph. L. 532, applies. The first section of that act provides “that no exception in any Act of Assembly respecting the limitation of actions in favor of persons non compos mentis, imprisoned, femes covert or minors, shall extend so as to permit any person to maintain any action for the recovery of any lands or tenements after thirty years shall have elapsed since the right of entry thereto accrued, to any person within the exceptions aforesaid.” The other exception in the Act of 1795, as to persons beyond seas, was repealed by Act of March 11th 1815, Pamph. L. 125. In addition to this there is the further security provided by the second section of the Act of April 22d 1856, Pamph. L. 532, by which it is enacted “ that no purchaser or mortgagee shall be affected with notice of the pendency of any ejectment or action to recover real estate, or to compel a conveyance thereof, unless such action shall be indexed against the defendant and any terre-tenant made a party thereto in a book to be kept by the prothonotary, and called the ejectment index, for which the plaintiff shall furnish the necessary information.” Prior to 1856, the docket had to be searched to ascertain if there was any lis pendens.

The plaintiff below took adverse possession of the premises on March 1st 1840, at which time the right of entry, if the Orphans’ Court sale was defective, was in the heirs-at-law of the Rev. Robert Graham in fee; and thirty years having expired, whether they were then under the .disability or not, all right of entry in them, or any person claiming under them, is barred, unless there has been an entry followed by an action of ejectment, or an action within that period, of which the docket of the Court of Common Pleas, and perhaps of the Circuit Court of the United States, will furnish the necessary negative evidence. Thus qualified and fortified we would he disposed to hold such a title resting on adverse possession to be indubitable, and therefore marketable.

But that which we have found to be a more difficult question to answer in the affirmative is, whether this title is clear of all encumbrances. Andress, the purchaser at the Orphans’ Court sale, paid one-third of the purchase-money in cash, and the balance was a charge upon the estate by the order of the court requiring the execution of a mortgage, and by the execution and recording of the same. According to the case stated, this mortgage was one “ in which Ann Graham, administratrix of Rev. Robert Graham, by her attorneys in fact Washington Ross and Mark A. Hodgson, specially constituted, are, the mortgagees named.” We are not provided with a copy of the mortgage; but we must assume that it is truly described. Now it can hardly be pretended that the receipt of the money, and, the entry of satisfaction by Washington Ross, after the death of Ann Graham, would be sufficient evidence of the extinguishment of the mortgage. But more than twenty-one years have run since the date of it, “ and no payment, claim or demand on account of said mortgage has since been made by any one.” It is contended that this presents a case within the 7th section of the Act of April 27th 1855, Pamph. L. 369, by -which it is provided “ that in all cases where no payment, claim or demand shall have been made on account of or for any ground-rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground-rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground-rent, annuity or charge shall thereafter be irrecoverable.” Is this mortgage within the meaning of the word, “ground-rent, annuity or other charge upon real estate?” If it is, the title is unencumbered. If not, there is only the ordinary presumption of payment open to be rebutted, a risk which a purchaser cannot be required to assume. Upon this question it may be argued that “ other charges upon real estate,” means other charges ejusdem generis with ground-rent or annuity, a charge arising from deed or will. My opinion is that the act should have a liberal construction, and be held to apply to all kinds of charges upon real estate, to which the ordinary presumption of payment applied, making such presumption to be juris et de jure. Upon this question the members of this court are divided in opinion. That of itself is a sufficient reason for not forcing the title upon a purchaser. It is a great, though perhaps a common mistake, to suppose that a doubtful title can be made marketable by an opinion of a court on a case stated between Vendor and vendee. We have not the heirs of the Rev. Robert Graham before us as parties in this action, and their rights cannot be concluded by any judgment we can give.

Judgment reversed, and now judgment for the defendant on the case stated.