Hunter v. Ayres , 54 Ky. 210 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court—

This action of ejectment was brought upon the demise of Hunter and others, as heirs of Robert Hare, the grantee of a patent forten thousand acres of land, issued in 1788, to recover nine tenements in the possession of as many tenants, in the county of Owen. The plaintiff having adduced evidence conducing to prove all the facts necessary to authorize a recovery, the defendants on their part introduced evidence intended to make out a defense under the seven years limitation act of 1809. The jury, under instructions from the court, directed particularly to the question as to the facts which would entitle the defendants to the benefit of the seven years limitation, found two of the defendants guilty and the others not guilty of the trespass and ejectment charged. A judgment was rendered according to the verdict, and a new trial having been granted on the plaintiffs’ motion as to two only of the defendants found not guilty, and the motion as to the others having been overruled, the plaintiff has brought the case to this court.

It appears that the land sued for is covered by the junior patent of Bodley and Connelly, under which most of the defendants claim protection, as well as by that of Hare, under which the plaintiffs derive title. It seems, however, that one of the defendants, Sallee, obtained in 1827 a patent to himself on a Kentucky land office treasury warrant, for eighty acres, of which he has* been in possession ever since the date of the patent, claiming under it. The instruction of the court with respect to him was correct, and the verdict of the jury in his favor being clearly authorized and, indeed, required by the evidence, there was no ground for a new trial as to him-; and it will be understood ' that his case is not included or referred to in our further remarks upon the questions of law or fact involved in the case.

The court correctly instructed the jury that they should find for the defendant Jump, so far as the land sued for was within the patent of May, Bannister, & Co., which is older in date than that of Hare. But it does not appear that any of the land under that patent was claimed in this suit. And as Jump’s possession extended beyond the line of May, Bannister, & Co., and within the patent of Hare, his case to that extent comes under the same principles that are applicable to the other defendants. The main question in the case is, at what time did the possession of the defendants become so connected with the title of Bodley and Connelly as to bring them within the operation and protection of the limitation act of 1809 ? And this question includes not only the inquiry as to the period when the possession of each, and its connection with the patent, commenced, but also the inquiry, what must be the nature of the possession, and of its connection with the patent, in order to entitle it to the benefit of the limitation ? With respect to the nature of the possession required, there is little difficulty, because there is and has been for some indefinite period, (in most of the cases more than seven years,) an actual settlement or residence within the tenements claimed by the defendants respectively, and which has been transmitted to the present occupants. But the material inquiry is, what must have been the connection between the possession and the patent, and when must that connection have commenced ?

1. The limitation of seven years gives protection to the occupant only from the time he acquires title or claim, by contract express or implied.

In the case of Poage’s heirs vs. Chinn’s heirs, 4 Dana, 54, it was decided, and it has been so held ever since, that the relation of landlord and tenant is asufficient connection of the possession with the title of the landlord, and that, as that relation may be created and maintained for a succession of years by parol, so it may be proved by parol. And in the same case, page 58, it was also decided that the bare claim to be in possession under the title of another, without any contract, express or implied, is not evidence of such a connection between the possession and the title as is requisite to constitute a bar under the statute. And as the statute expressly enacts, (in both the 1st and 2d sections,) that “where the settler shall have acquired such title or claim after the time of the settlement made, the limitation shall begin to run only from the time of acquiring such title or claim,” we think it is perfectly evident that no possession can operate, or begin to operate to give protection under the statute until by contract, express or implied, it has become connected with the title.

2. It is the duty of the court, in giving instructions as to the effect of a possession of seven years as protection, distinctly and clearly to tell the jury that it must be a possession for seven years, with title, and that any possession before the acquisition of title is unavailing.

As the written contracts by which most of the defendants connect themselves with the patent of Bodley and Connelly, bear date in the year 1842, within seven years before the commencement of this action, and were made by an agent whose authority, as exhibited in this case, was also given in 1842, and as the defendants’ witnesses state in general terms that such and such persons, the defendants or those from whom they derived their possession, were in possession prior to the date of these contracts, claiming under Bodley and Connelly, it was essential to a correct finding of the facts on which the application of the statute depended, that the court, in instructing the jury on that subject, should have informed them distinctly and explicitly, that the statute did not begin to operate so as to protect the possession until there was a contract, express or implied, written or parol, with the patentees or their agent, or with one of them, or the agent of one, or the heirs or alienee of one or both, or his or their agent, by which the tenant in possession at the time obtained or held the possession under that patent, and that the subsequent recognition by a party so entitled or authorized, of a possession previously taken avowedly under that claim, but without any such contract, did not carry back the statute to the commencement of such possession, or of the claim to hold under that title. The instruction given on this subject is not only not explicit in stating the law as above declared, but it is, in our opinion, open to the inference by the jury, which, under the evidence in the case, was probably one ground of their verdict, that a subsequent recognition by one of the patentees, or by a person entitied under or authorized by one of them, would retro-act upon the previous possession, and bring it within the operation of the statute, so that if continued for seven years from its commencement it would be protected against an adverse claim. The instruction is, therefore, in our opinion, misleading and erroneous, and as it affects the entire verdict, so far as found for the defendants, except as to Sallee, the plaintiffs’ motion for a new trial should have been granted, not only as to the two defendants as to whom there were other grounds, but as to all except Sallee.

With regard to the lease from Scott, claiming to act for Bodley, &c., to Beard, under which it is contended that possession was acquired to the whole extent of the patent of Bodley and Connelly, which being made twenty years before the commencement of the action, brought the whole patent within the protection of the seven years limitation, its efficacy depended first upon the authority of Scott, which is not shown, and further upon the question whether it was accepted as a lease of more than fifty acres, which is at least doubtful upon the evidence of Beard himself; and third, whether the possession to that extent, if ever acquired, was not lost or abandoned; as to which, reference is made to the case of Simon vs. Gouge, 12 B. Monroe, 162-3.

For the error which has been pointed out in the instructions, the judgment in favor of the defendants, except Sallee, is reversed, and the cause remanded for a new trial, as to all the defendants who were found not guilty, except Sallee. But the judgment as against the two defendants found guilty, and also as to Sallee, is not disturbed.