M‘Coy against The Trustees of Dickenson College.
Wednesday, June 16.
A commissioners* deed under their common seal, is no evidence of title: but it the purpose of one'who was proved to have session! held the plaintiff in a case fendant relies" on the statute of limitations as a defence,
Where the defendant sets up a possession of twenty-one years under the act of limitations, and gives evidince of a possession by A., he may give evidence to shew, that A., held adversely to the plaintiff, though he has not previously proved the connection of his possession with his own.
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ERROR to the Court of Common Pleas of Northum• berland county. ,
The trustees of Dickenson College who were plaintiffs below, made title under an application in the name of Thomas ^°gersi entered the 3d April, 17'69, on which a survey was made the 9th July, 1772, and returned the 23d August, 1772. Thomas Rogers, conveyed to John Musser, who conveyed to Samuel Miles, who conveyed to the plaintiffs. The defendant rested his defence on possession, which he endeavoured to protect under the statute of limitations. He gave evidence, that one Cornwell, and one William Clark, lived on the land m dispute, about the year 1/90, and that Wil^am Clark, held under James Willing. He gave evidence also, of several other persons who lived there at different . ..... „ „ , times, without shewing a conveyance from any one of those Persons to the other. He then offered in evidence, a deed from the commissioners of Northumberland county, to James ** Willing, under their common seal, dated 20th December, ^8^» ^or the land in dispute, which had been sold for taxes, *255as the property of John Musser. This deed had been acknowledged by the commissioners, before a justice of the peace of Northumberland county, and recorded, and was offered, “ not as evidence of title, but for the purpose of shewing the extent of William Clark's possession, and that WilHam Clark, held under James Willing, adversely to the plaintiffs.” To this evidence, the plaintiffs objected, and upon the Court’s rejecting it, the defendant excepted to their opinion.
Marr and Greenough, for the plaintiff in error.
We offered the deed simply as evidence of the nature and extent of the claim of James Willing, under whom William Clark held. When we offered it, it was premature to shew the connection of the defendant with William Clark. We were first to shew, William Clark's adverse possession, and then our connection with him. Just so a patent is first given in evidence, and afterwards the title is brought down to the party in the suit. The evidence of the defendant was not gone through when this deed was offered: but even on the evidence which had been given, we had a right to submit to the iury, whether or not the' defendant held under William Clark.
Hall, contra.
The defendant rested on the act of limitations ; but failed in proving a continuity of possession. An unconnected broken possession in several different persons, was shewn, but the defendant was unable to unite his possession with that of those who preceded him. Now a deed of this kind from the commissioners under their common seal, has been decided, to be a nullity, and not admissible in evidence. Wistar's lessee v. Kammerer.
Young's lessee v. Martin
3 Yeates, 186. It was not evidence for any purpose whatever, under these circumstances. Nor was it competent for the defendant to give evidence, that William Clark held under James Willing, without shewing, that the defendant held under William Clark. But the evidence shewed the contrary. In Faulkner v. Eddy’s lessee,
it was decided, that a deed made by one who had no kind of title, should be rejected in the first instance.
*256The opinion of the Court was delivered by
Tilghman C. J.
At the time when this deed was executed, the commissioners had no lawful common seal, and it ^as ^een several times decided, that such deeds are of no validity. It conveyed no title to James Willing, and there£ore woui(j have been no evidence of title. But it was offered for a different purpose. A man who stands on the act of limitations, must prove a possession-adverse to the plaintiff, for twenty-one years before the commencement of the action. But how is this to be done ? The bare possession, being in itself equivocal, recourse must be had to acts and declarations of the possessor, in order to discover quo animo the possession was held. It having been shewn, that William Clark, held under James Willing, nothing could be stronger evidence of his holding adversely to the plaintiffs, than by shewing that his landlord’s pretensions were directly adverse to John Musser, under whom the plaintiffs claim. No matter whether James Willing, had title or not. He came into possession, in hostility to John Musser. But the plaintiffs’ counsel say, that before the defendant could be permitted to shew that William Clark’s possession was adverse to the plaintiffs’, it was incumbent on him to prove, that his own possession was derived from William Clark. On the other hand, the defendant contends, that it Was time enough for him to shew his connection with William Clark, after hehad proved the nature of William Clark’s possession; and besides, that he had already given evidence, from which he intended to insist before the jury, that his connection with Wflliam Clark, was sufficiently proved. I think the defendant is right. No objection was made to the evidence of William Clark’s being in possession; and having been proved to be in possession, it was certainly proper, to shew whether that possession was under the plaintiffs, or against them. The plaintiffs ought to have made this objection when first the. evidence was offered of William Clark’s possession. But if the defendant had been asked then, for what purpose he offered the evidence of William Clark’s possession, he might barely have answered, that he intended afterwards to shew his connection with William Clark. The Court would not have put him upon shewing his connection, in the first instance ; for that would have been inverting the natural order of things. Just so, when the plaintiffs offered the npplica*257íion and survey under which they derived title, they might say, that they would afterwards deduce title to themselves, and if they did not, the application and survey would go for nothing. I am clearly of opinion, that the evidence offered by the defendant, ought to have been admitted. The judgment therefore should be reversed, and a venire facias de novo awarded.
Judgment reversed, and a venire facias de novo awarded.
Gibson J. assented.
Duncan J., gave no opinion, having been counsel for the trustees of the college.