Lessee of John Mercer, and Mary Scott Mercer, His Wife, Plaintiffs In Error v. William Cary Selden, Defendant

• Decision Date: 01 January 1843
• Citation: 1 How. 37,42 U.S. 37,11 L.Ed. 38
• Parties: LESSEE OF JOHN MERCER, AND MARY SCOTT MERCER, HIS WIFE, PLAINTIFFS IN ERROR, v. WILLIAM CARY SELDEN, DEFENDANT
• Court: U.S. Supreme Court

42 U.S. 37 1 How. 37 11 L.Ed. 38 LESSEE OF JOHN MERCER, AND MARY SCOTT MERCER, HIS WIFE, PLAINTIFFS IN ERROR, v. WILLIAM CARY SELDEN, DEFENDANT. January Term, 1843

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Virginia.

The facts in the case are stated in the commencement of the opinion of the court, which the reader is requested to turn to and peruse, before referring to the sketch of the arguments of counsel.

The decision of the court being made to rest entirely upon the statute of limitations, all those branches of the argument relating

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to the invalidity of the deed from Selden and wife to Dr. Mackay, on account of its not having been read to her, and of a defect in its acknowledgment, are omitted.

Whipple and Walter Jones, for the plaintiffs.

Chapman Johnson, for defendant.

On the part of the plaintiffs, it was argued: 1. That Mrs. Swann and her children were within the express exceptions of the statute; under the double disability of infancy and coverture.

2. That no disseisin or adverse possession is operated by any length of continued possession, however, hostile may be the new pretence of title under which possession is held over, if the possession were not tortious at its inception, but in subordination to or consistent with the true title.

3. That this is especially true where a husband, who having rightfully come into possession jure uxoris, holds out possession against her heir after descent cast by her death; however hostile the claim and strong the colour of exclusive title asserted for himself; and though the heir be sui juris, and in no nearer relation to husband and wife than simply as her heir at law.

4. That the intrusion, even of a mere stranger, on lands descended to an infant, constitutes the intruder, ipso facto, a fiduciary possessor, quasi guardian, subject both at law and in equity to all the duties and liabilities of such fiduciary possessor, and utterly incapable of converting his fiduciary possession into a disseisin or adverse possession.

5. Multo fortiore, when, as in this case, the heirs were not only infants, but united in their persons all the relations of his step-children, of co-heirs to his wife, and his wards; when the guardian care and conservation of all their rights of property and of possession had devolved, as a strict legal duty, on him ex officio.

6. That the right of action had never accrued when the infants had a right to sue, being restrained either by coverture or a tenancy by the courtesy.

On the part of the defendant, it was argued, that none of the exceptions in the statute have any application to this case, but those in favour of infants and femes coverts. The right of entry of Mrs. Mercer's mother, and of her uncle, John Page, accrued at the death of Mrs. Selden, in 1787; or, at the latest, accrued to

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John Page when he attained full age, prior to 1792, and to Mrs. Swann when she was married, in April, 1794.

First, as to John Page.

His disability of infancy being removed, and the guardianship account being settled in 1792, his right of entry, if any remained to him, certainly accrued as early as the 21st of December, 1792, when he was under no disability, and so he remained until his death in the year 1800.

The statute having begun to run against him in his lifetime, runs over all subsequent disabilities. Adams on Ejectment, 59; 2 Preston on Abstracts, 339; Blanchard on Limitations, 19, in the first vol. of the Law Library, 10; Jackson dem. Colden v. Moore, 13 Johns. 513; Jackson dem. Livingston v. Robins, 15 Johns. 169; Fitzhugh v. Anderson, 2 Hen. and Mumf. 306; Hudson v. Hundson's Adm., 6 Munf. 355; Parson v. McCracken, 9 Leigh. 501, 507.

Secondly, as to Mrs. Swann.

Her right of entry accrued either when she was an infant and unmarried at the death of her mother, or when she was both an infant and a married woman, in April, 1794. Her disability of infancy ceased a few months after her marriage, and her disability of coverture ceased at her death, in 1812. But so far as regards her daughter, Mrs. Mercer, there has been a succession of disabilities from the death of Mrs. Selden to the present day.

Can these disabilities be united so as to continue her protection?

The authorities relied upon to maintain the power of tacking disabilities, are Blanchard on Lim. 19, 20, in Law Library, 10, 11; 2 Preston and Abstracts, 340; Cotterell v. Dutton, 4 Taunton, 826. But even Blanchard's opinion is, that successive disabilities in different persons cannot be connected; and Preston states that the later decisions are, that successive disabilities cannot be united, 2 vol. p. 341; and the following authorities prove that they cannot: Adams on Ejectment, 60; 6 East, 80; approved in Tolson v. Kaye, 3 Broderip and Bingham, 223, decided in Common Pleas, in 1822; Eager and wife v. Commonwealth, 4 Mass. 182; Griswold v. Butler, 3 Conn. Rep. 227; Floyd v. Johnson, 2 Littel, 114; Clay's heirs v. Miller, 3 Monroe, 148; Thompson v. Smith, 7 Serg. and Rawle, 209; Demarest and

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wife v. Winkoop, 3 Johnson's Ch. Rep. 129; Jackson v. Wheat, 18 Johns. 40; Jackson v. Johnson, 5 Cowen, 74; Bradstreet v. Clarke, 12 Wendell, 602; Doe dem. Lewis v. Barksdale, 2 Brock. 436; Parsons v. McCracken, 9 Leigh. 495. In the last case Judge Parker cites the case of Swann v. Selden, as authority for the same proposition, it having been recognised by Judges Cabell and Brockenborough.

If the plaintiffs are not within the exceptions to the statute, then the question is, whether, supposing them to be under no disability, they are within the principle of the statute; or, in other words, has there been an actual adversary possession in the defendant, and those under whom he claims, for fifteen years before bringing this suit?

Here it must be remembered that we are trying this question, not upon the testimony of witnesses, not upon the evidence of facts from which other facts may be inferred, but upon a special verdict finding all the facts, and leaving to the decision of the court the naked question of law, whether these facts constitute a possession which the statute of limitations will protect. In Bradstreet v. Huntingdon, 5 Peters, 402, it is said, 'Adverse possession is a legal idea, admits of a legal definition, and is therefore a question of law.'

Taylor dem. Atkyns v. Horde, 1 Burrow. 60, was upon a special verdict finding the facts, and referring the law to the court; and in that case it being ascertained that the plaintiff's right of action had accrued more than twenty years before the bringing of the suit, he was regarded as having the onus thrown upon him of showing why he had not sooner entered. This case is reported also in Cowper, 689, and 6 Brown's P. C. 633; it is also stated in 3 Cruise's Dig. title 31, c. 2 and 33.

In this case, (Taylor v. Horde,) the verdict did not find that the possession was adversary; but it found the facts upon which the court pronounced that the plaintiff's title was barred by the statute. The case seems to have been briefly this. There was tenant in tail with power to make leases for lives, and with remainder in tail to the right heirs of the grantor. The tenant in tail made leases for three lives, and afterwards suffered a common recovery with a view of barring the entail, and cutting off the remainders limited thereupon. The person entitled to the remainder

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in fee died, having devised it to the lessor of the plaintiff. The tenant in tail afterwards died in the year 1711 without issue, and his heir, claiming under the common recovery, entered, and he and those claiming under him continued to hold the land till the year 1753. The survivor of the three lessees for life died in 1752, and then the devisee of the remainderman in fee entered and made the lease on which the action was brought. The defendants defended themselves upon two grounds: 1st, that the common recovery had barred the remainder in fee; and 2d, that if it had not, the statute of limitations had barred the entry of the plaintiff. The plaintiff insisted that the common recovery was void for want of a proper tenant to the praecipe, and so the court held. The plaintiff also insisted that his right of action did not accrue till the death of the surviving lessee for life, so that there was no bar of his entry; but the court held that the lease for lives was void, so that the plaintiff's right of entry accrued in 1711, and was barred by the statute. This judgment of K. B. was affirmed in House of Lords.

La Trombois v. Jackson, 8 Cowen, 589, was also a case of a special verdict, finding the facts, which the court held to amount to an adverse possession. The facts which, in the opinion of the court, constituted an adverse possession in the defendant were, long possession under a contract for a future conveyance from a...