Clarke v. McClure

• Decision Date: 07 September 1853
• Citation: 51 Va. 305
• Parties: CLARKE v. MCCLURE.
• Court: Virginia Supreme Court

51 Va. 305

CLARKE v. MCCLURE.

Supreme Court of Appeals of Virginia.

September 7, 1853

1. An open, exclusive, notorious and uninterrupted possession of land for more than twenty years, taken, held, and claimed under a parol gift from a plaintiff in ejectment, for a life not yet terminated, is no bar to his recovery in the action.

2. As a general rule, possession, to give title, must be adversary and where a defendant has entered under the plaintiff, and acknowledged his title as that under which he holds, he cannot controvert it.

3. To make out a title by adverse possession, as a general rule the title must be adverse in its inception.

4. An adverse possession depends upon the intention with which the possession was taken and held. Wherever the act itself imports that there is a superior title in another, by whose permission and in subordination to whose still continuing and subsisting title, the entry is made, such entry cannot be adverse to the owner of the legal title; and such possession so commencing cannot be converted into an adverse possession but by disclaimer, the assertion of an adverse title and notice.

5. A vendee who enters under an executory contract which leaves the legal title where it was, and contemplates a future conveyance, enters in subordination to it, holds under and relies upon it to protect his possession in the mean time. And in such case, as also in the case of lessee, mortgagor cestui que trust and the like, where one is in under the owner of the legal title, a privity exists which precludes the idea of a hostile, tortious possession, which could silently ripen into a title by adverse possession under the statute of limitations.

6. An entry on land under a parol gift from the owner, and a claim to hold any estate by virtue of the gift, is in its nature a recognition of the continued existence of a subsisting title in the legal owner; and a claim to hold any estate by gift from the legal owner, is a claim to hold in subordination to his legal title.

This was an action of ejectment in the Circuit court of Ohio county, instituted in March 1847 by John McClure against William F. Clarke. On the trial the plaintiff deduced his title by regular conveyances from the commonwealth. The defendant introduced evidence tending to prove that Andrew McClure under whom he claimed, entered into possession of the premises about June 1819, and held and occupied the same from thence until the fall of 1840 or 1841, when he died: And whilst he so held it, erected thereon valuable houses at his own cost and for his own use, and received the rents and profits thereof for his own use until his death: And that since his death his widow, and afterwards the children with the assent of said widow, held the said property and received the rents to their own use until the 11th of January 1847, when they contracted to sell the same to the defendant Clarke, and put him in possession. Also evidence tending to prove that Andrew McClure so held and occupied the said property as one claiming to have bought or got the same from the plaintiff and to be the owner thereof in fee: And that the widow and children, after his death, held it in the same manner.

The plaintiff thereupon proved that Andrew McClure was his brother; and introduced evidence tending to prove that said Andrew was a carpenter; that he came to Wheeling shortly before the year 1819, poor and embarrassed, with a considerable and expensive family; that he entered upon the premises aforesaid at the suggestion and by the permission of the plaintiff, under a verbal understanding or agreement, that he should go upon the premises, improve, live on and enjoy it for his life, or the life of himself and wife; and then that the plaintiff would give or convey the same to John McClure, jr. the son of said Andrew, then a boy several years old: That Andrew McClure at various times down to 1838, admitted this understanding or agreement, and that his rights in the property were in conformity to it; and that the widow of said Andrew and one of the defendant's vendors, both in the life time of the said Andrew, and since his death, made similar admissions: And also that the rents and profits of said property whilst so held by Andrew McClure, and his widow and children, were fully equal to the cost of the improvements erected upon the property by Andrew McClure. It also appeared that the widow was still living at the time of the trial.

The court thereupon, at the instance of the plaintiff, instructed the jury, " that if they believed from the evidence, that Andrew McClure entered into the premises by virtue of a verbal agreement with his brother to improve and enjoy the same, and take the rents thereof either for his own life or that of himself and wife, and that at the death of the said Andrew or that of the survivor of himself and wife, the said plaintiff was to give or convey the said property to the said John McClure the son of said Andrew; and that the said Andrew McClure held and occupied the said property during his life until his death, under the said agreement and in acknowledgment of the same; that then such occupation and holding ought not to be deemed adverse, so as to bar the plaintiff's action. And that if said agreement was not limited to the life of said Andrew, but extended to that of his wife, and that she was yet living, if the same was by parol, and never executed by deed, and the legal title always remained in the plaintiff, such agreement was no bar to the recovery of the plaintiff, notwithstanding the said widow was still living."

The defendant then moved the court to instruct the jury, " that if they believed that the defendant, and those under whom he claimed, have had the exclusive, open, notorious and uninterrupted possession of the land in controversy in this cause, during more than twenty years next before the commencement of this action, claiming to own an estate for life, which has not yet expired, such claim being, during all that time, known to the plaintiff, then such possession and claim are sufficient to bar the recovery of the plaintiff in this action." Which instruction the court gave, but with this qualification: " Provided the jury believe from the evidence, that such life estate, so possessed and claimed as the instruction supposed, was derived and claimed under some one, other than the plaintiff; and was not a life estate derived and claimed by parol from the plaintiff himself, by the said Andrew McClure and said Andrew and wife, for the life of the former or that of the survivor of them."

The defendant then moved the court to give the same instruction as that last asked as aforesaid, with the addition at the close of it, of the following: " Notwithstanding such possession and claim may have been commenced by Andrew McClure under whom the defendant claims, by virtue of a parol gift from the plaintiff to the said Andrew McClure." This instruction the court refused to give; and the defendant excepted to the refusal of the court to give the instructions asked for by him, and for giving the addition to the first instruction so asked for. There was a verdict and judgment for the plaintiff; and upon the application of the defendant a supersedeas was awarded.

Russell, for the appellant.

Fry, for the appellee.

ALLEN J.

This was an action of ejectment, in which the defendant relied upon an adverse possession in himself and those under whom he claimed, to defeat the plaintiff's recovery. A bill of exceptions was filed, setting out evidence on both sides. It does not appear that all the evidence is so set forth; but it must be intended to have set forth, if not all, at least so much of the evidence as served to show the materiality of the instructions which each party asked for: And the instructions themselves must be construed with reference to the facts, which the evidence set forth, proved or tended to prove. The court gave the instruction asked for by the plaintiff; and gave the first instruction asked for by the defendant, with a qualification; and refused to give the second instruction asked for by the defendant: And the bill of exceptions brings up for review the correctness of these decisions.

The questions, though presented under different aspects, at last resolve themselves into one.

John McClure, the fee simple owner of a lot in the city of Wheeling, permitted his brother Andrew to enter upon, improve and enjoy the property, and take the rents, under an alleged verbal gift of the property to his brother for his life or the lives of himself and wife; and Andrew, as it was contended, claimed to own an estate for life derived from such verbal gift; which claim was known to John McClure during the whole time that his brother held the possession.

On these facts the question arises, Whether an open, exclusive, notorious and uninterrupted possession for more than twenty years before the institution of this suit, taken and held as aforesaid and under such a claim, was such an adverse possession as would bar the plaintiff's action of ejectment?

As a general rule, possession, to give title, must be adversary. And where the defendant has entered under the plaintiff, and acknowledged his title as that under which he holds, he cannot controvert it. Thus the lessee is not permitted to dispute the title of the landlord. Having entered under and holding in subserviency to it, it is that which maintains and...