
    NANCY DUDLEY ET AL. v. WILLIAM BROWN.
    At Law. —
    No. 15,086.
    In an action of ejectment, the declarations of the defendant, made by him at a period after twenty years from the time lie claimed to have taken adverse possession, are to be submitted to the jury in respect of the nature of such possession. •
    STATEMENT 0E THE CASE.
    This was an action of ejectment for the recovery of part of lot 1 in square 729, lying and being in the city of Washington and District of Columbia.
    On the trial of the cause before the chief justice, the plaintiff gave in evidence a series of conveyances, which showed that one George Cole became seized of the premises in question on the 6th of July, 1829, and afterwards died leaving the plaintiffs his surviving heirs at law.
    And thereupon the defendant gave evidence to the jury tending to show that his grandmother, one Sophia Jackson, was in possession of said real estate in 1819, living there as the head of the family; that she died about the year 1840, leaving her husband and unmarried daughter — the aunt of the defendant — in possession of the said real estate; that said daughter died about the year 1842, when the defendant entered into possession of the said real estate, and that he has since held uninterrupted possession thereof, claiming title in himself. And here the defendant rested.
    And thereupon the plaintiffs gave evidence to the jury tending to show that the said George Cole, deceased, was the son-in-law of the said Sophia Jackson, the grandmother of the defendant; that prior to his departure for the Island of Hayti, after the year 1829, he attempted to sell the said real estate, failing in which, he left his wife’s mother, the.said Sophia Jackson, in possession thereof, with the expressed wish that she should hold the same during her life, and that at her death it should pass to his (said Cole’s) sister.
    
      And the plaintiffs gave other evidence to the jury tending to prove that in the month of October, 1875, the said defendant declared and stated at different times, and to different persons, but particularly to two of the plaintiffs in this suit, that he was not the owner of the said real estate, but that the same belonged to the heirs of George Cole; that his aunt had, just prior to her death, placed him in possession of said real estate, with the request that he should preserve it for the heirs of the said George Cole, and that he was now willing to surrender the same to the said heirs upon their refunding to him the amount which he had expended on said property by way of taxes and improvements.
    At the close of the testimony several instructions were asked, of which the following is the only one that was considered. It was a request of the counsel for the plaintiffs that the court instruct the jury as follows:
    “The declarations of the defendant made at any time are admissible against him to show that he did not claim ownership in the property, and if the jury believe from the evidence that the defendant William Brown has declared, either to any of the plaintiffs or other persons, that the property in question belonged to the heirs of George Cole and not to him, and that he would return it to them upon his being repaid what he had spent upon the property, then and in that case the defendant’s holding was not an adverse possession within the meaning of the law, and the plaintiffs are entitled to recover.”
    But the justice presiding at the trial ruled as follows:
    “I will give such instructions, subject to this limitation: that the jury must further find that the declaration was made within twenty (20) years after the defendant went into possession of the property, claiming title thereto.”
    To which refusal of the court to give the instruction as asked, and to the giving of the instruction as limited, the counsel for plaintiffs duly excepted.
    The verdict was in favor of the defendant, and the cause is nowhere upon a motion for a new trial in the first instance on a bill of exceptions!
    
      Birney Birney and Edward A. Newman, for plaintiffs.
    Testimony as to the declarations of a defendant in ejectment may always be introduced to prove a tenancy under the plaintiff or his'lessors; and such declarations are binding upon the defendant, unless he can show a paper title, which the law will not permit him to give away by parol. (Davies v. Pierce, 2 Term R., 63; Jackson v. Dobson, 3 Johns. R., 223; Jackson v. Scissam, 3 Id., 498; 6 Id., 21.) The defendant’s declarations, and the other testimony offered by plaintiffs, show that the defendant entered upon this property as trustee for the heirs of George Cole. Where the entry is of such a character, the trustee is never permitted to set up a possession or title in himself adverse to the cestui que trust.
    
    
      John H. Cook, for defendant.
    The third instruction was properly refused. Wm. Brown’s defense of adverse possession began in 1842; if proved to the satisfaction of the jury, would ripen into perfect title in 1862. The court was asked in the third instruction to say to the jury that alleged statements of the defendant, as to the ownership of said property, made in 1875, thirteen years after the expiration of the statutory period, would prevent the jury, from finding — even if so proved — that the defendant, up to 1862, bad held uninterrupted possession of said property for twenty years, claiming title in himself.
   By the Court:

The ruling of the court below, that the declarations of the defendant were not to be considered, unless they were made within twenty years after he took possession of the premises in question, was a qualification of the instruction requested by plaintiffs’ counsel which ought not to have been made. This view is now concurred in by the chief justice who tried the cause at the circuit. The statements of the defendant had been admitted in evidence, and ought to have been submitted to the consideration of the jury. We do not say that the defendant was concluded by this testimony, for its reliability was a question for the jury. It went simply to explain defendant’s possession. The proof that be confessed to the plaintiffs and others that he entered without title, and held possession only for the heirs of the owner of the legal title, would have a tendency to show that he had been holding all along as a tenant, and not adversely to the plaintiffs’ rights. TTis admissions at any time to this effect were admissible as facts for the jury to decide. They might not have been sufficient to entitle the plaintiffs to a recovery; but as the jury was misdirected, the verdict must be set aside.  