
    Young vs. Withers.
    Ejectment.
    [Messrs. Allen and Craddock and. Mr. Owsley fox plaintiff: Mr. Dana for defendant.]
    From the Circuit Court eor Hardin County.
    
      June 6.
    statement of the oase
    The patents covering the land, conflicting titles of the parties, & facts as to possession by either, or those under whom they claim
   Chief Justice Robertson

delivered the Opinion of the Court.

James Young, having failed in an action of ejectment, which he brought, in the year 1836, against Delia Withers, now complains that the Circuit Judge erred, to his prejudice, in instructing the jury as to the effect of a long continued possession by those under whom the defendant holds.

The plaintiff claims under a patent for eight hundred acres to Richard Barbour; and the defendant holds under a junior grant, for one thousand acres, to William Withers, the father of her deceased husband.

William Withers, being a patentee, also, of five hundred acres, adjoining his one thousand acres, settled on his five hundred acre tract, about the year 1797, claiming to hold and enjoy all the land embraced by both of his patents, each of which conflicted, to some extent with the prior grant of Barbour, under which no actual possession had been taken.

Instructions, and questions presented.

Thus' claiming, William Withers continued to reside on the land until his death in the year 1823. In 1818, he placed his son Hiram (the defendant’s husband) on the thousand acre tract, where Hiram continued to live until his death, and where the defendant has resided ever since, claiming as his widow.

In December,' 1815, the plaintiff bought, under an execution against the heirs of James Barbour, .(who was one of the heirs of the patentee, Richard Barbour,) their undivided interest in the eight hundred acres granted to the said Richard, who, as well as the said James, was then dead; and, in October, 1820, the sheriff made a conveyance to the plaintiff, of the interest which he had thus previously bought under the execution.

In December, 1815, one Thomas Barbour, also, sold and covenanted to convey to the plaintiff, the most of the residue-of the eight hundred acres patented to Richard Barbour. But there is no evidence of Thomas Barbour’s authority to- make any such a sale or conveyance..

In 1.816, the' plaintiff settled a tenant within the bounds of Richard. Barbour’s patent, but not within the limits of either of the conflicting grants to William Withers. - And .during the same year,, and occasionally ever since, the plaintiff himself entered on portions of the land covered by all three .of the .conflicting patents, and cut and used timber. - And this is all the evidence of any actual possession at any time under Richard Barbour’s title, excepting only the fact that, on some occasion, since 1822, Hiram Withers expressed the opinion that Barbour’s title was the best; proposed to buy it,, and apologized for the cutting of timber within Barbour’s, boundary, by suggesting that it had been done by his-servants-without; his knowledge or authority.

Upon these facts the Circuit Judge, at the defendant’s instance, instructed the jury, in effect: first — that there was no sufficient proof of any such entry by the plaintiff upon the actual possession of William Withers, at any time within twenty years after .that possession had .commenced, as would suspend the running of the statute of limitations; and, secondly — that, if the jury should believe the foregoing facts, the actual possession of William Withé'rs — if .he. continued to claim to the extent of both of his patents — should be deemed to have been cóextensive with the bounds of his two patents, from’ the time he settled on the five hundred acre tract, until his death; and that, upon this hypothesis, they should find for the defendant.

A grantee having obtained separate patents for on and Tenteredt Maimingtf tie to both: the Icquired°&heid! vvithttte cMmJ8

A purchaser of land at sherriff's acquires no rightf of obtains’ the deed,

Whether either of-these instructions was'erroneous or not, is the only question we shall consider.

There being no contrariety or conflict in the evidence P , , . - . concerning the settlement and continued^ occupancy by William Withers, or as to the fact that he claimed tó have been, all the time, posséssed of all the land included by both of his patents, there can be no doubt that, in judgment of law,'he had been, at the time of his death, in the continued adversary possession of the land- now in contest, for more than twenty years: -unless some intermediate entry by the plaintiff had broken the continuity of that possession, or unless the subsequent conduct of Hiram Withers should authorize the deduction that the land in controversy had npt been,' in fact, claimed and occupied as. the land of William Withers, during as long a period as twenty years. And' therefore, if the first instruction be right, the second cannot be erroneous; and consequently, we will consider the first only.

Conceding every allowable deduction , from the facts proved by the plaintiff, it-seems to us, that the legal effect of those deductions must be — that the actual possession by William Withers — if always intended by.him to include the land in controversy, was never defeated or suspended by any- thing ever done by the plaintiff.

First. The plaintiff could have had no legal right of entry, for his own use, until after the sheriff's conveyanee, in the year 1820; and though it. were admitted that, however inconsiderable may have been the undefined common interest which he acquired by that conveyance, he might have taken possession of the whole of the eight hundred acres for himself and his co-tenants in common, yet, nevertheless, he had no legal title to enter in his own right until after the date of the sheriff’s deed; and there could be no pretence for assuming that his prior executory contract of purchase under execution gave him any authority, express or implied, to enter for those who then held Richard Barbour’s legal title.

An entry upon land, to be legal & available, must be by one having a legal right of entry when he enters.

An entry — to defeat a subsisting actual possession, must be with an express intention (manifest at the time,) to take possession: going occasionally on to the land, cutting and using the timber, is not sufficient.

An actual possession (with title) is not ousted by an entry upon an interfering tract, but not within the lap. The patentee of two tracts, residing on the smaller,settled his son on the other— with what extent of possession is not shown: avow als by the son to the owner of an in terfering claim, that that title was (as he thought,) the best, offering to purchase, and apologizing for intruding upon it &c, is not sufficient evidence that the patentee had withdrawn his claim to, or relinquished his possession of,the interference. The son’s admis? sions could affect only Ms possession, at most. And, if there was an express disclaimer by him, his_ widow, remaining in possession, might, nevertheless, a? vail herself of 20 years adversepos session by the pa tentee before the disclaimer, to pro teet her posses? sion.

And therefore, as it is clear that an entry, to be available and legal, must be by a person having, at the time of making it, a legal right of entry, we cannot resist the conslusion that no entry made by Young, prior to October, 1820, could have had the legal effect of defeating or suspending the actual possession of William Withers, or of any person holding under him. And there can be no doubt that William Withers’ actual residence had been continued more than twenty years before the plaintiff acquired any legal title.

But moreover, as a matter of law, the plaintiff’s acts between 1816 and 1820, should not be deemed such, as could have broken the continuity of any actual possession by William Withers, or by Hiram Withers,'even if, before 1820, the legal right of entry had been in the plaintiff.

An entry, to defeat a subsisting actual possession, must be made with the express intention to take possession, and that intention must be manifested at the time of entry. 1 Saunders, by Wms. 319, f. Stowell vs. Zouch, Plow. 366, a.

An occasional entry on land and using timber will not per se be sufficient for ousting an adverse actual possession. The cases supra, and McDowell et al. vs. Kinney’s Heirs et al. 3 J. J. Marsh. 518, and Humphrey vs. Jones, 3 Monroe, 262.

And certainly, the entry and occupancy by the plaintiff’s tenant, not within the bounds of either of Withers’ patents, could not have constructively evicted Withers, or in any manner, have affected his actual possession.

Then it appears to us to be an obvious deduction of law, as well as of fact, that, when this suit was brought, the plaintiff’s right of entry was barred — unless the conduct of Hiram Withers, as already described, could authorize the presumption that, before William Withers had been in the possession of the land as long as twenty years, he intended to circumscribe his claim by the interfering boundary of Barbour’s patent. But surely the evidence could not justify any such deduction. Its utmost effect in favor of the plaintiff, would be, that Hiram Withers, after his father’s death, and possibly before, did not consider his own possession as interfering with Barbour’s claim. But the extent of his right, as derived from his lather, does not appear; and before he settled on the thousand acre tract, his father had been constructively possessed of it, adversely to Barbour’s title, more than twenty years. And consequently, even an express disclaimer of title and of possession, afterwards, by the defendant’s husband, would not affect her legal right to protect her possession by the pre-existing and continued occupancy for more than twenty years, whereby the plaintiff’s right of entry was barred, and the right of possession was vested in the occupant and all claiming under him.

But, moreover, neither of the instructions precluded the jury from considering the effect of the evidence as to the conduct of Hiram Withers. They are both based on the hypothetical assumption, that William Withers had been in fact adversely possessed of the whole of the land embraced by his patents; and the last hypothetically assumes that he had been so possessed for twenty years at least.

We are therefore of the opinion that, there was no essential error in either of the instructions, and that the evidence authorized the verdict and judgment in favor of the defendant.

Wherefore, the judgment is affirmed.  