
    DEN EX DEM. WATSON AND WIFE AND DEBORAH DAVIS v. OWEN KELTY AND OTHERS.
    In Ejectment for lands in Salem.
    A general partition of lands of a decedent, lying in two or more counties, cannot be made by commissioners appointed by the Orphans’ Courts of those counties, although they be the same persons. They most divide the land in each county among all the heirs. The Surrogate General, is the proper appointing power, if the partition is to be differently made, that is general, and by a single allotment to each heir.
    The disability that saves from the operation of the statute of limitations, is of a personal character, and can only he set up by the parties and those claiming under them.
    A defendant may show a title out of the plaintiff; but shewing that a third person might defeat the plaintiff’s title, if he chose to set up his minority or other disability, is a very different thing.
    Lands held in severalty peaceably twenty years, under a colorable partition, will amount to evidence of title, under the statute of limitations.
    When lands are held in severalty upwards of twenty years, in quiet possession, under a semblance of legal partition in severalty, an agreement of all parties, may be presumed to such partition, — although a parol partition might not be originally good under the statute of frauds.
    
      R. P. Thompson, for plaintiff.
    
      F. L. MacCullough, for defendants.
    STATE OF THE CASE.
    This case came on to be tried before the Chief Justice at the Salem Circuit, December term, 1837, when a verdict was rendered for the plaintiff under the direction of the court, subject to the decision of the Supreme Court, upon the following state of the case, viz:
    The premises in question consisting of a small dwelling house and about 5 acres of land, situate near Sandy Ridge, in the county of Salem, together with other lands situated in the county of Cumberland, formerly belonged to one Abel Cook, now deceased, and were in his possession at the time of his death, which took place prior to the year, 1799.
    Abel Cook died intestate, leaving a widow and six daughters, viz : Anna, the wife of George Davis. Deborah, who married David Harris, and Susannah who married a man named Smith. Christiana, who married David Speers. Ruth who married Daniel Gilman — and Sally who married a man named Sheets. Three of these daughters are living, and the rest of them are all dead, leaving children.
    In March term, 1779 of the Orphan’s Court, of the county of Salem, an application was made by or o-n behalf of some of the said heirs o.f Abel Cook, for a Partition among them of the lands which belonged to their father in the county of Salem — whereupon Jacob Elwell, Joshua Sims and Ephraim Bennett, were appointed Commissioners, by an order of the Orphans’ court to divide all the lands of Abel Cook, lying in the county of Salem, equally among the said several children, naming them, respectively.
    To prove the application and appointment aforesaid, the counsel for the plaintiff offered to read from a book, which he stated to be book A., of minutes of the Orphan’s Court of Salem County, but it was objected by the defendant’s counsel, that the minutes of that Court were not evidence per se, and if they were, that the Circuit Court could not take notice that the book produced was a book of minutes, or a record of the Orphans’ Court. To avoid this objection, however, the plaintiff’s counsel then produced a writing which was proved to be a compared copy from book A, page 278, of the minutes of the Orphans’ Court, of Salem county, and which was then read in evidence to the Jury (pro ut the same.)
    The commissioners above named, made their report to the Orphans’ Court in the term of June 1799, by which it appeared that they had divided all the lands whereof Abel Clark died seized in the county of Salem (being the premises now in question ;) between his two daughters Anna Cook and Christiana Speer, and by a memorandum at the foot of the report, they refer the reader or the parties concerned, to the records of the Orphans’ Court, of the county of Cumberland, for the shares of the other Children of Abel Cook, in his lands; which report was read in evidence to the jury, (pro ut the same) bearing date the 1st of June, 1799, and endorsed “ Filed confirmed June, 3d 1799, recorded lib. A, fol. 309,” and signed “Samuel Dick, Begister.”
    The plaintiff then gave in evidence, a deed dated 1st January, 1810 from George Davis who married Anna Cook, to William Davis, by which he conveyed to the said William Davis, life estate in that portion of the premises in question, which had been allotted by the said commissioners, to his wife Anna Cook (pro ut the said deed )
    The plaintiff also gave in evidence, a deed dated 6th June 1810, from the said Geo. Davis, to the said Wm. Davis by which deed, the former conveyed to the latter, in fee simple, the residue of the premises in question, which had been allotted to Christiana Speers, another daughter of the said Abel Clark, as her part of his lands. This deed recites that the premises therein described, had been conveyed by Speers and Christiana his wife, formerly (Christiana Cook) to one Morrison, and by the said Morrison and his wife, to the said George Davis, (prro ut the said deed.)
    The plaintiff then called the said George Davis as a witness, and the lessors of the plaintiff having executed and delivered to him in open court a sufficient release, he was sworn and testified as follows: ‘Cl knew Abel Cook — he lived on property called Siddons’ property, near Sandy Ridge — he was in possession of the premises in question, the road separated them from the lot on which he lived — he died in possession, after his death I married his daughter Anna Cook — his land was divided before I married — when I married, my wife’s share was in possession of David Harris, her guardian — I took possession and lived upon it two or .three years — I rented it one year to a man named Long, and after that to one Myers — while Myers had it, my wife Anna died — I had two children by her, one of whom is still living, as I believe — she married a man named James Bowen— her name is Mary Ann. After I sold my life estate in my wife’s share, to my brother William Davis; he took possession and rented it out — when I moved on my wife’s lot, one Isaac Morrison was in possession of her sister Christiana Speers’ lot. I bought it of him, the same spring that I took possession of my wife’s lot. He and his wife made me a deed for it, on parchment. When he gave me that deed, he also delivered to me, a deed from Christiana Speers and her husband, to him for the same lot — that deed was also on parchment. (Three separate pieces of parchment written on, and appearing to have been once an entire piece, and purporting to have been a deed, being shewn to the witness, he said) I believe them to be parts of the deed from Speers and Christiana his wife to Morrison, which was delivered by him to me, as before stated. When I sold to my brother William Davis, I gave him up the parchment deeds before mentioned, which I got from Morrison when I bought of him. These pieces of parchment now shown to me, I got lately from Mrs. Phoebe Goller. Mrs. Ruth Watson and Deborah Davis, two of the lessors of the plaintiff, are daughters of my brother William Davis; Deborah is the oldest, she is twenty-five or twenty-six years old. My brother William Davis, never had any other children, to my knowledge and belief. He and his wife are both dead — it is twelve or fifteen years since I heard of their death.— I went out of the State about eighteen years ago. William Davis was then in possession of both lots, my wife Anna’s and Christiana’s.
    The plaintiff then called John Kates, who, being affirmed, testified that he knew Abel Cook and the premises in question, more than thirty years ago. He lived on the Siddons property and rented out the premises in question. He knew his two daughters,' Anna Cook and Christiana Speers. At one time, Geo. Davis, the last witness, lived on one of the lots, and Morrison on the other. Afterwards William Davis had the two lots, now in possession of Owen Kelty, one of the defendants. I farmed the premises one year under William Davis, and one year under his widow. He died I think while I farmed under him, twenty or twenty-five years ago.
    William Bradway, another witness for the plaintiff, testified that he occupied the premises in question, under William Davis for two years, and that he and his wife are now both dead.
    Phoebe Gollar testified — she knew William Davis and his wife. He died in 1814, and his wife about ten years after that period. That Mrs. Davis was the witness’ aunt, being the witness’s mother’s sister. That Mrs. Davis, three or four years after William Davis’s death, married one Smith. That Smith undertook to repair or rebuild the house on the premises, but never completed it, and did not move into it. That Mrs. Davis had papers in her possession, relating to the premises now in dispute. They were two parchment deeds and some other papers. After Mrs. Davis’s death, witness’ mother took possession of them.— Mrs. Davis told her to do so and to take care of them till her daughters Ruth and Deborah (who are the lessors of the plaintiff) should grow up. The witness further testified that after her mother’s death, she took the deed, and papers. They were placed on a board or shelf between the beams of the house where Airs. Davis lived. When the witness left the house, she left them there. She had shown them to the girls Ruth and Deborah, and they said they knew nothing about them, and considered them of no use. After that, she cut the parchment deed as it now appears. She cut it for patterns. The deed cut, was one of the deeds her mother got of Airs. Davis. It was a deed from Speers and Christiana his wife, to Morrison. The pieces now shewn here in court, were delivered by witness to George Davis, the other deed was from Morrison and wife to George Davis, was left in the house. Ruth and Deborah the lessors of the plaintiff, were the only children of William Davis.
    James Holliday another witness, testified as follows. I found in the house in which Mrs. Davis died, when I moved into it, a parchment deed, between the beams and some papers rolled up in it. They were thrown out and played with by the children, and were lost or destroyed by them.
    The several pieces of parchment before spoken of, were then read in evidence — (pro ut the same) and the plaintiff rested.
    The defendants did not set up any adverse title, but objected to the sufficiency of proof on the part of the plaintiff, and insisted,
    1st. That admitting the title of Abel Cook, yet there had been no such lawful partition amongst the heirs as to’entitle his daughters Anna and Christiana to the premises in question, in exclusion of the other heirs.
    2d. That the proceedings in the Orphans’ Court, were unauthorized, unlawful and void.
    3d. That if the plaintiff was entitled to recover at all, he could only recover for the aliquot parts of Anna and Christiana, viz: for two equal undivided sixths of the premises in question.
    4th. That George Davis, although released, was not a competent witness, and if he was, yet that the loss of the deed from Morrison and wife, to George Davis was not sufficiently proved to admit of parol evidence of its existence and contents.
    Whereupon the Chief Justice, with the consent of the counsel on both sides, directed the jury to find a verdict for the plaintiff, which they did, subject to the opinion of the Supreme Court upon the case stated.
    If the court shall be of opinion that the plaintiff is entitled to recover the whole premises, then Judgment shall be entered generally for the plaintiff. If the court shall be of opinion that the plaintiff is entitled to recover only an undivided portion of the premises, then judgment shall be entered for the plaintiff accordingly. But if the court shall be of opinion that the plaintiff is not entitled to recover upon the case as stated, then the verdict shall be set aside and a new trial granted.
   Hornblower, C. J.

1. I am of opinion that George Davis was a competent witness.

2. That the loss of the deed from Morrison and wife to Geo. Davis, was sufficiently proved to admit parol evidence of its contents.

3d. That the partition was unlawfully made; it was a void proceeding, and not in accordance with the duties and powers of the commissioners and the directions of the statute upon that subject ; and consequently that Anna Cook and Christiana Speers did not thereby become entitled to hold in severalty, the premises in question. The twelfth section of the act to ascertain the power and authority of the ordinary, &c., (Rev. Laios, 779,) authorizes the Orphans’ Courts of the several counties to appoint commissioners to make partition of lands lying in their respective counties, and the fourteenth section of the same act provides that where a person dies intestate, seized of lands in fee simple, situate in two or more counties, such partition may be made under the direction of the Surrogate General. When, therefore, the land lies partly in one county and partly in another, the heirs at law, if they wish to have one general division, must apply to the Surrogate General, for the appointment of commissioners, but the Orphans’ Court can only appoint commissioners to divide the land situate in the county over which their jurisdiction extends, and such division must be made among all the heirs. The lands lying in Salem, ought therefore to have been divided into six parts, and allotted among all the six heirs. If application was also made to the Orphan’s Court of Cumberland, the commissioners, (even if they happened to be the very same persons,) should in like manner have divided those lands among all the heirs. These proceedings seem to have been a device to super-cede the jurisdiction of the Surrogate General, and to show the absurdity of the attempt, it is only necessary to inquire, what would have been the result, if the Orphans’ Court of one county hasl affirmed, and the other had disaffirmed and vacated the report ?

In this case, the application to the Orphans’ Court of Salem county, was for a partition of all the lands lying in that county, among all the heirs of Abel Cook, and the commissioners by the very terms of their commission, were instructed to make sueh partition, instead of which, they have allotted the whole of the lands lying in that county, to two of the heirs only, referring the other heirs by a memorandum at the foot of their report, to the record of Cumberland county, for their shares of the inheritance. If, therefore, the lessors of the plaintiff, had no other grounds to rest upon, but the matter of partition, they could only recover in this action two undivided sixths of the premises in question, in one sixth of which they would have a fee, and in the other only an estate, during the life of their uncle, George Davis. But,

4th. It appears that Abel Cook died seized, previous to the year 1799 — that in June 1799,- the premises in question were set off to his daughters Anna and Christiana, as their shares of his estate, and that they and those claiming under them, continued in possession for nearly twenty years, and perhaps for more than that period. William Davis, the father of the lessors of the plaintiff, died in possession in 1814, which was fifteen years after the partition. His widow, the mother of the lessors of the plaintiff” continued in possession until she married Smith, which was three or four years after the death of her husband, William Davis. If four years, then the possession had continued nineteen years, under the partition. After her marriage with Smith, he undertook to rebuild the house though he never completed it, nor moved into it; but Mrs. Smith survived her husband William Davis, about ten years, and as t-here was no evidence of any change of possession, or at' least of any adverse possession, it may fairly be presumed, that she died in possession, and consequently that the premises have been possessed under the partE tion, however erroneous that may have been, for at least twenty years. And as the defendant has entirely failed to shew any adverse title either possessory or documentary, I think the verdict ought to stand.

It may be true that there has not been twenty years possession by Anna and Christiana, and those claiming under them, since all the heirs at law of their father Abel Cook, came of age; and if the defendants had shewn any right or title under any of the heirs not barred by the statute, by reason of their minority, they might have set up the disability of those under whom they claimed, in avoidance of the plaintiff’s right to recover on the ground of possession. But the disability that saved from the operation of the statute of limitations, is of a personal character, and can only be set up by parties and those claiming under them. A defendant may shew a title out of the plaintiff; but shewing that a third person might defeat the plaintiffs’ title, if he chose to set up his minority or other disability, is a very different thing. In my opinion, therefore, the plaintiff ought to have judgment.

Ford, J.

Abel Cook died intestate, leaving six children, all daughters, & leaving real estate in the two counties of Salem and Cumberland. The Orphans’ Court of Salem appointed commissioners for dividing the lands in that county, among all the heirs; and the Orphans’ Court- of Cumberland, appointed the same commissioners for dividing the lands in it, among all the heirs. The commissioners acted under both commissions at the same time; but did not pursue the literal directions of either of them; for they assigned all the lands in Salem county, to Christiana Cook and Anna Cook, and thus excluded the four other daughters from any share therein; giving lot No. 5 to Christiana, and lot No. 7, to Anna, which two lots comprised all the lands of the ancestor, in Salem. They also assigned all the lands in Cumberland county, to the four other daughters, thus excluding the two others from ; ny share therein. This partition was confirmed by the Orphans’ Court of the county of Salem on the 1st of June 1799. The heirs made no opposition to this irregular execution of the commission, each one having an equal portion of her father’s estate, as she probably believed, at the time; nor has either of them expressed any discontent with it from that time to the present. It is the defendant who takes exception to the legality of that partition, though he does not claim under the ancestor, or either of his heirs. But the statute makes a partition by commissioners “ as valid and effectual in law, as if the same had been made on writs of partition at the common law,” liev. L. 93, section 8. The record could not be questioned (in any collateral action) of a partition at the common law. Whether this record can be questioned, in this collateral way, under the statute, needs perhaps no present consideration, for Christiana has held lot No. 5, for thirty-eight years, in peaceable possession, under a semblance of legal partition, in severalty ; and Anna, and those under her, for the same length of time; from whence an agreement of all parties, may be presumed, to this partition; and though a parol partition might not be originally good, under the statute of frauds, yet lands holden in severalty, peaceably, for twenty years, under a colorable partition, will amount to evidence of title, under the statute of limitations ; and therefore the plaintiff established Christiana’s title sufficiently to lot No. 5, and Anna’s to lot No. 7, in severalty.

Now, Ruth Watson, (formerly Ruth Davis) and Deborah Davis her sister, the children and heirs at law of William Davis deceased, claim these two lots 5 and 7, as the property of their deceased father at his deatli; and they show it in the following way.

1. Lot No. 5, allotted to Christiana Cook in 1799, was taken into immediate possession, by-her guardian, and transferred on her marriage, to George Davis, her husband; at her death, George Davis the husband, becoming entitled to "it as tenant by the curtesy, for life, conveyed his life estate therein, by deed of January 1810, to William Davis, and delivered to him peaceable possession. At William Davis’s death, it passed into the peaceable possession of his widow and his two only children, Ruth and Deborah, and they remained in possession, till the death of the widow in 1824; so that they showed a claim of uninterrupted and peaceable possession for more than twenty years, in themselves and those under whom they claimed; transmitted down from Christiana Cook to whom it was allotted in 1799. They could maintain an ejectment on this possession, even if they shewed no documentary title whatever; yet they showed one of equal clearness. Their father had a freehold estate in this lot, to continue during the life of George Davis, who is still living, and though an estate per autre vie vests in the administrator of the deceased tenant, Rev. L. 224, sec. 1, yet he takes it in trust for the next of kin after payment of debts; and they may be fairly presumed to hold as next of kin, by his appointment until the contrary be shown.

2. Then as to lot No. 7, which was taken by Anna in severalty, she and her husband Speers transferred the possession of it, to Isaac Morrison • Morrison, to George Davis and George Davis conveyed it in fee to William Davis the father of the lessors, and he having died seized, his widow and children appear to have remained in possession, till her death in 1824, shewing a line of possession, peaceable and unbroken to this lot No. 7, for upwards of 20 years. And as to their documentary title, the parchment deed for this lot, was cut up into patterns, by a neighboring woman, as an old writing of no value, during the minority of the lessors; some of the pieces of which, were produced at the trial, & being identified by George Davis as parts of the deed from Speers and wife to Isaac Morrison, I think sufficient evidence of this deed was given to the jury. Isaac Morrison conveyed the lot by another parchment deed to George Davis; and George Davis testified that he delivered both these parchment deeds to William Davis, at the time he conveyed the lot to him, by the deed of the 5th of June, 1810, produced at the trial. So the jury had sufficient evidence of a documentary title in William Davis, the father of the lessors, independently of twenty years’ possession; and I am of opinion, that the plaintiff is entitled to judgment on the postea, for the whole of the premises.

White, J. concurred. Dayton, J. expressed no opinion.

Judgment for the plaintiff.  