
    [SuNBVitY,
    June 30, 1823.]
    FREDERICK and others against GRAY.
    nsr error.
    The admittance or rejection of a witness offered after the evidence has been con-' eluded, and counsel have commenced speaking, is a matter of discretion with the court, and is not a subject of error.
    If a person to whom land is devised on condition of releasing a debt due by the testator, receives the debt, the title to the land is relinquished, and the receipt of the money from a third person, vests no title to the land in such third person. Yet if such third person takes possession, and is suffered to hold it by the. family,' and the money was the full value, and the payment was known and acquiesced in by the heir, and improvements were made, especially if it was of land held under ’ warrant and survey, and the transaction was before 1760, when this was considered personal property, it seems, chancery would direct a conveyance.
    Devise of a moiety of a. tract to be talieiroff the side nearest the testator’s brother, and the other moiety to another: the: devisees are not tenants in common, but either may support ejectment.
    When one tenant in common enters on the whole, and takes the profits, and claims the whole exclusively for 21 years, the jury ought to presume an actual ouster, though none be proved.
    Error to the Court of Common Pleas of Mifflin county, specially held before Reed, President, and the associate judges of Mifflin county, in pursuance of the act of assembly.
    It was an ejectment for part of a tract, of land in that county. Both parties claimed under John Gray, the elder, who died seised in fee of the whole tract, in 1759, or 1760, having made his will, dated the 12th April, 1759, by which he devised as follows: “I give unto my sister, Mary Gray, one full half of my plantation lying and situate on Juniata river, in Tuscarora valley, to be taken off the side lying next to my brother James Gray’s plantation, upon this condition, that she pay to my nephew John Gray, (son of James Gray,) the sum of £5 in one year after my decease, and in consideration of her making no demand of £ 131 formérly borrowed of her. The other half of my said plantation I give unto my'
    
      loving wife, Hannah Gray, and my daughter, Jane Gray, to be divided between them share and share alike: but in case my said wife should die before the execution of this my will, or never return from captivity, then her part both of real and personal estate bequeathed to her to remain to my daughter Jane. And if it should .so happen that my daughter Jane should die, or not retui’n from her captivity, and my wife return and survive her, so, in like manner, that part given to my daughter shall remain in my wife and her heirs for evesr.” At the time of making.the will, the testator’s wife and daughter, who had been made prisoners and carried off by the Indians, were in captivity.- The wife afterwards returned, but the child never did, in consequence of which her mother became entititled to her share of the estate. The testator made his sister Mary Gray, the executrix of his will, and his daughter being dead his eldest brother James was his heir. T.he plaintiffs, who were children of John Gray? son of James, (the heir of the testator,) claimed under the said James, and also under Mary Gray, sister and devisee of the testator, by virtue of a deed from her to John Gray, father of the plaintiffs, dated the 21st May, 1803. The defendant claimed under Hannah Gray, the wife of the testator; and the land in dispute was that part which was devised to Mary Gray, the sister of the testator. It would seem, that Mary Gray did not accept the devise made to her, because she did not comply with the condition of relinquishing the debt of £ 13 due to her from the testator. This appeared by a written receipt signed by her, and dated JLugust 19th, 1760, in the following words: “Received of Hannah Gray, the sum of £ 16, it being in full of all debts, dues and demands against the estate of John Gray.” Hannah Gray, the widow of the testator, "by whom this sum of J 16 was paid, married a certain Enoch Williams, and the whole tract was held by them for upwards of twenty one years, when John Gray, son of James, got the possession and he’ld it until he was dispossessed by an ejectment brought against him by Enoch Williams and wife. In what manner John Gray, obtained the possession was matter of dispute. The plaintiffs alleged that he entered by order and in right of his father James Gray, the heir of the testator. But the defendant averred, that he came into possession fraudulently and in collusion with the.tenant Williams.
    
    On the trial in the court below, exceptions were taken by the defendant below to the opinion of the court, rejecting evidence, and also to various parts of their charge to the jury, in answer to points proposed. OCtbe former, however, only two became material in the argument in this court.
    1.'After the evidence was closed, and one counsel on each side had addressed the jury, a witness named John Patterson, was brought in on an attachment for contempt, which issued after he had been subpasnaed on behalf of the defendant, and was now offered as a witness for the defendant, but the plaintiffs objected to the admission of his testimony, and it was overruled by the court.
    
      2. The defendant contended that the £ 16 paid by Hannah Gray to Mary Gray was the full value of that part of the land which was devised to Mary, and, therefore, the receipt of the money by Mary, was equal to a,conveyance of the land, but the court charged otherwise.
    3. The court charged as follow: “ The defendants rely also on their long possession. Its efficacy must be determined by the evidence in relation to it. One half of the tract was devised to the widow and Jane, in the event of their returning from captivity. The widow did return, and was entitled, at all events, to a possession of part of the tract so devised according to the terms of the will. If Mary owned the other part under the will, the widow and she would be in possession of the other. So if Mary did not take under the will but relinquished her right, and old John Gray died intestate as to the one half, then the person to whom such moiety would descend by the act of assembly, or the course of the common law, would be a tenant in common with the widow, and the possession of one would be the possession of the other, and not such adverse possession as would, without actual ouster, give title after 21 years. It would be otherwise if the two parts of the tract were separated from each other. In that case, actual adverse possession by one against the other for 21 years or upwards, before suit brought, would be a positive bar.”
    The jury found a verdict for the plaintiffs.
    
      Hale, for the plaintiffs in error,
    was proceeding to .argue the first bill of exceptions to the rejection of the evidence of Patterson, but the court intimated, that it could not be supported: it was a matter in the court’s discretion, and not the subject of a writ of error.
    He then took up the other points.
    1. The £13 paid by Hannah Gray, was the full value of the moiety devised to Mary Gray. A Court of Chancery would have decreed a conveyance to her, after paying the full value of the land. This would be more especially the case when the nature of these rights by warrant and survey at that time is considered. As late as the year 1760, they were treated as personal property, and sold by an administrator without an order of the Orphan’s Court. No ejectments were thought to be maintainable on them until some time about the year 1760. Bonnet’s Lessee v. Devebaugh, 3 Binn. 187. Without any deed, therefore, the payment of the money fay Hannah, and her taking and keeping possession without complaint from that time, gave her an equitable right which could not be divested, after a lapse of years.
    2. The court erred in charging, that there must be an actual ouster to give operation to the statute of limitations between tenants in common. An exclusive possession, and receipt of profits by one tenant in common for 21 years, amounts to an ouster, or at least is a strong presumption of it. Vandyke v. Vanburen, 1 Caines, 84. Adams on Eject. 55. 1 Mass. Rep. 320. 10 Mass. Rep. 464. Cowp. 217. Nor, indeed, were the devisees under the will tenants in common of the whole tract. Mary’s half was to be taken off a particular part, namely, the side next the testator’s brother James. For this portion ejectment would have lain. No writ of partition eould-have been supported between the devisees.
    
      Carothers, contra.
    1. What right did Hannah Gray acquire to this moiety of the land by paying £ 16 to Mary Gray? She claims, it'would seem, to come in as a substitute of Mary, the devisee on condition: but that cannot be, She was a mere stranger to the title to this moiety. She could not have been compelled to pay the money: being neither heir nor executrix. There is no conveyance of the land by Mary, nor any thingto show an intent in her to sell it: nor if there were, would it avail Hannah, because Mary had no title. Supposing that Hannah had an equity against the land for the 16 £ paid by her, (embracing the £ 13 mentioned in the will, and interest,) she would have to account for the rents and profits during the time she held the land: and if she was accountable for the rents and profits, she was a trustee, and the act of limitations would not operate in her favour.
    2. Supposing there was a tenancy in common, the possession of one is the possession of both, unless there was an actual ouster. There must be adverse possession: the receipt of profits is not sufficient. The doctrine of adverse possession is taken strictly : and the presumption is that possession is in accordance with the ownership. 4 Bac. Ab. 467. Limitations, B. 1 Dall. 67. 1 Johns. 157. 9 Johns. 167. The devisees were certainly tenants in common, though of a peculiar nature neither; knew exactly what his portion was, though the general position of eách was designated. A partition was necessary to define their exact boundary. Though perhaps not strictly tenants in common to all intents, they ought to be so considered in reference to the statue of limitation.
   The opinion of the court was delivered by

Tilghman, C. J.

(After stating the case.) The errors assigned in this case are, 1st. The rejection of John Patterson, a witness produced by the defendant. 2. In the opinion of the courts on several points proposed by the counsel for the defendant.

An attachment of contempt, had issued against Patterson, who had been subpoenaed on the part of the defendant, and being brought . in, after the evidence was closed, and one counsel on each side had spoken, the court did not think proper to admit his testimony.

This is a case which must be left to the discretion of the court by whom the cause was tried. It cannot be maintained, that either party has a right to introduce testimony, after the evidence has been closed, and counsel have addressed the jury. The disorder which such a practice would produce, is evident. In the present ease, for instance, the plaintiffs said, that some of their witnesses had left the court. But it might have been necessary to examine them again, in consequence of what might come from this new witness, or to call some of them who had been in readiness but had not been examined before; what was to be done then? The cause must either be suspended until all the plaintiffs’ witnesses could be collected, or in order to do justice to the plaintiffs, if their witnesses could not be had, a juror might be withdrawn, and the cause continued. These aré inconveniences too great to be submitted to. Nevertheless a case' may occur, in which the court may see plainly, that the introduction of new testimony may be proper. The law leaves the matter, therefore, to their discretion, and whether that discretion be exercised one way or the other, there can be no error of which the Superior Court can take notice.

No less than nine errors were assigned in the court’s opinion, but in the course of the argument they were reduced to two. 1st. On thé construction of the will of John Gray, and the receipt given by Mary Gray to Hannah Gray. 2d. On the act of limitations.

1. The counsel for the defendants contended, that the ¿616 paid by Hannah Gray to Mary Gray, was the full valué of that part of the land which was devised to Mary, and therefore the receipt of the money by Mary was equal to a conveyance of the land. But the cburt Was of a contrary opinion, and I think the court was right. The devise to Mary Gray, was upon condition that she should make no claim of £ 13 which was due to her from the testator’s estate. Therefore when she made the claim, she relinquished the devise, and taking nothing by the devise, she had no estate to convey. Indeed, there is not one word in the* receipt given by Mary to Hannah Gray, which looks like an intent to convey land. It is simply a receipt for money. But when Hannah paid this money, it is probable she might think she acquired a title, by coming into the place of Mary, who would have had title if she had not claimed the money. And in fact, it made no difference to the estate of the testator, whether Mary relinquished the debt, or it was paid’ to her by Hannah; for in either case, the estate was discharged from it. When Mary refused to accept the devise, the land deascended to James Gray; the .eldest brother of the testator, and it was incumbent on him to pay the ¿6 13, which' Mary insisted on receiving. Then, when he did not pay it, but suffered it tobe paid by the widow, and permitted her to remain so long in possession, it seems very much like an opinion in the family, that the land belonged to the widow. And this may be accounted for, when it is considered, that until the year 1760, titles by warrant and survey, Were considered as personal estate, and as such sold by executors and administrators, even without an order of the Orphan’s Court. Under such circumstances, if it could be made out, that £ 16 was the full value of the land, and that James Gray, the heir of the testator, knew of the payment by Hannah Gray, acquiesced in it, and suffered her and her second husband, Williams, to hold the possession for 25 years, and expend their money and labour in improvements, under an idea that the property was in Hannah, I am not sure that Chancery would not decree a conveyance by James to Hannah. I give no opinion on it however, as that is not the case which is before us. But the circumstances which I have mentioned, may have some bearing on the questions arising on the act of limitation, which I will now consider.

2. In order to form a fair opinion of the charge of the president of the court below, I will give it, so far as concerns the present question, in his own words: “ The defendants rely also on their long possession. Its efficacy must be determined by the evidence in reT lation to it. One half of the tract was devised to the widow and Jane, on the event of their returning from captivity. The widow did return, and was entitled, at all events to a possession of part of the tract so devised, according to the terms of the will. If Mary owned the other part under the will, the widow and she would be in the possession of the other. So if Mary did not take under the will, but relinquished her right, and old John Gray died intestate, as to the one half, then the person to whom such moiety would descend, by the act of assembly, or the course of the common law, would be a tenant in common with the widow, and the possession of one would be the possession of the other, and not such adverse possession as would without actual ouster, give title after 21 years. It would be otherwise, if the two parts of the tract were separatedfrom the other. In that case, actual adverse possession by one against the other, for 21 years or upwards, before suit brought, would be a positive bar against such possession.” Now in the first place, there was an error in saying, that the devisees under the will of John Gray, were tenants in common. The devise was to each in severalty, of a moiety of the land, to be laid off at a particular end of the tract. Cerium est, quod cerium reddipotest. Either of the devisees might have supported an ejectment for his moiety, without partition, and the jury might have laid it off for him. Tenants in common have unity of possession of the whole, which certainly these devisees had not. And on a writ of partition between tenants in common, the land is divided, not according to quantity, but value. One may have greater quantity, and yet no more than an equal value. But the partition her tween these devisees, was according to quantity, and each was to have his quantity in a certain place. There is no ground, therefore, for saying, that when one entered on the whole, and held the whole for many years, he was to be considered as holding for the other. But even supposing there was a tenancy in common, the law was not given in charge to the jury, as it ought to have been, For when one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively, for 21 years, the jury ought to presume an actual ouster, though none be proved. So far as the evidence appears in this case, Hannah Gray certainly did consider herself as owner of the whole, after she had paid the £ 16 to Mary Gray, and the heir at law seems to have been of the same opinion, for he never made any claim that we hear of, for upwards of 20 years. But, from the charge of the court, the jury must have been led to believe, that the sole possession of Mary Gray was of no avail, unless an actual ouster was proved, because she was tenant in common with James Gray.

I am of opinion that in this part of the charge there was error, for which the judgment should be reversed, and a venire de nova awarded.

Judgment reversed, and a venire facias de novo awarded.  