Doe on the demise of Harlan and Others v. Brown, 4 Ind. 143

Roache, J. Ejectment by the heirs of Joshua Harlan, for a lot in the town of Connersville. Verdict and judgment for the defendant. Motion for a new trial overruled. The evidence is all set out in a bill of exceptions. The plaintiffs were admitted at the trial to be the heirs of Joshua Harlan. They then gave in evidence a deed of conveyance from John Conner to their ancestor, dated the 30th day of November, 1818.

It was further admitted by the defendant that Joshua Harlan, in his lifetime, laid out a portion of the land embraced in the deed, into town lots, as a part of the town of Connersville, and that the lot No. 87, in controversy in the suit, was one of those lots. The defence set up by Brown, who was admitted defendant under the rule, was an adverse possession by himself and one Solomon Claypool, of twenty years.

The evidence introduced by him showed that Joshua Harlan died about the year 1827; that sometime between 1826 and 1828, Solomon Claypool, claiming to be the owner of the lot, leased it for a term of years to be fenced and cleared; that it was accordingly fenced and cleared by the lessee, in one of those years, most probably in 1827; that at the expiration of that lease, he rented it to a tenant to make brick upon it.

Shortly afterward, the fence was removed, it does not appear by whom, and the lot remained vacant and unenclosed up to 1843, a period of not less than ten years; but during all that period Claypool continuously claimed, and was generally understood, in the neighborhood, to bé the owner; that from 1830 to 1845, both inclusive, the taxes on the lot were annually charged to and paid by Claypool, in'which latter year he died.

The tax duplicates, which were in evidence, showed that in 1827, the lot was not assessed to any one; that in 1828 and 1829, it was placed on the duplicate,but was included in the list under the heading of “ unknown owners;” and that in neither of those years were the taxes upon it paid by either Harlan or Claypool. The defendant also proved by one Bundrant, that he had known lot No. 87 since 1837; that it was then unenclosed, and was called the property of Solomon Claypool; that in 1843, the defendant, (Brown), went into possession of the lot, fenced it and built a house, and has occupied it ever since.

This was all the evidence. The plaintiffs asked for several instructions to the jury, all of which the Court refused to give.0 It is unnecessary, however, to examine whether these instructions should have been given, as they were all substantially embraced in the charge which the Court gave. The jury were fully and correctly instructed as to the law of the case. It only remains to examine whether their verdict was sustained by the evidence.

In their instructions, the Court below charged the jury that a continuous, uninterrupted, peaceable possession of twenty years, under a claim of title, was necessary to make out the defence relied on by the defendant, and that if it was necessary to add the possession of Brown to that of Claypool, to make up the twenty years, he, the defendant, must show that he was in possession under Clay-pool.

This is thg. law. fTo defeat the recovery of a plaintiff who produces a regular legal title, by a title founded in possession, strict proof must be made not only that the possession was, from#its inception, under a public claim of title adverse to that of the real owngr, but that both such claim and*1possession hiaw.e bunintea. And this continuity must be kept unbroken If the chain is terruptl through the full period of twenty years, broken at any point within that period, no title is acquired.

In the case where several tenants have, during the time, successively occupied the premises, to make their possession available it must be shown that each one claimed to hold, and was in possession, under his predecessor Brandt v. Ogden, 1 Johns. R. 156.—Doe v. Campbell, 10 id. 475.—Hawk v. Senseman, 6 Serg. and Rawle, 21.— Coburn v. Hollis, 3 Met. R. 125. In the case under consideration, Brown could not make out the twenty years without connecting his possession with that of Claypool, by showing that he was in under him.

If there was any evidence on this point, we should not be disposed to disturb the verdict of the jury. Butifthe bill of exceptions contains all the evidence, as it purports to do, there is no proof tending to connect the possession of Brown with that of Claypool. Neither one of them was in possession for a period of twenty years. Claypool was occupying and claiming title for some sixteen years, from about 1827 to 1843. Then, it is in proof, Brown went into possession; but how, or under what circumstances, is not shown.

From aught that appears, he may have gone in as a mere trespasser, against the consent of Claypool. Having totally failed to establish that his possession of the premises was a continuation of that of Claypool, by showing that he was in under the latter, he has left a chasm in his title which is fatal to the defence hfl relieg on. J. A. Fay and J. S. Newman, foi* the plaintiff. J. Rariden, for the defendant. The Court should have granted the motion of the plaintiffs for a new trial. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.