Galbreath against Galbreath, 5 Watts 146

The opinion of the Court was delivered by Kennedy, J. We are of opinion that the errors assigned have not been sustained. The answers of the court to the points submitted by the counsel of the defendant below, which are assigned as the first error, if erroneous at all, would rather seem to be so because more favourable to him than he had any right to ask; but of this, supposing it to be so, he certainly cannot complain, nor take advantage.

It is argued, however, that the favourable effect of the court’s answers was done away by the court in the subsequent parts of their charge to the jury, by telling them that they could see no evidence leading to such conclusions.

Judging from the record, we also think that the court below were right in giving this instruction to the jury ; for, so far as the evidence given appears upon it, it at most only shows that Joseph Galbreath, the defendant below, who is the plaintiff in error, had, from 1799 up to 1816, when this action was commenced, been generally in the receipt of the rents, issues and profits of the land.

There was no evidence given tending to prove that he ever denied the right or title of Samuel, the plaintiff below, or that he attempted, at any time, to prevent him from participating in the enjoyment of the land, or in the receipt of the rents and profits thereof; and, without something more than a bare perception of the profits by the one, and a tacit acquiescence therein by the other, it cannot be that the continuance of it, though for the space of seventeen, eighteen, or nineteen years, would amount to an actual ouster or disseisin; nothing short of twenty-one years at least, I would say, ought to warrant the leaving of it to a jury, to presume an ouster or disseisin for the purpose of defeating the action of partition.

Thirty-six or forty years have been held sufficient to justify leaving it to the jury to presume an ouster, but certainly no period less than that mentioned in the statute of limitations, has ever been thought of as sufficient. And is not this reasonable? because when one tenant in common of land takes possession of the whole, without doing or saying any thing to show the contrary, except that of barely taking the possession or receiving the profits, the law presumes that he does so for the benefit of his co-tenant, as well as himself, and will consider his possession the possession of both.

Unity of possession is one of the essential properties of a tenancy in common, and that relationship being clearly established to have been created between the parties in this case, by the deed of conveyance made to them in 1797, it would seem unreasonable to permit it to be destroyed, without proof of some act being done by one or both, that was incompatible with the presumption that the possession of one was also the possession of the other. But there being no such act here, the jury could not, consistently with the rules of law, infer a disseisin.

We therefore think there was no error committed, in this respect, by the court, which could possibly prejudice the defendant below. The second matter complained of is, that the court erred in charging the jury that “ nothing but a written transfer, or a parol sale, accompanied with visible, distinct, exclusive possession, under such purchase, would defeat the right of Samuel,” meaning the plaintiff below. The counsel for the plaintiff in error seemed to doubt whether the statute against frauds and perjuries was intended to embrace the transfer by one tenant in common, of his interest in the land to his co-tenant.

But there is not the slightest ground upon which to raise a doubt or question of this .kind, for such case is as clearly within both the letter and meaning of the statute, as any other that can be imagined.

The words of the statute are; “ all leases, estates, interests of freehold, or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto, lawfully authorised by writing, shall have the force and effect of leases or estates at will only, &c.; and moreover, no leases, estates or interests, either of freehold or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall at any time be assigned, granted or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law;” from which it is perfectly apparent, that if an interest or right in land be the subject matter of the contract or transfer, it must be in writing, whether it be made between joint-tenants, tenants in common, or any other description of persons whomsoever.

It may be, however, that the charge of the court, as to this point, was not strictly correct; but if it be not, it is because it was more favourable for the plaintiff in error, than he had a right to require. The court seem to have left it to the jury, as if a change of the possession, that was visible, distinct and exclusive, under a verbal contract for the sale of the land, would have been sufficient to have taken the case out of the statute, without any part of the purchase money having been paid, or expenses incurred by the purchaser in making valuable improvements upon it.

Now, I must confess, I doubt very much, whether a mere delivery of possession, without more, in such case, be sufficient to take it out of the statute. Although it be a partial execution of the contract, I am inclined to think it altogether insufficient to produce such an effect. To hold it to be so, would be directly in the teeth of the statute.

I apprehend it is only where great injustice and injury would be done to the vendee, by turning him out of the possession acquired under a verbal contract for the sale of the land, and where he might be without a remedy affording an adequate compensation, that the statute ought to be held not to embrace the case. The bare loss of possession, it is conceived, cannot be such case, because it may be fully compensated by the recovery of damages from the seller. The third error is but a repetition of the first, and therefore requires no further notice. Judgment affirmed.