Hall against Mathias, 4 Watts & Serg. 331

The opinion of the Court was delivered by Rogers, J. — This is an action of ejectment to recover the possession of a messuage and 100 acres of land in the county of Westmoreland. The plaintiffs claim as heirs at law of David Hall, who took possession of the land in 1794, continued to reside upon it until his death in 1809, and during that time improved the property by clearing land, building a dwelling-house, still-house, and barn. He died intestate, leaving a widow and five children, four of whom were minors, the youngest about the age of seven years.

The widow continued in possession from the death of her husband until she died in July 1838, when she undertook to dispose of the property by will to the defendants, who are her devisees, and the question is whether the land was her property. I throw the will entirely out of the case, as it is too plain to admit of argument, that unless the title vested in her during her life, a testamentary disposition cannot have the slightest effect on the title. The defendants base their title on an alleged ouster, the mother having claimed the whole for her own exclusive use and benefit.

In support of their case they rely on the proof that the property was taxed to her, that she leased it in 1812 in her own name, and that she cleared land upon it; that in 1820 or 1821 she leased the property again, and that afterwards, on a judgment rendered against her and her sons and son-in-law, the land was levied on as the exclusive property of Susanna Hall; that the land was called by the neighbours the widow Hall’s; that one witness heard her say that she held it as her own property; and finally, that she undertook to dispose of it by her last will and testament.

The court, assimilating the cases to a tenancy in common, have instructed the jury that an ouster may be presumed. But, is this such a case as that a jury would be at liberty to presume an ouster? It is held, that the possession of one tenant in common is prima, facie evidence of the possession of his co-tenant, unless it be attended with circumstances demonstrative of an adverse interest, such as a demand by his co-tenant of his share of the rent, and a refusal to pay, saying he claims the land. Phillips v. Gregg, (10 Watts 158).

A mere entry by one co-heir into the land of the ancestor claiming it all, and taking the rents and profits for 21 years, is no disseisin of the other heirs. To make it such, there must be some plain, decisive, unequivocal act or conduct on the part of the heir so entering, amounting to an adverse and wrongful possession in himself and disseisin of the others. Hart v. Gregg, (10 Watts 185). There must, as Mr Justice Sergeant says, be some notorious act done; that declarations alone will not amount to a disseisin of the co-tenant.

Thus, in Reading’s Case, (Salk. 392), it is said, that between tenants in common there must be an actual disseisin, turning him out, hindering him to enter, &c.; and a bare perception of profits is not enough. So in Fairclaim v. Shackleton, (5 Bur. 2604), it is held that there must be actual disseisin proved. So in Watson v. Gregg, (10 Watts 289), it is ruled, that an ouster of the other heirs by him who enters on real estate, can only be by some clear, positive and unequivocal act, amounting to an open denial of the right and putting them out of possession. Mere declarations will not answer the purpose.

Supposing these principles to be applicable to this case, what evidence was given that the mother turned her children out of possession, or that she ever attempted to hinder or prevent them from entering on the premises 1 On the decease of the ancestor the possession is cast on the heirs, subject to the right of dower of the widow. Instead of assigning her dower, the family remain as before the father’s death, the mother managing the property, and supporting the children.

The evidence shows that it was always a home for those who chose to remain, and for those who at any time might choose to return and reside on the property. There is nothing in the case to bring it within the principles which have been stated. The arrangement was a very convenient one, and perhaps was most advantageous to all parties, - as it was the only mode by which the family could be kept together, and be afforded a support; particularly for the younger members of the family.

The law is not so unreasonable as to compel children to deal harshly with the parent at the risk of being defrauded of their patrimony. There isr in truth, not a particle of proof that the children were ever out of possession of the land; nor has any act been shown which indicates any intention to oust them from the possession. All the evidence is perfectly consistent with her relation to the estate as tenant-in-dower, and as guardian to the minor children and the parent of her other offspring.

The presumption is, that she continued to hold in the same right as at the death of her husband, and this presumption has not been rebutted by proof of any clear position and unequivocal act amounting to a denial of the right of the children. She neither put them out of possession, nor has she ever hindered them from entering into possession of the property. Judgment reversed; and a venire de novo awarded.