Bell against Hartley, 4 Watts & Serg. 32

The opinion of the Court was delivered by Kennedy, J. — If the evidence offered had tended to prove a tenancy or holding of the land, on the part of Bell, the father, under Fields, it might, perhaps, have been admissible, notwithstanding the great lapse of time, so as to have left it to the jury to say what bearing it had on the fact of an ouster having been committed by Bell, and his having had an adverse possession of the land 21 years before the institution of this action. But we are clearly of opinion that it could not be regarded as having any such tendency.

It did not even show the semblance of a contract between Fields and .Bell, whereby the latter agreed to hold the land in any way whatever under the former.

Notwithstanding all that Bell said, Fields might have brought his action of ejectment the next day, or at any time afterwards, for the purpose of turning Bell out of the possession; and Bell, on the other hand, might have set up, as a defence, a better title than Fields outstanding in a third person, if any such existed; for nothing had passed between Torrey, as the agent of Fields and Bell, that could possibly raise or impose an obligation of any kind on either.

Nor, from all that was said by Bell, had Fields any reason to believe, if he suffered Bell to remain 21 years in the possession of the land without making an entry thereon, or bringing an action of ejectment against Bell, that the latter would not set up the Statute of Limitations as a bar to his recovery. So that the evidence offered neither tended to prove anything that could be construed into an agreement by Bell to hold the land under or subject to the control of Fields, nor yet into a fraud, if he at any time subsequently denied the title of Fields to the land.

The evidence was, therefore, properly rejected by the court. See Sailor v. Hertzog, (4 Whart. 259); Farmers’ and Mechanics’ Bank v. Wilson, (10 Watts 261). The two remaining errors raise the same question, and will, therefore, be considered together. This was, whether the plaintiff was not entitled to recover all the unimproved land within his claim of 100 acres, that was also included within the boundaries of the defendant’s claim as surveyed and marked out by him on the ground.

The learned President Judge, on this question, instructed the jury as follows: “ But the plaintiff contends, that as to the balance of the 100 acres, the defendant can have no claim at all. We charge you to the contrary of this.

If the defendant caused a survey of his claim to be made upon the ground upwards of 21 years before this suit brought, had his lines marked, and has subsequently, at all times, living upon the land, claimed up to these lines, and has paid taxes, as appears by the assessments for 200 acres, double the now claimed quantity of 100 acres, while the plaintiff does not show that he or those under whom he claims, have ever paid a solitary tax for the tract or any part of it, the defendant may hold the 100 acres now claimed, if it is within the lines of his claim aforesaid, particularly if you believe the witnesses, who state that the surveyor who ran out the defendant’s claim, mistakingly supposed or represented that the survey contained only 200 acres, the quantity for which the defendant has since fairly paid the taxes, though the real quantity by the late survey seems to be about 400 acres.” We can perceive no error in this instruction of the court to the jury.

If the Statute of Limitations is to have an operation according to what would seem to have been the intention and design of the Legislature in passing it, we think the charge of the court, in respect to it, was quite as favourable to the plaintiff as he had any right to claim. It is in conformity to. the doctrine laid down in Royer v. Benlow, (10 Serg. & Rawle 303); Heiser v. Riehle, (7 Watts 37); Criswell v. Altemus, (7 Watts 580). Judgment affirmed.