Mitchell v. Murphy

Upon the facts here appearing, ’I am quite unable to see how the defendant can successfully resist a recovery by the plaintiffs. Two grounds of defense are relied on. In the first place, the defendant sets up title under the statute of limitations. But undeniably her husband, William Murphy, entered by the permission of Joseph and Isaac M. Pennock and Archibald Pauli, and his possession never ceased to *427be in subordination to their title. It is well settled that when the original possession by ,the holder of land is in privity with the title of the rightful owner, nothing short of an open and explicit disavowal and disclaimer of holding under that title and assertion of title in himself brought home to the other party will enable such holder to avail himself of the statute of limitations. Cadwalader v. App, 81 Pa. St. 194; Zeller's Lessee v. Eckert, 4 How. 289. But William Murphy never disavowed the title of those who put him into possession, nor did he ever indicate in any manner an intention to hold adversely. And, as his possession was in subserviency to the title of the rightful owners, the continued possession, upon his death, of his widow, the defendant, was of the same character. Bannon v. Brandon, 34 Pa. St. 263. In that case it was held that the widow of a tenant for life, who continues in possession without any contract between herself and the owner of the land, holds in subordination ' to the title of the latter, and not adversely. Having entered by right under her husband, when the right ceased and she held over, she was at least a tenant by sufferance. Id. Now it is not shown that the defendant ever renounced the privity between her and the rightful owners, or by any unequivocal act severed that privity. That she paid the taxes was nothing more than her plain duty, since she had the full and free use and enjoyment of the premises. Without regard, then, to the transaction between the Pennocks and the defendant in the year 1866, the lease executed by them, and “the declaration of tenure” executed by her, the conclusion cannot be avoided that the defense of the statute of limitations set up against the plaintiffs has no foundation to rest on.

The other and totally different ground of defense taken by the defendant is that the right of possession to the land is in the surviving family of William Murphy “for a residence,”such right being evidenced by the recital in the deed from Beeson and others to Joseph Pennock, viz.: “And whereas, the said land is intended to be for a residence for William Murphy and his family,” etc., and the intention executed, by putting him into possession. But William Murphy was not a party to that deed. Neither did ho contribute aught to the consideration paid. The purchase was altogether res inter alios acta,. The deed contains an express trust declared in very apt words in favor of Isaac M. Pennock and Archibald Pauli, but none declared in favor of William Murphy. Evidently the deed was drawn by one learned in the law, and if it had been intended to create any trust for the benefit of William Murphy and his family the intention would have been expressed, and not left to doubtful inference. When read in connection with the whole deed, we find that the manifest purpose of the particular recital, in which William Murphy’s name appears, was to explain the transaction as between Joseph Pennock, Isaac M. Pennock, and Archibald Pauli, and define their respective interests in the land. Their expressed benevolent intention to provide a place of residence for William Murphy and his family imposed no legal obligation upon them, and clothed him with no enforceable right. And when they voluntarily gave him possession for no defined period he became, at the most, a mere tenant at will. *428That the plaintiffs have the legal title upon which to found an action of ejectment cannot be doubted. . The trust in Joseph Pennock under the deed of March 27, 1851, was a dry trust. The statute, therefore, executed the use, and the legal title to the undivided five twenty-second parts of the land, passed to Archibald Pauli. Moore v. Shultz, 13 Pa. St. 98; Eckels v. Stewart, 53 Pa. St. 460; Webster v. Cooper, 14 How. 488.

And now, August 5, 1890, the court finds in favor of the plaintiffs, and that they do recover the undivided five twenty-second parts of the piece of land described in the plaintiffs’ prsecipe and the writ, and six cents damages, and costs.'

Let judgment be entered upon the finding of the court in favor of the plaintiffs at the end of four days sec. reg., unless, in the mean time, a motion for a new trial should be made.