(!}0rnpll Haul ^rlyonl SItbtary KFP 536X5782""""""' ""'"^ 930 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024703930 THE LAW OF Limitations of Actions IN PENNSYLVANIA. BY WILLIAM ^ICKETT, Author of "The Law of Liens in Pennsylvania." JERSEY CITY, N. J.: FREDERICK D. LINN & CO., ^abs ^nblis^ers utib f ook»llcrs. 1888. Entered according to Act of Congress, in the year 1B87, by FKEDERICK D. LINN & CO., In the office of the Librarian of Congress, at Washington.-^ THE JOHN L. MCBPHY PUB. CO., FBINTSBS, TBSNTON, M. J, TO THE BAR OF CUMBERLAND COUNTY, NOW, AS FOR A CENTURY PAST, DISTINGUISHED BY THE SIGNAL ABILITY 01" ITS MEMBERS, NO LESS THAN BY THEIIt INTEGRITY AND FIDELITY TOWARDS CLIENTS, AND THEIR URBANITY AND COURTESY TOWARDS EACH OTHER, ' ■.- THIS WORK IS RESPECTFULLY DEDICATED. PREFACE. The leading statute in Pennsylvania, by which limitations to personal actions are prescribed, is nearly one hundred and seventy- five years old, while that which imposes limitations for actions regarding the possession of real estate was passed more than one hundred years ago. Notwithstanding this considerable age, there annually arises a surprisingly large amount of extra-judicial question and disputation as to their applicability to current cases, while the reports show that not only are suitors and attorneys by no means agreed concerning their bearing, but that the decisions of the inferior courts are often at variance with the results subsequently reached by the Supreme Court. The published opinions are very numerous. Their interpretations of the statutes not being always harmonious, grave errors are apt to be committed by relying upon one or two of them, pronounced in the earlier or the intermediate period of the judicial development of the law, without collating them with the later and maturer results of that development. It is therefore important that all the cases bearing on the same question should be easily and certainly found, and that their significance should be at least provisionally suggested and stated for the practitioner. This task the present work attempts to discharge. Experience tends to diminish the value of abstract and general statements of what is supposed to be judicial law, in text-books designed to aid the practicing attorney. There must always remain a question of the accuracy of the author's generalization, or of the precision with which he has embodied it in language. Nor can the reader be always sure that his own conception of the scope of the general statement corresponds with that which was in the writer's mind ; hence, knowledge of the precise facts of a case is often neces- (v) VI PEEPACE. sary to illuminate and explain the general statement which is presented as an embodiment of its doctrine. It is, besides, sometimes impossible to enounce abstractly the ratio decidendi with any sense of certainty that the statement really contains the principles by which the court reached its result. Special circumstances, whose weight on the judicial determination it is not easy to discover and appraise, and which prove intractable to all attempts to embody them in abstract statement, occasionally seem to have contributed decisively to the judgment. In such cases, the author has deemed it indispensable to narrate the salient facts in the briefest possible manner, for the jiurpose of aiding the reader in furnishing to the general proposition its proper limitation. The statute of 26th March, 1785, does not,proprio vigore, apply to the acquisition, transfer and extinction of rights of way and other easements, by means of adverse user. Its principle has, however, been extended by analogy to such user, and for that reason the law of such acquisition, transfer and extinction of easements has been treated. The act of 26th March, 1785, operates to confer a title to land by extinguishing, in favor of the adverse occupant, all right of action of the former owner. There are cases where, independently of the statutory bar, the title of the forifier owner will be presumed trans- ferred to another. A brief treatment of such cases (p. 184) seemed appropriate. The law of Pennsylvania, like that of England and most of the States, rebuttably presumes a debt paid in twenty years. The opera- tion of this presumption has seemed sufficiently similar to that of the statutory bar in personal actions, to justify the inclusion of a treat- ment of it in a work on the subject of limitations. The lapse of six years since a debt becomes payable is, under the decisions, only prima facie a bar to a recovery. Proof of a promise to pay the debt, or of admissions of its existence and non-payment, will countervail the statutory prohibition of recovery. The twenty years' presumption is, till rebutted, equally prohibitive of recovery ; and, like the statute, PREFACE. Vll may be overcome, differing from the statutory bar in that not only admissions of the debt or promises to pay it, but other circumstances, may rebut and repel it. As the cases involving this presumption are quite numerous, ;and occasionally obscure, it has seemed proper to include a discussion of this presumption in the present work. (Book III., p. 429.) Book IV. contains a treatment of a variety of minor limitations, many of them of considerable importance. This work is submitted to the considerate judgment of the bar of the State, in the hope that it may justify its existence by the saving of professional time and labor, and by the greater certainty of pro- fessional opinion, to which it may contribute. WILLIAM TRICKETT. Carlisle, Pa., , Nov. 26th, 1887. CONTENTS. BOOK I. LIMITATIONS AS TO LAND. CHAPTEK I. ACT OP 26th march, 1785, and supplements. SECTION. . . ^ 1-5. Act of 26th March, 1785. 6. 11th March, 1815. 7. ,14th AprU, 1851. 8. 22d AprU, 1856. 9, 10. 13th April, 1859.^ CHAPTER II. LIMITATIONS AS TO LAND PBIOR TO 26tH MARCH, 1785. 11. Statute 32 Henry VIII. c. 2. / CHAPTER III. SECTION 5, ACT 26tH MARCH, 1785. 12. Act 26th March, 1785, Section 5. 13. When limitation does not apply. CHAPTER IV. PACTS WHICH BAR ACTION. 14. By what facts title barred. 15. Owner's non-possession immaterial. CHAPTER V. THE POSSESSION. 16. Nature of possession. 17. Residence. 18. Inclosure. 19. CultiTation. 20. Other methods of possession — taxes. (ii) X CONTENTS. CHAPTER VI. THE EXTENT OF THE POSSESSION. SECTION. 21. The area in possession. 22. Color of title. 23. Without color of title. 24. Unofficial marking of lines. 25. Possession to boundaries. 26. Indicating boundaries, when not coincident. 27. Pedal possession essential — two unities. 28. Unity of ownership. 29. tract. 30. When rightful owner is in possession — interferences. 31. Unity of tract necessary. CHAPTER VII. ADVERSENESS OP POSSESSION. 32. Nature of adverseness of possession. , 33. Adverseness consistent with knowledge of title. 34. Ignorance of title — violence. 35. Verbal denials of title unnecessary. 36. When mistake is inconsistent with adverseness. ^7. Mistake, when not inconsistent. 38. Possession beginning by right not adverse. 59. Right qualifies the possession. 40. Possession, originally friendly, becoming; adverse. 41. Other illustrations of thfe principle. 42. Possession once adverse, ceasing to be such. 43. Adverseness not lost. 44. Other qualities of estopping act or words. 45. Submission after limitary period has run. 46. Evidence whether adverse or not. 47. Written declarations. 48. Function of court and jury. 49. Possession under deeds, adverse. 50. parol sales. -51. in excess of grant, f 2. Other cases. 53. Adverse as against lien. 54. between vendor and vendee. 55. Vendor's possession adverse. 56. Possession of tenant not adverse. 57. Tenancy by sufierance. 58. Tenant's possession becoming adverse. 59. Adverse possession in implied trusts. 60. express trusts. 61. Between co-tenants, ouster necessary, '62. Declarations insufficient. CONTENTS. XI .■SECTION. 63. Equivalent of an ouster. 64. Evidence of ouster. 65-68. Cases of ouster. 69. Notice to co-tenants of adverse possession. 70. Confession of ouster. 71. Eebutting adverseness.i 72. Function of court and jury. CHAPTER VIII. ■ DURATION AND CONTINUOUSNESS OF POSSESSION. 73. Duration. 74. The adverse possession must be uninterrupted. 75. Adverseness miist be uninterrupted. 76. Uninterrupted inclosure. 77. cultivation. 78. residence. 79. as to extent. 80. Possession interrupted by action. 81. Interruption by former action.' 82. By whom the adverse possession maintained. -83, 84. Tacking possession. CHAPTER IX. EXCLtrSIVE AND NOTOBIOITS POSSESSION. 85. Exclusive possession. 86. Visible and notorious possession. CHAPTER X. DISABILITIES. 87. Disabilities supervening after adverse possession begins. 88. Successive disabilities. 89. Insanity. ■90,91. Coverture. 92. Infancy. 93. Beyond the seas and imprisoned. CHAPTER XI. SUCCESSIVE ESTATES. 94. Different titles in same person. 95. Successive estates in different persons. 96. Jjife estate and remainder. 97. Estate under power to sell. 98. After-born grantee. 99. Particular estate ended. Xll CONTENTS, CHAPTEK XII. TITLES LOST AND GAINED BY LIMITATION. SECTION, 100. Titles acquired. 101. Life estate acquired. 102. Titles that may be lost. 103. Dower lost by adverse possession. 104. Curtesy lost by adverse possession. 105. Life estate and other particular estate lost by adverse possession. 106. Subjects to whose possession the statute gives virtue. 107. Effectiveness of title by limitation. 108. Title by limitation lost. 109. Policy of the statute. CHAPTER XIII. PERSONS WHO GAIN AND LOSE TITLE BY LIMITATION. 110. Parties for and against whom the limitation operates. 111. Domestip relations. 112. Adverse to the Commonwealth. CHAPTER XIV. . ACTIONS. 113. Actions in which statute of limitations is available. • CHAPTEK XV. ENTRY. 114. Virtue of an entry. 115. By whom thei entry may be made. 116. On what the entry must be made. 117. Nature of the entry. 118. Knowledge by the intruder of the entry. 119. Proof. CHAPTER XVI. INCORPOREAL HEREDITAMENTS. 120. The principle of the statute applicable. 121. Ground-rent acquired. 122. destroyed. 123. Rights of way. 124, 125. Properties of the user. 126. Adverseness of user. 127. By and against whom the user may be maintained. 128. Evidence of adverseness. 129. Extinction of right of way. 130. Light and air. 131. Public rights of way. CONTENTS. XUl SECTION, 132. Other easements. 133. Properties of the user. 134. Extent of the rights acquired. 135. By and against whom easements may be acquired. 136. Easements extinguished. CHAPTEE XVII. PRESUMPTION OF GRANT, DEVISE, DESCENT. 137. Presumption of title. 138. Nature of the acts which support presumption. 139. When the conveyance is more than presumptive. 140. Against whom the presumption avails. CHAPTER XVIII. RESULTING TRUSTS. 141.. Act of 22d April, 1856. 142. Partial repeal is to attorneys-at-law. 143. Subjects — specific performance. 144. Equity of redemption. 145, 146. Implied and resulting trusts. 147. When the five years begin. 148, 149. Possession by the cestui gue trust or vendee. 150. Acknowledgment of the trust. 151, 152. Knowledge of the facts. 153. How operative. BOOK II. LIMITATIONS TO PEKSONAL ACTIONS. 154. Act 27th Marph, 1713. 155. Section II. 156. V. 157. Act 28th May, 1715. 158. 25th April, 1850. 159. 30th July, 1842. 160. 16th April, 1849. 161. 25th April, 1850. 162. 28th March, 1867. 163. 21st May, 1881. 164. 26th April, 1855. 165. Constitution of 1874. CHAPTER I. THE STATUTES. XIV CONTENTS. CHAPTER II. CONSTITUTIONALITY. SECTION. 166, 167. Constitutionality of acts of limitation. 168. Subjects of the six yeare' limitation. 169. In equity. 170. Other proceedings. 171. Courts which recognize and apply the statute. 172. The lex fori regarded. CHAPTEE III. DISABILITIES. 173. Disabilities — ^beyond sea. 174, 175. Feme covert. 176. Minors, Tion compotes mentis, imprisoned. CHAPTEE IV. COMPUTATION OF THE LIMITARY TERM. 177. Computation of the limitary period. 178. Terminal point of the limitary period. 179, 180. Tacking suits. 181-183. Amendments to actions. CHAPTEE V. INTERRUPTION OF THE LIMITARY TERM. 184. Not interrupted by disabilities. 185. Death. 186. Assignments. 187. Other facts. 188. War — criminal prosecution — the limitary period interrupted. 189. No administrator — exemptions additional to those in act of 1713. 190. Statutory prohibition. 191 . Other interruptions. 192. Suspension of right of action. CHAPTER VI. FRAUD. 193, 194. Fraud the gravamen as delaying the running of the statute. 195. Fraudulent concealment of fraud. 196, 197. Non-fraudulent concealment. 198. Fraudulent concealment of non-fraudulent ground of action. 199. Non-fraudulent concealment. 200-202. Constructive fraud and negligence. 203-205. Ignorance of existence of cause of action. CONTENTS. XT CHAPTER VII. INCEPTION or LIMITARY TERM. SECTION. 206. Promissory notes. 207. Surety. 208. Guaranty. 209. Contribution and subrogation. 210. Collateral security. 211. Special deposit. 212,213. Attorney. 214. Liability accruing in future. 215. Debt payable in futuro. 216-223. Miscellaneous cases. ' 224. Demand or other preconditions. 225. in six years. 226. Both demand and action in six years. 227. Precondition other than demand. 228. Bight of action postponed. CHAPTER VIII. NEW PROMISE AND ACKNOWLEDGMENT. 229. Limitary period interrupted by new promise. 230. Acknowledgments. ^31-233. Characteristics of the acknowledgments. 234. Express verbal admission unnecessary. 235-237. Intention to pay repelled. 238. Qualities of the acknowledgment resumed. 239, 240. Conditional promise. 241. SufiScient acknowledgment. 242. Futurity of promised payment. 243. Identification of the debt. 244. Identity of debt — continued. 245-250. Extent of debt ascertained. 251, 252. Promise to settle, fix, arrange. 253. By whom acknowledgment made. 254. To whom acknowledgment made. 255. Action must be brought on the original debt. 256. Pleading and eyidence as to new promise. CHAPTER IX. PARTIAL PAYMENTS. 257. The payment. 258. Payment by whom. 259. Debt identified. 260. Joint debtors. 261. Evidence of the payment. -Xyi CONTENTS. CHAPTER X. merchants' accounts. SECTION. 262. Merchants' accounts. 263. Mutual accounts. 264. Necessity of mutual demands. 265. Parties to mutual account. 266. Besult of mutuality. 267. Characteristics of accounts. '268. Strict merchants' account. 269. Account stated. 270. Partnership account. CHAPTER XI. CAUSES OF ACTION NOT SUBJECT TO LIUITATIOH. '271-274. Statute inapplicable. CHAPTER XII. TRUSTS. '275, 276. Limitation as to trusts. 277. Constructive trusts. 278. Trusts for creditors. 279. Technical trusts. 280. Denial and dissolution of the trust. CHAPTER XIII. LIMITATION IN EQUITY, 281. Equity. 282. Subjects to which limitation extends. 283. Equity-r-continued, 284. Pleading. CHAPTER XIV. 285. Actions— kinds of. ACTIONS. 286. Gravamen of action. 287. Other than six years. 288,289. Set-off. CHAPTER XV. PARTIES, PROCEDURE, ETC. 290. Parties. 291. Who may plead. :292-294. Pleading. 295. Affidavit of defense. 296, 297. Function of jury. 298. Waiver of statute. 299. Policy and morality of statute. CONTENTS. XVU BOOK III. PRESUMPTION OP PAYMENT IN TWENTY YEARS. CHAPTER I. SOURCE OP THE PKESUMFMON. SICTION. 300. Origin of the rule. 301. Motives for the adoption of the rule. CHAPTER II. SUBJECTS OF THE PRESUMPTION. 302, 303. Subjects to which rule applies. CHAPTER HI. PROCEEDINGS. 304-307. Proceedings. CHAPTER IV. COMPUTATION or TIME. 308. Time with which the twenty years begin. 309. Beginning of twenty years — continued. 310. Assignments for benefit of creditors. 311. Other cases. 312. Debt payable in irstallments. 313. Termination of twenty years. 314. Time during pendency of action. CHAPTER V. NATURE OP THE PRESUMPTION. 315. Mediate presumption.. 316. Statutory bars and the presumption, 317. Presumption rebuttable. 318. corroborated. 319. Rebuttal of the presumption by former demand. 320-322. from former suit. CHAPTER VI. ABKNOWLEDGMENTS OP DEBT. 323-326. Admissions. 327. by filing account. 328, 329. Filing account — continued. *B XVm CONTENTS. CHAPTER VII. FABTIAIi PAYMENTS. sxcnoH. 330. Partial payments. CHAPTER Vin. BEBTITTAIiS OF FBESUMFnON. 331. Agreements to postpone. 332. Conditional promise. 333. The debtor's inability to pay. 334. Plaintiff's ignorance. 335-r337. Other circumstances. 338. Burden of proof. CHAPTER IX. PARTIES AFFECTED BY PBESUMPTION. 339. Against whom the presumption runs. 340, 341. "Who may take advantage. 342. Against whom presumption rebuttable. CHAPTER X. PBBSTJMPTION IN LESS THAN TWENTY YBAB8. 343, 344. Less than twenty years. 345. Circumstances making presumption. 346. Other circumstances. 347. Insu£Scient circumstances. BOOK IV. MISCELLANEOUS LIMITATIONS. CHAPTER I. PBOBATB OP -WILIS CONCLUSIVE IN FIVE YEARS. 348. Act 15th March, 1832. 349. 22d April, 1856. 350. Effect of probate prior to 1856. 351. since act of 22d April, 1866. 352. Parties and subjects. CHAPTER II. ' ACTIONS ON ADDITIONAL BONDS DF EXECUTOBB AND ADHINISTBATOIUS. 368. Act 4th April, 1797. CONTENTS. XIX CHAPTER III. ''■t':yt/uji'; ACTIONS ON OFnCIAL BONDS. . ', ; ' MCIION. . ,■'.;>■: '■ 354. Act 4th April, 1798. < 355. Parties affected. CHAPTEE IV. constables' bonds. 356. Act 4th April, 1798. CHAPTER V. on sheeiffs' and cobonees' bonds and recognizances. 357. Act 28th March, 1803. CHAPTER VI. actions against constables and justices. , 358. Act 21st March, 1772. CHAPTER VII. IJMITATION IN BETTING. 359. Act 17th February, 1820. \ 360. 22d April, 1794. 361. 2d July, 1839. chapt:)^ vni. ACTIONS FOB FOBFEITUBES. 362. Act 26th March, 1785. 363. 12th April, 1828. CHAPTEE IX. MMITATION FOR BRINGING SECOND EJECTMENT. 364. Act 14th December, 1863. 365. Section II. CHAPTEE X. distributee's claims TO intestate's PERSONALTY. 366. Act 8th April, 1833. 367. To what limitation appli^. CHAPTEE XI. LIABILITY FOR FALSE SEARCHES IN PHILADELPHIA. 368. Act 13th April, 1872. CHAPTER Xn. UNLAWFUL INTEREST. 369. Act 28th May, 1858. XX CONTENTS. CHAPTEB XIII. sheriffs', tbeasubeb's, and oommissioneks' sale of ulnd. SECTION. 370. Act 11th June, 1879. 371. Section II. 372. Procedure. CHAPTER XIV. OONTBACTUAI, LIMITATION. ° 373. Contractual limitation. 374. Waiver of stipulation and estoppel. CHAPTER XV. eeeoes and appeals. n;™ 375. Act 1st April, 1874. 376. Decisions. 377. Act 13th April, 1791. 378. 14th June, 1836. 379. , 29th March, 1832. 380. 15th March, 1832. " 381, 382. Appeal from award of arbitrators. 383. Appeals in distribution proceedings. 384. Bill of review in Orphans' Court. CHAPTER XVI. JUDGMENTS OP JUSTICES. 385. Certiorari to justice of peace. 386. Appeals from judgments of justices. 387. The limitation. ' 388. Requisites of the appeal. 389. Filing of the appeal, 390, 391. Exceptions to the above limitation. 392. Excuse for failing to file in, time. 393 Other excuses than conduct of justice. 394-397. The bail. CASES CITED. PAGE. Acheson V. Shenk 387 Adams' Appeal 289, 393, 403 Adams v. Carroll 362, 363, 364 V. Hill 547, 548 V. Null 566 V. Eobinson...ll, 12, 16, 19) 38, 99, 100, 156 Adameon v. Potts 45 Addams v. Seitzinger 351, 352, 359 Adlum V. Yard 433, 437) 445, 446, 493, 496, 497 Agnew V. Fetterman....239, 276, 277, 278, 304, 325, 326, 384, 385 ». The City 549 ,Air7 V. Smith ^ 218, 312 Aitken's Heirs v. Young... 65, 98 Aitken t;. Young 128 Ake's Appeal 217, 373, 374, 393, 403 Albertis' Estate 326 Alcorn v. Commonwealth 516 Alden's Appeal 232,394,398 Alden v. Grove" 33,38 Alexander v. Kerr 176, 183 V. Leckey 266,298,383, 388, 400 V. Murray 385 I). Westmoreland Bank... 268, 277, 321, 383 Allegheny City?). McClurkan 522 Allen V. Berry 561 ■0. Getz 87, 136, 141, 150 V. Liggett 228,230 ■V. Mills.; 252 V. Sawyer 437, 450, 492, 494, 498 Allison V. James.. ..307, 308, 316, 317, 346 V. Pennington...285, 314, 335, 346, 364, 419 Altemus v. Camphell 56, 118, 140,151, 152,155,156,158,159 V. Long 12, 13, 29, 34, 38, 105, 120, 151, 154, 159 V. Trimble 27, 28, 35, 98, 144 Ament's Ex. v. Wolf :'. 22, 33, 38 Ament v. Wolf 12, 15, 17, 21, 28, 32 Aiflole's Adm. Appeal 238, 239, 245, Anderson v. Allison 345 Andress' Appeal 267, 294,409 Andrews ». Bell 190 Ankeny v. Penrose 433, 435, 439, 442, 454, 455, 458, 481, 482, 492, 49^ Anthony w. Barnes 303,341 Anthracite Savings Bank v. Boyd.... 546 Appi). Cadwalader 53,69,98 «. Driesbach 381, 390, 391 Arms I'. Leaman 541,542 Ariustrong v. Caldwell... 10, 11, 12, 13, 20, 63, 72, 100, 134, 141 ». Levan 259, 260, 424 Arnold v. Cornman 164 Arthurs v. Weisley '.....192, 194, 200 Asay V. Hoover 507, 508,' 509 Ashhurst's Appeal 384, 392, 393, 396, 397 Ashton V. Phiia. Ijfat. Bank 436, 443, 455, 479 V. Walton 259, 260, 528 Ayres' Estate j 239 Backestoss v. Commonwealth 442,444, 455, 458, 478 Baggs' Appeal 525, 544. Bagley ^. Wallace 147 Bailey v. Bailey 302, 307„315 344, 408 V. Eeed 222, 224, 403, 414, 416 V. Vehmeier 228 (xxi) XXll CASES CITED. Baines V. Williams. 252 Bair v. Black. 538 Baker v. Flndley.., 22, 25, 30, 35, 150 Baldrfdge v. MoFarland 67, 131, 138 Ballentine v. White 191 Bank of Gettysburg?;. Thompson..214, 404 Penna. v. Potius ^ 517 United States v Biddle.,392, 396 Bannon o. Brandon.. .47, 53, 55, 59, 73, 75, ,» 76,83,84,110,140,143 Barber «. Chandler 541 Barclay's Appeal 215, 217, 351,352, 354, 409 Barclays;. Barclay 236 Barker v. M. Ferran 508 Barnett v. National Bank ^ 529 Barnhart v. l^ettit 15, 21, 24, 26, 29, 30, 31, 32, 105, 106 BarnholtB. Ulrich..216, 386, 392, 394, 396 Barrett v. Bamber.. 194, 197, 198 Barter w. Commonwealth 148 Bartolett v. Albright .239, 282 Barton «. Dickens.,261, 264, 280, 381, 382, 388, 391, 399 Barwell v. Wikh...318, 323, 328, 349, 350, 419,421' Bashi;. Bash 281 Baugher v. Conn ....363, 393, 398 Beale v. Commonwealth ...227, 518 D.Dougherty 553 V. Kirk ....433, 435, 459, 473, 474, 484 Bear Valley Co. v. Dewart 18 Beaupland v. McKeen 33, 35, 142 Beqhtel v. Leinbach 554, 556, 558, 560 Beck V. Beck 306,402 Beedy v. Dine 133,135, 140, 146 Beerbower v. Furry 554 Beidelman v. Foulk 43, 97, 176, 183 Bellerjean's Estate 405 Bell's Appeal 216, 228, 237, 286, 394 Estate 215,313,410 Bell V. Hartley 25, 28, 29, 31, 33, 42, 44,53,55,56,115 «. Levers 9 Benedict v. Penna. Canal and B. B. Co 565 Bennet v. Bullock 83 Bensell v. Chancellor 121, 122 Bentley's Appeal 378, 430, 467, 471, 472, 474, 486, 489 Estate.. . .430, 431, 434, 439, 443, 448, 451, 453, 455, 456, 457, 461,462,468,469,485 Bergey's Appeal 411,425 Berghaus v. Calhoun... 302, 308, 309, 316, 317, 327, 345, 348, 419 Best V. Campbell 192, 194, 200, 204 Bevan v. Cullen....221, 251, 367, 369, 370, 413, 414 ■u. Eldridge 267 Bewley's Estate 215,302,409 Bfeyerly ». Hunger 545 Bickel's Appeal.... 228, 229, 230, 231, 242, 257, 272, 273, 383, 394, 396 Biddle v. Ash 163, 165, 168, 173, 174 V. Girard Nat. Bank 430, 432, 436, 437, 447, 453, 455, 485, 487, 489, 492, 494, 496 V. Moore 346,411,427 V. Shippen 6 Binney's Appeal 216, 261, 395 Bird V. Smith 163, 177, 179, 182, 183 Birkey v. McMakin 352, 406 Bishop's Appeal 543 Bishop V. Lee 25, 29, 30, 32, 105, 107 Black's Estate. 150, 192, 196, 197, 198, 199 Black V. Moore 11, 12, 42, 63, 74, 117, 129, 133, 136 Blaokmore v. Gregg..63, 83, 85, 96, 97, 525 Blackstone v. Burton 404, 406 Blaich V. Bixenstein 195, 200, 203, 204 Bloxham v. Boberts 556 Boehm v. Engle 6 BoggD. Bard 350,411 Bolton V. Hamilton 58, 59, 83, 85, 86, 88, 90 «. King 316, 323, 349, 350 Boltz ». Bullman...431, 436, 469, 471, 479, 488, 489, 497, 498 Bombaugh ». Miller 172, 173 Bond's Estate 323, 327, 352, 354 Bone's Appeal ...: 217, 389, 402 Bonsalla. Chancellor 238 Borough of Easton v. Walters.. ..217, 288, 289, 402 Harrisburg v. Crangle... 380 Huntingdon v. Jackson.. 565 CASES CITED. XXIU Bossv. Long 333 Bottu. Stoner 343,347,356 Boustead v. Culler ....,, 294 Bovard v. Christy...... ...176, 181, 182 Bowers », Bowers... 267, 283, 418 Bowker's Estate 240 Boyd's Appeal 431 Boyd V. Grant 431,468,470,479, 489, 491 Bradford ». Guthrie 11, 12, 13, 44, 45, 54, 56, 57, 59, 62, 97, . 114,154,155,156,157,159 Brady t). Colhoun 270,271 Brandon xi.Bannon 47, 58, 73, 75, 76, 78,110 Breams. Spangler... ■. 566 ' Bredin ». Kingland 278 Breidigam ». Hoffmaster 60, 135, 138 Breitenbach v. Bush 246 Brentlinger v. Hutchinson., 8, 10 Brewster B. Brewster 392, 393 Brice v. Curran 10 Brickerv. Lightner 415 V. Lightner'SjEx 239, 246, 304 Briggs' Appeal .388, 433, 439, 497, 498, 500, 503 Brisben v. Wilson :.226, 227 Broad Top Coal Co. v. Biddlesburg... 12, 27, 29, 35, 36, 63 Brock V. Savage 191, 433, 437j 492 Brol V. Boyle 507,. 510, 511 Brolasky v. McGlain..l9, 63, 110,.113, 138 Brookfield v. Hill 545, 546 Brobmall v. Laird 432, 478 w.McCalUon 192,197 Brown's Estate , 478 Birown v. Agnew 27I, 372, 414 i>. Binney 216,395 V. Bridges 226,313 V. Bush 226, 292, 399, 401, 411 V. Campbell 302,306, 421 V.Day 37,185,186,187 V. Hambright 550 V. McCoy... .79, 83, 84, 86, 90 V. McKinney 16,17, 28, 42, 45, 138, 139 «. Sutter 425,426 Browne D. Browne 549 Browning D. Cover 293 Brubaker «. Taylor 497, 498, 506 Buckholder V. Sigler 51, 60, 63, 71, 72, 97, 118, 183, 184 Budd ». Conard 4&6, 471,«484 Bull V. Towson 217,388 Bunn w. Drovin ,313, 345, 353, 386 Bunting v. Young......... 98, 140 Burd's Ex. «. McGregor's Adm 377, 525,526 Burd V. Smith 173 Burke v. Hammond..99, 100, 105, 185, l'88 Burns v. Swift , 12, 21, 22, Burr V. Burr 304, 308, 316, 3^7, 324, 325, 333, 345, 352, 354, 355, 399, 408, 419 Burrell v. Little... 65, 87, 109, 120, 125 Bush V. Stowell 270, 352, 354, 357, 360 Butterworth v. Pratt 556, 557, 559 Butz w. Ihrie..,. 172, 183, 184 Cadwalader's Appeal 190 Cadwalader». App ...:... .J 63, 69, , 76, 83, 84, 98 Caldwell u. Brindle 562 V. Copeland 18, 20, 72, 134, 141,152,155,163,176 Calhoun v. Cook 42, 59, 60, 82, 83, 84, 85, 91, 95, i96, 101,135 Cameron v. Montgomery. 566 Camp V. Welles 538,539 Campbell v. Boggs 257, 261, 262, 267, 277, 278, 279, 299, 381, 400 , V. Braden.....23, 42, 65, 70, 138,/ 140, 146 V. Fleming. . . 215, 239, 245, 303, 344, 408, 409 V. Maple's Adm , 277 , V. Fenn District.... 546 Care v. Keller 64, 69, 70, 137, 149 Carlisle v. Stitler 12, 13, 111, 119, 120i 121, 124, 128, 142, 151, 238 Carothers v. Cummings. 550, 558, 567 11. Dunning.... 97, 142, 151, 152, • 155,158 Carter v. Hess 552,555 V. Tinioum Fishing Co... 185, 186, 187,188 XXIV CASES CITED. FAOE. Carter v. Trueman 625 Carathers V Caruthers 8,9 Case V. Cushman....219, 222, 238, 241, 411 Ca£tner V. Bilbow 557 Caughey V. Pittsburgh 548 Cayence v. Butler 562, 567 Chambers v. Marks 362, 364, 366, 367 Chandler v. Bennett 376 V. Lamborne 626 Chapman's Estate 239 Chestnut Hill and Spring House Turnpike Co. i<. Piper 175, 178, 179, 180, 183 Chew V. Morton 45, 66 Chorpenning's Appeal.... 217, 390, 402 Christy v. Flemingt6n...313, 318, 345, 347 V. Sill 195, 203, 204 Church D. Feterow 217, 307, 310, 315, 399, 419, 421, 422 V. Buland 194, 196, 203 City B.Brown 2.56 , Cavalry i;. Morris. 216, 275, 381, 392 Iron Works v. Barber 236 of Phila. V. Comber... ..432, 435, 455 / 0. Wright 288 Clapier ». Maupay..431, 436, 497, 498, 504 Clark V. Burn 343, 352, 356, 358, 359, 360 V. Hackethom. 7, 8, 10 V. Maguire 331, 344, 352 V. Maguire's Adm 362, 363, 364 «. Miller 68,70,82,126 V, Quinn 657 V. Trindle 62, 63, 118, 192, 197, 198, 200 «. Wallace 541,642 Clarke v. Dougan 26, 31, 99, 106, 140 D. McAnulty 666 Clement v. Commonwealth...237, 514, 516 Cluggage V. Duncan 21, 25, 141 Coates' Estate..., 446 Coates V. Hughes 607,608, 609 Street' Passenger Eailway Co. V. Moore 400 Cbbaugh's Appeal 240 Cochran v. Douglass 665, 566 II. McKelvy 562 V. Parker 567 V. Young 607, 509, 510, 511 Coke V. First Nat. Bank of Lebanon.. 529 Coleman v. Fobes 325, 345, 348, 351, 357, 358 Collini V. Benedict... 29, 38, 39, 56, 57, 98, 101,109, 110, 111, 140,, 143, 145, 151, 154, 156, 158 D. Bush 98 V. Savage 555 Columbian. Patton 556 Fire Ins. Co. v. Sweigert... 563 Comegys » Carley 45, 64, 139 Commonwealth v. Alburger 148 V. Baldwin....*. 407 D.Bryan 513 D.Duffy 213 V. Johnson 407, 514 ». Lelar ... 493,499,500 V. McDonald 148 II. Miltenberger 148 V. Patterson 513 ». Eainey 517 ji. Eose's Ex 516 V. Euffner 411 II. Severn 514 II. Snyder... 378, 436, 443, 444, 447, 468, 474, 475, 476, 477, 497 II. Springer 617 V. White's Ex 516 Compher V. Anawalt 539 Congregation v. Miles 69, 115, 147 Conner v. Burd 544 Connery v. Brooke 166 Conyngham School District v. Col- umbia County .282, 299, 407, 408 Cook V. Nicholas 46, 114 Cooke's Appeal 439,467 Cooper V. Smith 163, 164, 166, 167, 169, 177 Cope V. Humphreys 429, 430, 131, 432, 436, 449, 453, 454, 455, 457, 468, 483, 486, 487 Cornell's Appeal, 216, 297, 394 Coulter V. Phillips 68, 98, 120, 128, 132, 144 «. Eepplier 415 Couticil V. Moyamensing 378 County of Lancaster v. Brinthall 217, 230, 403 Susquehanna v. Deans 19 CASES CITED. XXV PAGE. Courtenay w. Williams 405 Craig's Appeal 287 Craig D. Brown.. ..^ 567 V. Harbison 11, 12, 41, 62, 63, 65, 130, 140, 146 Crawford v. Neff. 97, 98, 177, 179 Creaser v. Myers 563 Cremer's Estate 351, 359, 431, 438; 478, 479 Cresman v. Caster. 247, 304, 427 Creveling v. Kindig.. ...545,547 Criedland's Estate 378,390, 431, 440, 490 Crist V. Brindle 302, 343, 404, 423, 454 i t). Haldeman 315 Criswell v. Altemus 24, 25, 26, 30, 33, 43, 44, 53, 54, 56, 57, 59, 82, 101,136,140,144,151,152 V. Criswell 304, 323, 335, 346 Cromelien v. Brink 226,549 Cronshore v, Enoz, Supreme Court Dig 286 Crow V. Kightlinger 125, 127, 128, 130, 134,137,138 V. Wolbert ; 172 Crum V. Burke 32, 36, 38, 106 Culbert «. Fleming. 385 Culler ». Motzer 65, 87, 136, 137, 149, 150 Cummings «. Forsman 562 Cunningham ti, Allegheny County... 252, 407 V. Patton ..103, 104, 115, 140 Curcier's Appeal 215,409 Estate ....228, 230, 232, 309, 344 D. Dailey «. Bartholomew 546 V. Mayer ; 553 V. Vehmeier r434,441,452 Darlington's Appropriation. .432, 439, 455, 458,478,492,496 Darlington v. Painter 108, 149, » 175, 178, 179, 181 Dauchy i>. Pond 190 Davidson v. Markley 555,564 Davis «. Black 542 V. Dickson 49, 67, 130, 135 V. Marra 565 V. McHenry..432,452, 454, 465, 491 Davis V. Shoemaker 374, 375, 412, 413 V. Steiner 302, 316, 317, 325, 332, 333, 355, 383, 419 Dawson's Appeal > 542 Deal V. McCormick 10 Dehart v. Gard 431, 436, 486, 489, 497 De Haven's Estate 352, 356 De Haven v. Bartholomew 214, 376, 401, 402 V. Landell 11, 12, 14, 15, 16,17,18,62,63, 99, 102, 138, 140^ Delaneyi). Eeed 472 Delany v. Eobinson 431, 436, 454, 457, 458,459,468,473,482 Delaware and Hudson Canal Co. V. Loftus 565, 567 Hudson Canal Co. V. Torrey 176, 177 Lacka. and Western E. E. Co. V. Burson 379, 381 Demmy's Appeal.... 240 Demuth v. Amweg 164, 165, 166, 168, 170^ Dennison 1) Goehring.... 543 Derrickson v. Cady... 257, 259, 279, 381, 40a Devenny ij. Commonwealth 555 Devinet). Boyd 558 Dewees v. Latchford 532 Dexter v. Billings 223, 292, 399 Diamond v. Tobias 432,436,453,497, 498, 501 -Dicken v. Hays 195, 202, 251, 402^ Dickey's Appeal. 193, 200, 203 ,, Dickinson v. McGuire 549, 563, 564 Dicks V. Carter 551 Diehl V. Ihrie 431, 432, 436, 454, 459,484 Diemer v. Sechrist..43], 436, 442; 444, 449^ Dietrick D. Mann 553 Dikeman v. Parrish 11, 12, 24, 41, 42, 53, 56, 59, 78, 86, 87,90,115,119 Dillebaugh's Estate 214, 376, 390, 432,439 Dillon D. Dougherty. 213 Dobsonj;. Fell 559,560' V. QuantreU 218, 326, 419- iXVl CASES CITED, Doebler v. Snavely 214, 377 Donahue v. Hill 564 Donnelly J). Purcell 556,558 Donovan v. Drisooll...46, 47, 190, 198, 199 Dorrancev. Morrison 295 Doughertys. Snyder 218,222 Douglass V. Lucas...l92, 199, 200, 203, 204 , Downey v. Garard 194, 257, 261, 265, 274, 278, 299, 381, 384, 412 Downing v. Lindsay 232, 345 Driebilbe's Appeal , 542 Drysdale's Appeal 215, 217, 376, 402 405, 409, 433, 450, 451, 493 Du BoisD. Baum 190 Duncan t; HaUbest 174 Dunn's Estate 239, 240 Dunn V. Truitt 67, 195 Durdon v. Gaakill 384, 485, 486, 490 Dutilh V. Miller ^.. 426 Dwire ». Weber 550, 554 Dyeru. Depni 178, 184 Dysart v. Leeds 50 E. Eagan ». Wilkins :.... 561 Eakin v. Eaub 6, 7, 127 Ebersoll». Krug 542 Eby V. Eby.: 431, 436, 453, 455, 456, 457, 468, 469, 491 Eckert's Appeal 389, 434, 440, 444 Eckert «. Wilson... 302, 307, 314, 315, 325 Eckstein «. Shoemaker 246 .Eddowes V. Niell 220 Edmundson v. Wragg...226, 227, 528, 530 Edwards D. Carr 547,548 Ege's Appeal 540 Ege V, Medlar i.21, 23, 24, 37, 122,, 123, 130 Eichelberger w. Gitt 69 Elkinton v. Neuman 374 EUinger's Appeal 356, 357, 376, 426 EUinger v. Fletcher 356, 357, 376 Emaus Orphan-House v. Eendig 255, 381, 389, 409, 410 Emerson v. Miller 285, 308, 316, 327, 328, 339, 342, 345, 419, 422 PAQB. Emlen v. Middleton 479,496 Erb V. Brown 172,183 Esling V. Williams 163, 165, 166, 167, 168, 171 Etter V. Greenawalt 222, 223, 224, 377, 378, 401 Evans' Appeal 237, 384, 392, 393, 396, 397, 398 Evans v. Erie County 15, 16, 62, 139, 145, 147, 148, 407 V. See 267, 269, 294 Everhart's Appeal 372, 392, 398 Ewing V. Alcorn 11, 12, 17, 19, 20, 27, 28, 29, 36, 38, 100 V. Barton 8 V. Ewing.... 21, 23, 42, 65, 138, 146 EielB. Snevily 426 F. Parley v. Kustenbader 287, 316, 319, 327, 353, 400, 419 V. Lenox 21, 23, 24, 25, 29, 32, 106, 110 Farmers' Bank v. Gilson 268, 271, 387 «. Nice 241, 424, 426 and Mechanics' Bank v. Israel 233,234 and Mechanics' Bank ti. Wilson 54,57,115, Mutual Fire Ins. Co. v. Barr 533, 534, 535, 536 Farnum v. Eastwick 343, 358 Fawcett v. Fawcett 227,308,326 Feather's Appeal 241, 246, 446, 493 Pee I). Fee 252 Penn«. Early 537 V. Bead 508, 509 Ferris v. Henderson 249, 250, 394, 397 Pick «. Welle&dorf. 560 Field's Estate 456 Pink u. Mehafify 271 Finkbone's Appeal......2l5, 241, 267, 294, 295, 310, 386 Finney v. Cochran 280, 350, 381, 383, 399, 400 Pishar v. Prosser 85,91 Fishburn v. Schifler 565 Fisher v. Farley 165 CASES CITED. XXVII Pitch V. Mann 15, 28, 115, 140 Pleming v. Culberf;. 220, 257, 258, 264 278, 382, 425 Polmar'a Appeal 5l0, 511, 512 Porest V. Wallace 19, 21, 22, 35 Forney v. Benedict 219, 803, 344, 345, 348, 352 Porschti). Green 520 Porster v. Cumberland Valley Bail- road Co 214,392,401, 402, 403, 404, 408, 425 ■V. Porster .....433,441, 446, 460, 470, 493 Porward v. Deetz '. 83, 84, 95, ^6 Poster V. Jack 267, 275, 276,413 Poulk V. Brown 238, 377, 431, 432, 433, 436, 443, 447, 448, 453, 454, 456, 457, 459, 461, 462, 467, 475, 476, 477, 485, 486, 488, 491, 497 • Pox V. Cash 259, 266, 291, 384, 391 V. Thompson 185, 186, 187, 188 Pranklin Savings Bank v. Bridges... 287, 297 Prantz v. Dehart 550, 551 V. Kaser ,.,. 541,542 Freak v. Oranefeld/;..-, 239 Frederick v. Gray... 82,83,85,91 French v. Penna. K. K. Co 546 Prey «. Hp'lben 310, 352, 360, 416 V. Klebe 509,511 Prick ». O'Farrell 116 Pricke v. Magee 150, 195, 203, 392 Pries I). Boisselet 217,302,303, 306, 307, 311, 315, 342 Fritz D. EvansC 542 V. Fisher 545 V. Thomas 316,321, 344, 348, 408, 409 Pulloch V. Worrall 82, 83 Funk V. Smith <.257, 277, 286 .Purney's Appeal ...217, 267, 289, 402, 410 at. Gainer's Appeal 556 Galbraith v. Galbraith 433, 436, 448, 488, 490 V. Gonder 554 Gallagher v. MUligan 302, 303, 306, 307, 310 Gallagher D. Thomas 404 Galloway v. Ogle ,74, 185, 188 Gandolfo v. Hood 257, 397 Gardiner's Estate 373, 375 Garrahan ii. Norton 547 Gehman v. Erdman ^..164, 176, 178, 179,180,181,183 Gehring v. Lambert 554 Gemberling B. Myer 303,408 Geoghegan t>. Beid..221, 222,224, 412, 413 George's Appeal 543,544 Gerard v. Gerard 305 Gerhard v. Gerhard ....316, 324, 345. 352, 356, 420 Germantown &c. Turnpike Co. v. Naglee 565 Germond j;. Gould 237 Gemet «. Lynn 130 Gerrettj). Jackson 164,165 166, 167, 168, 169, 170, 171 Gest V. Heiskill... 241, 302, 316, 319 deyerV Western Ins. Co 387,394 Gibbs v. Cannon 268, Gilbert v. Maxwell 550 , Gilday v. Watson 8, 10, 28 Gilkyson ». Larue 225, 302, 303, 308, 315, 31^, 317, 350, 399,413,419,424,426 Gillespie 1). Campbell 638 Gillingham v. Gillingham .'...313, 345 Gilmore d. Eeed.."..214, 404, 405, 406, 415 Girard Bank «. Bank of Penn Town- ship 294, 295, ^96, 300, 310, 347, 412 Glasz's Estate 526 Gleim v. Bise i,307, 316, 340, 345, 400, 419 Glenn v. Cuttle 257, 261, 262, 267, 278, 279, 381, 425 Glover*. Wilson 146,407,514 Gouder v. Estabrook 214, 220, 221, 404,415,417 GonzalusD. Hoover 10 Good V. Granit 528 Goodman v. Sanger 18 Gordon's Estate 333 Goswiler's Estate 227 In re 541,543 Gourley J). Kinley 46 Gowen v. Phila. Exchange Co 174 XXVIU CASES CITED, Graffius v. Tottenham 15, 16, 82, 87, • 97,98,113,114,115,116, 139, 140, 142, 143, 151, 152 Graham v. Craig 42, 65, 75, 76, 143 V. Keye8...302, 314, 316, 319, 413 Grape Street, Id re 216, 217, 288, 402 Graver v. Fehr 547, 548 V. Scholl 175, 178, 179 Gray v. McCreary 21, 27, 139, 144 Green's Appeal 226 Green v. Fricker 432, 435, 463, 494 V. Kellum i22, 23, 31, 108, 140, 141, 149, 152 and Coates Street Bailway Co. ■V. Moore 373,376,401 Gregg V. Blackmore .19, 25, 30, 45, 88, 89, 94, 96 Griffin's Appeal 174 Griffith's' Estate ....431, 439, 455, 456, 483 Groft V. Weakland...l2, 19, 63, 77, 97, 99, 101,108,109,110 Groome's Estate 283 Grubbi). Guilford 172, 183 Guieri). Pearce 311,425 Giiilky «. Gillingham 562 Guillou V. Perry 359, 367, 418, 426 Guldin V. Faber 457, 458, 478, 496 Gwyllyn v. Plymouth Coal Co 556 H. Haines ti. Hillary 560 V. Townsend 548, 550, 551 Hale 1). Ard 279, 363 Hall«. Boyd 344 i). Caughey 172 V. Mathias....... 46, 47, 84, 85, 86, 87 V. Powell 12, 21, 32 V. Vandegrift. 6, 120, 131 Hamilton v. Hamilton 327, 392 V. Hamilton's Ex 215, 267, 296,371 Hanger v. Abbott 243 Hanna v Holton 263,293,401 V. Meoonkey's Ex... 257, 258, 263, 276, 277, 290 Hannah Hupfeld's Estate 508 Hannum's Appeal 215, 316, 319, 343, 403, 410, 425 Hannum v. Borough of W. Chester... 177,. 179, 214, 380, 392, 402 Harbold's Ex. «. Kuntz 329, 339 Hajrbold v. Kuntz 282, 316, 327, 340,. 348, 400, 408 Barker v. Addis 227,541 Harmon's Appeal 49, 138, 141, 150 Harper's Appeal 191 Estate 130, 257, 267, 284, 382 Harris v. Christian.... 283, 399 V. Dennis 230, 231, 232, 412 V. Harris 190, 191, 197, 198 V. Bidhey 141 Harrisburg Bank v. Commonwealth.. 522 1). Forster 258,414 Harrison v. Crockett 560' V. Wilkinson 546 Hart V. Gregg 65, 83, 84, 85, 88, 89, 91, 95, 96, 146. Hartranft v. Clarke 553 Hasson v. Penna. K. E. Co 225,414 Hastings v. Wagner 185,186,188 Hatch V. Smith... 23, 27, 28, 115, 136, 140 Haverstick v. Sipe 173 Hawk V. Senseman 11, 12. Hawthorn v. Filler * 545 Haydock D.Tracy.. 304,307,350 Hay V. Kramer 311, 312, 346, 361, 363,. 364, 365 Hay's Estate 240 Hayes' Appeal 247, 397, 398, 403, 434,. 435, 438, 453, 454, 455, 492 Hazlebaker v. Reeves 302, 303, 318, 332, 333, 400 Hazlett V. Baugh 173, Heath II. Page 411,530,528,529 Hebrew Education Society <). Bres- sier 141 Heckerman v. Hummel 160, 187 Heft V. Hammill 546 Hegarty's Appeal 507, 510, 511 Heiser v. Riehle 16, 17, 23, 25, 30, 37, 136, 144 Hei tier ». Earing 556 Helmbold v. D., H. and W. E. E. Co.. 373, 418 Hemphill 1). McClimans 227 Henderson v. Lewis ...429, 431, 435, 453, 454, 457, 497, 498, 50O' CASES QITED. ZZIX PAGE. Henninger v. Woodring. 545, 562 Henry v. Carson 64, 124, 125, 126, 137 V. Henry 147,148 Henwood v. Cheeseman 314,400 Hepperd t). Van Horn 560 Herman «. Binker. 349,350, 352, 360, 376, 426 Herron'a Appeal 553 Herron v. Fetterman 532, 533 Hersohberger v. Kachel 163,172 Hersefield v. Cost 399 Hess V. Frankenfield ...432, 433, 436, 489, 491, 497, 498, 500, 503 V. Hess 507 Hesaer ?). Steiner ....270,410 Hibbsi). Stines .^.. 561 Higga V. Stimmel '. 89, 432, 437, 454, 455, 469, 472 Hillt;. Biggariot 243 V. Goodman 223, 225 Hillside Coal and Iron Co. v. Feath- erman. 546,547 Hinkley i..Walters..214, 404, 405, 413, 415 Hinman v. Cranmer 20, 144, 145, 151, 153, 155, 156, 158 Hoag V. Allegheny 539 V. Dessan 218 Hobaugh v. Murphy 324, 325, 326 Hoch's Appeal .215, 217, 290, 344,349,409 Hockenbury «. Snyder.. .18, 23, 27, 28, 30, 32, 97, 99, 100, 105, 136, 140 Hoey V. Furman 12, 15, 33, 140 Hoflanan v. Bell...! ,... 187 v. Dawson 567 V. Fisher 424 Hofliieri). Kottka 548 Hogan V. Bear 303, 311, 312, 315, 316, 346 Hogg V. Ashman 16, 45,49, 122 123, 124, 125, 130, 137, 138 V. Orgill 358 Hole V. Bittenhouse 11. 12, 15, 17, r 18, 20, 21, 22, 26, 29, 31, 32, 34, 35, 37, 62, 99, 100, 107,134,140,151,152,156 Holliday v. Ward 507, 508 HoUingshead v. Nauman 17, 24, 26, 27, - 28, 29, 36, 44, 62, 115, 140, 147, 148, 151, 152, 155, 156, 158, 159 PAai. HoUinshead's Appeal 195, 196, 197,200,203,204 Holmes V. Pattison 67, 89, 134, 140, 147, 148 Holtzapple v. Phillibaum 151, 154 Hood ». Hood .42, 51, ■59,, 60, 62, 65,70,74,76,80,151,152, 154, 155, 156, 157, 158, 159 Hoopes V. Qarvei ; 11, 14, 46, 53, 57, 59, 138, 140, 143, 144, 149, 154, 156, 158, 159 Horsefleld v. Cost 273 Horter v. Wilson 399, 417, 426 Hosie V. Gray : 565 Hoskins v. Lindsay 381 Houka. Knop 558,559,560 Houser v. Irvine. 351, 352, 357, 399 Howell V. McCoy \"6, 177, 178 Hoy V. Sterrett 173, 176, 178, 179 Hubley's Appeal,' 430,435,441,453 455, 457, 459, 463 Hudson V. Carey.. .218, 228, ^30, 243, 305, 308, 312, 315, 342 V. Craig 302 Huey «. Smith ...28, 29, 30, 31, 32, 33, 107 Huffti. Bichardson ... 230, 231, 285, 302, 319, 327, 328, 335, 341, . 351,352,353,425 Hufl&nan i>. McCrea...l5, 26, 28, 29, 62, 63 Hughes' Appeal 378 Hughes V. First Nat. Bank of Way- nesburg 250,401,414 *. Hughes 431, 443, 491, 497 498,500,505 D. Smith .....58, 142, 152, 157 Hugusv. Cannon 444 Hull V. Adams 38 J). Mooney 367 V. Wilson 40 Hummer v. Ephrata School District . 566 Humphrey v. County Nat. Bank of Clearfield 273, 274,294,407 Huntv. Devlin 45 V. Devling 64, 116 V. Wkll 42,65,70,123,124,125,141 Hunter T). Cochran 140 V. Meason 8,9 Hutchinson v. Merchants' and Me- chanics' Bank of Wheeling 243, 399 ixx CASfe CITED. I. PAGE. V. Cairng 46, 47 Imlerv. Houser 551 IngersoU v. Lewis 15, 17, 53, 59, 153, 156, 158, 159 Ingham v. Sickler 647 tngraham's Estate 434 ingraham «. Ctox. . .431, 432, 433, 440, 441, 445, 455, 457, 477, 493 Ingram v. Sherard 217, 361, 362, 364 Innis V. Campbell 137, 141 Iredell v. Klemm ...266,392 Irvine v. Bull 190 V. Sibbetts 11, 42, 48, 52, 65, 80, 87, 90, 120, 125, 130, 133 Irwin V. Cooper 65, 70, 83, 91, 93, 140, 141, 150 V. Nicholls 8, 9 Jacks V. Moore.... 404, 413 James v. Jarrett....432, 436, 453, 462, 463, 468, 496 V. Milne 215,405 Jarden v. Phila., Wilm. and Balto. B. E.Co 288 Jayne v. Mickey 367, 368 Jessup V. Loucks 176, 178, 179 Johns V. Lantz .....302, 316, 324, 336, 345 Johnson's Estate 240 Johnson v. Crow 177 V. Miller. 563 V. Rutherford 290 Johnston v. Humphreys 245, 346, 382, 385, 391 V. Inrin 11, 12, 15, 136, 147 V.Jackson '. 53 Jones V. Crow 176, 178, 179, 181, 182 V. Delaware &c. Canal Co 546 V. Moore 302, 307, 340, 344, 346, 348,408,411,413 V. Orum 228, 230 V. Porter 41,42, 43, 44, 47, 60, '63, 64, 65, 73, 111 V. Bees' Ex 249, 259, 267 «. Trimble 268,269 ». Wister 218 Junior Steam Fire Engine Co. of Beading v. Douglaiss 306,343 Kaier v. McGee 546, 547 Kane v. Fisher 375, 431, 437, 448, 451, 456, 467, 497 Kashner v. Lehigh Valley Bailroad Co 210, 404 Kauffman v. Fisher 352, 357 Kaul V. Lawrence 108, 109, 237 Kear v. Sanner 560 Keely i;. Wright 346 Keller v. Ehoads...280, 381, 382, 399, 400 V. Stoltz.... 175, 176, 178, 181, 182, 183 Kelly V. Gilmore 557 V. March 546 V. Valney.... 342,345 Kelsey V. Murray 19 Kempner v. Laney 352, 376, 426 Kennedy v. Carpenter 268 Kensington Bank v. Patton 226, 268, 317, 318, 324, 341, 412, 418, 425 Kenyon v. Stewart 211, 212, 508, 510, 512 Kerr v. Eodgers.....554, 556, 557, 559, 560 Keyes' Appeal 373, 393, 399, 403 Keyser v. Evans 82, 84, 85, 86, 92, 93 Kille D. Ege 37, 49, 82, 97, 98, 99, 108, 130, 237 Killion V. Davis 518 V. Kramer 561 King's Ex. V. Coulter's Ex 214 Kingv. Baker 100 V. Baxter 246,414,416 V. Coulter 404, 416, 429, 453, 457, 488, 497, 498, 500, 502 •11. District of Penn 552 1). Foxf. 237 Kingeter v. Stritzinger 555 Kingston v. Lesley...6, 82, 85, 87, 185, 188 Kinsloe v. Baugh 359, 418, 426 Kinter's Appeal 544 Kirk u. Smith 7,69 Kitchen v. Deardorff. 478, 479, 480 Kite V. Brown 15, 21, 22, 23, 25, 30, 34, 37 Kittanning Academy v. Brown 73 145, 146, 147 Kittera's Estate 215,409 Kline «. Guthart 343,348 V. Hochstader 554 CASES CITED. XXXI Kline v. Kline 220, 431, 437, 453, 479, 483, 484, 486, 494 Klock V. Bressler 352, 360, 426 Knapp V. Stoner 556 Koenig ti. Bauer 564 Koontz's Adm. v. Howsare :..... 552 Kopf V. Utter 148 Korn V. Browne.... 162, 163, 204, 211, 212, 432, 437 Krause v. Dorrance 299 Krier's Private Koad :...164, 165, 168, 173, 177 Kuhn's Appeal 544 Kunkle v. Kolb ' 352,355 Kurr V. Brobst 161,162,432 Kutz'B Appeal 215, 222, 224, 392, 395, 402, 413 Kyle V. Wells 302, 345, 348, 427 £.. Lacoek v. White 545, 548 Lacy V. Amett 176, 178, 181 Laforge v. Jayne 294, 318, 399 Lamb «. Fries ;... 433, 437,445,493 V. Lindley 521 Landis' Appeal 74, 134 Landis v. Both 302, 325 V. Tomey 119, 137, 149 Lang's Estate 215,405 Langs V. Galbraith 56S Lantz V. Lutz..... 519 Lash V. Von Neida 359, 417, 431, 438, 478, 479 Law V. Mumma 175,181 V. Patterson 60, 65, 82, 83, 84, 85, 86, 87, 90, 94; 96 Lawrence v. Hunter 16, 17, 19, 24, 25, 28, 31, 43, 52, 53, 75, 109, 111, 114, 144, 152, 154 Lawson v. McCartney 312,316, 324, 351, 418, 422 Layton v. Brightfield 192, 197, 198, 199, 200 Lazarett's Eoad .' 164 Lazarus v. Fuller 350, 356, 360, 419 Leasure v. Mahoning TownBhip...248, 267 Lees. Farrell 563 U. NeweU 497, 498, 500 Leeds v. Bender 42, 43, 65, 68, 69, 80, 138, 143, 144, 146 «. Lockwood 108 Lehigh Valley E. R, Co. v. Murphy, 547 Leibert V. McKnight :.... 440' Leinhart v. Forringer 251; 266, 267, 291, 375, 400 Leis V. Yost 545 Lenhart v. Beam 42, 65, 125 Lenox V. Farley 114 Leonardo. Parker 237 Lesley D. Nones 432,^97 , Lessee V. Eckert 130 Levering V. Bittenhouse .....244, 272, 378, 404, 413 Levers v. Van Buskirk 432, 437, 442, 443, 456, 457, 460, 46', 462, 463, 466, 467, 485, 486, 492, 495, 496 - Levy V. Cadet. ...... 302, 303, 348, 349, 368, , 422,425 L^wis V. Carstairs 165, 175, 178 V. HoUahan 211 V. Pratt 507, 508, 509 Lewistown Boail 288 Lichty D.Hugus... 266,275,276 " Lindeman v. Lindsey 161, 170, 172 Lindsay's Estate 544 LitK^sey v. Lindeman 183, 184 Lingenfelter v. Bitohey 195, 197 Lingerfield v. George 553 Linn's Estate... 239,304,375 In re 363,365 Linville v. Dalsam 550; Littleton's Appeal 544 Live Stock Ins. Assn. v. Evans 535 Livingston v. Cox...! 261, 279^ Lloyd V- Munroe 56,6 Lockey v. Lockey.. 225 Lodge V. Patterson 82, 83, 84, 88, 94, -, 136,146 Logan V. Green 228, 229, 230 V. Bichardson 378, 437, 525 V. Watt 507, 508, 509- Long V. Mast...' 41, 52, 59, 60, 135. v. McCormick 5^3 Longwell v. Bentley...52, 76, 77, 83, 86, 93 Loomis' Appeal 240 Louderback v. Boyd 556, 558 Love V. Economy Building Assn...:.. 532: JEXXU CASES CITED. Love V. Hough 318, 323 Loveland v. Davidson 219, 375 -Levering ». Commonwealth 555 Lovettv. Mathews 508 Lowber ». Smith 361,362,364, 365, 366 Lucas u. Government Nat Bank 5:^9 Luke V. Schleger , 551 Lund V. Brown 15, 18, 30, 41, 50„97„ 102, 108, 140, 141, 149 iyburn v. Muench 61, 76, 80, 132 Lynch v. Cos.. ..61, 80, 119, 120, 128, 146, 150, 214, 238, 293,- 402 cF. Wolverton 518 -Lyon V. Marclay....304, 307, 381, 385, 391 V. McManus 283 Xytle D. Mehaffy 269,271 M. M^k's Appeal , 216,297,394 Mackentile v. Savoy.. .16, 17, 66, 103, 139 Magaw V. Clark 228, 229, 230, 242, 412, 414, 416 Magee v. Commonwealth 379 V. Magee. ..304, 307, 316, 327, 329, 330, 404, 408 V. Magg. 350 Mahoni). Baker 53,76,77 Malson v. Fry 43, 62, 111, 114, 138, 140,142,157,159 Man «. Warner 239, 245, 326, 344, 381, 382, 400, 408, 409, 413, 425, 524 Mark's Ex. o. Bussell 227 Marks v. Swearingen 567 -Marplei;. Myers 13,121,124, 125, 127, 129, 130 Marsden's Appeal.. 247, 248, 258, 395 Marseilles v. Kenton 227, 368, 369, 386 387, 409, 419, 420, 423, 425 Marsteller v. Marsteller. 222, 239, 245 Martin v. Jackson .11, 12, 51, 68, 69, 76, 98 Masters v. Turner 548 Mather v. Trinity Church 149 Mattern v. McDivitt 275, 361, 362, 363 Maul V. Eider 89, 98, 190, 195, 202 Maule 11. Building Assn 629 Maus V. Maus 67, 81, 132 Mayberryi). Gerber 564 Mayes v. Jacoby 541,542 Mayfarth's Appeal 214, 215, 324, 325, 404, 405 Mayfield's Estate 320 Mayor of Phila. v. Eiddle 18 McArthur v. Kitchen 19, 20, 26, 35, 36, 38, 39 McBarron v. Glass 79, 192 McCabe v. Emerson 213 McCafireyii. Fisher 22,25,26, 29, 30, 42, 136 McCale v. Gulp 545 McCallu Coover 29 V. Neely..l5, 22, 23, 25, 28, 30, 136 ^. Webb 79,85,93, 121,133, 93,197 McCallum ti. Germantown Water Co . 176, 178, 180 McCandless' Appeal 239, 240 Estate 215,239, 244, 381,408,410,413 McCarty B. Gordon 271,431, 436, 442, 443, 448, 450, 453, 494, 497 II. Hestonville, Mantua and Fairmount Pass. K. B. Co 211,225 McCl^andi). West. 302,307, 316, 338, 339, 419 McCIintock's Appeal 215, 217, 239, 240, 408, 409, 413 McClinton v. Pittsburgh, Ft. Wayne and Chicago E. E. Co 293, 379, 380, 399, 402 McClure «. McClure 214,228, 283, 363, 404, 415 McClurg V. Fryer 228, 229, 270 McCombs V. Eowan 42, 139, 140, 141, 144, 151, 155, 156, 158, 159 McConnell v. Gates 163 McCoon V. Galbraith 253, 254, 257, 264, 277, 278, 403, 423 McCprmick «. Allegheny City 522 McCort's Appeal. 509, 510, 511 McCoy ti. Hance 16,46 V. Trustees of Dickinson Col- lege 59,61,67,97, 111,116,136,145,147 McCracken v. Eoberts 48, 63 McCrudden's Estate 432, 442, 453, 457, 490, 498, 504 CASES CITED. XXXlll PAGE. McColloch V. Norris 400,413, 414, 424 McCuUough's Estate... 302, 323 MoCullough V. McCall .24, 33, 46, ^ 65,66,70,93,136 V. Montgomery 431, 436, 443, 456, 461, 464, 465, 478, 479, 494 McCully V. Pittsburgh and Connells- villeK R. Co 296 McDermott v. Hoffman 18, 35, 62, 63 McDonald v. Bromley 173 McDowell V. McCulloagh...348, 411, 431, 453, 456, 459, 462, 468, 478, 482 V. Potter 222, 223, 224, 225, 257,258,277,278 McElhaney v. Holland..554, 557, 562, 565 McElhiny v. Hope.. 57, 82, 83, 85, 92 McEIroy »..Eailroad.....l30, 149, 160, 161 McEwen v. Girard 226, 241, 381 McGinness v. Sawyer..l6, 28, 45, 105, 111, 138, 140, 142, 151, 152, 157 McGough V. Jamison. 294,295 McKee v. Perehment,... .172, 173 McKeehan v. Commonwealth 147, 407, 514 McKelvy's Appeal 271, 297, 361, 370, 371, 392, 414 McKillip V. Mcllbenny 176, 178 McKinney u.Eeader 227 V. Snyder 345, 347, 351 McLaughlin v. Kain 433, 437, 450, 489, 494 McLean v. Findley 444,448,468, 478,513 o. Finley 474,475,476 McMasteiBo. Bell...., .46, 63, 114 «. Carothers 83 McMuIlin «. Maxwell 563 McNinch V. Trego 192, 197, 199, 204 McNulty ». McCarty 566 McQuesney v. Hiester..l61, 431, 432, 437, 447, 454, 455, 467, 458i 459,468,469,489,492 MoWilliams' Estate.,... 344 Mead v. Leffingwell 24, 67, 68, 140 Meade ®. McDowell 270, 302, 343, 348, 412 Means' Appeal 287 Means ». Trout 565' Mee V. Kurtz 555 Mehaffy v. Dobbs.....57, 61, 70, 83, 85, 86, 87, 88, 95, 142, 149, 150' Mellish's Estate.... 381, 384, 387, 390, 433, 441,445,455,493 Mellon's Appeal.... ....:.... 410 Meloney v. Third Nat. Bank ....528, 529 Menges D. Frick ,...^ 226,285,449 Mercer v. Watson 11, 12," 15, 24, 43, 64, 72,75,77,97,111, 114,140,142,144 Merchants' and Manufacturers' Bank of Pittsburgh v. Watson. 313, 353, 399 Merchants' and Mechanics' Bank of Pittsburgh v. Watson 267,268 Merrill's Appeal 379, 392, 395, 396 Mertz V. Dorney.. 176, 178, 181, 183 Messer v. Ehodes 11, 12, 26, 49, 66 Messinger's Appeal 177, 178, 179, 182 Metz V. Hipps 211,212,214 Mewton v. Smjth 426 Meyer ». Horst.'. 176 I). YoUng>.. ....; 172 Miehehree v. Veach.....215, 239, 240, 241 Micheneri). Michener...432, 435, 438, 449, 457, 459, 473, 491, 492 Mickle V. Lucas 9 Miles V. Miles... 42, 54, 59, 60, 65, 98 V. Moodie 303, 307, 316, 346, 422 «. Tanner 566 Miller v. Basehore 302,323,327,334,419 V. Bealer. 108, 109, 192, 194, ' 201, 203 V. Commonwealth 212 V. Franciscus.... 123, 197 V, Henlau 190 V. Keene ^.63, 54, 57, 63, 64 V. MUler 28, 41, 65, 70, 83, 84, 85, 86, 87, 88, 96, 114,116,133 V. Shaw 12, 21, 23, 24, 25, 29, 32, 41, 55, 57, 114, 136, 144,147,151,152, 154,156,157,158 Milne's Appeal 174,215,217, 231, 242, 243, a44,"> 294, 402, 405, 410 XXXIV CASES CITED. Miltenberger V. Commonwealth 513 300 , Morton «. Blank 556 ». Funk 127,128,130 Mosgrove v. Golden 275, 276, 277, 281, 411,425 Moss' Appeal 386,435,446 Mountney v. McFarland 655 Midrhead v. Kirkpatrick 404 Mullen V. Bidgeway 241 Mulligan v, Biley 546 Munday v. Soult 560 Munshower v. Patton 15, 24, 114, 136, 147 Murdyv. McCutcheon 546 Murphy «. Holmes 418,426 V. Phila. Trust Co. .... 436^ 450, 497, 498, 500 ». Eoherts 5-54 V. Springer 15, 16, 18, 19, 25, 30, 100 Murray v. Haslett 562 V. Tilley.... -302, 3U Murrey « Todd 555 Musselman v. Eshleman 79, 193,384 Mussi V. Lorain 249 Mutual Life and Accident Assn. of Fenna. V. Eayser 534 Myers «. Winters 176 N. ^ Naglee v. Albright 12, 14, 18, 69 Nathans v. Bingham 220, 221, 401, 413, 416 Nat. Bank of Clarion v. Gruber. 529 Neal V. McElhenny .....58, 59, 80, 140, 142, 204 Nearhoff v. Addleman...ll, 12, 14, 40, 62, 63, 140, 154 Neely*s Appeal .381, 392, 396 Neill V. Gallagher 173, 174 Neilly v. McCormick. 7, 9, 120, 238 Newman ». Butter 160, 161 Newton u. Smith 367 Nickle V. McFarlane 59, 85 Nicolet ». Oellers 558 Nitzell V. Paschall 172, 183, 184 Nixon I). Brown 307 V. Brownfield 314, 315 Norris' Appeal 368, 384, 431, 440, 448, 453, 456, 457, 469, 477, 478 North American Land Co.'s Appeal, 435 Northern Central Bailway Co. v. Commonwealth 148 Northwestern Ins. Co. v. Phoenix Oil and Candle Co 533, 534 CASES CITED. XXXV" Norton V. Carpenter 311 Nutz Vr Barton 560 O. and P. E. B. Co. v. Brittain 545 Ober». Koser 556,585 O'Brien's Appeal ' 169, 170 Offerman v. Downey 545,5-16 V. Packer 80,291 O'Hara v. Richardson 38, 39, 117, 151, 154, 158 Olceson's Appeal .....440,455 Okeson ii. Patterson 108, 164, 165, 166, 167, 168, 169, 171, 172 Oliver's Appeal 385, 389, 434, 439, 444 Estate ,... 240 Olwine v. Holman....58, 61, 63, 71, 88, .98, 99,101,142,143 O'MaUey v. Dempsey '. 547 V. Luzerne Building and . , Savings Assn. of Pitts- ton 283,342 Overfield v. Cristie 5, 12, 24, 41, 59, ' 113,114,115 Overholt v. Nat. Bank of Mt. Pleas- ant 529 Overton v. Tracy 249, 267, 268, 269, 270, 412 Owen ».' Western Saving Fund.. .259, 260 400, 412 Owens w. Myers 53, .58, 142 Owings V. Commonwealth i 515 Paine J). Godshall 546 Painter's Appeal ^16,332 Palmer v. Gillespie 214, 302, 308, '315,404 Parker's Lessee v. Gonsalus 6 Parker D. Morrison 520 V. Southwick 16, 42,43, 59, 97, 115,138,140,145,147 Patterson v. Cdlmer 269 «. Martz 190 0. Nichdl, 214, 267, 373, 378, 385, 390 V. Peirohnet 549 ■0. Eeigle 44, 56, 59, 116, 133, 136, 140 Patten's Adm. v. Craig's Adm. 345 Ex. v. Hassinger 345 Pattonu Ash 307 «. Craig 302,304,341,419 ii. Hassiijger..303, 304, 318, 329, 351 V. Nichol ,.• 294 Paul V. Cunningham..... ^60 Paulin D. Peters 559 Peaceable v. Whitehill 218, 293, 39» Peck V. Ward 29,30, 31, 32, 47, 82, S?, 92, 96, 140, 14» V. Whitaker , ;.......... 237 Pederick 4). Searle 15,53,75,97, 108, 109, 140, 142 Peiper v. Harmer 212 Peirce ». McClurg ..., 426 Penn v. KUtle 7 Penna. Canal Co. v. Harris.. .'.... ,145, 147^ 148, 407 , Central Ins. Co. «. Gaus. ..... 538 Pennepacker I). Pennepacker 378, 524, 526. Pennocku Freeman...., 249, 251 V. Hart 228, 230 Penny Pot Landing Case , 148 Penrpse w. King... .243, 373, 429, 431, 453, 489, 494, 497, 501 Peppard v. Deal 66, 89, ll4, 120, 128 Perkins D.Ward 551 Person?). Weston 426 Peter ». Hunsicker ;.........165, 166 Peters' Appeal 430, 432, 433, J39, 455, 456,457,458,459,460, 461,470,491,498 Peters v. Kerper 198, 196, 197, 201, 202,203 K.Smith..,. 566 V. Susquehanna Fire Ins. Co,.. 547 Peterman v. Mullen 222, 223, 224, 403, 414,416 Phila. V. Crump 147,148 Wilm. and Baltp. E. E. Co. v. Cowell ... 295,378 PhiUips V. Gregg 41, 42, 82, 83, 84, 85,89,95,96,146 V. Phillips ,....164, 170 Pierce v. Cloud 164, 165, 166, 167, 168, 169, 171, 172 Pilling's Appeal 378 XXXVl CASES CITED. Piper «. Sloneker 50,69,73 Pipher «. Lodge....:.. 59, 71, 72, 83, 84, 85, 113, 125, 126, 144 Pittsburgh and Balto. K. K. v. Clel- and 70 Connellsville B. B. Co. «. Byers....296,298 Connellsville B. E. Co. V. County of Allegheny 373,374 Connellsville B. B. Co. u. Graham 296,297 Connellsville B. B. Co. V, Plummer.... 297, 323 Plitt V. Cox 163, 164, 165, 166, 170 , Poe». Foster 273 Pollock V. Bay v 281 Portem. McGinniss 15, 26, 27, 31, 41, 136, 140, 145, 149 V. School Directore 217, 251, 252, 287 V. Trust Co..... 320 Port Boyal Borough v. Graham 373 Postens V. Postens 437, 451, 456, 468, 481, 482, 494, 497 Potter's Estate 433, 441, 445, 447, 493 Potts V. Gilbert 12, 32, 99, 107, 114 11. Staeger 554 Power V. tollman. 241, 386, 430, 433, 437, 445, 450, 451, 484, 493 Prather v. Connelly 518,519 Pratt V. Eby 65, 70, 121, 123, 124, 125, 126, 128, 137, 141, 150, 152, 161 Prentiss v. Hannay 260, 273, 399, 412 Price's Appeal 130 Price, Beceiver of Venango Nat. Bank, v. Yates 218,285,298 Pryor v. Wood, 431, 432, 433, 434, 495 R. Eafferty «. McKeeby 556 Balston ». Groff , 36 V. Gross 45 Ramsey's Appeal 407 Bandall v. Silverthorn 175 Eandel (v. Ely 265, 285, 393, 397 FAQS. Bank V. Hill 214,376 Bankin v. Tenbrook . 73, 74, 77, 111, 113, 120,121,136,140,238 V. Woodworth..226, 228, 252, 263, 264, 267, 290, 400 Bansley ». Stott 130 Bayner v. Styer..... 295,326,404 Bead v. Dickinson 550, 551, 556, 557 V. Goodyear 25, 30, 186 V. Thompson.. .11, 12, 54, 56, 57, 58, 60, 75, 101, 140, 144 D.Wilkison 311 Beagan V. Grims 176 V. Stetter 555 Eedheffers.Fitler.; 565 Beed v. Marshall...214, 215, 239, 240, 241, 385, 386, 402, 404, 405, 408, 415, 417 V. Beed 316, 349, 436, 453, 455, 456, 457, 458, 459, 468,471,472,473 Beeves v. Pritchard 411 Beichard V. Duryer 564 Beid V. Geoghegan 221 , 222, 224 Eeimer v. Staber.... 120, 164, 165, 166, 167,169,170,171 Bennyson's Appeal 173 Eepperti;. Colvin 357,358 Beynolds v. Hamilton 344, 348, 409 Bhea v. Forsyth 165 Bhey v. Baird 562 Ehines v. Evans 257, 259, 26}, 262, 264, 278, 279, 400 V.Smith 277, Bhoads' Appeal 544 Bichards v. Bickley 272, 375, 376, 411, 432, 436 V. Elwell 185 Eichart v. Scott 176, 178 Biddle'B Estate 543 Biddle v. Murphy 9 Eider v. Maul 89, 120, 190, 193, 195, 197, 202, 204 Bidge Avenue, In re 288, 289, 402 Eifener v. Bowman 36,38 Bikert v. Greistwite 431, 438, 488 Biland v. Eckert ..24, 34, 35, 115, 116 Bittenhouse V. Levering 271,395 Bitter's Appeal 215, 409, 410 CASES CITED. XXXVll Boad Commissioners V. Flickinger... 548 in Salem Township, In re 538 Robb's Appeal 239, 282 fiobb V. Harian 213, 220 Koberts' Appeal 216,287,392,394 JRobinson v. County of Cameron..284, 299 V. Jefferson County 552 ■B. Shrouds'. 566 D.Williams 68 noddy's Appeal 539,540 Eogers v. Burns 218, 375, 432, 436, ' 497,498,504 J). Stower 48,134,176 Boot V. Commonwealth 164, 165, 167, 168, 174, 175 Boss B.Long J... ; 320 V. McJunkin 445, 493, 499 V. Fleasatats 71 Boulston V. Boulston 283 Eowe w. Atwater 359, 418, 426 Eowland v. Evans 507,508, 509 Boy V. Townsend 193, 199, 204 Boyer v. Benlow 12, 16, 17, 24, 25, 28, 30, 114, 136, 186 Buddy V. Pfouts ....554, 560 Bung V. Shoneberger 12, 24, 51, 57, 59, 60, 63, 64, 141, 149 Bush V. Barr 73, 76, 77, 78, 79, 80, 136 V. Fales :218, 325, 384, 385, 386 Bussell V. Smith 549, 551 JRyan V. McDonough 564 ^. Sailor v. Hertzog ....13, 42, 44, 45, 53, 55, 56, 57, 58, 59, 66, 75, 99, 101,103,111,113,114,140, 142, 144, 433, 437, 445, 450, 451,484,493,499,500,504 Sankey ®. McElevey.!..246, 252, 257, 258, 278,307,309,381,388 Scattergood ». Carberry 227, 268, 426 Schaecterlein V. Eiiabe 418,426 Schaeffer's Estate .»220, 221, 238, 241 Sehaeffer V. Hoffman 316 ■Schall V. Williams Valley E. R. Co., 14, 17, 23, 103, 115, 116, 139, 143, 144 iScheaffer v. Smith 546 Scheetz's Appeal 176, 178, 179 Scheetz v. Fitzwater 114,116, 129 Schenley v. Commonwealth..l20, 165, 170 Sohlecht«j. Ristine '. i554, 560 Schlosser v. Lesher ......228, 229, 230, 232 Schmoyer V. Schmoyer '. 315, 346, 351, 352, 355, 416 Schnable v. Koehler 165, 167 Schneider v. Hess 555 Schoch«. Garrett.... 282 Schoneman «. Sternberger 550 Schoyer ir. Sehoyer ....; 363 Schrack v. Zubler 29, 33, 106, 114, 115 SchreineT 1). Cummins ,348 Schroeder v. Keystone Ins. Co... 533, 534, 535, 536 Schuylkill and Dauphin Improve- ment Co. V. McCreary, ll, 13, 14, 15, 22, 30, 58, ' 62, 66, 74, 99, 101, 115, 116, 139, 140, 142, 145 Navigation Co. v. Stoever, 176 Scott i;. Fontyn. 561, " «. Gallagher '. 82 V. Strawn..., 5l5 Scull V. Wallace ...302, 312, 315, 344, 408, 409, 421 Searight v. Craighead 302, 303, 315, 348, 358 Seaton «. Jamison 379,396 Seibert's Appeal 440 _Seidenstriker «). Buffum „.. 562 Seigle V. Lauderbaugh 23, 34 Seitzinger v. Alspach .282, 363, 366, 404, 405 SeUers v. Holman 431, 436, 454, 455, 458, 459, 462 Senseman v. Hershman .... 307, 316, 320, 323, 324, 333, 347, 418, 419 Sewickley ». Watson 377 Seybert v. Hicks. ,303, 322, 404 Shackamazon Bank v. Disston 297 Shaeffer v. Hoffman 302, 307, 340 V. Jack 518 Shaffer v. Lowry...46, 53, 97, 101, 114, 115 V. Shaffer 317, 325, 339, 351,' 352, 354, 355, 359, 419 Shallenberger v. AshWorth 49, 130 Shamokin Valley and PottsvUle R. B. Co. V. Malone .....247, 394 irsxViii CASES CITED. PAGE. Shank V. Warfel 567 Sharp ». Petit 509 ■t\ :. Sheaffer v. Eakman...lO, 11, 12, 14, 15, 26, '^p'\ 29,43,44,59,60,62, ^ ' 63,99,111,113,118,119 Sheik », McElroy 38,39, 105 Shell B.McConnell 545,547 Shelmire's Appeal 371,372,392 Shepley v. Lytle 65, 76, 78, 89, 129 iShermer's Appeal 508 Shertzer D. Gonder 554 Sherwood »: McKinney; 559,560 ». Sumne....; 140 Shields' Appeal .....508 Shilling V. Beidler ....441, 453, 492, 494, 497 Shitler v. Bremer 285, 302, 303, 331,342,399 Shober v. Dntton 141 /Shock V. McChesney 233,401,426 Shoenberger v. Adams 241, 404 V. Baker 100 Sholly «. Stahl 26, 28,29,45 Shontz V. Brown 431,451,494 Short!). Rudolph '.: 565 Shreiner v Cummins 214,315,317, 323, 404, 406 Shroder v. Breneman..l7, 21, 48, 100, 108, 134, 141, 149, 172 Shnpp V. Orts 547 Sickler v. Sickler 376,426 Simpson D. Broomall 432,478 ^ V. Duncan 238 V. Williams 8 Sims 1). Hampton.. 541 Singer Manufacturing Co. D. Parsons, 5o7 Co. «. Rice 550,553 Sinkler «. Turnpike Co 267,298 Slsymaker v. Wilson 273,387,399 Sleek V. King 551,566 Sletor». Oram 241 Sloan V. Boyd 558 Smaltz V. Lake 541, 542 gmilie V. Biffle 68, 81, 126, 128, 130 Smith's Appeal 219 ENtate i303, 409, 543 Smith V. Bell 294, 295, 296, 298 V. Bellows 231,234,235 V. Bishop 252 Smiths). Bonsall 508^ V. Dutton 177,179', V. Exchange Bank of Waynes- burg 284 V. Freel 217, 307 V. Miller ■ 518 V. Nevin 430, 432, 435, 448, 488,491,497,502. J). Nichols '. 426^ V. Noone 545, 546 0. Porter 218,302,325, 408, 409, 427 V. Smith 233, 403 V. Sperling 557, 559- V. Steele 24, 53, 108, 152. 154^, 563, 564 D.Thompson 120- V. Tome 195, 197, 204 V. Walker 554 V. Wesner 352,360 Snyder ». Snyder 55S, 559 Sollenberger v. Heisker. 554, 557 Sorber «. Williams 16-. ■0. WilUng 17, 18, 19, 25, 30, 99, 100, 115 ' Sossong t). Rosar 376, 392, 425, 426 Souders v. Potteiger... 550,554,557 . Spackman v. Steidel 172 Spang V. Deibler 426 Spangler I). Rambler .'. 507, 508, 509 Speicher ». Township of Clifton .... 56& Spering's Appeal 216, 218, 287, 384, 395, 396, 397, 398 Sparing v. Smith 216, 287, 395, 397 Spring ». Gray's Ex 368- Stafford D. Wheeler... 191 Stabler v. Wingert 547 Stall D. Meek 256 Starch v. Snyder. 545,547 State Street, Harrisburg, In re 288 St. Clair's Heirs «. Shale 58 St. Clair v. Shale 41, 56, 60, 77, 97, 114, 135, 140, 142 Stedman v. Bradford 545,546, 548 Steel V. Steel 265, 300, 344, 345, 409 Steely v. Neiswander 547 Stefly V. Carpenter 164, 165, 166, 167 169,170,171 Stephens v. Downey ...262, 277, 27* CASES CITED. !sxxix Stephens v. Leach.. ..14, 15, 16, 17, 19, 44, 102, 103, 153 V. Monongahela Nat. Bank, 264, 405,529 Stewart's Appeal.. .239, 276, 352, 353, 362, 363, 365 Stewart I). Austin 510 V. Keith 267, 291 V. MoBiirney .250, 256, 281 V Peterson 376 V. Proaser 562 V. Stewart 45, 67, 146 V. West 432, 433,436,447 Stiles 7). Donaldson 367,404 V. Beynolds 514 Stille V. Simes....ll, 12, 177, 179, 182, 183 St. Mary's Church v. Miles 161, 183,^ 432, 437, 454, 468, 469 Stoner v. Hunsicker 16, 28, 45 Storm II. White 218, 318, 319, 338 Stout V. Kindt .177, 178, 292, 379, 412 V. Levan i431, 436, 448, 455, 456, 457,462,472,473,474,479 Stover i>. Cadwallader .....283,375 Strauch v. Shoemaker 10 Strawnv. Hook.. 354,376,402 Stricklerti. Todd 177, 178 Strimpfleru Eoberts 12, 79, 192 Strohm's Appeal ....439, 442, 443, 448 Stuber's Road 139, 144, 165, 172, 178 , Sturgeons. Waagh 8 Styer v. Super 253,270 Snmmerville v. Holliday 377, 429,' 430,431,432,443,454, 455, 456, 459, 464, 465, • 478,483,486,487,492 Susquehanna County v. Deans 100, 146, 176 E. E. Co. B. Quick... 14, 15, 17,19,22,23,24,60,71, 73, 81, 83, 84, 85, 94, 99, 10,0,102,103,104,109, 110,111, 115,136, 140, 145 Suter V. Sheeier 316, 317, 324, 331, 333,34ij,^55,400,411 Swallow V. Eed Ash Coal Co? 556, 564 Sweeney v. McCuUoch 15, 22, 23, 24 * 29,32,42,136,141 Swisshelm's Appeal , 193 TaggartK. Beilly 193 Talbert v. Williams 553, 554 Tarri). Scott 190 Taylor's Adm. v. Witman's Adm 294, 295 Estate 434, 441, 447 Taylor v. Dougherty ...185 186, 187 j>. Gould. ..214,272,404,415 V. Megargee 432, 483, 484 V. Smith 550 V. Witman .' 296, 301 Tenant ». Tenant 218 The Bank v. Israel 426 Thomas «. Afflick. .>. 549 V. Premium Loan Assn....... 549 V. Pyle. 555,564 ■B.Shoemaker 267 Thompson's Appeal.... 215, 217, 405 ' Estate . .^ 434, 439, 448 Thompson v. Bank of Gettysburg..... 392 1). Fisher 367, 369, 370, 414 V. Kauffelt 11, 12, 15, 62,63,104,111,' 138,139,141 V. McGaw 214, 377, 431,. 436, 485 V. Milford 23, 24, 25, 27, 28, 3 1, 39, 42, 45, 136, 139, 140, 144 V. Smith 119, 120, 121j 144, 238 Thomsons. Harris 366 V. Hopper 285, 361, 366 Throop V. Susquehanna Mutual Fire Ins. Co 565 Thurston v. Fisher....... 220, 221, 413, 416 V. Franklm College 251, 291, 400, 412 Tiernan v. Manigler. 556 Tilghman v. Eisher 431, 453. 454, 456, 461, 46?, 469, 471, 478,479,483,491, 497, 498, 500, 504, 505 Tinicum Fishing Co. v. Carter... 163, 166^ 167,168,173,176,177, Titman v. Titman 218, 281, 337 Todd's Appeal, 214, 231, 392, 395, 396 Tonkin v. Baum 267, 294 Towers v. Hagner 222, 224 xl CASES CITED. Toiwnship of Bush v. Schuylkill County 282,403,407,408 Tracy ij. Newel 326 Ttansuei;. Sell 173 Trauger v. Sassaman, 91, 133, 177 Trego r. Lewis 237 : Trimbath ». Patterson. 64.5 Trinity Church v. Watson 326 Troup V. Smith 252 Troutman v. May ..67, 140, 147, 407 Trump V. Lt^ne 385 . Trustees r. Grubb ." 393 Tryon v. Keller 545 Tullooh V. Worrall...48, 84, 85, 86, 87, 95, 130,146 Tully S.Williamson 547,548 Tyrone and Clearfield Railway Co. '. V. Jones 247 Tyrrilli;. Lamb 234,237 U. TJhler v. Brua „68, 81, 141 V. Ketcherra 560 Unangst v. Kraemer 432, 436, 449, 471, 479, 480, 487, 492 Union Canal Co. u Gilfillin 211 ■D, Woodside 380, 434, 435, 438, 453, 457 V. Young...ll, 12, 14, 18, . 30,51.71,103,118,139 United States v. Jay Cooke & Co . . 250, 264, 286, 407 Universal Fire Ins. Co. v. Stewart 533, 534,535 Urket V. Coryell 13, 18 V. Vanhorn v. Scott 267, 282 Van Loon v. Smith 430, 432, 436, 451, 452^458,460,491,492 ' Van Swearingen v. Harris...285, 361, 362, 364, 366 Van Why v. Burgunder 545, 547 Velott V. Lewis.. .48, 82, 83, 85, 86, ,87, 93, 94, 146 Verrier v. Guillou 214, 369, 404, 415 ■ Vincent v. Watson 214, 377, 404 Vitry D. Dauci 452 VoUmer's Appeal 174 W. Waggoner v. Hastings... .J 21, 22, 23, 24, 34 Waite V. Spring Garden Ins. Co...533, 534 Walker's Estate 217, 388, 434, 444 Walker v. Walker.... 10, 42, 73, 78, 79, 80, 115, 384, 391 Wallace's Appeal 424 Wallace ». Dickey 8 V. Duffield 79,392 w. Fourth Presbyterian Church 49, 62, 112, 113, 114, 129, 135, 160, 164,178,179 Wallington's Estate 239, 410 Walter r. Walter 301,412 Wambold v. Hoover 272, 273, 302, 305,316,420,425 Wann v. Pattengale 217, 230, 231 Ward V. Harlingan .j 562 Warfieldv.Cox .' 197 i>.Fox 510,511,512 Warn v. Brown 68, 81, 125, 130, 132 Warner's Estate ; 381,409 Warner v. Ins. Co. of North Amer- ica 533 Warren v. Henby 185, 186, 188 V. Hunter 176, 177, 178, 180, 182, 184 Washabaugh v. Entriken....l8, 38, 45, 63, 65,70,97,99,106,140 Wasser % Brown 546 Wasson ». Penna. Co 211 Ward V. Hallam 218, 220, 221 Waterman v. Brown 274j 294, 299 Watson V. Brewster 218^375 V. Gregg 23,24,42,44, ' 55, 59, 63, 72, 73, 82, 83, 85, 95, 96, 97, 114, 146 ". Stem 227, 282, 302, 304, 306, 337 Watts' Appeal 393 Watts V. Devor 342, 344,356 Waynesboro Mutual Fire Ins^ Co. v. Conover 533,534,536 Weaver «. Weaver 338,419 V. Wible 110- Webb V. Dean 433, 437, 445, 450, 451, 455, 484, 493, 498, 500 CASES CITEB. xli Webster v. Newjjold 245, 257, 292, 303, 317, 319, 382, 385, 400, 414, 420 V. "Webster 69, 190, 198 Weddle V. Eobertson 125, 126 Weidaer v. Matthews 566 Weil D. Frauenthal 538 Weitiug«. Nissley ; 544 Wells i». Morse 553 D. Pyle 307,323,345 Wellert Appeal 237 Wesley Church v. Moore 216, 268, 269, 394 Wesner v. Stein.. ..302, 304, 311, 316, 342, 343, 345, 346, 347, 349, 352, 356, 358, 360 Western Saving Fund v. Owen 260 Westmoreland Bank v. Eainey...228, 230 Wetham's Estate 319,322,345 Wheatfield Township v. Brush Val- ley Township 371, 356 Wlieatley v. Baugh 173, 179- V. Chrisman ,164, 175, 178, 180 Wheeler ». Kidder 49 V. Winn 20, 63, 100, 115, 118, 140 Whetham v. Fenna. and N. Y. Canal and E. E. Co...216, 298, 371, 394 Whetstone v. Bowser 177 White V. Kyle 97,98 V. Martin 555,556 Whifely v. Billington ..260,274 Wiokersham v. Lee 214, 253, 254, 257, 278, 401, 402, 412, 414, 415 ■0. Eussell 292, 400 Wilhelm's Appeal 234, 235, 397, 398 Wilkinson's Estate ,..i.431, 432, 434, 410,477 Williams v. Esling....:. .163, 167 V. Freeman 378 v. Gibbons 554 Williamson v. Mitchell 562 Williard v. Williard 197, 198, 200 Wills V. Gibson 432, 436, 437, 447, 450, 492 Wilmoth «. Canfield 39 Wilson V. Commonwealth 517 Wilson V. Gaston 507, 509, 510 V. Hathaway 554,556, 557, 558 V. Hayes 285, 417 V. Kelly 567 I). Waugh 357,358 Wisecarver v. Kincaid.. 214, 404 Wiser v. Allen 192, 197, 198 Wistar?;. Gray 348 Witherup D. Hill 413 Wolfs. Ament 15 Wolfe V. Eeynolds ;: 18, 19 Wolfenberger v. Young 316, 327, 334 Wolford V. Morgenthal 128, 130 Womelsdorf I). Heifner 555, 564 Wood V. Anderson 233, 236 V. Brolaskey 560 V. Figard 27, 28, 32, 33, 106, 143 Woodburn v. Farmers' and Mechan- ics' Bank 433, 437, 450, 490, 494 Woodruff 1). James 564 Woodside !). Penna. E. E.,Co 556 Workman v. Curran .....110, 164, 165, 166, 168 V. Guthrie 65, 70, 83, 91, 97, , 109, 136, 152, 153 Worrall v. Ehoads 164, 165, 167, 168, 171 Wright V. Guier 12, 99 J). Hart 233, 234 Wrigley B.Brown 81 Wynkoop D. Hoffner 524 Yaw V. Kerr 302, 304, 316, 322, 323, 327, 349 Yeager's Appeal 543 Yeakle v. Nace 172, 173 Yearsley's Appeal.'. 228, 232 Yeiohi). Peterson 545 Yocum V. Torbert.. 547 Yoderi). Yoder 114 York's Appeal 215, 217, 239, 240, ' 244,381,385,386, 402, 408, 409, 413 Yost V. Grim „ 310 Young's Petition..... 538 xlii CASES CITED. Zacharias v. Zacharias 245, 294, 312, 316, 331, 345, 381, 382 Zeidler v. Luzerne County. ..287, 400, 408 PAGE. Zeigler V. Forster 566 Zeller's Lessee v. Eckert .....13, 80, 83 Zeller v. Eckert ..A7, 76 Zent's Ex. v. Heart 351 Zent V. Heart .' 357 BOOK I. LIMITATIONS AS TO LAND. CHAPTER I. ACT OF 26th march, 1785, and supplements; Act of aeth March, 1785.' § 1. Section I. Whereas, it is necessary for the quieting of estates and for the greater security of real property, that provision should be made for the limitation of actions to be brought for any manors, lands, tenements or hereditaments : § 2. Section II. Be it enacted, and it is hereby enacted by the Representatives of the Freemen of the Commonwealth of Pennsylvania, in General Assembly met, and by the authority of the same, That from henceforth no person or persons whatsoever shall make entry into any manors," lands, - tenements or hereditaments, after the expiration of twenty- - one years next after his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain' any writ of right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seizin or posses- sion of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seizin or possession of him, her or themselves, his, her or their ances- tors or predecessors, than within twenty-one years next be- fore such writ, action or suit so hereafter to be sued, com- menced or brought. § 3. Section III. Provided always, and be it further en- ^2Sm. L. 300; 2 Bright. Purd. p. brought for the inheritance or pos- 1060. The title of this act is "An act session of real property, or upon for the limitation of actions to be penal acts of assembly." A I I/AW OF LIMITATIONS. acted by the authority aforesaid, That any person or persons now having right, title of entry as aforesaid, and the heir or heirs of such person or persons, may, within fifteen years from this time, enter or commence any action or suit as he, she or they, or his, her or their ancestors or predecessors might have done before the passing of this act. § 4. Section IV. Provided also, and be it further enacted by the authority aforesaid, That if any person or persons having such right or title be, or shall be at the time such right or title first descended or accrued, within the age of twenty-one years, feme covert, non compos mentis, impris- oned or beyond the seas, or from and without the United States of America, then such person or persons, and the ieir or heirs of such person or persons, shall and may, not- withstanding the said twenty-one years be expired, bring his or their action or make, his or their entry, as he, she or _ they might have done before the passing of this act, so as Buch person or persons, or the heir or heirs of such person or persons, shall, within ten years next after attaining fiill age, discoverture, soundness of mind, enlargement out of prison, or coming into the said United States, take benefit of or sue for the same, and no time after the said ten years ; and in case such person or persons shall die within the said term of ten years, under any of the disabilities aforesaid, the heir or heirs of such person or persons shall have the same benefit that such person or persons coi^ld or might have had by living until the disabilities should have ceased or been removed ; and if any abatement happen in any proceeding or proceedings upon such right or title, such proceeding or proceedings may be renewed and continued within three years from the time of such abatement, but not ^.fterwards. § 6. Section V. And be it further enacted by the authority aforesaid. That no person or persons that now hath or have any claim to the possession of any lands, tenements or hereditaments, or the pre-emption thereof, from the Com- LIMITATIONS AS TO LAND. i>> monwealth, founded upon any prior warrant whereon no survey hath been made, or in consequence of any prior settle- ment, improvement or occupation, without other title, shall hereafter enter or bring any action for the recovery thereof, or his, her or their ancestors or predecessors, unless he, she or they, or his, her or their ancestors or predecessors, have had the quiet and peaceable possession of the same within .seven years next before such entry or bringing such action ; provided always, that if any person or persons so claiming as aforesaid hath been forced or driven away from his, her or their possessions, by the savages or by the terror of them, or any other persons, or by any other ineans, except by the judicial authority of the State, hath quitted the same during the late war, then such person or persons, and his, her or their heir or heirs, shall or may, notwithstanding the said seven years be expired, bring his, her or their action, or make his, her or their entry within five years from the passing of' this act/ Act of 11th March, 1815. § 6. The first section of the act of 11th March, 1815,^ enacts " that the provision contained in the fourth section of the act to which this is a supplement, so far as the same relates to persons beyond the seas, and from and without the United States of America, be and the same is hereby repealed, and that the limitation contained in the second section of the said act be and the same is hereby extended to persons residing beyond the seas, and from and without the United States of America, any law to the contrary notwithstanding." Act of 14th April, 1851. § 7. The fifteenth section of the act of 14th April, 1851,^ 'In Section 6, a limitation is pre- '6 Sm. L. 1815. A supplement to sented to actions, suits, bills, indict- the act entitled "An act for the lira- men ts and informations on any penal itation of actions to be brought for act of assembly ; and in Section 7, - the inheritance or possession of real sheriffs' deeds are validated in six property, or upon penal acts of as- years, notwithstanding that the exe- sembly." cution is not produced, &c. 'P. L. 615; 2 Bright. Purd. p. 1063, pi. 8. 4 I.AW OF LIMITATIONS, provides that " from Henceforth no person or persons whatso- ever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of forty years next after his, her or their right or title to the same first descended or accrued ; nor shall any person or persons whatsoever have or maintain any writ of right or any other real or personal Wtit or action for any manors, lands, tenements or heredita- ments, of the seizin or possession of him, her or themselves,, his, her or their ancestors or predecessors, than within forty years next before such writ, action or suit' so hereafter to be sued, comnienced or brought ; provided, that any person never having right or title of entry as aforesaid, and who is now by law excepted from the geueral provisions of the act of the 26th of March, 1785, for the limitation of actions, and the heir or heirs of such person, may, within five years from this time, enter or commence any action or suit, as he, she or they, or his, her or their ancestors or predecessors might have done, before the passage of this act."^ Act of 22d April, 1856. ' § 8. The first section of the act of 22d April, 1856," de- clares that " no exception in any act of assembly respecting the limitation of actions in favor of persons non compotes mentis, imprisoned, /ernes covert, or minors, shall extend so as to permit any person to maintain any action for the recov- ery of any lands or tenements after thirty years shall have elapsed since the right of entry thereto accrued to any per- son within the exceptions aforesaid ; provided, that all per- sons who now have rights unbarred and who would be sooner barred by this section, shall not be thereby barred for five years from the date hereof" ' By the seventh section of the act only to writs of right and other writs of 4th May, 1852, (P. L. 570; 2 Bright, pertaining to manorial lands in the Purd. p. 1063, pi. 9,) the fifteenth sec- city and county of Philadelphia." tion of the act of 14th April, 1851, is "P. L. 532 ; 2 Bright. Purd. p. 1064. " construed to extend to and apply LIMITATIONS AS TO LAND. Act of 13th April, 1859. § 9. Section I. By the first section of the act of 13th April, 1859,' it is enacted that " no entry upon lands shall arrest the running of the statute of limitations unless an action of ejectment be commenced therefoi*, within one year thereafter, nor shall such entry and action, without a recovery therein, arrest the running cff said statute in respect to another eject- ment, unless it be brought within a year after the first shall have been non-suited, arrested or decided against the plain- tiff therein." ' ' § 10. Section II. The second section of this act provides that ' " when the right of a tenant in tail of any land or ground- rent, to make an entry or distress, or to bring an action to recover the sanie, shall become barred by reason of the same not having been made or brought within the period limited by law, no such entry, distress or action shall be made or brought by any person clainiing any estate, interest or right which such tenant in tail might lawfully have barred ; and whensoever the statute of lirnitation shall have begun, or shall begin to run against the tenant in tdil, it shall continue to run against the issue, remainderman or reversioner, unless arrested by the act of the tenant in tail; provided, that no person shall be barred or affected by force of this act until after the expiration of three years from the date hereof." 'P. L. 56; 2 Bright. Purd. p. 1065, 1785 to all cases except as to such as pi. 16. The act of 11th March, 1800, , shall have brought their action for (3 Sm. L. 421,) repealed and rendered the recovery of thejr possessions "null and void" the act of 26th within this period qf two years. March, 1785, within the seventeen Hence, if a claimant of land under townships of Luzerne county, and a Pennsylvania title did not bring in all cases where title was or at any his ejectment against one in posses- time had been claimed under what sion under a Connecticut title till ' was called the Susquehanna Com- after the two years, the csi,8e fell pany, or in any way under the State under the act of 26th March, 1785, of Connecticut. The act of 25th and the possession held while the March, 18i3, (6 Sm. L. 61,) enacted act of 11th March, 1800, was in that two years after its passage the operation was counted in favor of act of 11th March, 1800, shall be the defendant in possession. Over- repealed, and extended the act of field v. Christie, 7 S. & R. 173. 6 LAW OF LIMITATIONS. CHAPTEK II. LIMITATIONS AS TO LAND PRIOR TO 26tH MARCH, 1785. Statute 32 Henry VIII. o. 2. § 11. Prior to the act of 26th March, 1785, the statute of 32 Henry VIII. c. 2, limiting the time for bringing actiofls to recover real estate, was in force in Pennsylvania.^ The period of limitation under that statute was sixty years.^ In 1782, McKean, C. J., said that the statute of 32 Henry VIII. 0. 2 had always been rfeceived in Pennsylvania ; fifty years' adverse possession had not been the rule, but it was agree- able to the practice that sixty years' possession should be a bar.^ Hence, when adverse possession was alleged to have been taken August 30th, 1750, and ejectment was brought to December Term, 1804, the plaintiff was not barred, only fifty-four years and four months having elapsed.* Under the statute 32 Henry VIII., when the husband alone, with- out authority of his wife, made a deed for himself and her of her lands, and the grantee went into possession, the title of both her and him was barred in sixty years. No allow- ance was made for her coverture.' 'Parker's Lessee v. Gonsalus, 10 S.&R. 147; Boehm u. Engle, 1 Dall. S. & K. 147; Hall v. Vandegrift, 3 16; Eakin v. Eaub, 12 S. & E. 330; Binh. 374 ; Morris v. Vanderen, 1 Kingston v. Lesley, 10 S. & E. 383. Kail. 67 ; Boehm v. Engle, 1 Dall. 16. ' Morris ». Vanderen, 1 Dall. 67. The statute of 21 Jac. I. c. 16 did *Hall «. Vandegrift, 3 Binn. 374. not operate in Pennsylvania. Ibid. * Boehm v. Engle, 1 Dall. 16. The Yet, in Biddle v, Shippen, 1 Dall. 23, sixteenth section of the "Laws agreed it was decided in 1773 that this stat- upon in England " May 5th, 1682, ute was in fotce in this Province, and provided ' " that seven years' quiet that it had never been doubted that possession shall give an unquestion- the twenty years' limitation therein able ri^ht, except in cases of infants, prescribed extended here. lunatics, married women or persons 'Parker's Lessee v, Gonsalus, 10 beyond the seas." 5 Sm. L. 416. LIMITATIONS AS TO LAND. CHAPTER III. SECTION 5, ACT 26tH MARCH, 1785. Act 26th March, 1785, Section 5. § 12. Under this section, unlike those which precede it, adverse possession for any particular length of time is not essential to bar the plaintiff. It is enough that he has him- self not had the quiet and peaceable possession of the prem- ises within seven years next before his entry or the bringing of his ejectment. This seven years' limitation applied to titles based solely on settlement and improvement,^ or on such An act of the same import as to length of possession, but without any exceptions in favor of infants and others, passed in 1700, was re- pealed in England in 1705. In 1705 (1 Sm. L. 48) it was enacted that "seven years' quiet possession of lands within this Province which were first entered on upon an equi- table right, shall forever give an un- questionable title for the same against all during the estate whereof they are or shall be possessed, except in case of infants, married women, lunatics and persons not residing within this Province or Territories." This act \^s not retrospective. " Seven years' possession subsequent to the act should give title." Eakin V. Eaub, 12 S. & R. 34Q. This act is said (Ibid.) by Duncan, J., to be " un- known to the legislature, the bench and the bar," and to have never been heard of in the courts of jus- tice till the case of Penn v. Kline, which was before the Supreme Court of the United States in 1824, under the name of Kirk v. Smith, Judge Johnson, in a dissenting opin- ion, (&Wheaton 320,) says that the act of 1705 was repealed by the act of 26th March, 1785. Marshall, C. J., remarks : " But the- courts of Pennsylvania having never consid- ered this act as having the e£fect of an act of limitations, this court is not inclined -to go further than they have gone." ' Mobley v. Oeker, 3 Y. 200 ; Neilly V. McCormiok, 2 Y. 447 ; Clark v. Haokethorn, 3 Y. 269; Walker v. Walker, 16 S. & R. 379. If, when the act of 26th March, 1785, was passed, an improvement had been suspended for seven years, the title founded on it was absolutely extin- guished by that act, unless the im- prover had been driven away by savages or had quitted possession during the revolutionary war, in which case he was allowed five years from the passage of the act for the 8 LAW OF LIMITATIONS. settlement followed by a warrant calling for the land upon whicli it was made,' or based on a warrant ^ or application or location/ wben no survey had been made, by which the claim was, with reasonable precision, delimited upoii the ground.* Even when a survey had been made^ and a patent granted ® under an application, if the former had been made at the instance of the defendant claiming the application, and the latter had been issued'to him, the seven years' lim- itation barred the claim of the plaintiflE" founded on the same application. A fortiori would a survey embracing the land, made on a competing application or warrant of the defend- ant, not enure to the benefit of the plaintiff, who had neg- lected to procure a survey, even if, on a caveat, the decision of the board of property had been favorable to him.'' A survey not accepted, but the acceptance of which was ar- rested by a caveat, on which an award by the board of prop- erty of a new survey, never executed, was made, will have no validity, and the plaintiff's claim resting on an improve- ' ment and on a warrant calling for it and on such unaccepted survey, will be barred in seven years.* bringing of an action to 'recover pos- and recover the whole tract from X. session. Brentlinger u.. Hutchinson, will be subject to the seven yeara' 1 W. 46; Walker v. Walker, 16 S. & bar. Clark v. Hackethorn, 3 Y. 269. K. 379. ' Wallace v. Dickey, 3 Y. 283. 'Wallace v. Dickey, 3 Y. 283; * Sturgeon «. Waugh, 2 Y. 476. A. Sturgeon v. Waugh, 2 Y. 476. having begun an improvement, sold 'Hunter v. Meason, 4 Y. 107. one-half of it to B. Both take out » Irwin V. NichoUs, 1 Y. 294. warrants for their parts, on which * A Wcation perfectly descriptive are surveys. A. files a caveat, on the of the land would not be subject to ground that B.'s survey includes a the seven years' limitation. Caru- part of his land, and a new survey thers V. Caruthers, 3 Y. 174. is directed but never carried out. B. "Ewing V. Barton, 2 Y. 318. being in possession up to the line of 'Simpson V. Williams, 3 Y. 402. partition which he alleged to have If on the death of a settler, his widow been agreed on, A.'s ejectment, he induces X. to take out a warrant and not having had possession for seven patent for the tract in his own name, years, was barred. Yet, in Gilday v. he to convey one-half to the settler's Watson, 5 S. & R. 267, it was decided only child, an ejectment by the that where two neighboring settlers child to annul the widow's contract by agreement adopted a division LIMITATIONS AS TO LAND. 9 When Limitation Does Not Apply. § 13. There are exceptions to the necessity of a survey,^ as when the surveyor to whom the execution of the survey is directed, fraudulently,^ or perhaps negligently, omits to make a survey, or makes an improper one,^ or when the defendant has forcibly * or by a caveat before the board of property ,° pr by request,® prevented the making and accept- ance of a survey, and the adversary title has not passed into the hands of a purchaser without knowledge of these facts.'^ If a survey has been begun, and the line between the plain- tiff and the defendant claiming under contiguous settlements and warrants has been run, the mere fact that it has not been completed so as to ascertain all the boundaries of the tract will not vitiate it^ the plaintiff having paid the full sur- veyor's fees and being in no default. It will exempt the plaintiff's title from the seven years' limitation.* This lim- itation does not apply where possession was had when the act of 26th March, 1786, was enacted,^ though subsequently line, an ejectment by one for tres- employment of the deputy surveyor pass beyond the line was not within to make the survey, accompanied the fifth section of the act of 1785. by payment of the necessary fees ' When A., in possession under an and expenses, would not avail, improvement right, died, and his Hunter v. Meason, 4 Y. 107. administrator fraudulently permit- ' Irwin v. Nicholls, 1 Y. 293. ted a sale of it in execution, himself ° Bell v. Levers, 3 Y. 28. In this becoming the purchaser, the seven case the caveat was pending for years of the limitation would not twenty years, begin to run till the person on whom • Irwin v. Nicholls, 1 Y. 293. the title devolved had knowledge of ''Ibid. The fact that many years the fraud. If the immediate heir before suit, a true bill for forcible of A. died without such knowledge, entry and detainer had been found whereon B., who had already ac- against the defendant, which, re- quired such knowledge, became moved to the Supreme Court, was heir, the seven years would begin still untried, did not exempt the to run, not from the date of his ac- plaintiff from the necessity of suing quiring the knowledge, but from on a settlement right in less than that of his becoming heir. Kiddle seven years after losing the posses- V. Murphy, 7 S. & R. 280. sion. Neilly v. McCormick, 2 Y. 447. 'Irwin V. Nicholls, 1 Y. 293. 'Caruthers v. Caruthers, 3 Y. 174. •Caruthers v. Caruthers, 3 Y. 174. 'Miokle v. Lucas, 10 S. & R. 293. After the seven years have run, the 10 LAW OP LIMITATIONS. lost.^ When A., having a location reasonably descriptive of the tract claimed under it, marks his boundaries and enters into possession, the mere fact that possession has been taken adversely, of a part of the tract by an adjoining owner and retained more than seven years before the ejectment is brought, does not bar A.'s title, notwithstanding that he had never had a survey." The seven years' limitation applies only to claims existing on the 26th March, 1785. If the claim is founded on a warrant issued ^ or a settlement begun * after that date ; or if, a settlement being begun before that date, a warrant is issued after it, calling for the improve- ment,^ this limitation is not relevant. In the application of the seven years' limitation no exception is made in favor of infants,^ femes coverf or persons under other disabilities. CHAPTER IV. FACTS WHICH BAR ACTION. By What Pacts Title Barred. § 14. The statute of limitations of 26th March, 1785, and its supplements, operate only when a possession is taken of the land by some one who does not own the title. This possession must have certain qualities. It must be of the statutory duration, twenty-one years or longer, according as there are not or are disabilities. It must be actual, as distinct from constructive,* visi- ' Brentlinger v. Hutchinson, 1 W. years, as against other claimants. 46. The contrarywas tacitly assumed Strauch v. Shoemaker, 1 W, & S. in Eiddle v. Murphy, 7 S. & R. 230. 166. 'Gonzalusi). Hoover, 6 8. &R. 118. « Clark v. Hackethorn, 3 Y. 269; » Deal V. McCormick, 3 S. & R. 343. Mobley v. Oeker, 3 Y. 200 ; Walker *Gilday v. Watson, 5 S. & R. 267. v. Walker, 16 S. & R. 379. 'Brice v. Curran, 3 Y. 403. By 'Walker v. Walker, 16 S. & B. analogy to the fifth section of the 379. act of 26th March, 1785, a survey is 'Armstrong v. Caldwell, 53 Pa. St. void unless it is returned in seven 284 ; Sheafifer v. Eakman, 56 Fa. St. LIMITATIONS AS TO LAND. 11 We,' notorious,^ hostile,* adverse,* exclusive,® continued,'' 144; Union Canal Co. v. Young, 1 Wh. 410; Ewing v, Alcorn, 40 Pa. St. 492 ; De Haven v. Landell, 31 Pa. St. 120; Nearhoff v. Addleman, 31 Pa. St. 279; Hawk v. Senseman, 6 S. & E. 21 ; Mercer v. Watson, 1 W. 330 Thompson v. Kauffelt, 17 W. N. C, 257; Craig v. Harbison, 4 Penny, 488; Bradford v. Guthrie, 3 Pittsb, 213; Messer ai. Bhodes, 3 Brewst, 180 ; Stille v. Simes, 12 W. N. C. 437 Johnston v. Irwin, 3 S. & E. 291 Eead v. Thompson, 5 Pa. St. 327 Martin v. Jackson, 27 Pa. St. 504 Hole i;. Eittenhouse, '25 Pa. St. 491 Adams v. Eobinson, 6 Pa. St. 271. ' Hoopes V. Garver, 15 Pa. St. 517 Irvine v. Sibbetts, 26 Pa. St. 477 Sheaffer v. Eakman^ 56 Pa. St. 144 Union Canal Co. v. Young, 1 Wh 410; De Haven v. Landell, 81 Pa. St, 120; Nearhoff V. Addleman, 31 Pa St. 279 ; Eead i;. Thompson, 5 Pa. St, 327; Martin v. Jackson, 27 Pa. St 604; Hole v. Eittenhouse, 25 Pa. St. 491; Hawk v. Senseman, 6 S. & E 21; Mercer v. Watson, 1 W. 330 Thompson v. Kauffelt, 17 W. N. C 257; Craigi). Harbison, 4 Penny. 488 Bradford v. Guthrie, 3 Pittsb. 213 Messer v. Ehodes, 3 Brewst. 180 Stille V. Simes, 12 W. N. C. 437. 'Hoopes V. Garver, 15 Pa. St. 517 Schuylkill and Dauphin Improve- ment Co. V. McCreary, 58 Pa. St. 304 Irvine v. Sibbetts, 26 Pa. St. 477 Sheaffer v. Eakman, 56 Pa. St. 144 Union Canal Co. v. Young, 1 Wh 410; Ewing v. Alcorn, 40 Pa. St. 492 De Haven v. Landell, 31 Pa. St. 120 Nearhoff I). Addleman, 31 Pa. St. 279 Eead v. Thompson, 5 Pa. St. 327 Martin v. Jackson, 27 Pa. St. 504 Hole V. Eittenhouse, 25 Pa. St. 491 Adams v. Eobinson, 16 Pa. St. 271 Hawk V. Senseman, 6 S. & E. 21; Mercer v. Watson, 1 W. 330; Black V. Moore, 1 Pa. St. 344 ; Bradford v. Guthrie, 3 Pittsb. 213; Messer v. Ehodes, 3 Brewst. l80; Stille v. Simes 12 W. N. C. 437 ; Johnston v. Irwin 3S.&E. 291. ' Hoopes V. Garver, 15 Pa. St. 517 Sheaffer v. Eakman, 56 Pa. St. 144 Armstrong v. Caldwell, 53 Pa. St. 284 Union Canal Co. v. Young, 1 Wh, 410; Ewing v. Alcorn, 40 Pa. St. 492 De Haven v. Landell, 31 Pa. St. 120 Nearhoff 1). Addleman, 31 Pa. St. 279 Eead v. Thompson, 5 Pa. St. 327 Martin v. Jackson, 27 Pa. St. 504 Hole V. Eittenhouse, 25 Pa. St. 491 Adams v. Eobinson, 6 Pa. St. . 271 Hawk V. Senseman, 6 S. & E. 21 Mercer v. Watson, 1 W. 330 ; Thomp son V. Kauffelt, 17 W. N. C. 257 Bradford v. Guthrie, 3 Pittsb. 213 Messer v. Jlhodes, 3 Brewst. 180. 'Schuylkill and Dauphin Improve- ment Co. V. McCreary, 58 Pa. St. 304 ; Dikeraan v. Parrish, 6 Pa. St. 210; Sheaffer «. Eakman, 56 Pa. St. 144; Ewing V. Alcorn, 40 Pa. St. 492; De Haven v. Landell, 31 Pa. St. 120; Nearhoff v. Addleman, 31 Pa. St. 279 ; Mercer v. Watson, 1. W. 330 ; Craig V. Harbison, 4 Penny. 488;, Black v. Moore, 1 Pa. St. 344; Johnston v. Irwin, 3 S. & E. 291; Messer v, Ehodes, 3 Brewst. 180; Stille v. Simes, 12 W. N. C. 437. ^Dikeman v. Parrish, 6 Pa. St. 210; Sheaffer v. Eakman, 56 Pa. St. 144; Armstrong v. Caldwell, 58 Pa. St. 284; Bradford v. Guthrie, 3 Pittsb. 213; Stille v. Simes, 12 W. N. C. 437; Johnston v. Irwin, 3 S. & E. 291. " Hoopes V. Garver, 15 Pa. St. 517 ; Sckuylkill and Dauphin Improve- 12 LAW OF LIMITATIONS. peaceable,^ distinct,^ definite, positive.^ The nature of this possession, and the qualities which must affect it, will be considered more fully hereafter. Owner's Non-Possession Immaterial. § 15. The law attributes the possession of land to the true owner, though he be not in the actual occupancy of it,* until actual possession of it is taken by an adversary. Hence, the non-possession of the owner for twenty-one years, or any other time, does not, ipso facto, destroy his title. There must be twenty-one years' possession by some one else to produce this effect.^ If there are two conflicting surveys or warrants ment Co. v. McCreary, 58 Pa. St. 304 ; Groft V. Weakland, 34 Pa. St. 804 ; Dikeman v. Parrish, 6 Pa. St. 210; Sheaflfer v. Eakman, 56 Pa. St. 144; Armstrong v. Caldwell, 53 Pa. St. 284 ; Union Canal Co. v. Young, 1 Wh. 410 ; Ewing v, Alcorn, 40 Pa. St. 492 ; Black V. Moore, 1 Pa. St. 344; Brad- ford V. Guthrie, 3 Pittsb. 213 ; Messer V. Rhodes, 3 Brewst. 180; Stille v. Simes, 12 W. N. C. 437 ; Johnston v. Irwin, 3 S. & R. 291 ; De Haven v. Landell, 31 Pa. St. 120 ; Nearhoff v. Addleman, 31 Pa. St. 279; Read ii. Thompson, 5 Pa. St. 327; Martin v. Jackson, 27 Pa. St. 504; Hole v. Rittenhouse, 25 Pa. St. 491 ; Adams V. Robinson, 6 Pa. St. 271 ; Hawk v. Sensemsto, 6 S. & R. 21 ; Mercer v. Watson, 1 W. 330; Thompson v. Kauffelt, 17 W. N. C. 257; Craig v. Harbison, 4 Penny. 488. ' Armstrong v. Caldwell, 53 Pa. St. 284. ' Union Canal Co. v. Young, 1 Wh. 410; De Haven v. Landell, 31 Pa. St. 120; Read v. Thompson, 5 Pa. St. 327; Martin v. Jackson, 27 Pa. St. 504 ; Hole v. Rittenhouse, 25 Pa. St. 491; Adams v, Robinson, 6 Pa. St. 271 ; Hawk v. Senseman, 6 S. & R. 21; Mercer v. Watson, 1 W. 330; Thompson v. Kauffelt, 17 W. N. C. 257; Craig v. Harbison, 4 Penny. 488; Bradford v. Guthrie, 3 Pittsb. 213; Messer v. Rhodes, 3 Brewst. 180. 'Johnston v. Irwin, 3 S. & R. 291. Per Duncan, J. * Burns v. Swift, 2 S. & R. 436; Hall V. Powel, 4 8. & R. 456; Hawk V. Sensfeman, 6 S. & R. 21 ; Royer v. Benlow, 10 S. & R. 303; Union Canal Co. v. Young, 1 Wh. 410; Bradford v. Guthrie, 3 Pittsb. 213; Id., 4 Brewst. 351; Wright v. Guier, 9 W. 172; Altemus v. Long, 4 Pa. St. 254; Hole v. Rittenhouse, 25 Pa. St. 491 ; Id., 19 Pa. St. 305 ; Hoey v. Furman, 1 Pa. St. 295 ; Strimpfler v. Roberts, 18 Pa. St. 283; Carlisle v. Stitler, 1 P. & W. 6 ; Ament v. Wolf, 1 Gr. 518; Miller v. Shaw, 7 S. & R. 129; Broad Top Coal Co. v. Riddles- burg Coal Co., 65 Pa. St. 435; Arm- strong V. Caldwell, 53 Pa. St. 284. " Hawk V. Senseman, 6 S. & R. 21 ; Overfield v. Christie, 7 S. & R. 173 ; Union Canal Co. v. Young, 1 Wh. 410; Mercer v. Watson, I W. 330; Rung V. Shoneberger, 2 W. 27 ; Car- lisle V. Stitler, 1 P. & W. 6 ; Potts v. Gilbert, 3 Wash. C. C. Rep. 475 ; Na- glee V. Albright, 4 Wh. 291; Sailor LIMITATIONS AS TO LAND. 13 from the Commonwealth, the possession of the interference is in law with the owner of the senior survey, till superseded by actual possession by another.' So, if the ownership of the coal below the surface has become detached from that of the rest of the land, the owner of the coal is legally in pos- session till possession of it, as distinguished from the surface, is actually assumed by an adversary.^ The statute of lim- itations, therefore, does not begin to run against any title till a possession adverse to it commences.^ It 'does not begin, as against the heir of a former owner, with the descent of the title upon him, if adverse possession has not then begun.* CHAPTEK V. THE POSSESSION. Nature of Possession. § 16. The statute of limitations operates only during and by means of a possession of the land, assumed by another than the owner. It is highly important, therefore, that a proper conception of the nature of possession should be attained. The cases on the statute of limitations present no definition of this term, one of the most important, and at the same time one of the most difficult to circumscribe in the whole sphere of law. Possession does not consist in any propinquity of the person of the possessor to the land, for a trespasser, a visitor or agent, may enter on it, and not V. Hertzog, 4 Wh. 258. In the ab- ^Altemus v. Long, 4 Pa. St. 254. sence of evidence that the claimant "Armstrong v. Caldwell, 53 Pa. St. under the statute of limitations was 284. ever in possession, he being merely ' Schuylkill and Dauphin ImprOve- shown to have claimed the land, to ment Co. v. McCreary, 58 Pa. St. have offered it for sale, and to have 304 ; Bradford v. Guthrie, 3 Pittsb. paid taxes on it for six or eight years, 218 ; Zeller's Lessee v. Eokert, 4 How- an ouster of the ovner is entirely ard 289. out of the question. Urket v. Cor- ' Carlisle v. Stitler, 1 P. & W. 6 ; yell, 5 W. & S. 60. Marple v. Myers, 12 Pa. St. 122. 14 LAW OF LIMITATIONS. possess it, while tlie possessor may be sucli though remote from it. Nor does possession consist in subjecting the land to certain physical processes, e. g. in tillipg it, cutting timber upon it, extracting its ore, planting houses upon it ; for these are all possible to persons not in possession. Possession seems to imply a relation of power and a relation of will to the land. It includes on the one hand a purpose explicit or latent to deny to others, except on expressly conceded conditions, the use and enjoyment of the land, and to use it one's self according to pleasure, and on the other a capacity, from proximity in person, or by tenant, agent or otherwise, to give effect to this purpose by disputing, impeding or pre- venting the efforts of others to enter on and subject the land to their will. Possession might be had of land without being on it, or enjoying it in any mode, v But only -possession of a certain kind is available under the statute of limitations. It must be of such a nature as to give warning' to the owner that his right is challenged. It must be visible and notorious.^ The flag of defiance must be kept flying.'' There must be that in the condition and appearance of the premises them- selves that shows to the world that there is a person in possession.^ The possession must be more than secret, and by consequence unknown to the disseized owner ;* it must be such that the owner could, by reasonably attentive observation of the land, discover that some one else was in possession, and so be put on his guard.° In general, the possession must be manifested by a residence on the land, or by inclosure of it ' Hooper v. Garver, 15 Pa. St. 517 Naglee v. Albright, 4 Wh. 291 Schuylkill and Dauphin Improve- ment Co. v. McOreary, 58 Pa. St. 304 Sheaflfer v. Eakman, 56 Pa. St. 144 De Haven d. Laridell, 31 Pa. St. 120 Nearhoflf v. Addleman, 31 Pa. St. 279; Schall v. Williams Valley E. E, Co., 85 Pa. St. 191. 'Stephens v. Leach, 19 Pa. St. 262; Susquehanna &c. E. E. Co. v. Quick, 68Pa. St. 189. "Susquehanna &c. E. E. Co. v. Quick, 68 Pa. St. 189. • Sheafifer v. Eakman, 56 Pa. St. 144. ' Union Canal Co. v. Young, 1 Wh. 410. LIMITATIONS AS TO LAND. 16 with or without cultivation, or by cultivation of it with or without inclosure/ Residence. § 17. While residence is not essential ^ to the possession by which the title of the owner can be destroyed by limita- tion, it is, when it exists, a sufficient possession, not merely of the house in which the party dwells, but of the tract on which it is and of which he claims an exclusive enjoyment,* or of the yard used in connection with the house.* It need not be accompanied with an inclosure of the tract or of any larger part of it than is covered by the site of the house,* nor with cultivation of any part of the tract.* Inclosure. § 18. Possession may be maintained, under the statute of limitations, by means of inclosure,^ whether with* or without 'Stephens v. Leach, 19 Pa. St. 262. Of course an effective possession is, had when there are residence and cultivation with inclosure. Pederick .«. Searle, 5S. & E. 236. 'Johnston v. Irwin, 3 S. & R. 291.; Schuylkill and Dauphin Improve- ment Co. V. McCreary, 58 Pa. St. 304; Susquehanna &c. B. B. Co. v. Quick, 68 Pa. St. 189; Stephens v. Leach, 19 Pa. St. 262; Mercer v. Watson, 1 W. 330; Graffius v. Tottenham, 1 W. & S. 488 ; Porter v. McGinnis, 6 W. & 8.. 502 ; Jd., 1 Pa. St. 413 ; Hoey v. Fur- man, 1 Pa. St. 295 ; Ingersoll v. Lewis, 11 Pa. St. 212. One whose lines trench on A.'s land, and whose house is a short distance beyond A.'s line, may nevertheless acquire a title up to his lines, by reason of his cultivated fields within A.'s land. Fitch v. Mann, 8 Pa. St. 503. ' Murphy v. Springer, 1 Gr. 73 ; De Haven «. Landell, 31 Pa. St. 120; Lund w. Brown, 14 W. N. C. 489; Sheaffer v. Eakman, 56 Pa. St. 144; McCall V. Neely, 3 W. 69 ; Kite v. Brown, 5 Pa. St. 291 ; Susquehanna &c. E. E. Co. V. Quick, 68 Pa. St. 189; Barnhart v. Pettit, 22 Pa. St. 135. •Thompson v. Kauffelt, 17 W. N. C. 257. ' Sheaffer v. Eakman, 56 Pa. St. 144; Hole D. Eittenhouse, 87 Pa. St. 116. •Huffman v. McCrea, 56 Pa. St. 95 ; Hole V. Eittenhouse, 37 Pa. St. 116. 'Munshower v. Patton, 10 S. & B. 334. ^Stephens v. Leach, 19 Pa. St. 262; Sweeney v. McCulloch, 3\W. 345; Hoey V, Furman, 1 Pa. St. 295 ; Evans V. Erie County, 66 Pa. St. 222 ; John- son V. Irwin, 3 S. & B. 291 ; Mercer V. Watson, 1 W. 330; Porter v. Mc- Ginnis, 6 W. & S. 502; Lund v. Brown, 14 W. N. C. 489; Wolf v. Ament, 1 Gr. 150; Hole v. Eitten- house, 19 Pa. St. 305; Ament v. Wolf, 1 Gr. 518. 16 LAW OF LIJIITATIONS. cultivation.^ The land claimed hostilely may be included in the same fences that also embrace a part of the adjacent fields or lot belonging to the intruder," or the fences may embrace only land intruded upon.^ A city or town house and lot may be had in constant hostile possession, otherwise than by constant occupancy. The true division line between two city lots being two and one-half feet farther east than that mistakenly assumed to be the true line, the houses on each were built up to this erroneous line. To make twenty-one years' continuous possession of the two and one-half feet, in favor of the owner of the intruding house, it was not neces- sary to show affirmatively that it was constantly occupied by tenants or by the owner. Perhaps if during this whole time the owner of the lot on which most of the house stood, had kept it locked up, without doing anything farther than to repair it and pay the taxes, such possession would be effectual under the statute of limitations.* If a house, or stable, or other structure is built partly over the true division line, and maintained for twenty-one years, its owner making such use of it as he pleases in the exercise of his proprietary preroga- ' Stephens v. Leach, 19 Pa. St. 262; 104. An occupation of a town lot, Koyer v. Benlow, 10 S. & E. 303 ; up to the division fence, established Heiser v. Eiehle, 7 W. 85 ; Lawrence for twenty-one years, though it be V. Hunter, 9 W. 64 ; Sorber v. Will- not on the true line, will give title, ing, 10 W. 141 ; Grafflus v. Totten- Br6wn v. McKinney, 9 W. 565. The ham, 1 W. & S. 488; Murphy v. same principle applies to division Springer, 1 Gr. 73 ; Adams v. Eobin- fences between rural tracts. Posses- son, 6 Pa. St. 271 ; De Haven v. Lan- sion claimed up to them gives title, dell, 31 Pa. St. 120. ' Evans v. Erie County, 66 Pa. St. 222 ; 'De Haven v. Landell/ 81 Pa. St. Hogg v. Ashman, 83 Pa. St. 80; Mc- 120; Brown v. McKinney, 9 W. 565 ; Ginnis v. Sawyer, 63 Pa. St. 259; Evans v. Erie County, 66 Pa. St. 222; Stoner v. Hunsicker, 47 Pa. St. 514. Hogg V. Ashman, 83 Pa. St. 80. Though the real division line is a 'Parker v. Southwick, 6 W. 377. straight line, if a crooked fence is Possession of a lot in Erie was had maintained for twenty-one years as by inclosing it in a fence, selling it the division fence, each party claim- as agent for the Commonwealth, and ing up to it, it will supersede the buying it in. original line. ■ McCoy v. Hance, 28 'Mackentile v. Savoy, 17 S. & E. Pa. St. 149. LIMITATIONS AS TO LAND. 17 lives, title will be acquired to all the soil covered by it.^ The erection of a building not devoted to residence but to manufacture or to business of any kind, and used habitually in the prosecution of this business, for twenty-one years, would probably make a title not only to the spot covered by the building, but to all the land embraced by the same title claimed in conjunction with it, with indicated boundaries. Thus, if an intruder enters on a -v^ooded tract, builds a saw- mill, operates it, cutting the timber from the tract to supply it, and continues so to use the land for the limitary term, he will acquire a title by the statute.'^ Cultivation. § 19. Though cultivation generally implies inclosure, it does not necessarily do so. Possession for the purpose of gaining title by the statute of limitations m^y be effectively had of a tract by means of the cultivation of all or a part of it without inclosure^ as well as with. Nor is it necessary that, in addition to the cultivation, there should be residence upon the land.* The fields cultivated may be wholly within the tract intruded upon, or the owner of an adjacent tract may extend his fields over beyond his true line, and so gain possession of the tract upon which he intrudes.® But the' area of the land cleared and cultivated must be sufficiently iBrown v. McKinnej, 9 W. 565; 'Royer v. Benlow, 10 S. & R. 303; Mackentile v. Savoy, 17 S. & R. 104. Stephens v. Leaoh, 19 Pa. St. 262; 'Sorber v. Willing, 10 W. 141. Heiser «. Riehle, 7 W. 35 ; Lawrence But if the mill is for some years v. Hunter, 9 W. 64. destroyed, and the land is used only *De Haven v. Landell, 31 Pa. St. as a wood-lot in connection with a 120 ; Schall v. Williams Valley R. R. neighboring tract, the adverse pos- Co., 35 Pa. St, 191 ; Susquehanna &c. session is too short to make a title. R. R. Co. v. Quick, 68 fa. St. 189; The maintenance and use of a privy Stephens v.' Leach, 19 Pa. St. 262 ; on an adjoining lot was apparently Hollinshead v. Naumap, 45 Pa. St. assumed to be sufficient to give title 140 ;_ IngersoU v. Lewis, 11 Pa. St. to its site, if continued twenty-one 212. years. Shroder i>. Breneman, 21 Pa. ^Ament «). Wolf, 1 Gr. 518 ; Jd, 33 St. 225; of. Hole' v. Eittenhouse, 25 Pa. St. 331; Ewing v. Alcorn, 40 Pa. Pa. St. 491. St. 492. 18 , liAW OF LIMITATIONS. large to attract attention and to suggest that the intrusion is otherwise than accidental, in mistake as to the position of the boundary line. Thus, when the clearing over is very slight, so as to suggest that it is by, accident rather than in the design to take any of the adjacent land, and there are no assessment and payment of taxes or other circumstance to indicate the intention to claim this land, a clearing and cultivating over the line to the extent of 135 perches square, on a tract of fifty acres, is not sufficient possession of the whole tract to make title to it.^ Other Methods of Possessionr-Taxes. § 20. It is unnecessary to state that a mere claim of title, not disclosed in any way, would not constitute possession.^ Nor, as has been seen, is every objective manifestation of such a claim possession. Thus, the circumstance that, the adverse claimant causes the tract to be assessed to himself and pays the taxes for twenty-one years, the true owner not being assessed nor paying any taxes, will not, per se, be a possession of the tract nor have the virtue of possession.* ' Washabaugh v. Entriken, 36 Pa. was in pursuance of a claim to the St. 513 ; Id., 34 Pa. St. 74. In this tract, could not be made, case A. claiming to own land which ' Oral assertions of a right and title in fact was his mother's, conveyed it to laild do not constitute possession, by parol to B. and C. Eleven years Caldwell ■;;. Copeland, 37 Pa. St. 427. afterwards, A., by his mother's de- Nor is the leasing ofland possession of vise, acquired the title, which inured it. De Haven v. Landell, 31 Pa.St. 120. to B. and C. B. had conveyed his 'Hole i;. Rittenhouse, 19 Pa. St. undivided half, ten years before the 305 ; Id., 25 Pa. St. 491 ; Id., 37 Pa. devise went into effect, to D., who St. 116; Bear Valley Co. v. Dewart, owned the adjoining tract. D.'scon- 95 Pa. St. 72; Mayor of Philadel- veyance was not put on record till phia v. Kiddle, 25 Pa. St. 259 ; Good- thirty-six years afterwards. Mean- man v. Sanger, 85 Pa. St. 37 ; Naglee while, however, he cleared a little v. Albright, 4 Wh. 291 ; Hockenbury over the line of his own tract, but v. Snyder, 2 W. & S. 240; Sorber v, paid no taxes for the tract derived Willing, 10 W. 141 ; Urket v. Cor- fromB. D. had made partition, and yell, 5 W. & S. 60 ; Union Canal Co. divided his half from C.'s by a line, v. Young, 1 Wh. 410 ; Lund v. Brown, but his clearing was not on his own 14 W. N. C. 489 ; Murphy v. Springer, purpart. From these circumstances 1 Gr. 73. Wolfe v. Reynolds, 2 W. the inference that D.'s clearing over N. C. 888 ; McDermott v. Hoffman, LIMITATIONS AS TO LAND. 19 Nor is every ijse of the land, thougli justifiable only by the ownership of it, and repeated at frequent intervals through a period of twenty-one years, a possession. It must be such a use as is accompanied by the impression on the ground of some permanent symbol of claim, and of the purpose to challenge the right ^of other persons to make use of it. , Mere entries to cut timber or bark, to tap trees and boil the sap for sugar, to extract coal, stones, gravel or ore, are not enough.^ When the owner of land has conveyed, the coal 70 Pa. St. 31 ; Forest v. Wallace, 4 Leg. Gaz. 245. If taxes are assessed to and paid by the intruder for twenty-one years, but in the midst of that period the pedal possession is for a time suspended, no title will be acquired by li mitatioti . Sorber ■y.Wil- ling, 10 W. 141 ; Groft v. Weakland, 34 Pa. St. 304; Stephens v. Leach, 19 Pa. St. 262. So, the payment of taxes, coupled with successive entries to cut timber, (Murphy v. Springer, 1 Gr. 73; McArthur v. Kitchen, 77 Pa. St. 62; Wolfe «. Reynolds, 2 W. N. C. 388,) would not make an eflfective possession without some pedal occupancy. Yet, in Kelsey v. Murray, 9 W. Ill, where the parties claimed to own a certain warrant and survey, and it was assessed to one of them ||ir thirty years, he paying the taxes, or redeeming the land when sold for taxes, and the other claimant refused to permit the taxes to be assessed to him, the court were sustained in telling the jury that the former " had gained a com- plete title by the statute of limita- tions," though the land had been unseated. Again, in Gregg v. Black- more, 10 W. 192, where one of four co-tenants took exclusive possession of one-half, with a view to a parti- tion, refraining ever afterwards from claiming the rest, it was decided th&,t this was an express confession that the other co-tenants were in sole possession of the other half, though in fact tliey had no pedal possession, and would preclude a denial of such possession. As to that half, the co- tenants would acquire the whole title by the statute of limitations. In Lawrence v. Hunter, 9 W. 64, it was stated that if the owner of the land made a lease of that part of it not in the possession of the adverse holder, and therein described the premises leased as adjoining "the land of P. L.,'' the disseisor, this was , an admission of ouster. 'Adams v. Eobinson, 6 Pa. St.' 271; Wolfe V. Reynolds, 2 W..N. C. 388; Susquehanna &o. E. E. Co. v. Quick, 68 Pa. St. 189 ; Hole v. Eittenhouse, 37 Pa. St. 116 ; Ewing v. Alcorn, 40 Pa. St. 492; County of Susquehanna V. Deans, 33 Pa. St. 131 ; McArthur V. Kitchen, 7/ Pa. St. 62; Murphy v. Springer, 1 Gr. 73. A., owning a lot in Philadelphia, and a house on it, had a chicken-house on the adja- cent lot, dried clothes there, passed over it habitually to his house, an external stairway to whose second story rested on it. This was not such a possession of the lot as, in twenty- one years; would give title. Bro- lasky V. McClain, 61 Pa. St. 146. An annual entry on another's land to 20 LAW OF I/IMITATIONS. in it to another, neither his possession of the surface by inclosure and cultivation, nor his taking out some of the coal at intervals for family use and for sale to his neighbors, not shown to have been constant and continuous, will con- stitute a possession. But if the owner of the coal mine is not in actual possession, and the owner of the surface or any other person digs pits or drives adits into the minerals and carries on mining operations there continuously for the stat- utory period, adversely, he may acquire a right. In such a case, he takes actual possession of the entire body of coal.^ As the putting of a house on a piece of land, or of a fence around it, may be a sufficient indication of possession,' so there may possibly be other sufficient indications. Perhaps if the surface of land should be constantly flooded artificially with water by another, by an apparatus for that purpose on or near the land, or the surface were otherwise occupied permanently, though not by means of a house, or an inclos- cut timber, graze cattle, hunt or fish ; , and the cultivation of a truck patch during the summer, as incidental to such pursuits, will not be a sufficient possession. Wheeler v. Winn, 53 Pa. St. 122. So, occasional use of wood- land by an adjoining owner, though he occasionally declares he claims up to certain lines, and gives notice to persons on it to leave it, and warns others from trespassing on it, will not make possession. Ewing v. Al- corn, 40 Pa. St. 492. Of course mere trespasses to cut timber by the occu- pant of an adjoining tract, woiild not make possession, if the taxes were meantime assessed to and paid by the owner of the tract trespassed on. Hinman v. Cranmer, 9 Pa. St. 40. The casual trespasser's failure to pay the taxes is an impressive dis- claimer of possession. Hole v. Bit- tenhouse, 37 Pa. St'. 116. If the owners of two contiguous tracts dis- pute as to the true place of the boundary, and one of them should, in ejectment against the- other, re- cover up to the line which he (though, in fact, mistakenly) alleged to be the true one, and taking pos- session under a habere facias should subsequently cut timber upon it, as farmers do in their woodland, in con- nection with his residence and culti- vation beyond themterference, and should pay taxes on it, this would probably be a possession of the in- terference despite the" absence of a •pedis possessio, inasmuch as the eject- ment and the recovery would be notice to the owner of the adverse possession as clear as a pedis posses- sio would be. MoArthur v. Kitchen, 77 Pa. St. 62. ' Armstrong v. Caldwell, 53 Pa. St. 284; Caldwell v. Copeland, 37 Pa. St. 427. LIMITATIONS AS TO LAND. 21 ure, or cultivation, the possession would, for the purposes of the statute, be esteemed equally effectual. Such modes of occupation must, however, be rare.^ CHAPTEE VI. THE EXTENT OF THE POSSESSION. The Area in Possession. § 21. Of the land actually covered by the house or other building, by the inclosure or by the clearing and cultivation, there is what is sometimes called a pedis possesdo? In every case, title to the area of land embraced in this form of pos- session for the statutory term, will be transferred by limita- tion.^ But the possession acquired of a part of a tract by these means will be considered as extended beyond that part where there is something to define the limits of this more extensive possession, and to show a claim of title and of pos- session up to those limits. These conditions are met in tiases of possession under what is vaguely known as colorable title or color of title.* In such cases, pedal possession within the limits extends the possession over the whole tract.^ ^In Hole D. Sittenhouse, 25 Pa. St. v. Lenox, 8 S. & E. 392; Barnhart v. 491, Lewis, C. J., mtimateB that, not- Pettit, 22 Pa. St. 135 ; Hall v. Powel, withstanding Shroder y. Breneman, 4 S. & R. 456. ' 21 Pa. St. 225, the digging of a pit * Where the evidence of claim by on another's land, and use of it per- color of title is otherwise sufficiently manently, in connection with a con- clear, adverse possession arising from tiguous stable, as a dung-heap, might pedal occupancy of a part of the area, constitute possession. will extend to the whole, notwith- ' ^ Waggoner v. Hastings, 5, Pa. St. standing the occupant does not pay 300 ; Ege v. Medlar, 82 Pa. St. 86. the tax and the true owner does. 'Cluggage V. Duncan, 1 S. & R. Ill ; Kite v. Brown, 5 Pa. St. 291 ; Ewing Grayi;.McCreary,4Y.494; Miller -y. v. Ewing, 96 Pa. St. 381. But pay- Shaw, 7 S. & R. 129 ; Burns v. Swift, ment of the tax is corroborative that 2 8. & R. 436 ; Ament v. Wolf, 33 Pa. the claim is by color of title. Forest St. 331 ; Waggoner v. Hastings, 5 Pa. v. Wallace, 4 Leg. Gaz. 245. St. 300 ; Kite v. Brown, 5 Pa. St. 291 ; ^ Barnhart v. Pettit, 22 Pa. St. 135 ; Ege V. Medlar, 82 Pa. St. 86; Farley Cluggage v. Duncan, 1 S. & B..111 ; 22 LAW OF LIMITATIONS. Color of Title. § 22. One is said to have such color of title when he bona fide, and not pretendedly, claims the real titl§ of some fornler owner,' or when he bona fide claims a valid title, in virtue of a transmission to him of title from some former claimant, whose title was in fact not good.^ The basis of this color- able title may be, in the former case, a deed,^ or contract of Burns v. Swift, 2 S. & R. 436 ; Wag- gonei»i). Hastings, 5 Pa. St. 300 ; Kite V. Brown, 5 Pa. St. 291 ; Schuylkill and Dauphin Improvement Co. v. McCreary, 58 Pa. St. 304; Ege v. Med- lar, 82 Pa. St. 86 ; Forest v. Wallace, 4 Leg. Gaz. 245 ; Ament's Ex. v. Wolf, 33 Pa. St. 331, But the adverse ten- ant may own two or more contiguous tracts which embrace the whole or parts of an older tract. In that case his pedal possession within one of these tracts will be understood to extend only to its lines, and not to the exterior lines of the block owned by him. He will therefore have ad- verse possession by means of it only of so much of the older tract as is within the lines of that one of his tracts on which his residence, inclos- ure or cultivation is. Hole v. Eit- tenhouse, 19 Pa. St. 305. But when the two or more contiguous tracts together are not larger than farms often are, i. e. 400 acres, and are used together as one tract, the resi- dence and cultivation being on one of them, and the woodland on the other being used for saw-logs and fuel, as farmers usually use woodland on their farms, and the taxes are assessed on them as one tract and paid by their owner, the owner of an older survey, which interferes with them, paying no tax, the pedal occupancy within one of these junior tracts will, by,the unity of their use, extend the possession to the outer lines of the block formed by them, so as to make title by limitation to the interference of all of them with the senior survey, which lies in part across them. Baker v. Findlay, 20 Pa. St. 163. It may be stated gener- ally, that when adverse possession is taken of only one of two adjacent original survej's, the intruder, though he claims both, gains title to the one only on which he maintains the pos- session, though he occasionally enters on the other to dig coal. Susque- hanna &c. R. E. Co. V. Quick, 68 Pa. St. 189. 1 McCall V. Neely, 3 W. 69 ; Green V. Kellum, 23 Pa. St. 254; McCaflFrey ■y. Fisher, 4 W. & S. 181 ; Sweeney v. McCulloch, 3 W. 345 ; Kite «. Brown, 5 Pa. St. 291. A. buying at sheriff's sale on execution against B., a large area of land, within which were some tracts not belonging to B., is said to ■ have color of title to these tracts, only if he did not know and at the same time ought not to have known that B. in fact had no title. Ege v. Medlar, 82 Pa. St. 86. 'Green v. Kellum, 23 Pa. St. 254. 'Susquehanna &c. E. E. Co. v. Quick, 68 Pa. St. 189. Under a deed by an administrator without au- thority to make it, his grantee would have possession with color of title, presumptively to the confines of the tract. Forest v. Wallace, 4 Leg. Gaz. LIMITATIONS AS TO LAND. 23 sale, or gift,^ or devise.^ But a document is unnecessary. A claim founded on a mistaken belief tliat the claimant is the heir of the former owner, would be an instance of color of title.® So, one bona fide claiming to be the equitable warrantee, whose name does not appear in the warrant, would claim under color of title.* A junior warrantee, whose survey overlaps an older survey, would have color of title.^ One in adverse possession of a tract, without color- able title to it, may convey it^ or mortgage it,^ and the' 245. One who, purchasing at sheriff's sale, has his lines run by a surveyor, is in by color of title, though the title of the defendant in the execu- tion was not valid. Heiser v. Riehle, 7 W. 35. A deed for a definite tract by one alleged to be the heir of the patentee, would give color of title. Farley v. Lenox, 8 S. & R. 392. 'Ewing V. Ewing, 96 Pa. St. 381; Campbell v. Braden, 96 Pa. St. 388. ^ Miller v. Shaw, 7 S. & K. 129. ' McCall V. Neely, 3 W. 69 ; Miller V. Shaw, 7 S. & B. 129; Sweeney v. McCulloch, 3 W. 345. * McCall V. Neely, 3 W. 69 ; Green V. Kellum, 23 Pa. St. 254; Miller v. Shaw, 7 S. & E. 129. The mere fact that one is in possession of a tract claiming up to its lines for twenty- one years, no evidence of any one else claiming being given, is said to show that he is in by color of title, as against an intruder. Green v, Kellum, 23 Pa. St. 254. A grantor who retakes possession of the granted land, has no color of title merely as such. Wateon ■». Gregg, 10 W. 289. ^Sweeney v. McCulloch, 3 W. 345; Waggoner v. Hastings, 5 Pa. St. 300 ; Kite V. Brown, 5 Pa. St. 291 ; Hock- enbury v. Snyder, 2 W. & S. 240; Hatcjh V. Smith, 4 Pa. St. 109 ; Seigle V. Louderbaugh, 5 Pa. St. 490; Sus- quehanna &c. E. K. Co. V. Quick, 68 Pa. St. 189. That the person claim- ing by adverse possession under color of title, causes himself to be assessed with respect to the land and pays the taxes,, is not essential to the making of a title. When he enters, under a parol gift, into a definite tract, the fact that the donor continues to pay the taxes may be of value, as assisting to determine whether the alleged donee really claimed adversely. Ewing v. Ewing, 96 Pa. St. 381. In oases of inter- fering surveys, the mere fact that the owner of the junior survey pays no taxes (Waggoner v. Hastings, 5 Pa. St. 300), while the owner of the senior survey pays them (Kite v. Brown, 5 Pa. St. 291), will not pre- vent the possession of the junior survey from extending over the whole interference. « Farley v. Lenox, 8 S. & E. 392; Thompson v. Milford, 7 W. 442; Schall V. Williams Valley E. E. Co., 35 Pa. St. 191; Kite v. Brown, 5 Pa. St. 291. 'Green v. Kellum, 23 Pa. St. 254. The ' purchaser at a sheriff's sale on execution by a deed which at)pa- rently embraced more land than was actually the defendant's, would, be- lieving this land to be the defend- ant's, have color of title. ^ Ege v. Medlar, 82 Pa. St. 86. 24 LAW OF LIMITATIONS. grantee or mortgagee and purchaser under the mortgage, bona fide claiming the land, would have color of title.^ So would one taking a deed from a person in possession in igno- rance that he had accepted a lease from the owner of the title.'' Without Color of Title, § 23. But the conditions above mentioned for the exten- sion of the possession beyond the confines of the house, or inclosures and cultivated fields, may be realized in cases in which there is no color of title. It is not necessary that one should have a hona -fide belief that a good title has come to him from another, *'. e. should have color of title, in order to acquire title by limitation.' The only function which color of title discharges, with regard to the acquisition of title under the statute of limitations, is the indication of the limits beyond the pedal possession to which the claim of the adversary extends, and the consequent expansion of the pos- session over the whole area embraced within these limits.* When these ultra-pedal limits are equally well indicated otherwise than by color of title, the possession is extended 'One who enters on land supposed 'Overfield v. Christie, 7 81 & E. to be vacant to make a settlement 173; Miller v. Shaw, 7 8. A K. 129; of it, is not in by color of title, be- Munshower v. Patton, 10 8. & R. 334; cause, while he thinks h'e has a right Mercer v. Watson, 1 W. 330 ; Thorn p- under the laws of the Common- son v. Milford, 7 W. 442; Criswell ». wealth, he has not defined his bound- Altemus, 7 W. 565 ; Watson «. Gregg, aries oflacially. Miller «. 8haw, 7 8. 10 W. 289; Lawrence v. Hunter, 9 & E. 129; Sweeney v. McCulloch, 3 W. 64; McCuUough v. McCall, 10 W. W. 845 ; Eoyer v. Benlow, 10 8. & E. 367 ; Eung v. Shoneberger, 2 W. 23 ; 308. A deed by him, simply con- HoUinshead v. Nauman, 45 Pa. St. veying his ^ght, without indicating 140; Mead v. Leffingwell, 88 Pa. St. boundaries, would not give the 187; Waggoner «. Hastings, 5 Pa. St. grantee color of title. Farley v. 300. Lenox, 8 8. & E. 392. But if it *Ege v. Medlar, 82 Pa. St. 86; described the boundaries, the Barnhart v. Pettit, 22 Pa. St. 135; grantee would have color of title. Thompson v. Milford, 7 W. 442; Eiland v. Eckert, 23 Pa. 8t, 215; Susquehanna &c. E. E. Co. v. Quick', Fariey v. Lenox, 8 8. & E. 392. 68 Pa. St. 189 ; Smith v. Steele, 17 Pa. •Dikeman v. Parrish, 6 Pa. St. 211. St. 30. LIMITATIONS AS TO LAND. 25 to them as mucli as if color of title were present.^ Now, •In Miller v. Shaw, 7 S. & R. 129, in Farley v. Lenox, 8 S. & R. 392, and in Cluggage v. Duncan, 1 S. & R. Ill, it was decided that one enter- ing on unseated but appropriated land, for the purpose of making a settlement, could acquire no title beyond his inclosures and cultiva- tion, by the statute. In these cases the settler did not indicate his lines. In Royer v. Benlow, 10 S. & R. 303, the principle was applied even when the settler unoflScially marked his lines, and this application was justi- fied in McCall v. Neely, '3 W. 69. But while the pedal possession of a part was not allowed to give posges- sion up to the circumscribing unoffi- cial lines, propria virtute, it was con- ceded that tjie owner might confess himself out of possession up to these lines, and in that case the confession would have as much virtue in ex- tending the possession to the lines marked or claimed to, as color of title. And the owner's permitting the intruder with marked lines, to have the part so marked, assessed and paid to him for twenty-one years, would be such a confession. The intruder would then be in possession up to the lines marked. Royer v. Benlow, 10 S. & R. 303. One who originally entered as a settler on appropriated land, may subsequently ' claim to the lines of the' tract, and by causing it to be assessed to him and paying the taxes for twenty-one years, become possessed of the whole, by the owner's implied confession- of ouster from the whole. McGall v. Neely, 3 W. 69; Criswell v.. Altemus, 7 W. 565; Read u Goodyear, 17 S. & E. 350; Heiser v. Riehle, 7 W. 35; Thompson v. Milford, -7 W. 442; Sorber v. Willing, 10 W. 141 ; Gregg V. Blackmore, 10 W. 192 ; McCaffrey V. Fisher, 4 W. & S. 181 ; Murphy v. Springer, 1 Gr. 73 ; Bishop v. Lee, 3 Pa. St. 214 ; Clarke v. Dougan, 12 Pa. St. 87; Baker v. Findley, 2* Pa. St. 163. So, if one who settles on land erroneously supposed vacant, has his lines drawn so as to embrace parts of two or more adjacent tracts, and "has the area thus embraced, assessed and taxed to him for twenty- one years, he acquires title to it by limitation. Heiser v. Riehle, 7 W. 35; Lawrence v. Hunter, 9 W. 64; Bell V. Hartley, 4 W. & S. 32. Per- haps the payment of taxes by the owner, and the non-assessment of them to the intruder, claiming up to the true lines of the tract, would not be conclusive against the effective possession of the latter to these lines, including unih closed woodland. Kite V. Brown, 5 Pa. St. 291. It is probable that the doctrine now ob- taining is that an intruder with marked lines, embracing part of one or more tracts, in pedal possession within those lines, on one or more of those tracts, has effective posses- sion of so much of such tract or tracts as is within his lines, includ- ing the woodland, though he has not had the taxes assessed to him nor paid them. Lawrence v. Hunter, 9 W. '64. Thus, B. including in his survey 400 acres of land, which, to the extent of 100 acres, interfere with an older survey, but taking pedal possession of a part of these 100 acres, for twenty-one years, gains title to the whole, though he pays tax on only 200 acres. Bell v. Hart- ley, 4 W. & S. 32. And, where this pedal possession is shown within the 26 LAW OF LIMITATIONS. even when there is no color of title, there may be a claim by the lines of the tract into which the intruder enters, intending to dispossess the true owner. The lines of the tract will then be the limits to which the possession had by residence, inclosure or cultivation within it will be carried.^ Or, the intruder mistakenly thinking that a tract lying amidst other surveyed tracts and not larger than can be acquired by warrant or settlement, still belongs to the Commonwealth, may enter on it, claiming up to the lines of the surrounding surveys, and intending to perfect a title from the State. Pedal possession anywhere within the tract would be extendible, in this case, to the adjacent surveys.^ Besides these two cases, in which the claim of the intruder is commensurate with that of the person whose title he is displacing by limitation, there are the case where the tract to which his claim extends is wholly within, being smaller than the one tract of the real owner into which he has intruded,^ the case where it is partly within one and partly within another tract of the same* or of tract, and it is also proven to have ' Porter v. MoGinnis, 6 W. & S. been adverse, it is superfluous to 502 ; Id., 1 Pa. St. 413 ; Hole v. Rit- show that the person thus in posses- tenhouse, 25 Pa. St. 491 ; Criswell v. sion has also had the taxes assessed Altemus, 7 W. 580. to him and paid them. Hollinshead , 'Messer v. Rhodes, 3 Brewst. 180; V. Nauman, 45 Pa. St. 140. The Huffman v. McCrea, 56 Pa. St. 95. pedal possession, with marked lines, A. and B. owning adjacent tracts, and customary use of the woodland, the division line may be mistakenly is probably enough to make posses- run on B.'s land, so as to attach- a sion of the woodland, without other part of the latter to the tract of A. manifestation of claim of ownership. Sholly v. Stahl, 2 W. N. C. 418. Or For history of the development of the the lines of the original survey being doctrine concerning possession be- in doubt, the owner of one tract may yond pedal occupancy, by means of build a house and occupy between marked lines, vide McArthur v. Kit- the true line and another errone- chen, 77 Pa. St. 62. ously supposed line on his neigh- ' McCaffrey v. Fisher, 4 W. & S. bor's tract. Sheaffer v. Eakman, 56 181 ; Barnhart v. Pettit, 22 Pa. St. Pa. St. 144. 135; Hole v. Bittenhouse, 25 Pa. St. *Hole v. Rittenhouse, 19 Pa. St. 491 ; Criswell v. Altemus, 7 W. 565; 305; Id., 25 Pa. St. 491. Huffman v. MoCrea, 56 Pa. St. 95. LIMITATIONS AS TO LAND. 27 different owners,^ the case where it lies partly within already-appropriated and partly on unappropriated ground,^ and the case where it embraces not only the whole of one tract belonging to another, but the whole or parts of other tracts. All of these cases agree in the circumstance that the lines of the true owner do not delimit the claim of the intruder, and do not, therefore, assist, in determining the boundaries to which his possession is to be understood to extend. In those cases it is necessary, for the purpose of expanding his pos- session beyond his pedal occupancy, that he mark his lines on the land.^ When he so marks his lines, claiming up to them, his residence, inclosure or cultivation on the tract of X. will make a possession to all of X.'s tract within these 1 Hatch V. Smith, 4 Pa. St. 109. Two surveys interfering, belonging, respectively, to A. and B., C. may settle on the interference and extend his lines so as to embrace part of the tracts beyond the interference, as well as part of the interference, and by pedal possession on AVs tract (the older title), whether in or beyond the interference with B.'s, and by the same possession on B.'s beyond the interference, he acquires title to the whole of his claim, as well that within A.'s boundaries as that within B.'s. Hollinsjiead v. Nauman, 45 Pa. St. 140. ' Altemus v. Trimble, 9 Pa. St. 232; Broad Top Coal Co. v. Riddlesburg Coal Co., 65 Pa. St. 435; Wood v. rigard,-28 P^a. St. 403. » Porter v. McGinnis, 6 W. & S. 402; Hockenbury v. Snyder, 2 W. & S. 240. The owner of a tract may adopt a fence run by his neighbor on the latter's tract substantially parallel with the division line, but at some distance within it, as his line, and' by clearing over the neighbor's tract within this fence, and claiming up to it, acquire possession of all of ■ that tract up to it. Ewing v. Alcorn, 40 Pa. St. 492. Mistaking the true division line, one neighbor may mark or adopt a line on his neighbor's land, and asserting this to be the true line, may by pedal occupancy on his neighbor's tract acquire possession up to this line. Thompson v. Mil- ford, 7 W. 442. , If, surveying two warrants together, the surveyor mark's a division line which allows too much to one and too little tp the other, and, discovering his mistake, he subsequently, in the return of survey, changes the division! line, and a patent, conformable to the return, is accepted, the warrantee waives his right to claim up to the line as marked on the ground. If he, however, enters on the area be- tween the two lines, claiming up to the marked one, building barn, house, &c., he, in twenty-one years, would acquire title. But, not know- ing of this line, and so not claiming up to it, his possession would be limited to his inclosures and build- ings. Gray v, McCreary, 4 Y. 494. 28 LAW OF LIMITATIONS. lines, with the same effect as if he had entered under color of title.' Unofficial Marking of Lines. § 24. Though at one time it was assumed that an unoffi- cial survey and marking of lines for the intruder would not, ipso facto, have the virtue of extending his possession beyond his house, inclosure and fields, when he entered on what he erroneously supposed to be vacant land, for the purpose of making a settlement,^ it has been since recognized that, whether the intruder enters on what he supposes to be vacant land, with a view to obtaining a title by settlement,' Pa. St. 492; cf. Sholly v. Stahl, 2 "W. N. C. 418. The line may be marked by notching and blazing trees with the axe or hatchet, or by setting up stakes or stones. Lawrence v. Hunter, 9 W. 64. The original survey being marked on nearly all sides by other surveys under Pennsylvania or Connecticut titles, an intruder may claim up' to these lines without procuring an oflScial or unofficial survey, and make title to them. Fitch v. Mann, 8 Pa. St. 503. Fences may be used to de- markate its boundaries. Stoner v. Hunsicker, 47 Pa. St. 514 ; Brown v. McKinney, 9 W. 565 ; McGinniss v. Sawyer, 63 Pa. St. 259. 'Royer v. Benlow, 10 S. & R. 303; McCall V. Neely, 3 W. 69. A con- ceded, exception was the case when the supposed vacant land was in- cluded on all sides within surveys, and contained no larger an area than a settler could, as such, claim. Gil-, day V. Watson, 2 S. & R. 407 ; Mc- Call V. Neely, 8 W. 69. ' Hockenbury v. Snyder, 2 W. & S. 240; Huey v. Smith, 3 Pa. St. 353; Bell V. Hartley, 4 W. & S. 32; Alte- mus V. Trimble, 9 Pa. St. 232; Wood V. Figard, 28 Pa. St. 403 ; Schrack v. 'Ament v. Wolf, 1 Gr. 518; Id., 33 Pa. St. 331 ; Miller v. Miller, 60 Pa. St. 16 ; Thompson v. Milford, 7 W. 442; Hatch v. Smith, 4 Pa. St. 109; Hockenbury v. Snyder, 2 W. & S. 240 ; Huffman v. McCrea, 56 Pa. St. 95 ; Huey V. Smith, 3 Pa. St. 353 ; Hol- linshead v. Nauman, 45 Pa. St. 140; Sholly V. Stahl, 2 W. N. C. 418. The line must completely circum- scribe the part of the owner's tract which the intruder claims, from the rest. If there is any break in it, however short, it will be of no avail. Thus, if A. and B. own adjacent tracts, A.'s being north of B.'s, and B. sells the northwest corner and the southeast corner of his tract to dif- ferent parties, these pieces not touching each other, so that the southwest portion remaining to B. is connected with the northeast por- tion, A.'s claim down to the north fence on the southeast corner-pi^ce, and as far west as the east line of the northwest corner-piece, will not give him possession of any portion of B.'s tract beyond his pedal occu- pancy, because of the breach be- tween the fence to which he claims and the east line of the northwest corner-piece. Ewing v. Alcorn, 40 LIMITATIONS AS TO LAND. 29 or whether he enters, knowing that the land has been already appropriated, and therefore with no intention to acquire a title from the Commonwealth by settlement,^ he may, by unofficial as well as official marking of lines, extend his possession to them, for there can be no difference between the virtue of an official and that of an unofficial designation of boundaries, since both, on already-appropriated land, are equally void as facts constitutive of ownership.^ Possession to Boundaries. § 25. One who, without color of title, enters within a tract, clearing and cultivating it, will not be presumed to claim to its proper boundaries, in the absence of evidence that he so claimed, and therefore his possession will not expand, as matter of course, beyond his cultivated and his inclosed areas.^ But he may claim beyond these areas up to Zubler, 34 Pa. St. 38 ; HoUinshead v. Nauman, 45 Pa. St. 140. Vide Bishop V. Lee, 3 Pa. St. 214, with which of. Hole V. Eittenhoitse, 25 Pa. St. 491. A settler who builda a house and cultivates on vacant land, but blazes trees to mark his, line, over or on an adjacent surveyed tract, would ac- quire title up to these lines if he had pedal possession anywhere within them on the surveyed tract. Broad Top Coal- Co. V. Riddlesburg Coal Co., 65 Pa. St. 435. 'Hole V. Rittenhouse, 25 Pa. St. 491; Id., 37 Pa. St. 116; Bell v. Hartley, 4 W. & S. 32; McCall v. Coover, 4 W. & S. 151; Sheafifer v. Eakman, 56 Pa. St. 144; Huflfman V. McCrea, 56 Pa. St. ,95; Collins v. Benedict, 5 W. N. 0. 549. The equality of the virtue of an official and of an unofficial survey, for one who has entered on land mistakenly supposed to be vacant, for the pur- pose of gaining title by settlement, was conceded " for the sake of argu- ment only " by Gibson, C. J., in Al- temus V. Long, 4 Pa. St. 254. *Hole V. Rittenhouse, 25 Pa. St. 491. If A. goes over upon an ad- joining tract and unofficially marks his lines thereon, clearing and culti- vating a part of it within these lines, and claims up to them, his posses- sion will be regarded as extending to them. Ewing v. Alcorn, 40 Pa. St. 492. So, if A. and B. make partition of a tract, but \iy' mistake run the line brokenly from the two points in- tended to be the termini of a straight line, A.'s pedal possession within the triangle formed by the true line and the broken, will give him possession of the woodland therein. Shdlly v. Stahl, 2 W. N. C. 418. ' Barnhart «. Pettit, 22 Pa. St. 135 ; Peck D.Ward, 18 Pa. St. 506; Sweeney V. McCulloch, 3 W. 345 ; McCaffrey v. Fisher, 4 W.' & S. 181 ; Miljer v, Shaw, 7 S. & R. 129'; Farley ■«. Lenox, 8 S. & R. 392 ; Collins v. Benedict, 5 W. N. C. 549;' Huey v. Smith, 3 Pa. St. 30 LAW OF LIMITATIONS. the exterior lines of the tract, and if this claim is persisted in for the statutory term, and is objectively manifested, his adverse possession will be regarded as extending over the entire tract. One very appropriate and efficient indication of such a claim is his procuring the whole tract to be assessed to himself, and his paying the taxes so assessed for the limitary period, the real owner meanwhile doing neither.^ The owner's abstention from paying the taxes is a confession, and the intruder's payment of them an assertion, of the claim of the latter to the whole tract. There may, however, be other equally efficient indications that the claim of the intruder within a tract extends to its boundaries, and that his possession, consequent on his residence, inclosure or cul- tivation within it, is co-extensive with his claim. Assess- ment and payment of taxes by the intruder are not, therefore, indispensable to the diffiision of his possession, by means of a partial pedal occupancy, over the whole tract.^ Thus, the habitual use of the woodland for the making of sugar or the 353. Of course, if the intruder has W. 141 ; Gregg v. Blackmore, 10 W. no knowledge that the land has been 192 ; Murphy v. Springer, 1 Gr. 73 ; appropriated, nor of the boundaries. Bishop v. Lee, 3 Pa. St. 214; Cris- he does not claim up to them, and well v. Altemus, 7 W. 565 ; Hocken- another intruder on a part of the bury d, Snyder, 2 W. & S. 240 ; Barn- tract remote from the settlement of hart v. Pettit, 22 Pa. St. 185; Baker the former, may acquire title to a v. Findley, 20 Pa. St. 163 ; Kite v. part by marking it, as against the Brown, 5 Pa. St. 291 ; Peck v. Ward, former, who had entered first on the 18 Pa. St. 506. But, when the land tract, but not designated his bounda- adversely claimed is lumped with ries nor begun to claim to the lines other land, and assessed as one with of the tract till the later intruder it, the assessment and payment of had marked his confines. Huey v. the tax will not assist in determining Smith, 3 Pa. St. 353. that the possession extends to the 'McCaffrey v. Fisher, 4 W. & S. limits of this adversely-held tract, 181 ; Schuylkill and Dauphin Im- unless the area taxed is the reason- provement Co. v. McCreary, 58 Pa. ably exact sum of the separate areas St. 304 ; Eoyer v. Benlow, 10 S. & R. of the tracts. Lund v. Brown, 14 W. 303; McCalli).Neely,3 W.69; Read N. C. 489; ef. Union Canal Co. i. V. Goodyear, 17 S. & R. 350 ; Heiser v. Young, 1 Wh. 410. Riehle, 7 W. 35; Thompson v. Mil- 'Hookenbury v. Snyder, 2 W. & S. ford, 7 W. 442 ; Sorber v. Willing, 10 240. LIMITATIONS AS TO LAND, 31 cutting of wood for fences or fuel, together With declarations of ownership up to the lines, and challenges of the intrusions of others therein, would be sufficient to extend the possession to the lines of the tract, though no assessment and payment of taxes were shown.^ But if the land is in fact assessed for some time^ as containing considerably less than it really does,' this will be considered as a disavowal by the intruder who causes or permits the erroneous assessment, of any claim to the lines of the tract, and in the absence of some other delimitation of the' area to which he claims possession, he will be restricted to his pedal possession.* Indicating Boundaries, When Not Coincident. § 26. Besides claiming and asserting a possession up to 'Green v. Kellum, 23 Pa. St. 254; Peck V. Ward, 18 Pa. St. 506 ; Porter V. McGinnis, 1 Pa. St. 412 ; Lawrence V. Hunter, 9 W. 64. These acts of ownership must be affirmatively shown. Barnhart v. Pettit, 22 Pa. St. 135. But the cutting of timber eight or ten times in twenty-one years will not show a claim to the woodland beyond the inclosed fields. Peck V. Ward, 18 Pa. St. 506. 'E. g. for six successive years, Clarke v. Dougan, 12 Pa. St. 87; for twenty-one successive years, Barn- hart V. Pettit, 22 Pa. St. 135. When, on a tract of 300 acres, A. intrudes, and, without marking his lines, has himself assessed for various areas, now for 200 acres, now for 230 acres, now for 150 acres, he will not thereby extend his possession to the confines of the tract, as against B., another intruder, who subsequently enters and blazes his lines ; especially when it appears affirmatively that A. did not know that the land had been appropriated, and, consequently, did not know where its boundaries were, until long after B. had blazed his lines. Huey v. Smith, 3 Pa. St. 353. ^E. g. as containing only 100 acres instead of 300. Clarke v. Dougan, 12 Pa. St. 87. Or 200 acres instead, of 400. Barnhart v. Pettit, 22 Pa. St. 135. *WhenA. owns tracts containing 1,600 acres of land, which do not in- terfere with older surveys, and 2,000 acres which do interfere, and is as- sessed for only 100 acres, not dis- tinctly located, these 100 acres will be assumed to be coihposed of the land to which he has a good title, and the assessment will not assist in making title to the interference, by the statute of limitations. Hole v. Kittenhouse, 25 Pa. St. 491. When A. takes possession of a tract which, to the extent of 100 acres, interferes with B.'s tract, and marks his lines so as to embrace 400 acres in all, and, supposing the area to be bpt 200 acres, hafi it assessed as such for twenty-two years, when the mistake is first discovered, A.'s cultivation or inclosure within his lines on B.'s tract will give him possession up to these lines, B. paying, meantime, no taxes. Bell v. Hartley, 4 S. & B. 32. 32 LAW OF I/IMITATIONS, the already-existing boundaries of a tract, the intruder may claim an area which is not commensurate with any existing tract. That area might lie wholly within one tract ; it might embrace part of one tract and adjacent land, of which the intruder was, or became coincidently with the intrusion, the owner ; it might embrace parts of two or more adjacent ap- propriated tracts. In all such cases the exact land embraced in the claim of the intru'der beyond his inclosures or culti- vation, would be incapable of ascertainment, unless its limits were indicated upon the ground. Assessment for taxation on a certain quantity of land, and payment of the tax so assessed, would not define the position and outline of the land, and therefore would not be sufficient to push the possession to any particular lines.^ It is absolutely necessary, therefore, that the lines be marked, in order to extend his possession beyond the area of the pedal occupancy.^ But the marking of lines by one who has taken visible possession within a tract by clearing and cultivation, by residence or by other in- closure, is so manifestly done with a view to delimitation of his claim of possession, that perhaps other 'evidence is unnecessary that he asserts himself in possession up to them. That he should cause the land within them to be assessed, and should pay the taxes, is probably unnecessary in any case* — 'Huey V. Smith, 3 Pa. St. 353. So, tract, he could not acquire title to a settlement on land supposed to be any of the latter, in the absence of vacant with a view to gaining title lines indicating the limit of his to 400 acres, would not dispense with claim, and of a pedal occupancy of defining the .boundaries. Miller v. any of it. Crum v. Burke, 25 Pa. St. Shaw, 7 S. & E. 129. 877. 'Farley v. Lenox, 8 S. & E. 392; 'As against the true owner, pay- Barnhart d. ,Pettit, 22 Pa. St. 135; ment of taxes as well as marking Potts V. Gilbert, 3 Wash. C. C. Eep. the lines was decided to be necessary 475; Sweeney v. McCulloch, 3 W. in the case of an intruder. Bishop 345; Hall v. Powel, 4 S. & R. 456; v. Lee, 3 Pa. St. 214. This was Miller v. Shaw, 7 8. & E. 129; Peck doubted in Hole v. Eittenhouse, 25 -». Ward, 18 Pa. St. 506; Crum v. Pa. St. 491; cf. Hockenbury v. Sny- Burke, 25 Pa. St. 377; Wood i). Fig- der, 2 W. & S. 240. It is, not men- *rd, 28 Pa. St. 403. If one settles tioned as a requisite in Ament v. vacant land near to an appropriated Wolf, 33 Pa. St. 331. LIMITATIONS AS TO LAND. 33 is certainly unnecessary as against all but the true owner.^ The actual use of the woodland beyond the inclosures and the cultivated fields, as farmers are accustomed to use it, would be an additional,^ although perhaps a superflu- ous indication of the extension of the claim beyond the pedal occupancy, and therefore to the marked lines, when the area embraced in the lines did not so far exceed that usually held in connection with the residence, cultivation, or inclosure, as one. holding, as to negative the inference that the whole area is grasped in one possfession, or when there is not some other indication that the tenancy of the cleared,, cultivated or inclosed parts is, in the purpose of the occu- pant, severed from that of other parts of the tract. Pedal Possession Essential — Tsxro Unities. § 27. It has already been seen that the possession which will destroy a title, under the statute of limitations, must be in some cbnspicuous and enduring form ; and, in particular, must be by means of residence, cultivation or inclosure. Every part of the land on which the statute operates need not be pedally occupied, but such pedally-unoccupied parts i^ust be connected with the pedally-occupied parts,* in the unity of a single tract. This unity implies, first,' that the various parts belong to the same owner. A residence, or cultivation, or inclosure can never extend its virtue to land belonging to a different person from him to whom the 'Hoey V. Furman, 1 Pa. St. 295; being assessed nor paying tax, will Huey V. Smith, 3 Pa. St. 353. But not prevent the possession from ex- thepayingof taxes is a circumstance tending to the lines. Bell v. Hart- having value as an indication of the ley, 4 W. & S. 32. In McCuUough v. claim up to the lines marked. Wood McCall, 10 W. 367, a tract assessed 1). Figard, 28 Pa. St. 403 ; Schrack v. as 200 acres, contained, in fact, 270 JZubler, 34 Pa. St. 38; Beaupland v. acres, but this discrepancy was not McKeen, 28 Pa. St. 124. That the inconsistent with adverse possession intruder with marked lines embrac- of the whole. ing, in fact, 400 acres, has his area "Ament's Ex. v. Wolf, 33 Pa. St. mistakenly assessed as 200 acres 331 ; Alden d. Grove, 18 Pa. St. 377 ; only, the owner meantime not Criswell v. Altemus, 7 W. 565. C 34 LAW OF LIMITATIONS. land on which the residence, inclosure or cultivation is, belongs. Identity of ownership of the whole of the area of which, by reason of pedal possession of a part of it, an effect- ual possession is asserted, under the statute of limitations, is indispensable. This unity implies, secondly, besides the fact that the same owner owns the parts pedally occupied, and \ the parts to which, in virtue of this pedal occupancy, the possession is asserted to extend, that this common owner should use them together as parts of one tract. Unity of O-wnership. § 28. It was decided in several cases that where two sur- veys or tracts interfere, and the owner of the senior survey is not in actual possession of any portion of his tract, even of that beyond the interference, a pedal possession of the junior survey, even beyond the interference, would make, ipso facto, a hostile possession of the interference, though no acts of ownership were shown to have been exercised within it,* and though taxes were not paid by the owner of the junior tract, while the owner of the senior tract paid the taxes assessed thereon.^ If the junior survey interfered with several contiguous older surveys owned by the same person, the result would be the same. The interferences would aU be regarded as covered by the possession held pedally of any part of the junior tract.* If there were several contiguous juijior surveys, across which a senior survey lay, a pedal possession of any part of any one of the former, though out- side of the interference, would extend the possession to the whole of it, including its interference with the senior tract, but not to the other tracts not used in connection with it ' Waggoner v. Hastings, 5 Pa. St. Lewis, J., says that the several sen- 800; Seigle v. Lauderbaugh, 5 Pa. . ior tracts in Kite v. Brown were St. 490; Rilandi;. Eckert, 23 Pa. St. essentially one, not having been 215; Altemus v. Long, 4 Pa. St. 254. separated by interior lines when the " Kite V. Brown, 5 Pa. St. 291. survey was made, and never having ' Kite V. Brown, 5 Pa. St. 291. In been separated by the possession and Hole V. Rittenhouse, 25 Pa. St. 491, use of the owner. LIMITATIONS AS TO LAND, 35 as one, nor to their interferences with the senior tract.^ The doctrine of these cases has, however, been since so far repudiated that it is now held that an occupancy by- residence, cultivation or inclosure of a part of a tract beyond its interference with a tract claimed under a better title, but nowhere in actual possession by its owner, is not sufficient to extend the possession over the interference, whether the occupant makes use of the woodland in the interference as owners and occupants usually do'* or not. The rule that applies to clashing surveys of different dates, under the authority of "the Commonwealth, applies to inter- ferences of areas of land covered by different titles of what- ever kind, one of which is, relatively to the other, as respects the interference, bad. It applies when a settler on adjacent 'Hole V. Eittenhouse, 19 Pa. St. 305. But when the severa] junior tracts together are no larger than tracts held and used as one often are, and are, in fact, used and taxed as one, a pedal possession anywhere on one of them will extend the pos- session over all of them, including their interferences with the senior tract. Baker v. Findley, 20 Pa. St. 163. The intruder, after marking his lines and acquiring possession up to them by means of a pedal occupancy anywhere within them, could sever the tract into two, on one of which only his improve- ments were. Thus, having pur- chased from an earlier intruder a tract by designated lines, he took out a warrant and procured a sur- vey of a part of it on which his improvements were not. From that moment his possession of this part ceased. The maintenance of the pedal occupancy of the other part could not extend the possession into the tract thus divided from it. Ki- land V. Eckert, 23 Pa. St. 215. 'McArthur v. Kitchen, 77 Pa. St. 62; Hole v. Eittenhouse, 25 Pa. St. 491; Id., 37 Pa. St. 116; Broad Top Coal Co. V. Kiddlesburg, 65 Pa. St. 485; Altemus v. Trimble, 9 Pa. St.. 232; McDermott v. Hoffman', 70 Pa.. St. 31 ; Forest v. Wallace, 4 Leg. Gaz. 245. Evidence of a pedal possession on a junior survey, unless it shows that this possession was within its coincidence withithe senior survey, is riot sufficient to make title to the coincidence. McDermott v. Hoff- man, 70 Pa. St. 31. Even in Beaup- land V. McKeen, 28 Pa. St. 124, which recognizes the overthrow of the doc- trine of Hole V. Eittenhouse, 19 Pa. St. 305, it is still ^aid that pedal pos- session of the junior tract beyond the interference with such use of the interference as owners ordinarily make of their adjacent timber-lands, taking firewood, fence rails or lum- ber from it, for twenty-one years, would give title by limitation. This is, however, erroneous. Hole v. Eit- tenhouse, 37 Pa. St. 116. 36 LAW OP LIMITATIONS. land runs his unofficial demarkation of claim over on an earlier survey,^ or when the owner of a tract mistakes his true line, and marks a line on the adjacent tract, over to which he claims.^ If the tract, title to which is, in whole or in part, sought to be made by the statute of limitations, runs across two or more tracts belonging to two or more different owners, a residence, cultivation or inclosure by the adverse holder within one of these tracts would not have any virtue to ex- tend the possession thereby acquired beyond its lines, to any of the others. The object of the rule which requires resi- dence, cultivation or inclosure is to give warning to the party to be expropriated by limitation that the statute is running against him. He is not to be affected, however, with the intruder's possession on land other than his own, and np such possession, however manifest to its owner, will be of avail against him.^ Unity of Tract. § 29. Not only must the pedal possession be on the land of the owner who is to be expropriated by the statute of 'BroadTopCoalCo.'W.Riddlesburg the courses and distances in the Coal Co., 65 Pa. St. 435. Of course, elder survey are to control, a pos- when one makes improvements be- session of the junior survey, pedally, yond a tract owned by pnother, he beyond the disputed area, with use could not begin to make a title by of the woodland in it, as farmers lapse of tinie to any portion of the usually enjoy it, for twenty-one tract until he marked his lines. But years, would be conclusive against it seemed conceded in Crum D. Burke, the prevalence of the courses and 25 Pa. St. 377, that when he marked distances, and give virtue to the line his lines, he would begin to have up to which the possession was thus adverse possession, though his'resi- maintained. dence and cultivation jvere beyond ' But, when a junior survey runs the confines of the tract. across several contiguous older sur- ^Ewingu. Alcorn, 40 Pa. St. 492; veys, a clearing and cultivation on McArthur v. Kitchen, 77 Pa. St. 62 ; its interference with any one of the Rifener v. Bowman, 58 Pa. St. 318. former will extend the possession to Yet, in Ealston v. Groff, 55 Pa. St. the whole of this interference, though 276, it seems to be conceded that not to the interferer^ce with any of when the position of the dividing the other older surveys. Hollins- line between two tracts is uncertain, head v. Nauman, 45 Pa. St. 140. e. g. when it is uncertain whether LIMITATIONS AS TO LAND. 37 limitations, it must be on the very tract in regard to which the expropriation is supposed to take place. But when fifteen warrants were surveyed for the same person, at the same time, in a single block, with the exterior lines of the block, but none of the interior lines, marked, and they were not severed from each other by a subsequent change of own- ership, or by being occupied and used severally and apart from each other, they are to be considered as one tract and" a pedal occupancy anywhere within the block will extend the adverse possession therefrom accruing to as much of this block as is embraced in the marked lines of the adverse holder, though these lines traverse severalof the original tracts in this block.^ Where the tracts of 300 or more acres were originally surveyed distinctly, the fact that they have come to the ownership of the same person will not make a possession by residence in one of them a possession of the others.^ When several tracts lying together, but surrounded by other tracts, belong to A., while the surrounding tracts belong to B., a possession by residence or inclosure within one of the former by one who buys at sheriff's sale the entire block by its exterior lines, on an execution against B., and who, believing himself to be the owner of the whole block, does not regard the lines between the component tracts, will hot be extended to the other tracts belonging to A.' 'Kite V. Brown, 5 Pa. St. 291; as the woodland on both tracts for the explained and justified in Hole v. saw-mill, paying the t^xes on his en- Eittenhouse, 25 Pa. St. 499. But cf. tire survey. It was decided that the Brown v. Day, 78 Pa. St. 129. In title thus made was not confined to Heiser v. Kiehle, 7 W. 35, A. owned the part in pedal occupancy, but ex- two adjoining patented tracts, the tended to the whole suriiey. patents being dated August 7th and ' Kille v'. Ege, 79 Pa. St. 15. August 16th, 1786. B. caused a sur- 'Ege v. Medlar, 86 Pa. St. 86. vey of adjacent land to be made, Such possession was not even ex- which included parts of these tracts, tended -to the lines of the tract on Within this survey, on one of the which it was, because there was no tracts he built a house and saw-mill, intention to claim to any lines save and cleared a few acres ; and he used the exterior lines of the block. 38 LAW OF LIMITATIONS. When Rightful 0-wner is in Possession— Interferences, § 30. If there are two interfering tracts, a pedal possession of one of them beyond the interference is not considered as extending into the interference, as against the person having the better title to it, even when the latter is not in pedal possession of any portion of his tract ; a fortiori when the latter has such possession beyond the interference.' But, as •we have seen, a pedal possession by the person not having good title of any part of the interference will extend the occupancy up to his lines, when the owner of the better right is not in actual possession of his tract. But the owner may be in pedal possession of his tract beyond the inter- ference." In 'that case the intruder, having pedal possession within the interference and his lines marked, and using the uninclosed woodland up to these lines, from time to time, as farmers usually do their woodland, is in possession of the whole of the interference, including the woodland, if the owner does not enter upon this woodland and use it, as farmers usually do thteir woodland, in connection with his possession of his tract beyond the interference.^ But when • ' Sheik V. McElroy, 20 Pa. St. 25 ; in pedal popsesaion beyond the in- Ewing V. Alcorn, 40 Pa. St. 492; Col- terference, simply makes occasional lins V. Benedict, 5 W. N. C. 549; trespasses within the interference, Hullt). Adams, H Pa. St. 513; Rife- cutting timber and making sugar, ner v. Bowman, 53 Pa. St. 313. Even he is not in possession of it, as against at the time when it was conceded by the true owner in possession beyond the decisions of the.Supreme Court the interference, though he pays the that pedal possession of a junior taxes assessed on his entire tract, tract, with lines, marked, inclosing Adams v. Robinson, 6 Pa. St. 271; a portion of a .senior tract, of no Ewing v. Alcorn, 40 Pa. St. 492 ; Al- part of which the owner had posses- temus v. Long, 4 Pa. St. 254. sion, would* extend the possession, ° Ament's Ex. v. Wolf, 33 Pa. St. though beyond the interference to 331 ; Id., 1 Gr. 518 ; Washabaugh v. the lines of the junior tract, includ- Entriken, 36 Pa. St. 513; Ewing v. ing the interference, it was decided Alcorn, 40 Pa. St. 492; O'Hara v. that the instant the owner took pe- Richardson, 46 Pa. St. 385 ; Alden dal possession, though beyond these v. Grove, 18 Pa. St. 377 ; McArthur v. lines, the intruder's possession. Kitchen, 77 Pa. St. 62. The same ceased. Crum v. Burke, 25 Pa. St. 377. principle applies when the owners 'If the owner of the junior tract, of two adjacent tracts are severally LIMITATIONS AS TO LAND. 39 the true owner of the interference, in pedal possession of his tract beyond it, enters on it to cut timber for farming pur- poses, in assertion of his title — and such acts would prima Jade be in assertion of title — he is as much in possession of the woodland as the intruder, and therefore the latter gains no title to it by his possession/ If the owner's entries, however, are purely casual and accidental, and not made in prceecution of his rights as owner, they would not be re- garded as a possession by him, and would not, therefore, precJude an exclusive possession by the intruder. In such cases it is proper to submit all the acts of the owner to the jury, to determine from their number, character and times of haj^)ening, whether they were casual and accidental, or done in pursuance of the owner's claim of title and posses- sion.^ Unity of Tract Necessary. § 31. 1 pedal possession by the true owner of one of two distinct bit contiguous tracts owned by him, on the other of which the-e is an intrusion, will not have the virtue of mak- ing fugitive entries on the latter tract by him, for the pur- pose of cuting wood when he needs it for use in^ a furnace operated oi the former, such a possession of the latter as in possession, ht one of them, mis- 549. So, if the owner is in actual taking the trutline, marks one on possession of a part of his tract his neighbor's lad, and takes pedal which has been ineffectually sold possession on tht land. This will for taxes, and the tax-purchaser give him possessin of the woodland takes pedal possession of a patt, the also up to his maked line. Thomp- owner, and not the tax-purchaser, is son V. Milford, 7 V. 442. In Sheik v. in possession of the woodland. Wil- McElroy, 20 Pa. !t. 25, it was ruled moth v. Canfleld, 76 Pa. St. 150. that a pedal possssion within the 'O'Hara i). Richardson, 46 Pa. St. interferenceby thownerof a junior 385. The owner's ordinary use of survey, did not extad the possession the woodland, though it may be to the uninclosed woodland, when only at very distant intervals, is not, , the owner of the snior survey was however, to be therefore denomi- in actual possessiocof it beyond the nated a trespass and not a posses- interference, sion. Of. McArthur v. Kitchen, 77 'O'Hara v. Kichaison, 46 Pa. St. Pa. St. 62. 385; Collins v. Bendiot, 5 W. N. C. 40 LAW OF LIMITATIONS. "will confine the intruder's possession to his actual inclosures and cultivation. The pedal possession by the owner beyond the interference, will give to his transitory entries over the woodland of the interference, for the cti'tting of timber for use on his farm, the character of possession rather than af trespasses, and so prevent the similar use of the woodland in the interference by the intruder from becoming an effective possession of it, notwithstanding that he is in pedal oo5u- pancy of a portion of the interference, but to have this effect, the tract on which the owner has his pedal possession must be identical with that embraced in the interference. When the two adjacent tracts, originally separately surveyed with division lines marked, were separated in ownerslip till after the adverse possession began, and then the ovner of the pedally-occupied tract acquired the other, and thence- forth used it as a wood tract in connection with the dther on which he had a furnace, the owner's use of the w/od tract as such during the last twenty-one years, through yhich the intruder was in pedal possession of a part of it, wih bound- aries, including woodland, marked on it, would lat prevent the intruder's acquiring title to all within his bomdaries by limitation.-^ 'Nearhoflf v. Addleman, 31 Pa. St. 279. That they are taxed together as one tract, or used together, does not make thetn one for the purpose of defeating the intruder's claim by limitation to the woodland by means of his cultivation and in closure. In Hull V. Wilson, 11 Pa. St. 513, were three surveys. The second overlay the first, projecting on both sides of it, the projection on one side em- bracing about eight acres. The third interfered with these eight acres. The owner of the second took pedal possession of it, wiUin its coincid- ence with the first,cut not in the eight acres, and slirtly afterwards both tracts were veied in the same person. The ownef of the third sur- vey took pedal rissession beyond its interference lith the second. Held, the pedal Possession within the interference d the second tract with the first, bedn by the owner of the second tract,cave possession to the whole of it, jcluding the eight acres, as agains(the owner of the third survey. LIMITATIONS AS TO LAND. 41 CHAPTEE VII. ADVERSENES8 OP POSSESSION. Nature of Adverseness of Possession. § 32. Tlie possession by which title is lost and won, under the statute of limitations, must be adverse to the true title.^ This does not imply, however, that the intruder must have knowledge of the true title and intend to defy it.^ He may believe the land still to belong to the Commonwealth and settle upon it with a view thereby to acquire title. This settlement, continued long enough with the same view, would gain for him a title, despite that it had in fact been; pre- viously appropriated by others.^ Believing a brother 'to have died without issue, and that, therefcfre, he was the heir of the decedent, his possession of that brother's land, taken in this conviction, would be adverse to the issue that in fact survived the deceased.* Adverseness Consistent With Kno'wledge of Title. § 33. So, on the other hand, the possession may be adverse under a bona fide claim of title, though the existence and , character of the competing and, in fact, better title may be known to the person in possession. Thus, an alleged parol vendee or donee of land, a grantee under a voidable deed, &c., may gain a title, notwithstanding the imperfection of the sale, gift or grant, against the vendor, donor or grantor, » St. 'Clair v. Shale, 9 Pa. St. 252; rish, 6 Pa. St. 211; Brown v. McKin- Id., 20 Pa. St. 105 ; Jones v. Porter, 3 ney, 9 W. 565. P. cent tract with respect to it. Com- Thompson v. Milford, 7 W.442. egys V. Carley, 3 W. 280. In Brad- *Chew v. Morton, 10 W. 321. If ford V. Guthrie, 3 Pittsb. 213, it was two neighbors establish a boundary gathered from the declarations of and acquiesce in it for twenty-one the person in possession. In Wash- years, possessing up to it, it will be abaugh v. Entriken, 36 Pa. St. 513, it binding on them though adopted in is said that when a clearing over an mistake. -. Gregg v. Blackmore, 10 adjacent land occurs by accident, the W. 192 ; Adamson v. Potts, 4 Pa. St. statute would not make title to more 234 ; Hogg v. Ashman, 83 Pa. St. 80 ; than was actually cleared; posses- Sholly v. Stahl, 2 W. N. C. 418; aion could not be extended to the Hunt v. Devling, 8 W. 403 ; Stewart lines of the adjacent tract. v. Stewart, 25 Pa. St. 234. A worm 46 LAW OF LIMITATIONS. acres,' or any other quantity too much, the line having been accepted as the unconditional and final designation of the boundary. Possession Beginning By Right Not Adverse. § 38. An entry into and continuance on land, by a person who has a right of possession, will be referred to the pur- pose to exercise this right, rather than to a purpose to hold in defiance of a right of concurrent or subsequent posses- sion in others.^ Thus, on the death of an owner of land, leaving a widow and minor children, of whom she is the natural guardian, the entry with her on the land by a second husband will be presumed to be in her right as widow and guardian, and not in hostility to the children.^ A fortiori will the possession of the widow, after her husband's death, be presumed -to be in the exercise of her right of dower, and not adverse to the heirs, until some clear and unequivocal act amounting to a denial of their right.* Most of the children fence between adjoining owners, which is temporary in nature, easily repaired, but apt to diverge from the true line, will not be presumed to be intended by them to indicate the exact line up to which their re- , spective possessions extend, unless there is some obvious and unequivo- cal indication that such is their in- tention. Hoopes V. Garver, 15 Pa. St. 517. But a fence built jointly by •adjacent owners as a division fence (in this case a post-and-rail fence), and standing for twenty-one years, will, though crooked, constitute the line of division, though the deeds call for a straight line between acknowledged landmarks. McCoy V. Hance, 28 Pa. St. 149. 'McCullough V. McCall, 10 W. 367. 'McMasters v. Bell, 2 P. &W. 180. 'McMasters v. Bell, 2 P. & W. 180; Cooki). Nicholas, 2 W.&S. 27. But, when the second husband becomes owner of a better title before his marriage, and comes into possession by a surrender to him by the widow before he marries her, on a threat to bring ejectment against her, his pos- session will not be considered as a perpetuati6ii of the hostile posses- sion of the deceased first husband, so as to complete title by the statute of limitations. Shaffer v. Lowry, 25 Pa. St. 252. Possibly, if a husband begins to collect a ground-rent be- longing to his wife during her life, his continuing to do so after her death will not be considered adverse to her heirs till there is a manifesta- tion of a hostile intent. McElroyv. Railroad, 7 Pa. St. 536. *Hall V. Mathias, 4 W. & S. 331; Donovan v. DriscoU, 93 Pa. St. 509 ; Iddings «. Cairns, 2 Gr. 88 ; Gourley V. Kinley, 66 Pa. St. 271. Perhaps, when the devisee of the husband is not a relative nor person towards LIMITATIONS AS TO LAND. 47 being minors, the fact that she at times leased the land ; had it taxed to her at a,ll times ; cleared parts of it ; caused the neighbors to believe it and call it hers ; declared it, on some occasions, to be her property ; and finally devised it by will, would not show that the possession had been adverse prior to the devise.* Nor would the circumstance that she cleared nearly all the land, built a- house on it, paid the taxes, com- pleted the payment of the purchase-money still due at her husband's death, and" took a deed to herself, she never keep- ing off the children when they chose to reside on the land, nor practically denying their right otherwise.^ A widow authorized by her husband's will to reniain on his land eleven years, in that period v remarries, and her second husband enters on the land and continues thereon for twenty-five years. This possession will be considered in subordination to the title of the devisees.^ The grantee of an undivided one-half of land will, on entering, be pre- sumed to take possession only of this half till there is a notorious claim of right to the whole.* So will the husband of a co-tenant, who takes possession in her right, be pre- sumed to hold only her share till his possession becomes unequivocally hostile to the other owners.^ If A. conveys land to B., reserving a ground-rent, with a right to re-enter and retain possession till any arrears of rent are paid, a whom he was in ioco parentis, the her husband's, will not make her continued possession of the widow possession adverse to the children. by tenants fot twenty-one years, Iddings d. Cairns, 2 Gr. 88. claiming the premises by declara- 'Zeller v. Eckert, 4 Howard 289. tions, would destroy the title of the If a tenant for life dying leaves a devisees to the extents of the title widow on the land who continues in claimed by her. Breidigam v. Hoff- possession, she will be in as a tenant master, 61 Pa. St. 223. at sufferance. A second husband, ^ Hall V. Mathias, 4 W. & S. 331. who enters with her, will be presumed 'Donovan v. Driscoll, 93 Pa. St. to enter in the same capacity and 509. But when the widow cotltracts not hostilely to the remainderman. to sell the land as her own, the pos- Bannon v. Brandon, 34 Pa. St. 263 ; session taken by the vendee would Brandon v. Bannon, 38 Pa. St. 63. be adverse — That the widow buys * Jones v. Porter, 3 P. & W. 132. in a title supposed to he better than *Peck v. Ward, 18 Pa. St. 506. 48 I-AW OF LIMITATIONS. subsequent entry by A., when there- are arrears of rent, will be presumed to be in accordance with this provision of the deed, and a , possession continued twenty-one years will, prima facie, not be deemed hostile to B.'s right to regain possession on paying the arrears.' A. is tenant of a house bielonging to B., and of a neighboring stable belonging to C. His habitually throwing the manure from the stable upon a certain spot of land belonging to B., in his possession as tenant, will be attributed to his claim of right as tenant of B., and not to a claim of right adverse to B. as tenant of C.^ Right Qualifies the Possession. § 39. To a devise to a widow, durante viduitate, will her continuance in possession after her husband's death, be attributed, rather than to a hostile purpose ;* so, one to whom his father devised a life estate, and who takes possession of the land until his death, which occurs fifty years afterwards, will be presumed to hold as life tenant, and not as claimant of a fee in hostility to the dispositions of the will.* The 'McCracken v. Koberts, 19 Pa. St. cannot set up the possession in con- 390. Whether this presumption is formity with his deed as adverse to rebuttable was not decided. If, after the grantor's right to resume poa- being in possession of the land sev- session, when the purpose of the enteen years, A. should declare to a grant is abandoned. Kogers v. Stoe- third person that in four years he ver, 24 Pa. St. 186. will have a good title by adverse *Tulloch i). Worrall, 49 Pa. St. 133; possession, this would not make his Velott v. Lewis, 102 Pa. St. 326. It previous possession adverse. It is would be competent, however, for doubtful whether it would make the those claiming from the alleged possession of the following four devisee for life, to show that he en- years adverse. tered as heir of his mother, on the "^Shroder v. Breneman, 21 Pa. St. expiration of his father's curtesy, 225. and that his possession was adverse ' Irvine v. Sibbetts, 26 Pa. St. 477. to the other heirs. — To a widow is If a right to a certain site for a sup- devised a life estate in land in which port to one end of a bridge is grant- the deceased had an improvement ed, the possession of the grounds by right ; to his children a life estate means of the bridge will be in pur- in remainder, and a remainder in suance of the grant. On the aban- fee to his grandchildren, "rhe widow donment of the bridge, the grantee's shortly after his death completed right of possession ceases, and he the title from the Commonwealth, LIMITATIONS AS TO LAND. 49 possession by a husband, prior to the Married "Woman's act of 1848, of his wife's land, during her life and after her death, will be attributed to his marital rights, and not con- sidered adverse. This relation forbids the existence in him of an adverse possession.' So if, in execution ©f a judgment against him, the land is sold by the sheriff, the possession taken by the purchaser will not be adverse to the heirs of the wife, till the termination of the curtesy by the husband's death.'* If a valid judicial partition of a decedent's land is made, and a purpart allotted to a widow, her possession taken of it will be presumed to be in pursuance of a life estate and not hostile to the heirs as remaindermen.^ When a deed is rnade for land, whose quantity and locality are not strictly defined, e. g. for so much as shall be needed to erect a mill, and to flood by means of the dam, and to be covered by the abutments for the dam, a possession taken to construct the dam, &c., in pursuance of the deed, will not be considered as taken in pursuance of a claim not warranted by the deed, to a precisely defined portion of land more than is needed for the purposes of the mill.* A fence or a wall erected on a division line by one of two adjoining owners with a view to its being a party wall or partition fence, does not in twenty- taking the patent in her own name, ance with the title. Wheeler v. Kid- without recognizing the decedent's der, 105 Pa. St. 270. improvement. "Her possession, how- ' ' Kille v. Ege, 79 Pa. St. 15 ; Hogg ever, was not adverse to the remain- «. Ashman, 83 Pa. St. 80; Shallen- dermen, without clear evidence of berger v. Ashworth, 25 Pa. St. 152. ouster, with notice to the latter of ''Id. such a notorious character as to ' Davis v. Dickson, 92 Pa. St. 365. challenge their right. Harmon's l^ut, it might be shown that the par- Appeal, 2 W. N. C. 62 ; Wallace v. tition Was amicable, and that, in Fourth Presbyterian Church, 111 view of her surrendering dower in Pa. St. 164. A. procures a convey- certain of.her husband's lands, the ance to his six-year-old daughter, purpart allotted to he,r was designed the deed reserving to him the use of to be hers in fee, and that she so the premises during her minority, claimed. His possession during this minority 'Messer v. Rhoads, 3 Brewst. 180. would not be adverse, but in accord- D 50 LAW OF LIMITATIONS. one years, without user by tlie~ other, give title to the land below it, or right to prevent the non-using owner from begin- ning to use it/ A. owning on one side of a road, a lot on which are several springs, gives a license to B., owning a tract opposite^ to conduct the water across and to guard the springs from defilement by roving cattle, by surrounding them with stakes. B.'s entries in conformity with his rights under this license could not be adverse.^ Possession, Originally Friendly, Becoming Adverse. . § 40. When possession begins in subordination to the title of the true owner, it will not be considered as becoming hos- tile until some alteration in the form of it takes place suffi- cient to inform the owner of the change of animus, or until this change of animus is otherwise brought to his notice. This principle has various applications. The possession begun by a tenant, is treated as continuing loyal, notwith- standing the expiration of the term. Under a contract of sale of land, whereby, on paying the purchase-money or giving securities for it, it is stipulated that the deed shall be made, the vendee's possession, taken before the deed is made, does not become adverse till a rescission of the contract with notice of it to the vendor. If, after being in possession thirteen years, the vendee brings an action to recover back the small amount of purchase-money paid by him, and accepts a judgment by confession, conditioned to be released if a title is made within five months, and the condition not being complied with, recovers the money by execution, but still continues in possession thirty years after, this will not be considered sufficient evidence of rescission with notice to the vendor. The vendor may maintain, an ejectment to compel payment of the purchase-money.' The possession of the ' Dysart v. Leeds, 2 Pa. St. 488. plaintiff to the condition that he 'Lund V. Brown, 14 W. N. C. 489. fail to pay the latter the purchase- ' Piper V. Sloneker, 2 Gr. 113. If money in a certain time, he would in this ejectment the vendee should admit that his possession had riot set up the contract, and by that been in denial of the vendor's lien means subject the verdict for the and title. LIMITATIONS AS TO LAND. 51 mortgagor, after making the mortgage, will not be incon- sistent witli a confession of the mortgagee's right. To cause it to commence to be hostile, so as to discharge the land of the mortgagee's right, 'this must be denied in so decisive a way as to furnish to the mortgagee the means of knowing it.^ If A., from his large tract, sells to B. one acre of land on a creek, to be overflowed, as occasion requires, by a mill- dam to be erected by B, on B.'s other land, and A. continues to pasture over this acre after the sale as before, not denying, however, B.'s right, who erects his dam, and overflows as much of it, and as often as he needs, the subsequent falling in of the mill, and cessation of use of the acre to overflow it by B., will not make A.'s use, continuing as before the collapse of the inill, hostile, there being no open, visible and notorious change in A.'s conduct, which could put B. on his guard and make it in proper time his duty to assert- his right." Other Illustrations of the Principle. § 41. If one person permits angther to occupy land as tenant-at-will, the latter paying ithe taxes, the possession beginning under this permission will not be assumed to become adverse till such acts of hostility as preclude all doubt of the adverse intent and knowledge'of them by the owner are shown.^ If A. lays out a town and in the chart thereof dedicates a public square of a certain size, but the exact position of the lines of this square is in doubt, and his heir subsequently erects buildings and admits them to be on the square, and therefore there only by toleration, the mere continuance of them afterwards, without something tending to show a change from subordination to hostility tO' the title of the public in the square, could not be considered- hostile.'' A testator devises to his wi4,ow the whole of his ' Martin v. Jackson, 27 Pa. St. 504. ' Buckholder v. Sigler, 7 W. & S. A secret direction by the mortgagor 154; Union Canal Co. v. Young, 1 (o his tenant to attorn to a stranger, Wh. 426. will not make the possession of the 'Hood v. Hood, 2 Gr. 229; Id., 25 latter hostile to the mortgagee. Pa. St. 417. *Eung V. Shoneberger, 2 W. 23. 52 LAW OF LIMITATIONS. land durante viduitate, with a pawer of sale to be exercised during this estate. In case she remarries, he gives her an undivided sixth in fee, and the other five-sixths to his chil- dren. The widow's possession cpntinuing after remarriage, will be referred to her ownership of the sixth. To make her possession adverse to the co-tenants, it would be necessary for her to do something fitted to apprise them of its adverse- ness.^ To a daughter was devised a fee subject to defeasance, in case she died under age without issue, and to her mother was devised the right to live on the land till her majority. The possession of the mother during the daughter's minority was not hostile to her or those who took the fee by substitu- ■ tion, on her death issueless, before reaching twenty-one years of age ; nor though it continued beyond the time when, by the terms of the will, the right to it expired, would such continuance be ipso facto adverse, till some unequivocal act or declaration showed it to be such.^ Possession Once Adverse, Ceasing to be Such. § 42. When a possession is begun without the consent of the owner, and with no intention on the part of the person in possession to vacate it under less than compulsion by one having a title by which he can be compelled to vacate it, it will be presumed to continue adverse till some change in its character is shown to have taken place. No change can take place in its character' otherwise than by some act of the per- son in possession importing submission to the owner. He may, for example, take a lease from the owner, and so put his sub- sequent tenure on the footing of a lessee,^ or he may, while not 'Irvine v. Sibbetts, 26 Pa. St. 477. the statute of limitations had run, After her remarriage, she, in the ex- and recovered. The land was as- ercise of the lapsed power, conveyed sessed in the name of the grantee, the land in fee, and the' deed was These facts were sufficient to arrest put on record, and possession taken the notice of the fifth co-devisee, and by her grantee, through the attorn- she would be barred after twenty-one ment of her second husband. Two years from the conveyance, of the five co-devisees were present " Long v. Mast, 11 Pa. St. 189. at the conveyance. Two others sub- 'Lawrence v. Hunter, 9 W. 64; sequently brought ejectment before Longwell v. Bentley, 23 Pa. St. 99; LIMITATIONS AS TO LAND. 53 assuming the relation of tenant to the owner as landlord, agree to purchase/ or to rent the premises from him,^ or de- clare that he would hereafter hold the land only subject to his consent.^ By thus inducing the owner to believe that the future possession will be in subordination to him, and therefore to forbear disturbing the occupant, the latter estops himself from subsequently alleging that the possession was adverse, and was destroying, by limitations, the title of the owner.* Thus, if the owner is led to withdraw an ejectment, Sailor v. Hertzogg, 2 Pa. St. 182 Dikeman v. Parrish, 6 Pa. St. 211 Criswell v. Altemus, 7 W. 565 Bell V. Hartley, 4 W. & S. 32 App V. Cadwalader, 5 W. N. C. 137. Taking a lease for a part of the premises will estop from asserting tha,t the possession of that part is subsequently adverse, but not that of other parts. Lawrence v. Hunter, 9 W. 64; Pederick v. Searle, 5 S. & E. 236. But if the party in posses- sion contracts, to purchase 100 acres, "being part of Warrant No. 1835," he, by this admission that the whole warrant is the property of the ven- dor, is estopped from subsequently asserting that his possession, at the time of the contract or subsequently, was adverse, without distinct notice that he held adversely. Ingersoll v. Lewis, 11 Pa. St. 212. ' Dikeman v. Parrish, 6 Pa. St. 211 ; Smith V. Steele, 17 Pa. St. 30; Sailor V. Hertzogg, 2 Pa. St. 182 ; Johnston V. Jackson, 70 Pa. St. 164 ; Miller v. Keene, 5 W. 348. It is not neces- sary that the agreement to purchase could be enforceable at law. It is enough that it induces the owner to believe the future possession to be subordinate. Sailor v. Hertzogg, 2 Pa. St. 182. 'Sailor v. Hertzogg, 2 Pa. St, 182. Though the acceptance of the lease is brought about by a threat of the owner to bring ejectment, it will de- , prive the future possession of the character of adverseness. Shaffer v. Lowry, 25 Pa. St. 252. But, if ob- tained b^ fraud and undue influence, it will have no effect on the charac- ter of the possession. Mahon v. Baker, 26 Pa. St. 519. 'Sailor v. Hertzogg, 2 Pa. St. 182; Dikeman v. Parrish, 6 Pa. St. 211. * Dikeman v. Parrish, 6 Pa. St..21],; Hoopes V. Garver, 15 Pa. St. 517; Sailor v. Hertzogg, 2 Pa. St. 182. Especially would sucjh declarations estop from asserting that the posses- sion was adverse against one who, hearing them, is induced by them to complete a meditated purchase of the premises from the owner. Hoopes V. Garver, 15 Pa. St. 517. But the purchase of a title by one who has already been in hostile pos- session, does not prevent him from subsequently claiming that that pos- session had been hostile, when he finds it necessary or desirable to rely on his possessory title. Thus A., after being in possession, and after B., the owner, has conveyed the land to C, takes a conveyance from B. A. may make title against C. by his possession. Owens v. Myers, 20 Pa. St. 184; cf. Bannon v. Brandon, 34 Pa. St, 263. 54 LAW OF LIMITATIONS. or not to prosecute it, by the defendant's acknowledging his title, and oflfering to purchase it when the terms should be made known, the latter will not be permitted, when the twenty-one years of possession have elapsed, to maintain that the possession, after this acknowledgment, was adverse.^ So, if the agent, to look after the land, visits the intruder upon it, informs him who is its owner, and receives from him the promise to stay on it, take care of it, commit no trespass, and pay the taxes, the intruder's subsequent possession would not be adverse. To hold otherwise, would be to permit him to practice a gross and palpable fraud upon the owner, by induc- ing the latter to believe that, he would surrender the land at any time when required.^ An owner clearing, by mistake, over his line for some years, may, on discovering his trespass, agree with the owner of the adjacent tract to pay the taxes for the privilege of continuing the use of his extra-terminal fields, and thus deprive his future possession of the character of adverseness.^ " So, he will, if the position of the true line being in doubt, he states to the adjoining owner that he does not claim the part of which he is in possession, if it is over that line, and that whenever the true place of it shall be ascertained he will recede within it.* Adverseness Not Iiost. § 43. As an intruder, conscious that he is without title, may gain one by adverse possession, a mere admission that ^Miller v. Keene, 5 W. 348. But A. goes into possession, the fact that a promise to the officer who was he subsequently makes affidavit for serving an ejectment, that "if he B., who desires to obtain a warrant would pass him by he would give no for the tract received by him from trouble," was not such a disclaimer A., that he had made the settlement of title as would stop the running of on the land for B. in order to avoid the statute. Farmers' and Mechan- the need of a deed to B., will not ics' Bank v. Wilson, 10 W. 261. destroy the virtue of his previous or ^Criswell 1). Altemus, 7 W. 565. subsequent possession, as a means ^ Bead v, Thompson, 5 Pa. St. 327. of making title to the land obtained •Bradford v. Guthrie, 3 Pittsb. 213. from B. Miles v. Miles, 8 W. & S. When, a parol exchange of land hav- 135. <^ ing been made between A. and B., LIMITATIONS AS TQ LAND. $5 lie is such, and liable to be turned out, if the owner should so choose, and that he therefore refrains from improving the land, will not cause his possession thereafter to cease being hostile.^ So, his statement to the agent of the owner, that, himself having no title to it, the land belonged to F., accord- ing to a current report, but that he wished to purchase it as soon as an opportunity should be presented of doing so, would have no tendency to make the future possession sub- ordinate to F., and would be, therefore, irrelevant.^ When the intruder, claiming under color of title, offers to purchase a competing title, by way of compromise, he does not, ipso facto, take from his future possession the quality of hostility,* for that is not an unconditional admission that the title which he offers to buy is the superior one. If, however, he un- qualifiedly admits the superiority" of this title, and begins a negotiation for its purchase, which induces the belief (by words calculated to induce it), in the owner's mind, that he intends no longer to hold defiantly to, the latter, his future holding, though it continue many years, will not be consid- ered hostile.* A fortiori will the future possession not be ' Watson V. Gregg, 10 W. 289. If future possession was adverse, and a person in possession of a part consequently it would not be an of a tract contrives to have the estoppel. That the person in pos- tract sold as unseated for taxes, and session said to the surveyor em- then procures a survey of a part of ployed by the owner to survey the it, on his alleged settlement and land, that he intended to go to the improvement, and causes the taxes owner and purchase of him if he to be assessed on this part, this, had title, would not justify the court while evidence that at that time his in instructing the jury that the sub- claim is adverse, would throw very sequent possession was not adverse, little light on the character of Jiis Miller v. Shaw, 7 8. & K. 129. previous possession. Such conduct 'Sailor v. Hertzogg, 2 Pa. St. 182. is not inconsistent, however, with a. * Sailor v. Hertzogg, 2 Pa. St. 182. previous adverseness of possession. This probably overrules Sailor v. Bannon v. Brandon, 34 Pa. St. 263. Hertzog, 4 Wh. 259. j:he defend- ^Bell V. Hartley, 4 W. & S. 32. ant claimed under the later of two Such language would not justify F. deeds from A., the earlier of which in inferring that the intruder in- had been made to the plaintiff, and tended to make him believe that also by limitation. After he had the former would not claim that his been in possession many years, the 56 LAW OF LIMITATIONS. adverse, if the negotiation for a purchase, based on an unqualified admission of the claimant's title, ends in a con- tract of purchase, and subsequently the intruder, unable to make the payments, surrenders the contract, and accepts a lease.' If the claimant of the land meets the person in possession, showing him his patent- drafts, and it is agreed between them that each is to appoint one of two persons, and they are to agree to what these persons shall say, and the owner subsequently appoints one, but nothing is done by him, apparently because the intruder appoints none, the possession does not cease to be hostile.^ Other Qualities of Estopping Act or Words. § 44. The language or agreement by which the person in possession originally hostile, estops himself^ from maintain- ing that his future possession is adverse, must be uttered to, or made with the owner or the owner's agent,* known by agent of the plaintiff called on him and showed him the earlier deed from A. He said he was satisfied that the property belonged to the first grantee, but begged not to be distressed. The agent then said he was willing to compromise. The defendant requested that the owner himself be sent to him, saying that he would purchase the property of the owner or pay rent. A subse- quent meeting between the plaintiff and the defendant occurred, but the price demanded by the former prov- ing unacceptable, no agreement of purchase was made. Nothing*was said about renting. No subsequent negotiation was arranged for. It was decided that as this agreement to purchase or lease was conditional on a meeting of the parties and a fixing of acceptable terms, the ad- verseness of the possession did not cease, the future meeting proving abortive. ' Dikeman v. Parrish; 6 Pa. St. 211. 'Altemas v. Campbell, 9 W. 28. 'A submission by a husband would not affect his wife, who, and not he, had had and continued to have the possession under a claim hostile to all the world. Collins v. Benedict, 5 Luz. Leg. Keg. 109. * Read v. Thompson, 5 Pa. St. 327 ; Bradford v. Guthrie, 3 Pittsb. 213. It was made to the agent in Criswell v. Altemus, 7 W. 565 ; Bell v. Hartley, 4 W. & S. 32; Sailor v. Hertzog, 4 Wh. 259; Sailor v. Hertzogg, 2 Pa. St. 182; St. Clare v. Shale, 9 Pa. St. 252; Collins V. Benedict, 5 Luz. Leg. Eeg. 109; Jd.,6W.N.C.549. In Patterson V. Reigle, 4 Pa. St. 201, Gibson, C. J., suggests that as one already in pos- session estops himself from claiming that it continues hostile, by declara- tions of submission addressed to the owner, it would seem he might do so by a general declaration that he in- tends to hold itsubordinately to who- LIMITATIONS AS TO LAND. 67 him to be such.^ But for this purpose, one co-tenant is the agent of the other, and an acknowledgment to his agent will inure not only to his benefit, but to that of his co- tenants, and prevent the possession's continuing hostile to any of them."^ The attornment or other acknowledgment may be oral ^ as well as in writing,* whether the person in possession has color of title ^ or not. Submission After Iiimitary Period Has Run. § 46. No attornment or recognition of the title will have the effect to impair the title acquired -by a possession which has already endured for the necessary statutory term.*' Thus, after one tenant in common has for twenty-dne years ousted his co-tenants, his joining with them in a deed for a part of the land, which recites that the title is in all the co- tenants, would not restore their title.'' Nor would a deed ever may have the title. In McEl- hiny v. Hope, 4 W. N. C. 549, a s<}n of a deceased owner of land, claiming by gift from the latter, had taken a quit-claim deed from one of the children of a deceased sister, paying $100 therefor, and at the same time stated that he was willing to pur- chase the interests of the other of these children. This was held to be a recognition of the interests of these children inconsistent with the subsequent possession's being adverse. ^Farmers' and Mechanics' Bank v. Wilson, 10 W. 261. But admissions made to his neighbors that he had attorned to the owner, or otherwise submitted his possession to the will of the latter, will be competent evi- dence of that fact. Bead v. Thomp- son, 5 Pa. St. 327. A fortiori, an ad- mission to the owner's agent by the intruder that he claimed only under a contract with a former agent of the owner, would estop him from a subsequent' claim that this posses- sion was adverse. Collins v. Bene- dict, 5 Luz. Leg. Reg. 109. It is said that if when one enters, he does not claim title himself, but acknowl- edges the title of another, he must be taken to hold in subordination to the title he acknowledges. Bung V. Shoneberger, 2 W. 23. "^ Criswell v. Altemus, 7 W. 565. ^Sailor v. Hertzogg, 2 Pa. St. 182,- Hooper v. Garver, 15 Pa. St. 517 ; Criswell v. Altemus, 7 W..565; Mil- ler V. Shaw, 7 S. & R. 129; Read v. Thompson, 5 Pa. St. 327. * Miller v. Keene, 5 W. 348; Sailor V. Hertzogg, 2 Pa. St. 182 ; Bradford 1). Guthrie, 3 Pittsb. 213. 5 Sailor v. Hertzogg, 2 Pa. St. 182. ^Bradford v. Guthrie, 4 Brewst. 351 ; Id., 3 Pittsb. 213. ' Mehaffy v. Dobbs, 9 W. 363. But when the person in possession for twenty-one years then executes a lease jointly with another in whom the legal title was, this fact may be evidence that the previous posses- sion had not been adverse, but in sub- 58 LAW OF LIMITATIONS. for a large tract, whicli excepts from the midst of it a lot, and recites that the lot has been previously conveyed, re- habilitate the title of the grantee of the lot, if the grantor had had twenty-one years' adverse possession of it between the conveyance of it and the deed in which he makes the recital.^ That the second of two grantees from the same person should, after having had possession under his deed twenty-one years, orally concede the superiority of the title of the first grantee, and negotiate for a purchase of it, would be ineffectual to re- validate the first grantee's title." A pur- chase of the true title by the adversp holder, after it had been barred by the statute, will not divest the title acquired by the statute. ' Hence, if for any reason this purchase is invalid, e. g. because of a previous conveyance by the same owner to a third person, the title by liniitation may be effectively opposed to the earlier grantee.^ After twenty-one years of adverse possession, the admission of the widow of the adverse holder, who continues in possession, that he and she held for their lives only, will not affect his heirs.* After the owner of a junior survey which conflicts with an older one, has been in such possession of it as to make his claim to the interference valid, the fact that he subsequently points out a line as his boundary which excludes a portion of his sur- vey, would not, as a disclaimer of all beyond, be effectual to destroy his title to it.** servience to this legal title. Hence title of the others, and declaring he it would be competent to rebut the will hold adversely only for life, does inference to be drawn from this cir- not defeat the title acquired by the cumstance, by showing that the adverse possession. Bolton v. Ham- legal title was held in t)}ust for the ilton, 2 W. & S. 294. person in possession. Neel v. Me- ' Owens v. Meyers, 20 Pa. St 134 ; Elhenny, 69 Pa. St. 300. Bannon v. Brandon, 34 Pa. St. 263. 'Olwine v. Holman, 23 Pa. St. 279. *St. Clair's Heirs v. Shale, 20 Pai '■' Sailor v. Hertzogg, 2 Pa. St. 182 ; St. 105. Sailor v. Hertzog, 4 Wh. 259 ; Read ' Hughes v. Smith, 4 Penny. 210 ; V. Thompson, 5 Pa. St. 327. After Schuylkill and Dauphin Improve- adverse possession for twenty-one ment Co. v. MoCreary, 58 Pa. St. years, a co-tenant, by conceding the 304. LIMITATIONS AS TO LAND. 59 Evidence Whether Adverse or Not. § 46. If a person is shown to be in possession and treat- ing ^e land as owners usually do — clearing, improving, leasing, conveying, devising, paying taxes — tlie presump- tion, in the absence of evidence qualifying the possession, is that he holds .for himself, and not in, subjection to another, though it even affirmatively appears that he has no title.^ The adverseness of the holding consists in a certain animus or intent of the person in possession,^ He must intend to hold in hostility to the true owner.^ As he is aware of his own intent, his declarations while in possession are compe- tent evidence of its character, whether that it is adverse* ^Parker v. Southwick, 6 W. 377 ; Sailor v. Hertzog, 4 Wh. '259 ; Wat- son V. Gregg, 10 W. 289; Patterson V. Reigle, 4 Pa. St. 201; Rung v. Shoneberger, 2 W. 23 ; Neel v. Mc- Elhenny, 69 Pa. St: 300 ; Pipher v. ' Lodge, 6 S. & R. 214 ; Dikeman v. Parrish, 6 Pa. St. 211. Especially would these acts. by one who has obtained a deed for the land from a previous possessor, and put it on record, and whose posses- sion began in consequence of this conveyance, be evidence of its ad- verseness. Dikeman v. Parrish, 6 Pa. St. 211. In Overfield v. Christie, 7 S. & E. 173, Tilghman, C. J., re- marked that if a man enters with- out pretence of title, on land which he knows to be appropriated, there is "considerable reason to suppose that he does not mean to deny the title of the owner, but merely to occupy the land with the intent to become the purchaser,'' especially if the owner lives at a distance. — Though B. may, have originally en- tered into possession under A., his continuance in possession and that of his gi-antees for -sixty years, will authorize but not compel the jury to infer that for twenty-one years it has been adverse. Nickle v. McPar- lane, 3 W. 165 ; Bolton v. Hamilton, 2 W. & S. 294. The presumption of claim of title arising from p. twenty-one years' possession, 'not qualified, is strengthened by the circumstance that for that period the person in possession has been assessed with and has paid the taxes, the owner not paying. Mc- Elroy V. Railroad, 7 Pa. St. 536. ''Of course the hostile intent is not in all cases enough to make the possession effeptive against the owner ; e. g., when the person in possession is a tenant, or a tenant by sufferance. Bannon v. Brandon, 34 Pa. St. 363. : ^ Calhoun ''t). Cook, 9 Pa. St. 226; Criswell v. Altemus, 7 W. 581; Sailor V. Hertzogg, 2 Pa. St. 182; Moore v. Collishaw, 10 Pa. St. 224 ; Ingersoll V. Lewis, 11 Pa. St. 212 ; Hoopes v. Garver, 15 Pa. St. 517. * Hood V. Hood, 2 Gr. 229 ; Miles V. Miles, 8 W. & S. 135 ; McCoy v. Trustees of Dickinson College, 5 S. & R. 254 ; Long v. Mast, 11 Pa. St. 189 ; Sheafifer v. Eaktnan, 56 Pa. St. 144; Bradford 1). Guthrie, 3 Pittsb. 60 LAW OF LIMITATIONS. or that it is subordinate to the title of the owner.^ The declarations of a tenant that he holds under A. may be shown by A. in proof of his adverse possession for the stakitory term.^ So, the declarations as to the line up to which pos- session is maintained, by the tenant of the adverse claimant, or by the latter, if in personal possession, may be shown, in cases of disputed boundaries, where the party who trespasses over his neighbor's line seeks to make title by the statute of limitations.'' The declarations of the husband in possession, and, after his death, of his widow remaining in possession, that he, and, after his death, she held for life, would be ad- missible to show that a life estate, and only a life estate, was claimed.* The. brother of the person having the legal title being in possession, his statement that, the latter dying and leaving, besides himself, sisters to survive him, he wanted to purchase their interests as heirs, would be evidence in rebut- 213. The declarations, however, when not against interest, must be concerning a contemporary fact. A declaration, while in possession, of the animus with which, at some former time, the possession had been beg,un would be inadmissible. Hood V. Hood, 2 Gr. 229; Miles v. Miles, 8 W. & S. 135. ^Susquehanna &c. R. R. Co. v. Quick, 68 Pa. St. 189; Read v. Thompson, 5 Pa. St. 327; Long v. Mast, 11 Pa. St. 189 ; Jones v. Por- ter, 3 P. & W. 182. Law v. Patter- son, 1 W. & S. 184 ; Buckholder v. Sigler, 7 W. & S. 154; Rung v. Shoneberger, 2 W. 23. In addition to other evidence that the possession was taken by leave of the owner, the declaration of the person iii possession, on the' occasion of a visit from som» of the heirs of the owner, that, as a result of the inter- view, he was to live on the place, since the heirs were scattered ; and. on another occasion, that he would live there till he died if they would let him, the persons referred to by they not being indicated, would be admissible as proof that the posses- sion was not adverse. Jones v. Por- ter, 3 P. & W. 132. 'Sheaffer v. Eakman, 56 Pa. St. 144. This is true, though the tenant is alive and might have been called as a witness. 'Sheaffer v. Eakman, 56 Pa. St. 144. The declarations here were self-disserving, and offered by the opposite party. 'St. Clair v. Shale. 9 Pa. St. 252; Id., 20 Pa. St. 105; Long v. Mast, 11 Pa. St. 189 ; Calhoun v. Cook, 9 Pa. St. 226. A widow's declaration, in possession, that she had a life estate by her husband's will, and that, at her death, the land was to go to X., is evidence against her claiming a fee. Breidigam v. Hoifmaster, 61 Pa. St. 223. LIMITATIONS AS TO LAN"!). 61 tal that his' possession had been otherwise than by permis- sion of the deceased owner.^ Written Declarations. § 47. As oral declarations of the person in possession may be given, a fortiori may his written acknowledgments, e. g. by letter ^ or by recitals in a deed,^ be proven to show that his claim was not adverse. Thus, he may in a deed describe his father as having died seized of the land, and so refute the pi-esent claim that at that time he held adversely to his father ; * or he may except from the tract granted an interior portion of it, and recite that this excepted part had been previously granted to G., and so repel the contention that between the dates of the two grants his continued possession of the part granted to G. had been hostile to the latter.' An epistolary statement that land of which the legal owner had died, had been by him left in the writer's care, >yould be competent evi- dence against the previous and subsequent adverseness of the writer's possession.® When one has color of title, his entry prima facie would probably be assumed to be in assertion of that title, until qualified by some evidence.'' But when, at a sheriff's sale of land, it is conveyed to a mother, who, with her son§, enters into possession, this entry ought not to be assumed ' Lynch v. ' Cox, 23 Pa. St. 265. adversely to the co-tenants, explain- Declarations of hostility by a tenant ing the form of the, mortgage by her or trustee who has gone into posses- ignorance of its contents. Moore v. sion, in pursuance of the lease or Collishaw, 10 Pa. St. 224. trust, would not, ipso fado, make * Lynch i;. Cox, 23 Pa. St. 265. that possession effectively adverse ' Mehaffy .v. Dobbs, 9 W. 363 ; 01- under the statute. But when other wine v. Holman, 23 Pa. St. 279. circumstances exist, which, coupled 'Mehaffy v. Dobbs, 9 W. 363. with the hostile purpose, would be * Olwine v. Holman, 23 Pa. St. 279. effectual to make a title by limita- 'Lynch v. Cox, 23 Pa. St. 265. tiori, these declarations are aclmissi- 'Hence it may be shown that the ble as evidence of this intent. Ley- person in possession entered under burn V. Muench, 1 Pittsb. 173. The a tax sale, though the deed was void, person in possession may, as a wit- this tending to show that he entered ness, testify' that, though she made claiming for himself. McCoy v. a mortgage of the entire land, she, Trustees of Dickinson College, 5 S. a co-tenant, did not intend to hold & K. 254. 62 LAW OF LIMITATIONS. to be in pursuance of lier apparent title as agaiiist one of those sons, who, after her death, continued in sole possession, and who alleged that he furnished the money with which the land was bought, and caused the conveyance to be made to his mother as the mere depositary of the title,^ Function of Court and Jury. § 48. The burden of proof is upon the party who opposes the statute of limitations to the otherwise incontestable title of his adversary, to furnish the evidence which would justify a jury in inferring a possession with the qualities necessary to give effect to the statute,^ except when the other party himself furnishes such evidence.^ When the evidence is furnished by the party against whom the statute is invoked, or is otherwise uncontested, and clearly shows a possession with all the necessary ingredients, the court should instruct the jury that the statute defeats the otherwise true title.* On the other hand, if the evidence is not sufficient to justify ' Clark V. Trindle, 52 Pa. St. 492. One may enter under the owner con- formably to an agreement to pay the "taxes. Payment of the taxes would, therefore, not be conclusive that the possession was adverse. Hood v. Hood, 2 Gr. 229. The person alleg- ing that his possession was adverse, may, however, as corroborative of other evidence, show that the land was assessed to him and the taxes paid by him, and not by the owner, for twenty-one years. Hollinshead V. Nauraan, 45 Pa. St. 140. But pay- ment of taxes is not a fact without which the possession must be re- jected or its adverseness negatived. Hole V. Eittenhouse, 37 Pa. St. 116 ; Schuylkill and Dauphin Improve- ment Co. V. McCreary, 58 Pa. St. S04 ; Nearhoffi;. Addleman, 31 Pa. St. 279. A disclaimer, by one of two adjoin- ing owners, of land between two lines, with regard to which there is a dispute as to which is the true boundary line, accompanied by a refusal to permit the assessor to as- sess it to him, would doubtless be evidence that his possession was hot adverse. But .such conduct by a tenant, who had been put into pos- session by him, would not be. Sheaf- fer V. Eakman, 56 Pa. St. 144. 'Thompson v. Kauflfelt, 17 W. N. C. 257s HuflFman v. McCrea, 56 Pa. St. 95 ; Schuylkill and Dauphin Im- provement Co. V. McCreary, 58 Pa. St. 304 ; Craig v. Harbison, 4 Penny. 488; Hood v. Hood, 2 Gr. 229; De Haven v. Landell, 31 Pa. St. 120; Bradford v. Guthrie, 3 Pittsb. 213; McDermott v. Hoffman, 70 Pa. St. 31. 'Malson v. Fry, 1 W. 433. •Malson v. Fry, 1 W. 433; Evtos V. Erie County, 66 Pa. St. 222 ; Wal- lace V. Fourth Presbyterian Church, 111 Pa. St. 164. LIMITATIONS AS TO LAND. 63 the inference of a possession with the necessary adverseness,^ or continuousness,^ or duration, or any other element,^ the court must tell the jury that the statute is not operative.* It is error to submit to a jury to find that a possession taken in subserviency to the title, under a contract for a convey- ance reserving a ground-rent, and so held for some time, has become adverse, without sufficient evidence of decisive acts indicative that the possession was becoming hostile.* But when the evidence on the adverse claimant's side would legally warrant the inference that the possession was charac- terized by the necessary attributes, and its truth is not for- mally or substantially conceded by the other party, it should be submitted to the jury with the apposite instructions con- cerning the law.® The court will, e. g., inform the jury what is and what is not an adverse possession.'' It will declare ^ McCracken v. Roberts, 19 Pa. St. 390; 01 wine v. Holm an, 23 Pa. St. 284; Armstrong v. Caldwell, 53 Pa. St. 284; Buckholder v. Sigler, 7 W. & S. 154. « Wheeler v. Winn, 53 Pa. St. 122; Brolasky v. McOlain, 61 Pa. St. 146 ; Olwine v. Holman, 23 Pa. St. 284. 'Nearhofif v. Addleman, 31 Pa. St. 279 ; De Haven v. Landell, 31 Pa. St. 120; Groft v. Weakland, 34 Pa. St. 304; .Craig v. Harbison, 4 Penny. 488;' Washabaugh v. Entriken, 36 Pa. St. 513 ; Clark v. Trindle, 52 Pa. St. 492; Huffman v. McCrea, 56 Pa. St. 95; Broad Top Coal Co. v. Eid- dlesburgCoalCo.,65Pa.St.435; Mc- Derraott v. Hoffman, 70 Pa. St. 31. 'Huffman v. McCrea, 56 Pa. St. 95. "Cadwaladerv. App, 81 Pa.\St. 194. •Thompson v. Kauffelt, 17 W. N. C. 257; McMaster v. Bell, 2 P. & W. 180; Miller v. Keene, 5 W. 348; Bung V. Shoneberger, 2 W. 23. When there is evidence which, if believed, would warrant the jury in concluding that there had been an ' adverse posses- sion that satisfies the requisites of the statute of limitations, it would be error for the court to instruct them that ' the necessary adverse possession has not been made put. Sheaffer v. Eakman, 56 Pa. St. 144. The jury, in cases in which the ques- tion arises whether the possession was in subordination to the owner, or independent of him, must deter- mine. Jones V. Porter, 3 P. & W. 132; Black v. Moore, 1 Pa. St. 344. In stating the law, the court may do it by abstract definitions of posses- sion, adverseness, continuousness', &c., or, referring to the specific evi- dence on the side of the adverse claimant, may say to the jury that if they believe it, the statute of lim- itations fipplies. Watson v. Gregg, 10 W. 289. 'Blackmore v. Gregg, 2 W. & S. 182. 64 LAW OF LIMITATIONS. that a possession taken by an agent will not be adverse to the principal till the latter is aware that the former holds in hostility to him,^ or that a recognition of the owner's title by him in possession, whereby the former is induced to abstain from prosecuting an ejectment, will be incompatible with the subsequent adverseness of the possession.^ Possession Under Deeds, Adverse. § 49. That possession begins with the consent, express or implied, of the owner of land, does not preclude its being adverse, and prevents its making a title, if continued for the ^ statutory period. Thus, if the possession is taken under the mutual belief of the owner and of the party entering, that the title of the former is devolved upon the latter, and in the exercise of the proprietary rights embraced in this title; it will be adverse to the owner ab initio. Thus, when the grantee, in pursuance of the deed, enters upon the land, he holds for himself, in assertion of the rights apparently con- ferred by the deed, and not- in subordination to the grantor.* Hence, if for any reason, the title by virtue of the grant should be assailable, it will be perfected by a possession thereunder for the proper term. Possession for this term, taken by the grantee in the deed of a feme covert, void because not executed by her husband,* or because the power of attorney under which it was made had not been executed by the husband,* or because it was not duly acknowledged,® will confer a title, as against her or those who claim through her. Possession Under Parol Sales. § 60. Possession begun and continued for the statutory ' Comegys v. Carley, 3 W. 280. tract, as well as that under the deed, ' Miller v. Keene, 5 W. 348 ; Kung is adverse to the grantor. Care v. V. Shoneberger, 2 W. 22. Keller, 77 Pa. St. 487. 'Jones V. Porter, 3 P. & W. 182. •Hunti). Devling, 8 W. 403. When a vendee enters prior to his ^ Henry v. Carson, 59. Pa. St. 297. deed, his possession under the con- ^ Mercer v. Watson, 1 W. 330. LIMITATIONS AS TO LAND. 65 period, in pursuance of a parol sale,^ or gift,'' or exchange * of land, void as such because of the statute of frauds, will , destroy the estate of the vendor or donor, though he is a tenant in common with the vendee,* or she is a married woman.' A similar possession will give title to a grantee in a deed whether executed by an attorney in fact, whose power is invalid because constituted by parol," or executed under a testamentary power which, by its own terms, had expired when the deed was- made.'' A minor's grantee may acquire title against him by continuing the possession taken under his deed for the statutory time.* Possession in Excess of Grant. § 51. Possession taken by a grantee, in pursuance of the deed, of land not embraced in it, will, in the lapse of the statutory period, confer a .title to such land.' Thus, if the owner of an undivided One-half undertakes to convey an integral title, his grantee may, by exclusive possession of the whole, sufficiently long continued, gain the title to the other undivided part." So, if possession is taken by the vendee up to a certain line alleged by him to separate the land sold from the remaining land of the vendor, it will, in twenty- 'Hunt V. Wall, 75 Pa. St. 413; » Pratt w. Eby, 67 Pa. St. 396. Workman v. Guthrie, 29 Pa. St. 495 ; ' Irvine v. Sibbetts, 26 Pa. St. 477j Washabaugh v. Entriken, 34 Pa. St. So, if under an instrument s'upposed 74 ; Miller v. Miller, 60 Pa. St.- 16 ; to convey a power, but which in fact Irwin V. Cooper, 9^ i Pa. St. 298 ; does not, A.'s interest in land is sol(^, Leeds v. Bender, 6 W. & S. 315 ; Mc- the vendee, though he acquires no Cullough w. McCall, 10 W. 367 ; Ait- title by the sale, may aoqujre one by ken's Heirs v. Young, 12 Pa. St. 15. twenty-one years' possession assum- ' Campbell v. Braden", 96 Pa. St. ed in pursuance of it. Shepley v. 388; Hood v. Hood, 25 Pa. St. 477; Lytle, 6 W. 500. Id., 2 Gr. 229; Graham v. Craig, 'Lenhart w. Ream, 74 Pa. St. 59. , 81J Pa. St. 459 ; Craig v. Harbison, 4 » Messer v. Rhodes, 3 Brewst. 180. Penny. 488; Ewing v. Ewing, 96 Pa. '"Jones li. Porter, 3 P. & W. 132; St. 381. Burrell v. Little, 1 Pittsb. 237 ; Culler 'Miles V. Miles, 8 W. & S. 135. v. Motzer, 13 S. & R. 356 ; Law v. •Irwin V. Cooper, 92 Pa. St. 298; Patterson, 1 W. & S. 184; Hart v. Workman «. Guthrie, 29 fa. St. 495. Gregg, 10 W. 185. "Hunt V. Wall, 75 Pa. St. 413. E 66 LAW OF LIMITATIONS. one years, make a right up to that line, thqugli more land is' thereby embraced than was stipulated for in the conveyance.^ Though the deed describe by mistake the northern end of a tract instead of the southern end, which it was the owner's design to convey, possession of the southern end, continued twenty-one years, would make title to it apart from the deed.^ Other Cases. § 52. A deed originally valid may become void by omit- ting to record it, as against a subsequent deed for the same land. But the first grantee may acquire a good title against the second by adverse possession under his deed.' Possession taken by one co-tenant, to the exclusion of the other co- tenant, in virtue of a deed of partition,^ or in virtue of a parol partition, as such void on account of a mistake concern- ing their respective shares,^ will, in twenty-one years, make an indefeasible estate in severalty. If three of four co- tenants, erroneously believing the share of the fourth to have been conveyed to X., make a partition, allotting to each of themselves, and to X., separate portions of the land, X.'s possession will, after the statutory period, confer on him a title not only as against them but also as against him whose 'Chew V. Morton, 10 W. 321; the limits enduring less than twenty- McCullough V. McCall, 10 W. 367; one years, for the purpose of making Mackentile v. Savoy, 17 S. & E. title to the latter, when the grantee 104. had not for twenty-one years indi- ' McCullough V. McCall, 10 W. 367. cated by lines on the ground the ex- The grantee had settled on the south tent of his claim. Messer v. Ehodes, end, for the purpose of making title 3 Brewst. 180. for the grantor to the whole tract "Schuylkill and Dauphin Improve- under the act of 3d April, 1792, with ment Co. v. McCreary, 58 Pa. St. 304. respect to land north and west of the The later of two successive grantees Ohio and Alleghany rivers and the from the same grantor, of the same Conewango creek. — The possession land, may, though the first deed was of land beyond the limits of the deed duly recorded, acquire title by ad- must continue twenty-one years, verse possession. . Sailor v. Hertzog, Possession within those limits in 4 Wh. 269. conformity with the deed, for twen- * Mackentile v. Savoy, 17 S. & K. ty-one years, will not be connected 104. with a concurrent possession beyond ' Peppard i;. Deal, 9 Pa, St. 140. LIMITATIONS AS TO LAND. , 67 interest he was believed to have.^ A possession assumed in pursuance of a devise of land, tliough, too much land be taken, or it be taken in the wrong place, will, after the lapse of twenty-one years, give title to all the land so occupied, though the devise, ipso facto, would not.^ The title of the former owner will be transferred to one who enters and, for the necessary period, retains possession of land, in pursuance of a void treasurer's sale for taxes,^ or in pursuance of a sheriff's sale, void whether because made after its return-day, on a fieri facias,*^ or because made on a judgment recovered subsequently to the defendant's aliwiation of the premises.^ A possession taken by a grantee under a deed fraudulent as to creditors, is adverse, not only to the grantor but also to the creditor, and in twenty-one years would bar an ejectment brought to dispdssess the grantee in behalf of the creditor, or of a purchaser of the land at a judicial sale on a judgment recovered by him for his debt, subsequently to the grant/ Under a conveyance by a trustee of land for the sole and separate use of a feme covert, without authority in the deed creating the trust, a possession taken by the grantee an-d continued twenty-one years after the discoverture of the ' Holirres v. Pattiaon, 25 Pa. St. 484. * Maus v. Maus, 80 Pa. St. 194. Under a parol partition between a * Baldridge v. McFarland, 26 Pa. widow and children of a decedent, St. 338. The title of the alienee, whereby a part of his land is allotted by conveyance before the judg-, to her in fee, in satisfaction of her ment, will be defeated by the ad- dower, her possession for twenty- verse possession under the sheriff's one years *ill give title to her. Da- sale. vis V. Dickson, 92 Pa. St. 365. « Mead v. Leffingwell, 88 Pa. St. 187. 'Stewart v. Stewart, 25 Pa. St. 234. In Dunn v. Truitt, 8 Phila. 27, it is If the possession had been taken decided that' the act of 22d April, before the testator's death, in antici- 1856, (P. L. 533,) providing the limita- pation of the testamentary gift, and tion of five years in cases of resulting continued for twenty-one years after trusts, does not apply to ejectment the devisor's death, the same rpsult brought by a judgment creditor who would follow. has purchased a,t sheriff's sale the ' McCoy V. Dickinson College, 5 S. debtor's land previously aliened in & R. 254; Troutman D. May, 33 Pa. fraud of creditors. St. 455. 68 LAW OF LIMITATIONS. feme, will give him a good title.' A possession taken by the grantee under claim of right will, in twenty-one years, destroy t;he trust for another, resulting from the latter's having paid the purchase-money when the title was conveyed to the grantor.* Possession taken and retained for the statu- tory term by a grantee at a sale by one only of several trijstees, having a joint testamentary power, will make title.' Adverse as Against Lien. § 53. A possession taken not under the defendant in a judgment, but adversely to him, would, in twenty-one years, defeat the title of th» defendant, and of any purchaser at sheriff's sale upon the judgment, however recent the sher- iff 's sale might be, when the purchaser attempted to recover the possession.* But a grantee from the defendant takes the land subject to the lien of the judgment, and may lose the title by a sheriff's sale upon it happening at any time, if the lien has been prolonged in the statutory method down to the sale.^ So, if, after unseated land has been assessed for taxes, it is sold by its owner, and afterwards a sale for the taxes takes place, the possession of the owner's vendee becomes adverse to the treasurer's vendee only from the date of the tax sale.* 'TJhler v. Brua, 3 Cent. Eep. 543. could have recovered possession by ' Leeds «. Bender, 6 W. & S. 315. ejectment. Martin v. Jackson, 27 'Sinilie v. Biffle, 2 Pa. St. 52. So, Pa. St. 504. when the sale is void because the ' Coulter v. Philips, 20 Pa. St. 154. trustee has no power to sell. Clark v. As soon as a sheriff's sale takes Miller, 2 W. N. C. 50. Possession place on the judgment, and the deed taken by a purchaser at a sheriff's is delivered, the possession of the sale on execution, of land to which previous grantee of the defendant the defendant's title is simply that becomes adverse, and, continued of a trustee, will in twenty-one years twenty-one years, would make a make a title. Warn v. Brown, 102 good title. Pa. St. 347. « Robinson v. Williams, 6 W. 281. 'Coulter V. Philips, 20 Pa. St. 154. Yet, the lien which a -creditor de- A possession taken subsequently to frauded by his debtor's conveyance a mortgage, and adversely to the has, is defeated by a possession for mortgagor and mortgagee, would twenty-one years of the fraudulent destroy the lien in twenty-one years, grantee. Mead v. Leffingwell, 83 Pa. though it began before the debt be- St. 187. came payable, if the mortgagee LIMITATIONS AS TO LAND. 69 Nor can one who obtains possession of mortgaged prem- ises from a mortgagor, in pursuance of his transfer of the equity of redemption, or of a secret purpose to recognize an independent adverse claim in the person to whom the possession is transferred (the mortgagee having no notice of such purpose, either express or inferahle from any change in the apparent possession), defeat the rights of the' mort- ' gagee/ Possession taken by a grantee under a deed which conveys the land subject to the payment of a sum of money, will not, though continued twenty-one years, be adverse to the grantor in such sense as to defeat the enforcement of the charge by ejectment'* or otherwise.^ In like manner, the lien for the purchase-money attaching to the vendor's reten- tion of the legal title, is not defeated by 'a possession by the vendee for twenty-one years, in conformity with the con- tract. That possession is subject to the right of the vendor to enforce the payment of the purchase-money.* The lien ' Martin v. Jackson, 27 Pa. St. 504. The mortgagor who has remained in possession cannot, by attorning to a third person, make for him a pos- session adverse to the mortgagee till the latter knows of the attornment. The mortgagor, remaining in pos- sesion, cannot disseize the mortga- gee, except at the election of the latter, and for the sake of the rem- edy. — The title of the sheriff 's vendee, by a sale under a mortgage, may be lost by the continuance in possession of the mortgagor or his grantee for twenty-one years after the sale with- out recognition of it. Naglee v. Al- bright, 4 Wh. 291. / 'Eichelberger v. Gitt, 104 Pa. St.' 64. Adverse possession, begun be- fore the owner makes a mortgage of the land, will, continued twenty-one years, bar the mortgagee or a pur- chaser at sheriff's sale under the mortgage. Leeds v. Bender, 6 W. & S. 316. ' If A. enters into possession under a ground-rent deed, or under a con- tract for sucb a deed, he cannot sub- sequently claim that his possession is adverse, so as to deffeat the land- lord's right to enter for non-pay- ment of the rent, without some un- equivocal act showing he holds in defiance of the landlord. Cadwala- der V. App, 81 Pa. St. 194; App v. Cadwalader, 5 W. N. C. 137. *Care v. Keller, 77 Pa. St. 487; Pi- per V. Sloneker, 2 Gr. 113; Kirk v. Smith, 9 Wh. 256; Webster v. Web- ster, 53 Pa. St. 161. If the title of the vendor depends on the statute of limitations, the possession of the vendee, far from being considered hostile to the vendor, will be tacked to that of the vendor, and if, thus tacked, a possession adverse to the true owner for the statutory term is made out, there can be no abate- ment from the purchase-money be- cause of defect of title. Congrega- tion V. Miles, 4 W. 146. 70 LAW OF LIMITATIONS. of a recognizance in partition is not discharged by a posses- sion adverse to the title in common of the parties between whom the partition is made, following upon the execution of the recognizance, however long continued, though such possession might destroy the title of the recognizor to whom the land was awarded by the partition proceedings.-' Adverse as Between Vendor and Vendee. § 54. When agreeably to the contract, and in assumption of the right conferred by it, the vendee takes possession of the premises, that possession is adverse ab initio to the vendor, except as respects the remedies of the latter for the payment of the purchase-money.'^ That the contract was voidable or void would be of no avail after the occupancy had endured for the* statutory term.^ The continuance in possession of the vendor, already on the land, after the making of the contract, will not be deemed hostile to the vendee, when no specific time for the delivery of the posses- 1 Mehaflfy, v. Dobbs, 9 W. 363. A railroad entering on land for its track, orally agreeing with the owner for compensation, does not, by twenty-one years' possession, acquire the right to retain it, not having made the compensation. The lalid can be recovered in ejectment, with stay of execution, till compensation is made in a reasonable time. Pitts- burgh and Baltimore Railway Co. v. Cleland, 37 Leg. Int. 466. ''Care v. Keller,, 77, Pa. St. 487. The legal title being subsequently conveyed under a decree of the Orphans' Court for a specific per- formance, the possession before such conveyance will be no less adverse than the possession after it. The position that the possession under a contract of sale does not become adverse till the execution of the deed, stated in Clark v. Miller, 2 W. N. C. 50, is erroneous. — Under the act of 3d April, 179^, with respect to the acquisition from the State of lands north and west; of the Ohio and Alleghany rivers and Cone- wango creek, a settlement on the land for five years was necessary be- fore a patent was granted. If one, intending to acquire a tract, en- gaged another to make the settle- ment on a promise that he should have the half of the tract on which he settled, this possession of the lat- ter for twenty-one years will make a title as against the former. McCul- lough V. McCall, 10 W. 367. ''Hunt V. Wall, 75 Pa. St. 413 Workman v. Guthrie, 29 Pa. St. 495 Washabaugh v. Entriken, 34 Pa. St, 74; Miller v. Miller, 60 Pa. St. 10 Irwin V. Cooper, 92 Pa. St. 298 Campbell v. Braden, 96 Pa. St. 388 Hood V. Hood, 25 Pa. St. 477 ; Pratt V. Eby, 67 Pa. St. 396. LIMITATIONS AS TO LAND. 71 sion to the latter is mentioned in the contract, and no de- mand for admission to the possession by him is shown to hays been made, or repelled and refused by the vendor.^ The vendor must do some act manifesting that his- contihued possession is adverse.^ Even after he has delivered the deed, and the grantee has the right to enter on the land, the retention of the possession by the grantor will be regarded as provisional, and in subordination to the will of the grantee, until the former commits some act of hostility which plainly indicates to the latter the intention to deny his right.^ A. selling from the midst of a large tract, seve- ral town lots, one of them is not fenced off from the rest of the tract, nor in any manner occupied by the grantee, but is plowed over and planted, along with the remainder of the tract, by the grantor, for the period of twenty-one years. This circumstance would not justify an inference that the grantor's possession after the deed was adverse.* B. con- veyed to C. " one acre of ground on Long Meadow run," in "^Eoss V. Pleasants, 3 Pa. St. 408. grazing cattle in it, or cultivating In this case an undivided interest potatoes, or running a fence across it, was retained by the vendor, whose and though it be embraced in the as- possession would have been justifi- sessment for the tract of which it had able on that account. been a part, and the company pay- " 01 wine v. Holman, 23 Pa. St. 279 ; irig no tax, he pkys the tax upon i,t, Pipher v. Lodge, 4 S. & R. 310 ; Id., he will not be ddemed in hostile pos- 16 S. & R. 214; Union Canal Co. v. session, unless the hostility is shown Young, 1 Wh. 410 ; Susquehanna by a difference between the kind of has it assessed to him, and pays the opinion that he intended to commit taxes for twenty-one years, he will an ouster. Cf. Watson v. Gregg, 10 regain the title. Watson v. Gregg, W. 289. 10 W. 289. After the title to the * Mercer w. Watson, 1 W. 330. A., coal has been separated from that having conveyed to trustees for the to the rest of the soil, the grantor organization of a coal company, may, by adverse possession, re-ac- which is never accomplished, and quire the title to the coal. Caldwell understanding that on that account LIMITATIONS AS TO LAND. 73 whose boundary is not defined, sells one of them, and then marking the lines of the other, continues in possession of it for more than twenty-one years, the vendee of the other will be precluded from claiming, as belonging to his tract, any of the ground embraced in the lines so marked/ Possession of Tenant not Adverse. § 66. When the possession of land is taken under a per- mission from the owner, it will be deemed adverse only in so far as that permission is not determinable at the owner's will, and only for the period over which this indeterminable permission runs. This permission may be manifested by a lease for years,^ or by a grant or devise for life,* or in a less formal way. For example, the owner of land may au- thorize A. to enter upon it, make improvements, and pay the taxes, promising a good lease for it. A.'s possession will be adverse, not as against the owner's fee,* but only for such time as the parties must have contemplated. Nor is it necessary that the lessor should have a good title. B. taking the title revests, without reconvey- 'Rankin v. Tenbrook, 5 W. 386; ance, resumes possession, leases the Kush v. Barr, 1 W. 110; Jones' v. land, receives all the profits, and is Porter, 3 P. & W. 132; Piper v. Slon- never called to account.' Prom these eker, 2 Gr. 113. facts, notice to his grantees of the 'Bannon t». Brandon, 34 Pa. St. adverseness of his. claim may be 263; iBrandon v. Bannon, 38 Pa. presumed. Susquehanna &C. Coal St. 63. Co. V. Quick, 61 Pa. St. 328; Id., 68 'Jones v. Porter, 3 P. & W. 132. Pa. St. 189. In Watson v. Gregg, 10 When a county gives, a license, W. 289, the grantor and his heirs through an act of the general as- re-acquired title against the grantee, sembly, to a corporation to plant an the deed having been put on record, academy building on its land, to but for fifty years the grantees never continue only so long as the land is claiming the-land. retained by the county and not ' Walker w. Walker, 16 8. &R. 379. needed by it for county purposes. If, after selling a patented tract, A. the occupancy, however long con- Bome years afterwards takes posses- tinued, is not so adverse to the sion of it, selling a part, and, he county as to destroy its right to dying, his children make partition aliene the land, or devote it to other of the residue in the Orphans' Court, inconsistent uses. Kittaning Acad- the vendee's title will be lost after emy v. Brown, 41 Pa. St. 269. the proper time. 74 LAW OF LIMITATIONS. adverse possession of a patented tract, may arrange with. C. to enter on tlie tract and retain it sufficiently long to make a title for B. by the statute of limitations, as against the patentee, agreeing that C. shall have one-half of it. C.'s pos- session would not be adverse to B.^ Tenancy by Sufferance. § 57. Besides permissions which apply to a definite period of time, or until the happening of a certain event, and which are not revocable within that time, or before the occurrence of that event, there is a tenancy at wUl, or by sufferance of the owner. Possession of this kind, maintained however long, because the owner does not will to determine it, is not adverse. to him, and will not make a title against him by the statute of limitations.^ This sort of possession may be the Consequence of an express contract,^ or may result* from a holding over after the expiration of a lease or other particu- lar estate. A specimen of the first kind is the permission given by a congregation, owning a church, to a body of seceders from it, to occupy the church for their own worship, every alternate Sunday. This use continued twenty-one years, being merely permissive, would not create a right, and could be determined at any time by the owners of the church.' Instances of the latter sort occur when, a life-ten- ^ Black V. Moore, 1 Pa. St. 344; constitutes a tenancy from year to Eankin v. Tenbrook, 5 W. 386 ; Id., year. Schuylkill and Dauphin Im- 6 W. 388. provement Co. v. McCreary, 58 Pa. ^Hood V. Hood, 25 Pa. St. 417; St. 304; Rankin v. Tenbrook, 5 W. Oalloway v. Ogle, 2 Binn. 468. The 386. In such case the landlord lessee of a vendee, against whom, would have the right to resume for breach of contract, the vendor possession at the end of every year, by ejectment recovers possession, however long the possession con- becomes ipso facto the tenant of the tinned. Though the tenant paid no vendor, so that his possession is no rent, this possession would not make more hostile to the latter than it a title for him under the statute of would be to the vendee. Galloway limitations. V. Ogle, 2 Binn. 468. ^Landis' Appeal, 102 Pa. St. 467. ° Landis' Appeal, 102 Pa. St. 467 ; The permission by a father or father- Hood V. Hood, 25 Pa. St. 417. , in-law to his son or son-in-law to * Except when such holding over occupy land with an understanding LIMITATIONS AS TO LAND. 75 ant dying in possession, his wife continues therein, and, subsequently remarrying, her second husband joins her in the occupancy. Her possession and his will be considered as at, the sufferance of the owner of the fee.^ A tenancy by sufferance arises, also, when one in possession along with the owner, in virtue of a domestic relation, continues that pos- session after the relation has ceased, which warrants it. Thus, if A. goes into possession of his wife's lands, jointly with her, and having no curtesy, nevertheless continues therein after her death, his possession will not, ipso facto, be adverse.^ The properties of possession by permission of the owner, at- tach to a possession begun without recognition of his title, so soon as that title is recognized, and the person in posses- sion undertakes to hold it for the future by the consent of the owner. The intruder may accept a formal lease from the owner, and so make his future occupancy that of a lessee,* or he may in other ways make his possession subordinate to the will of the owner, and estop himself from alleging that* it is adverse.* Thus, B. owning a tract adjoining A.'s, and clearing over on A.'s land by mistake as to the boundary line, may, after holding ten or fifteen years, discover the mistake, and agree with A. to continue in possession, paying the taxes on the whole tract. B.'s subsequent possession would not be adverse to A.* A. having settled on land which had been, pre- viously appropriated by B. by the beginning of an improve- ment and a survey under the act of 3d April, 1792, agreed with B. to continue the improvement for the time necessary that at the death of the former it accepting^ lease for a part of the will become the latter's, is\an in- tract, in the possession of the party _ stance. Graham -v. Craig, 81J Pa. accepting it, does not make the rela- St. 459. ^ tion of landlord and tenant as to the ^Bannon v. Brandon, 34 Pa. St. residue nor prevent the continued 263; Brandon v. Bannon, 38 Pa. St. possession of the residue from beii;ig 63. " adverse. Pederick v. Searle, 5 S. & ''Mercer v. Watson, 1 W. 330. K. 236; 'Pederick v. Searle, 5 S. & R. 286 ; * Pederick v. Searle, 5 S. & R. 236. Sailor v. Hertzog, 4 Wh. 259; Law- ^Read v. Thompson, 5 Pa. St. 327. rence v. Hunter, 9 W. 64. But 76 LAW OF LIMITATIONS. under that act to complete the title from the State, in com- pensation for which he was to receive 125 acres of the tract. A.'s subsequent possession of such part of the tract as was beyond his 125 acres, wgs not adverse to B.^ Tenant's Possession Becoming Adverse. § 58. Possession by the tenant after the expiration of his lease, and by other persons under circumstances which, prima facie, constitute them tenants-at-will, or by the suflPer- ance, is presumptively not adverse. It may, however, be made adverse,'^ but to make it adverse there must be a clear, positive and continued disclaimer and disavowal of the sub- ordination of the holding,^ and this disavowal must be brought to the knowledge of the owner.* A mere declara- tion, " I will pay no more rent," not made in answer to a demand for the payment of rent, and followed by payment of some installments of rent, will not, though subsequently twenty-one years elapse without payment of rent, make the possession adverse.^ Perhaps a public declaration by the ' Rush ■». Barr, 1 W. 110. the jury, has been brought home to 'Bannon v. Brandon, 34 Pa. St. the knowledge of the landlord. 263 ; Brandon v. Bannon, 38 Pa. St. Hood v. Hood. 2 Gr.' 229 ; Id., 25 Pa. 63; Zelleri). Eckert, 4 Howard 289; St. 417; Bannon v. Brandon, 34 Pa. Longwell v. Bentley, % Gr. 177 ; Id., St. 263 ; App v. Cadwalader, 5 W. N. 2 Phila. 157 ; Mahon v. Baker, 26 Pa. C. 137. As declarations of the tenant,. St. 519. or of a trustee in possession, do not, ' Zeller v. Eckert, 4 Howard 289 ; ipso facto, make the possession ad- Bannon d. Brandon, 34 Pa. St. 268; verse to the landlord or the cestui Brandon v. Bannon, 38 Pa. St. 63; que trust, bo evidence that such Hood V. Hood, 2 Gr. 229. declarations were made would not ' * Zeller v. Eckert, 4 Howard 289 ; be received to show that the posses- Bannon r. Brandon, 34 Pa. St. 263; sion was adverse. But when the Brandon v. Bannon, 38 Pa. St. 63; possession would be efifectively ad- Cadwalader v. App, 81 Pa. St. 194 ; verse under the statute if held with Rush V. Barr, 1 W. 110; Shepley «. a hostile intent, the declaration of Lytle, 6 W. 500; Hood v. Hood, 2 the trustee or tenant while in pos- Gr. 229; Id., 25 Pa. St. 417; Martin session, would be evidence of that V. Jackson, 27 Pa. St. 504 ; Graham . intent. Lyburn v. Muench, 1 Pittsb. V. Craig, 81J Pa. St. 459. The pos- 173. session must become adverse by ' Cadwalader v. App, 81 Pa. St. 194. some decisive act or declaration This case apparently assumes that which, without doubt on the part of the possession became adverse when LIMITATIONS AS TO LAND. 77 tenant that he was holding under B-, ahd not under A., his original landlord, if known to A. and accompanied by conduct consistent with the denial of A.'s title, would make the tenant's possession adverse to him, but a secret attorning to B,, unknown to A., would not transfer the possession to B. and make title for B, against A.' But the moment a tenant, after the lease expires, denies the title of the landlord, and gives notice thereof, the posses- sion becomes adverse.'' A husband who, with his wife, has conveyed her land by a deed void because defectively acknowledged, but believed by them to be valid, and who, simultaneously obtaining a conveyance to himself from the grantee, continues in the possession as grantee (having no curtesy) after his wife's death, will be considered in possession not under the heirs of the wife but adversely to them.* So, a reftisal on demand to pay rent, with denial of the landlord's right, he having notice of it, will make ^he possession adverse.* If A., having leased to one of his ten the tenant sent a written notice to sion by ejectment and compel the the landlord, "I now notify you that reversioner to resort to another eject- I no longer recognize your title.'' ment to regain the possession. St. •Eankin v. Tenbrook, 5 W. 386; Clair «. Shale, 20 Pa. St. 105. Id., 6 W. 388. But if B. has i;ecov- "Longwell v. Bentley, 2 Gr. 177; • ered in ejectment against A., A.'s Id., 2 Phila. 157. The lessor may by tenant may, threatened with ejec- parol make a gift of the land to the tion by a Aa6«re, attorn to B., and his lessee. And the latter paying no subsequent possession will be B.'s, rent, discharging the taxes, and and not A.'s. Groft v. Weakland, 34 claiming the- land for himself, while Pa. St. 304. A tenant of a tenant for the lessor by declaration and act life, holding over after the expiration shows he no longer considers him- of the life estate, may attorn to the self the owner, will, in t;wenty-one reversioner, the tenant for life not years of possession after the gift, having claimed adversely to the lat- acquire a title by limitation. Mahon ter. But, if the life-tenant claimied v. Baker, 26 Pa. St. .519. adversely, and the real owner of the ' Mercer v. Watspn, 1 W. 330. Es- reversion induced his tenant by Col- pecially if they, shortly after the lusion or other unfair means, or by wife's death, bring ejectment against threats, to attorn, the attornment him, and so concede the adversenesa would probably not transfer the pes- of his possession, session. At any rate, the life-ten- * Rush d. Barr, 1 W. 110. ant's heir might recover the posses- 78 LAW OF LIMITATIONS. children for five years, dies, devising the lands to them, and nine of them make partition before the expiration of the lease, the land covered by it being allotted to the lessee, the possession of'the lessee will be prima facie adverse to the tenth child, who did not share in the partition, from the time that, he obtained knowledge of the partition.^ A surrender of the possession, with knowledge of the lessor, would sever the relation of tenancy, and a subsequent resumption of possession would not be subject to the disability of denying its subordination to the landlord. But the surrender must not b^ by an equivocal act, which, if known to the lessor, would not apprise him of the intention of the lessee to give up possession ; still less would an act not known at all to the lessor have that effect. Hence, that the tenant leaves the house a short time to work in the neighborhood, not remov- ing her clothes and furniture from the house, would not be a termination of the possession, such as would make a pos- session shortly afterwards resumed, ab initio hostile.^ If a tenant conveys as his own the land to another, who has no knowledge of the tenancy, the possession of the latter will be adverse to the landlord, and, continued twenty-one years, will destroy the title of the latter,^ but he cannot tack to his own possession that of his vendor for the purpose of making title. He will be limited to his own.* Adverse Possession in Implied Trusts. § 69. Though Jt has been said that the statute of lim- itations does' not apply to actions by the cestui que trust against the trustee, this doctrine is confined to cases of ' Shepley v. Lytle, 6 W. 500. Pa. St. 211. Nor is it necessary that 'Brandonij. Brannon,38Pa. St. 63. the landlord should have express 'Dikeman v. Parrish, 6 Pa. St. notice of the tenant's conveyance 211 ; of. Rush v. Barr, 1 W. 110. The and the grantee's assertion of title fact that the deed by which the to the land. His putting his deed landlord acquired title is on record, on record, leasing, devising and con- will not affect the purchaser from veying parts of it, improving it, will the tenant with notice of the land- be sufficient notice. Id. lord's title. Dikeman v. Parrish, 6 * Dikeman v. Parrish, 6 Fa. St. 211. LIMITATIONS AS TO LAND. 79 express trust when, the right of trustee and of cestui que trust make but one title. It never extended to implied trusts, to all those cases where he who has' the legal title denies and disclaims all trusts, claims and acts in all cases and in all respects as sole and exclusive owner.^ Hence, when an executor with moneys of the estate purchases for himself land, on which he enters, claiming for himself,^ or when one having begun a settlement with a view to acquir- ing a title, arranges with another to continue it, and to perfect the title, and the latter enters and claims as his own,^ or when one of several heirs of A. (T^ho, having had a certain defeasible claim to land, had died after the claim had been defeated), some time after the possession was lost, purchases the real title and takes and retains posses- sion under this purchase,* or when the purchase-iiaoney being furnished by B., C. procures the warrant and patent in his own name and maintains possession of the land,^ or when an administrator buys the decedent's land at a sale procured and conducted by himself,^ the statute will give a title after twenty-one years of adverse possession. But when the possession is taken under an agreement with the cestui que trust, e. g. when one having begun a settlement on land for the purpose of acquiring a title, contracts with another to continue it, in consideration of his having the part of the tract on which he settles, the continuance of such possession will not be deemed adverse till there is such dis- claimer of the title of the former as gives him notice of its 'Walker «. Walker, 16 S. & E. 379; from the purchase, the cestui que McCall u. Webb, 88 Pa. St. 150. trust not being in possession, nor " Wallace v. Duffleld, 2 S. & R. 520. his title recognized by the trustee, it 'Walker «. Walker, 16 S. & R. 379; would be barred, even though the Kush V. Barr, 1 W. 110. trustee was alsd not in possession ; * McCall V. Webb, 88 Pa. St. 150. a fprtiori, if the trustee was in pos- » Brown V. McCoy, 2 W. & S. 307 session. , n.; McBarron v. Glass, 30 Pa. St. » Musselman v. Eshleman, 10 Pa. 133; Strimpfler v. Roberts, 18 Pa. St. 394. St. 283. After twenty-one years 80 LAW OF LIMITATIONS. adverseness.^ As the lapse of twenty-one years with adverse possession by the holder of the title would bar a resulting trust, so the adverse possession by the alleged cestui que trust, under such a trust, for twenty-one years, would destroy the legal title of the trustee. This is the case when one who furnishes the purchase-money for land, the title to which is taken by another, enters into possession of the land, claiming it as his, and continues therein for the statu- tory term. The possession would give title, whatever doubt might attach to the fact of the existence of a resulting trust.* Adverse Possession in Express Trusts. § 60. Under express trusts, the right of the cestui que trust may be barred by an adverse possession of the trustee, he disavowing and disclaiming the trust in such a way as to give notice to the trustee.* The trustee in an express trust, executed, however, by force of the statute of 27 Henry VIII., may, by a possession adverse to the trust, disengage the land from it. Thus, he may convey the land with design to destroy the equitable title, and his grantee may keep posses- sion, disavowing the trust for twenty-one years, and so bar the cestui que trust, who, during that period, was sui juris} • Rush V. Barr, 1 W. 110. In such agreement that A. should sell and case, an open, continued adverse divide the proceeds with B., the possession will bar the title. Walker statute would not run against B. ». Walker, 16 S. & R. 379. Any pur- till there was an ouster or notice chaser from the person in possession of adverse possession. Oflferman v. aware of the trust will be affected Packer, 26 Leg. Int. 205. with it, and his possession will not 'Leyburn r. Muench, 1 Pittsb. 173. be considered adverse without no- The possession of an assignee for tice to the owner. Rush v. Barr, 1 the benefit of creditors, prior to W. 110. the appropriation of the land to the 'Lynch v. Cox, 23 Pa. St. 265 Leeds v. Bender, 6 W. & S. 315 Neel *«. McElHiny, 69 Pa. St. 300 debts, would not be adverse to the assignor, so as to defeat the result- ing trust of the assignor. But when Hood V. Hood, 25 Pa. St. 417; Id., 2 more than thirty years after the as"- Or. 229. signment the assignor brings eject- 'Zeller's Lessee v. Eckert, 4 How- ment against one in possession, and ard 289; Irvine v. Sibbetts, 26 Pa. there is no evidence whether the St. 477. But when A. held land in assignee ever acted or not, so that trust, as to one-half, for B., with the there is a possibility that he may LIMITATIONS AS TO LAND. 81 If, under a sheriff's sale of tlie supposed interest of the trustee, the vendee takes possession for himself and retains it for thirty years, he acquires an absolute title, though the , cestui que trust is a minor, and the trust was accompanied by active duties on the part of the trustee ; a fortiori when the trust was executed in the cestui que trust} Ai trust created by will for A. for life, remainder to B, and C. for their lives, and the life of the survivor, whereupon the land is to be sold and its proceeds divided amongst designated persons> may be destroyed as to the But, sole possession without accounting for thie profits and without demand for them, for forty years, while it authorized, did not require the jury, to infer ouster. Bolton V. Hamilton, 2 W. & S. 294. So, thirty years. McElhiny v. Hope, 4 W. N. C. 549. So, thirty-nine years. Eeyser v. Evans, 30 Pa. St. 507. So, twenty-six years. Blaekmore v. Gregg, 2 W. & S. 182. So, sixty years. Nickle v.- McParlane, 3 W. 165. Of course, if there are admis- sions by the co-tenant in ppssessioii, that his claim is not adverse, e. g. if he has the property taxed to the heirs, of whom he is one, and takes out a patent tq the heirs, the jury will not be bound to find an ouster . from twenty-one years' possession, without demand of a share in the profits, or tender of such share. Hart D. Gregg, 10 W. 185; Black- more V. Gregg, 2 W. & S. 182. 'Tulloch V. Worrall, 49 Pa. St. 133; Miller v. Miller, 60 Pa. %%. 16. 'Pipher v. Lodge, 4 S. & R. 310. 'Frederick v. Gray, 10 S. & R. 182; Calhoun v. Cook, 9 Pa. St. 226 ; Mc- Call v. Webb. 88, Pa. St. 150. But it was said in Susquehanna &c. R. R. Co. V. Quick, 68 Pa. St. 189, and Susr quehanna &0. Coal Co. v. Quick, 61 Pa. St. 328, that from an open, notor- ious, uninterrupted possession of the whole by one tenant in common, for twenty-one years claiming the 86 LAW OF LIMITATIONS. sion to the sole right be manifested by some unequivocal" act, so necessarily and notoriously importing a claim to an exclu- sive right as to apprise the co-tenant out of possession.^ A formal declaration to the co-heirs " or to others ^ of the inten- tion to hold adversely, is not necessary, if the acts suflSciently indicate that the possession is hostile.* As the sole posses- sion for twenty-one years of one co-tenant, is not adequate evidence of hostility during that time, neither is his leasing the property at intervals during that period." Evidence of Ouster. § 64. Improving land in conj unction >with the receipt of its rents and profits, being the highest act of ownership, and therefore strongly marking the possession as adverse,® im- proving and repairing buildings and renewing them after being destroyed by fire,'' and improving the premises by erecting new buildings on them,* are acts justifying the infer- ence that the possession is hostile. Cutting and selling the timber, and receiving damages for a road cut through the whole, and taking the profits ex- "Tulloch d. Worrall, 49 Pa. St. 133; clusively to , himself, the jury may, Law v. Patterson, 1 W. & S. 184; but need riot infer an ouster. These Longwell v. Bentley, 23 Pa. St. 99 ; facts do not make a legal presump- Brown r.'McCoy, 2 W. & S. 307 n. tion of an ouster. Yet, in Velott v. Lewis, 102 Pa. St. • Bolton 1). Hamilton, 2 W. & S. 294. 326, the jury were instructed that 'Miller v. Miller, 60 Pa. St. l6; erecting fences and buildings adapted Mehaffy v. Dobbs, 9 W. 363. to the cultivation of the premises ' Law V. Patterson, 1 W. & S. 184. and to profit, together with leasing *Mehaflfy v. Dobbs, 9 W. 363. the property and possession of it for ^ Hall V. Mathias, 4 W. & S. 331 ; more than twenty-one years, would Velott V. Lewis, 102 Pa. St. 326. Yet, be no evidence of ouster, and the Tulloch V. Worrall, 49 Pa. St. 133, instruction was approved in the mentions leasing, as one of the un- Supreme Court. In the same case, equivocal acts indicating a hostile the instruction was given to the jury claim, as do Law v. Patterson, 1 W. that making permanent improve- & S. 184; Brown v. McCoy, 2 W. ments, together with sole possession, & S. 307 n. leasing, selling timber, taking dam- •Dikemant). Parrish, 6 Pa. St. 210; ages for opening of a road, and Keyser v. Evans, 30 Pa. St. 507. never accounting for over twenty- ' Keyser v. Evans, 30 Pa. St. 507. one years, would justify the'infer- ence that the possession was adverse. LIMITATIONS AS TO LAND. 87 premises^' selling all ^ or part of the land in possession/ or offering to sell it as his own/ and devising it/ are evidences of adverse claim and possession at the time that they occur, and subsequently, especially when a possession is begun by the alienee * or devisee/ in pursuance of the sale or devise. Cases of Ouster. § 65. If the heir in sole possession of a part of his de- ceased father's land, procures a warrant for it in his own name, this is positive evidence of ouster from that time.' A con- veyance of the whole by a co-tenant, followed by sole pos- session for twenty-one years by the grantee, will destroy the co-tenancy of the parties out of possession.' So will the sale • Velott V. Lewis, 102 Pa. St. 326. •Law V. Patterson, 1 W. & S. 184; Burrell v. Little, 1 Pittsb. 237. •Tulloch V. Worrall, 49 Pa. St. 133. *Velott V. Lewis, 102 Pa. St. 326. 'Velott V. Lewis, 102 Pa. St. 326; Miller v. Miller, 60 Pa. St. 16. In Kingston v. Lesley, 10 S. & E. 383, the fact that one co-tenant was in Barbadoes, and by tenants held pos- session of the land in Philadelphia, receiving all the rents, while his sister, living in the neighborhood, received none, was considered a "strong circumstance added to a perception of the profits," justifying an inference by the jury that the title of the sister was in the brother. •Quller V. Motzer, 13 S. & E. 356; Law V. Patterson, 1 W. & S. 184; Burrell v. Little, 1 Pittsb. 237. 'Miller v. Miller, 60 Pa. St. 16; Allen V. Getz, 2 P. & W. 310. The co-beir was aware of the devise in Miller v. Miller, 60 Pa. St. 16, being a witness to the execution of the will. A devise by a co-heir in sole pos- session, made at the end of the period of adverse possession relied on to make an exclusive title, will not be effectual to impair the title of the co-heirs not in possession. Hall v. Mathias, 4 W. & S. 331; TuUooh v. Worrall, 49 Pa. St. 133; Velott v. Lewis, 102 Pa. St. 326. 'Mehaffy v. Dobbs, 9 W. 363. Yet, in Graffius v. Tottenham, 1 W. & 8. 488, it was decided that if one of several sons takes out a warrant in his own name, for land on which his father had. begun an adverse possession, procures a survey and then conveys the land to a stranger, the possession both of this son and , of his grantee is not, as to the shares of the other co-tenants, adverse, but inures to the benefit of these co- tenants, so as to complete the pos- session begun by the father, and thereby destroy the title of the origi- nal owner. 'Culler V. Motzer, 13 S. & E. 356; Miller v. Miller, 60 Pa. St. 16 ; Law v. Patterson, 1 W. & S. 184; Dikeman V. Parrish, 6 Pa. St. i210; Irvine v. Sibbetts," 26 Pa. St. 477 ; Burrell v. Little, 1 Pittsb. 237. If the co-tenant who made the conveyance takes back a grant'of the land and enters into possession, his possession will be adverse. Hart v, Gregg, 10 W. 185. If A., co-tenant with B. of a small lot 88 LAW OF LIMITi.TIONS. by a surviYing co-tenant, of the interest of the deceased co- tenant, his brother, and a purchase by the former, followed by his sole possession for the statutory term, his leasing, making a survey in his own name, and the exclusive per- ception of the profits.^ So, if one of several children takes possession of 3 part of the ancestor's land, separated from the rest by a. distinct line, and solely farms, occupies and enjoys this part for twenty-one years, the other heirs making no objection and no claim to share in the possession or its fruits, the jury may infer that the possession has been adverse for the length of time necessary to ■ divest the title of the co-heirs out of possession.^ One of four heirs of her mother, along with her husband, entered into possession of one end of a tract which had belonged to the decedent, cleared a portion of it, and erected a ferry-house on it, the other heirs making no objections. Three years afterwards, the decedent's husband, as tenant by the curtesy, conveyed it in fee to her. Exclusive possession was retained for forty years before and under this conveyance, the other heirs exer- cising acts of ownership over, but not inclosing, the balance of the tract. This made an indisputable title in severalty to the part of which sole possession was taken.' If one ' in the midst of a large tract, becomes lawfully could, not make the subse- the owner of this tract, and mort- quent sole possession of the mort- gages it, not excepting the undivided gagor, prior to the sale under the interest of B. in the lot, this will mortgage, adverse, however hostile not be conclusive that A.'s subse- the possession taken by the pur- quent possession of the lot in the chaser at that sale might be. Moore tract is hostile to and exclusive of v. Collishaw, 10 Pa. St. 224. B., since the mortgage may, without ' Lodge v. Patterson, 3 W. 74 ; Hart intention to deny B.'s undivided half v. Gregg, 10 W. 185 ; Miller v. Miller, in the lot, have beeh framed as it 60 Pa. St. 16. • was fron\ mere inadverteijce. 01- ' Mehafify v. Dobbs, 9 W. 863. In wine V. Holman, 23 Pa. St. 279. A so far as this case teaches that the fortiori will a mortgage by one co- jury would be bound to infer an tenant, of the entire land, made in ouster, it needs qualification; Bol- ignorance of the language used by ton v. Hamilton, 2 W. & 8. 294. the scrivener, and without intention 'Gregg v. Blackmore, 10 W. 192. to mortgage a larger interest than he If an invalid partition is made by LIMITATIONS AS TO LAND. 89- tenant in common buys up some adverse title, even a sham title, and claims exclusively under it ; if, e. g., being admin- istrator of his father's estate, he fraudulently confesses a judgment, causes the land of his father to be sold, and ac- quires the sheriff's purchaser's title, his sole possession will be adverse.* Two of three heirs denying the legiti- macy of the third, or ignorant of his being in eue, make partition between them of their ancestor's land. The pos- session taken by each, of the purpart allotted to him, would be conclusively adverse to the third heir.^ Further Cases of Ouster. § 66. Shortly after land is conveyed to P. and L., " trading under the firm of Patterson and Law,"- L^, who paid all the- purchase-money, enters into sole possession, leasing in hi& two of four co-tenants, of a tract into two parts, allotting one to each of themselves, and possession sole and exclusive is taken by one of them of the part so allotted to her and re- tained twenty-one years, her title is destroyed in the other part, notwith- standing that the other co-tenant, instead of taking actual possession of this part, simply exercises habit- ual acts of ownership, other than possession, over it.' Gregg v. Black- more, 10 W. 192. If several co-ten- ants, mistaking the quantity of their interest, make a partition, and pos- session is taken by. the one to whom too great an interest was conceded, of her purpart, under exclusive claim of right, she subsequently devising it, and the devisee making valuable improvements, a title will be , made by limitations. Peppard v. Deal, 9 Pa. St. 140; Higgs v. Stimmel, 3 P. & W. 115. If some co-tenants, ignor- ing the rest, make partition of all the land between them, and each takes a purpart, continuing in pos- session twenty-one years, the ignored co-tenants would be barred. Shepley V. Lytle, 6 W. 500. A fortiori, when partition is made by all of the co- tenants and one of them enters and retains sole possession of his purpart- for twenty-one years, clearing, build- ing, paying taxes, the jury may presume an ouster by which the- others are barred of their former interest in this purpart. Eider v. Maul, 46 Pa. St. 376;- Maul v. Rider,. 51 Pa. St. 377. If three co-tenants,, erroneously believing X. to be also a co-tenant with them, make parti- tion, each taking a purpart, and X. takes and retains possession of his- purpart for twenty-one years, claim- ing as his own, the title of the thre& co-tenants in this purpart is de* stroyed. So, the title of a fourth co-tenant, not participant in the- partition, would be 4eStroyed as to- the purpart, unless, being the Com- monwealth, the statute does not run against him . Holm es v. Fattison, 25- Pa. St. 484. • Phillips V. Gregg, 10 W. 158. Ud. 90 XAW OF LIMITATIONS. own name, and reserving the rent to himself for twenty-three years. P., though residing in the neighborhood, makes no claim to the land ; L. does not charge himself in the partner- ship books with the rents and profits; he also puts up a dwell- ing-house and makes other valuable improvements, causing the land to be assessed to him for taxes, and paying them. From these facts the jury may infer that L.'s possession has, for twenty-one years, been adverse.' A warrant in the name of B., was taken out by A., in pursuance of an arrangement between them that B. was to go into possession and have one-half of the tract, A. to have the residue. B. dying in sole possession, his heirs, unaware of the parol agreement with A., continued in possession for twenty-one years afterwards, claiming the whole, clea,ring, building, leasing, receiving the rents, while A. was in the neighborhood. This possession must be considered as adverse to A.^ Three brothers purchased land in common, and conducted business as partners upon it for some time. One of them then removed to the South ; the others continued in possession, and conducted the business under a firm, from which the name of the distant brother was omitted, there being evidence in the declarations of the latter that he had sold his interest to them. Subse- quently, these made sale of the property, and executed a deed to X. The possession of the two brothers and of X. continued twenty-one years after the departure of the third brother to the South. This evidence of a parol sale, of the immediate abandonment of possession by the vendor, and assumption of entire possession by the vendees, and of the continuance of this possession without recognition by them, or assertion by the vendor of any remaining right in him, would justify a jury in inferring an ouster at the time of the brother's going South.* . 'Law V. Patterson, 1 W. & S. 184; 'Workman v. Guthrie, 29 Pa. St. Bolton V. Hamilton, 2 W. & S. 294. 495. One of two co-heirs orally ' Brown v. McCoy, 2 W. & S. 307 ».; agrees that the other shall have the Dikeman v. Parrish, 6 Pa. St. 211. inherited land, if he supports the LIMITATIONS AS TO LAND, 91 More Cases of Ouster. § 67. A. and B, laeing by a devise co-tenants for life, C. being entitled to the reversion, if on B.'s death his sisters, supposing him to have a fee, petition the Orphans' Court for partition, and A. successfully resists the, petition on the erroneous ground that she is heir to B., her possession for thirty-two years thereafter is prima facie hostile both to B.'s sisters, who were not entitled, and to C, who was.^ If an undivided one-half of land is devised to A. absolutely, and the other undivided one-half is devised to B. on condition that she release a debt due the estate, and she, unwilling to do without the debt, accepts payment of it from A., and agrees orally that A. shall have the land, and if A., continues for twenty-one years to have sole possession of the land, appropriating its profits under a claim of right to all exclu- sively, the jury ought to presume an cJuster of. the heir of the devisor, on whoin the undivided half devised to B. descended, on B.'s refusal -to forego the debt.'' Land being conveyed, subject to ground-rent, to A., B. and C, as tenants in common, they conducted business as iron-founders upon it till 1819, when A. died deeply indebted 'to the firm and insolvent. B. and C. continued in possession twenty-six years, when B. died. C. then retained possession till his mother. He supports her, takes sole would support trespass quare dausum possession and builds a house, barn /regit. Trauger v. Sassaman; 14 Pa. and shop, acting towards the land as St. 514. bis own. This possession, continued ' Calhoun v. Cook, 9 Pa. St. 226. twenty-one years, would make an If a partition is made between A. exclusive title, independently of the and the husband of B., the other cor legal value of the parol contract, tenant, for his life, and land is allotted Irwin iS. Cooper, 92 Pa. St. 298. Two to him in severalty for his life, and if congregations using a church in his wife B. continues in sole posses- common, acquire a right in common sion for tliirty-six years after his to hitch horses and station carriages death, never accounting for the prof- during servipe in a neighboring its and never being called on for an wood. One of them, against the account by A., the jury may presume will of the other, builds a wall and an ouster. Fishar v. Prosser, Cowp. cuts off access to this grove. This is 217; Hart u. Gregg, 10 W. 185. an ouster of the co-tenant, such as ' Frederick v. Gray, 10 S. & B. 182. 92 LAW OF LIMITATIONS. death, tea years afterwards, when his executors remained ia possessioa. Three years after A.'s death B. and C. mortgaged their two-i;hirds of the land, but four years after that they mortgaged the whole lot. They improved and repaired and rebuilt the buildings at divers times, and paid the ground- rent and taxes for thirty-nine years. These circumstances would have warranted a finding by the jury that the posses- sion of B. and C, after A.'s death, was adverse to him, and barred his title.^ Cases of Ouster — Continued. § 68. A. owning a tract adjoining another which belongs to his wife and the wife of B. as tenants in common, clears over upon it, and for twenty-one years cultivates the strip along with the rest of the field. This would be a fact from which a jury might infer ouster and adverse possession sufficiently long to make a title by limitation.^ A. had a deed from B. for land, which was subject to the proviso that B. should prove to be entitled to hold the land by virtue of his settlement, in pursuance of his contract with X. B. subsequently ar- ranged with X. (for whom he had made a settlement on a tract, under an agreement that for this service he should have the part he settled on), by accepting another tract. Many years after A.'s death, two of his heirs obtained from its owner a contract for the sale of the land covered by B.'s deed to A., and entered into possession, dividing it between them, each taking a deed for his purpart, and continuing in possession by themselves or their vendees for thirty-seven years, cleai;- ing, fencing, farming, paying the taxes, receiving the rents, issues and profits. These facts justified the jury in finding the possession adveyse to their co-heirs, long enough to destroy the title of the latter, if they had any, by limita- ' Keyser v. Evans, 30 Pa. St. 507. or otherwise than by a biennial tres- ' Peck V. Ward, 18 Pa. St. 506. But, pass to cut timber, showing claim an ouster from the woodland of the to the whole tract), could not be in- tract bleared over upon (A. not ferred. marking lines, nor by paying taxes. LIMITATIONS AS TO LAND. 93 tion/ The owner of two undivided thirds, in sole possession, paying no rent, nor recognizing the title of the owner of the other third, builds a house on the land, and makes other improvements, and when the other co-tenant offers to sell the one-third, refuses to buy it, saying his title is as good as that of the person offering, to sell. This is an adverse possession.^ Several heirs may orally agree that one of them shall have the land inherited by them, if he shall take care of their mother. If, complying with this condition, he takes possession, builds a house and barn, blacksmith shop, and claims as his own for t"^enty-one years, he may acquire a sole title, though the parol sale as such is not enforceable.^ Notice to Co-Tenants of Adverse Possession. § 69. As one co-tenant has a right to believe that the other co-tenant in possession holds for both, and not exclu- sively for himself, the intention to hold exclusively must be made to appear by unequivocal acts fitted to apprise the co-tenant out of possession of the existence of this hostile intent.* Mere possession for forty years is not sufiicient to ' accomplish this.* The conduct of the co-tenant in posses- sion need not be such as to actually apprise the other of the adverse nature of the possession ; it is enough if the co- tenant out of jpossession ought to have known these acts 'MoCall V. Webb, 88 Pa. St. 150. in the Supreme Court'. McElhiny-r. A. dying, leaving a son and children Hope, 4 W. N. C. 549. of a daughter as his heirs, the son, ' Longwell v. Bentley, 23 Pa. St. 99. who had been with him in possession, ' Irwin v. Cooper, 92 Pa. St. 298. continued in sole possession, paying * Keyser v. Evans, 30 Pa. St. 507 ; taxes, making ordinary repairs and Velott v. Lewis, 102 Pa. St. 326. In improvements for eighteen years, MeCullough v. McCall,, 10 W. 367, when he conveyed to his sons, who the jury were instructed that notice continued the possession twelve years of adverse possession was necessary longer. The jury to whom the ques- between tenants in common, but the tion of ouster and twenty-one years' case was not one of a co-tenancy, subsequent hostile possession was A. had settled on a tract for the pur- submitted, found that there had not pose of making title to it for B., under been such possession. The judgment an agreement that A. was to have 200 entered on their verdict was affirmed acres of it, including his settlement. ' Velott V. Lewis, 102 Pa. St. 326. 94 , LAW OF LIMITATIONS. and their significance.^ Accordingly, it was said that when a co-tenant executed a conveyance to a stranger and deliv- ered up the possession to hini, and that act was open, notor- ious and visible, direct notice to the other co-tenants was not necessary." So, when one heir purchases an outstanding improvement right covering the ancestor's claim, causes a survey to be made for himself and another of the heirs, makes a partition with the latter, on the death of the latter puts up his purpart to sale, buys it, and goes into possession, paying the taxes for twenty-one years, the other heirs are bound to know of these occurrences and of the adverse pos- session they import.^ Confession of Ouster. § 70. While the mere fact that one tenant in common is in sole possession and enjoyment of the land, and the others make no demand to be admitted, nor to share in ^lae profits, - does not warrant an inference that the latter thereby confess themselves to be ousted ; there are cases in which this con- fession is found to exist. Thus, if a partition is' made by two co-tenants, one of whom withdraws from all except the purpart allotted to him, allowing the other to have sole con- trol of the rest, and to pay the taxes upon it, this with- drawal is a confession that the other is in adverse possession of the residue, though he in fact is not in actual possession at all, and will preclude, after twenty-one years, a recovery of an undivided interest in the residue by the confessing party.* But when there is no appropriation by the person who alleges that he is in sole possession, of all the profits to ' Velott 'v. Lewis, 102 Pa. St. 326; 'Irvine v. Sibbetts, 26 Pa. St. 477. Susquehanna &c. Coal Co. v. Quick, 'Lodge v. Patterson, 3 W. 74. 61 Pa. St. 328. The acts or conduct 'Gregg v. Blackmore, 10 W. 192. of the party in possession must tend The proximity to the land of the co- to bring home notice tO' the party to tenant out of possession is considered be affected. Susquehanna &c. Coal in connection with his acquiescence, Co. V. Quick, 61 Pa. St. 328 ; Susque- as a concession of sole right in the hanna &c. Eailroad Co. v. Quick, 68 co-tenant in possession, in Law v. Pa. St. 189. Patterson, 1 W. & S. 184. LIMITATIONS AS TO LAND, 95 himself, a mistaken admission by the others that he is in sole and hostile possession will hot preclude their recovering a joint possession. Thus, if A., claiming by a parol sale from his father, puts a brother in possession, who admits A.'s sole right by reason of this sale, the brother paying no rent, this admission will not make A.'s possession adverse to the brother making it, or to the other co-heirs.^ Rebutting Adverseness. § 71. The declarations and conduct of the co-tenant in possession, tending to show that he does not claim adversely to the other co-tenants, may be shown in order to rebut the tendency of other evidence to establish an adverse possession. Thus, it may be proven that the heir in possession had the . land assessed for nineteen years in the name of the heirs of ' the ancestor, and charges the taxes paid to the heirs ;'^ that, being the administrator, it was customary for administraJ;ors to take possession of the lands and apply the rents to the payment of debts, and so to account for his receiving the rents ;^ that he kept an account of the rents collected and the expenditures made by him on behalf of the estate of the decedent, thus disclosing an intent to settle with the heirs, who were remotely scattered, when they should appear;* ^Forward v. Deetz, 32 Pa. St. 69. element of confession is wanting Acquiescence of the rest of the when most of the co-heirs, at the family (who tilled one portion of the death of the ancestor, are living at ancestor's land), in the exclusive remote points, and therefore pre- occupancy of the residue of the sumptively have no knowledge of land by the other heir, is an explicit his death for many years afterwards, acknowledgment of ouster. Cal- while the heir at hand is in sole houn V. Cook, 9 Pa. St. 226 ; Mehaflfy possession. Phillips v. Gregg, 10 V. Dobbs, 9 W. 377. Confession of W. 158. disseizin is mentioned as a test ' Hart v. Gregg, 10 W. 185 ; Phil- additional to the twenty-one years' lips v. Gregg, 10 W. 158 ; Watson v. sole possession and perception of Gregg, 10 W. 289. the profits, of the adverseness of 'Hart d. Gregg, 10 W. 185; Phil- this possession. But the mere ac- lips v. Gregg, 10 W. 158. quiescence implied in not .bringing 'Phillips v. Gregg, 10 W. 158; action, is not such a confession. Tul- Watson v. Gregg, 10 W. 289. Con- loch V. Worrall, 49 Pa. St. 133. This versely, the fact that the co-tenant ■96 ' LAW OF LIMITATIONS. that long after his sole possession began, he took out a patent for the land in the name of the heirs.^ Declarations of the . •co-tenant in sole possession may be proven to show that she claimed only a life estate,^ or to show that he claimed as heir •of X., and nbt by a parol sale from him/ or that, though in sole possession, he conceded the joint right of the co-tenant.* T'unctlon of Court and Jury. § 72. When the evidence is, in the opinion of the court, insufficient to make out an adverse possession by one co- tenant, the court properly instructs the jury that the co-ten- ant out of possession, the plaintiff", is entitled'to recover,^ or that the tenant in possession, who brings trespass quare clausum f regit against the other, for entering upon the land after the twenty-one years' possession, is not entitled to recover.* When, on the other hand, the facts so plainly shgw that the possession was adverse, that the court may, as matter of law, so pronounce, it will instruct the jury that the co-tenancy has been destroyed by the adverse holding of one of them.^ In cases where different parts of the evi- dence tend to support different views of the adverseness of the possession, the jury will not be bound to presume an ouster.* The court may even tell them that if they believe the evidence pointing to the non-adverseness of the posses- sion, e. g. the assessment of taxes in the name of the heirs, procured to be made by the co-tenant in possession, and his in possession kept no account of his ° Forward v. Deetz, 32 Pa. St. 69. •outlays on and receipts from the " Peck u. Ward, 18 Pa. St. 606. land, and that this was known to his ' Gregg v. Blackmore, 10 W. 192. co-tenant, is a circumstance, point- One of two co-tenants who had made ing to the advferseness of the posses- partition, having entered into sole ision. Law v. Patterson, 1 W. & S. possession of her purpart, attempted, 184. ' after twenty-one years, to recover a ' Hart V. Gregg, 10 W. 185 ; Phil- share in the other purpart. The lips 1). Gregg, 10 W. 158 ; Watson v, jury were told to find for the de- -Gregg, 10 W. 289. fendant. ^ ' Calhoun v. Cook, 9 Pa. St. 226. « Hart v. Gregg, 10 W. 185 ; Black- » Miller v. Miller, 60 Pa. St. 16. more v. Gregg, 2 W. & S. 182; Phil- *Law V. Patterson, 1 W, & S> 184. lips v. Gregg, 10 W. 158. LIMITATIONS AS TO LAND. 97 charging the heirs with these taxes, the co-heirs out of possession may recover.^ In general, ouster and adverseness of the possession of one co-tenant must, when the evidence is sufficient, be submitted to the jury^ under instructions from the court.^ CHAPTEE VIII. DURATION AND CONTINUOUSNES3 OF POSSESSION. Duration. § 73. Every entry and every real or possessory writ or action for lands, tenements and hereditamesnts must be made or brought within twenty-one years after the commencement of the adverse possession. But the title of the original owner is unaffected and untrammeled till the last moment, and when it is vested in the adverse occupant by the com- pletion of the statutory bar, the transfer has relation to nothing which precedes it. The instant of conception is the instant of birth.* The adverse possession must have endured for twenty-one years when the action is brought.^ » Watson V. Gregg, 10 W. 289. W. & S. 240; McCoy v. Trustees of • Workman v. Guthrie, 29 Pa. St. Dickinson College, 5 S. & R. 254; 495. Beidelman v. Foulk, 6 W. 308; Par- ' Blackmore v. Gregg, 2 W. &. S. ker v. South'wick, 6 W. 377 ; Mercer 182. ' V. Watson, 1 W. 330; Pederick v. *Graffiu8 V. Tottenham, 1 W. & S. Searle, 5 S. & R. 236. No possession 488. short of the twenty-one years will "Kille V. Ege, 79 fa. St. 15; Lund affect the true title, though that poa- V. Brown, 14 W. N. C. 489 ; Bradford session be obtained by habere facias V. Guthrie, 3 Pittab. 213 ; Buckholder against the true owner and be accom- ii. Sigler, 7 W. & S. 154; St Clair v, panied by improvements or the ex- Shale, 9 Pa.St. 252; Shaffer II. Lowry, penditure of money 'or labor. Ca- 25 Pa. St. 252; Groft d. Weakland, rothers v. Dunning, 3 S. & R. 373. 84 Pa. St. 304; Nearhoff i>. Addle- Despite two verdicts and judgments man, 31 Pa. St. 279; Washabaugh v. in former ejectments, iii favor of the Entriken, 34 Pa. St. 74; Crawford v. title under which A. claims, his pos- Neff, 3 Gr. 175 ; White v. Kyle, 1 S. session for less than twenty-one & li. 515 ; Hockenbury v. Snyder, 2 years, will pot bar the title of the ,G 98 LAW OF LIMITATIONS. However protracted short of twenty-one years, it will be inadequate to defeat tlie title of tlie former owner.' Thua, a possession of nineteen years and four months/ or of twenty years and eleven months/ is too brief When the owner's ejectment was brought on 2d September, 1854, the adverse possession must have begun as early as 2d Septejnber, 1833, to defeat it.* The Adverse Possession must be Uninterrupted. § 74. The adverse possession must continue twenty-one years, or such longer time as the existence of disabilities may, under the statute, require. And all the phenomena whose existence is required to make a title by limitation, must endure for that period. Thus, the possession itself must endure for twenty-one years without interruption.* other party to these ejectments in a third action. White v. Kyle, 1 S. & E.. 515. The owner's delay to sue for a long period less than twenty-one years, will not entitle the adverse holder to compensation for improve- ments made by him, by conditioning the verdict and judgment. Collins V. Rush, 7 S. & R. 147. , 'Nothing more than twenty- one years' adverse possession, where there are no disabilities, is required. Crawford v. NefiF, 3 Gr. 175. ^Graffius V. Tottenham, 1 W. & S. 488. "Coulter V. Philips, 20 Pa. St. 164. The jury must, in all cases of dis- pute, determine when the adverse possession began, in order to de- termine whether it has continued the necessary time. Miles v. Miles, 8 W. & S. 185. * Martin v. Jackson, 27 Pa. St. 504. So, when the ejectment began 23d February, 1852, the adverse pos- session must ^ have gone back as far as 23d February, 1831. Olwine v. Holman, 23 Pa. St. 279. Ejectment, 24th July, 1860; possession must have begun 24th July, 1839. Maul V. Rider, 51 Pa. St. 377. In Aitkin's Heirs v. Young, 12 Pa. St. 15, the charge of the court assumed that the suit being brought 13th March, 1848, the adverse possession must have be- gun on or before 12th March, 1827. — Possession becoming adverse on 24th April, 1851, an ejectment begun 22d April, 1872, was in time. Cad- walader v. App, 81 Pa. St. 194 ; App V. Cadwalader, 5 W. N. C. 137. ^Bunting v. Young, 5 W. & S. 188; Collins V. Benedict, 5 Luz. Leg. Reg. 109 ; Id., 5 W. N. C. 549 ; Kille v. Ege, 79 Pa. St. 15. When a settler on land adjoining an appropriated tract marks his lines over this tract, but, while immediately taking actual pos- session beyond it, postpones making pedal occupancy within the interfer- ence, the adverse possession of the in- terference begins only with the sub- sequent commencement within it, of the clearing, cultivation or residence. Altemus v. Trimble, 9 Pa. St. 232. LIMITATIONS AS TO LAND. 99 Detached and interrupted possessions, none of which lasts twenty-one years, cannot be added together, and because making an aggregate possession of twenty-one, destroy the. title of the owner/ The length of the interruption is im- material. However long or however short, it will destroy the virtue of the preceding possession. Thus, an interval of two years,^ of one year,^ of a few months,* of a single day,'^ nay, of an instant,^ or" for any length of time, would be fatal.' It follows that from the category of the posses- sion by which title is made by the statute, must be excluded a mere series of entries on the land, however closely on each other they follow, though they are made in pursuance of a continuous claim of the land,** and for the purpose of using the land as only ownership would authorize it to be used.* Thus, the continuous use of the land as a timber-lot for the supply of a saw-mill,'" or as a wood-lot for iron works," the annual use, during the season, of the land as a sugar camp for tapping trees and boiling sugar,^^ transient entries to dig ' Sailor v. Hertzog, 4 Wh. 259. of title by adverse possession. Hock- » Shaffer v. Eakman, 56 Pa. St. ,144. enbury v. Snyder, 2 W. & S. 240. ^Groft V. Weakland, 34 Pa. St. 279; ^This claim may be evidenced by De Haven v. Latadell, 31 Pa. St. 120. the assessment of the taxes for the 'Susquehanna &c. R. K. Co. v. period of twenty-one years to the Quick, 68 Pa. St. 189. claimant,'and his payment of them. 'Brolasky v. McClain, 61 Pa. St. Hole v. Kittenhouse, 25 Pa. St. 491"; 146 ; Susquehanna &c. R. R. Co. v. Murphy v. Springer, 1 Gr. 73. Quick, 68 Pa. St. 189; 01 wine i). Hoi- 'Hole v. Ritt,enhouse, 25 Pa. St. man, 23 Pa. St. 279. ' 491 ; Id., 37 Pa. St. 116. ^ Clark V. Dougan, 12 Pa. St. 87. '"Hole v. Rittenhouse,' 25 Pa.. St. 'Shaffer v. Eakman, 56 Pa. St. 144; 491; Sorber v. Willing, 10 W. 141 ; Schuylkill and Dauphin Improve- Hole v. Rittenhouse, 37 Pa. St. 116 ; ment Co. v. iVIcCreary, 58 Pa. St. 304. Potts v. Gilbert, 3 Wash. C. C. Rep. If the inti;uder in possession is driven 475. off by a 'wrong-doer by violence, and "Hole «., Rittenhouse, 25 Pa. St. takes immediate steps to recover the 491 ; Wright v. Guier, 9 W. 172 ; possession, or if he is induced by Burke v. Hammond, 76 Pa. St. 172 ; fraud to surrender the possession, Kille i). Bge, 79 Pa. St. 15. Hole v. the party exercising the violence or Rittenhouse, 37 Pa. St. 116. fraud cannot take advantage of this '* Adams v. Robinson, 6 Pa. St. 271 ; interruptiop of possession for the .Hole v. Rittenhouse, 25 Pa. St. 491; purpose of rebutting his acquisition Washabaugh v. Entriken, 34 Pa. St. 100 LAW OF LIMITATIONS, ore,^ or to quarry stone,'' or to extract coal, whether for one's own family consumption or for sale to the neighbors,' or to cut timber for firewood, or for fencing an adjacent tract,* will not constitute a continuous possession.* So, the use of a spot for a privy for seventeen years, and (the privy being then demolished), as a dung-heap in connection with an ad- jacent stable for the remaining four or five years, will not give title to it, because the latter use is not a continuous possession.^ If a house is put on land for the shelter of those who, during the summer, herd cattle in it, but during the winter the possession is abandoned, the annual repetition of this possession and abandonment for twenty-one years would not give a title by limitation.' If a settler is ousted by a wrong-doer forcibly, and, on bringing indictment for forcible entry and detainer, is, as soon as the case can be decided, restored to the possession, this subsequent possession would be tacked to his previous possession. The same would happen if the possession was broken by fraud, so far, at least, that the perpetrator of the fraud could not set up the interruption.' But one intruder's possession of a tract 74 ; Ewing v. Alcorn, 40 Pa. St. 492 ; of limitations had been interrupted, Bole V. Kittenhouse, 37 Pa. St. 116. there being no evidence that her ' King V. Baker, 29 Pa. St. 200 ; husband.had taken possession under Shoenberger v. Baker, 22 Pa. St. 398. a lease from this claimant, and her ' Susquehanna County v. Deans, 33 declaration not being offered to afifect Ta. St. 131. his rights. Susquehanna &c. R. R. 'Armstrong v.- Caldwell, 53 Pa. St. Co. v. Quick, 68 Pa. St. 189. ■284; Burke v. Hammond, 76 Pa. St. 'Shroder v. Breneman, 21 Pa. St. 172. 225. This case is doubted in Hole «. * Murphy v. Springer, 1 Gr. 73; Rittenhouse, 25 Pa. St. 491. Ewing V. Alcorn, 40 Pa. St. 492 ; ' Wheeler v. Winn, 53 Pa. St. 122. Adams v. Robinson, 6 Pa. St. 271 ; ' Hockenbury v. Snyder, 2 W. & S. Sorber v. Willing, 10 W. 141. 240. But if the person thus cajoled 'The declaration of a married into a surrender of possession should woman, while in possession, that at see him who thus acquired it, sell a certain time she went into pos- to another having no knowledge of session, finding the premises vacant, the fraud, he would probably be will be admissible evidence that at estopped from alleging the fraud,- that time the previous possession of unless he gave notice of it at the the person claiming by the statute purchase.— When A. is in adverse LIMITATIONS AS TO LAND. 101 by pedal occjipancy of a part of it, may, as to another part, be interrupted by another intruder, and the latter, if he continues in possession twenty-one years, would acquire a right, both as against the real owner and the first intruder, to the part occupied by him.^ Adverseness must be Uninterrupted. § 75. As the possession must be continuous, so must its necessary qualities. Its adverseness must be continuous." Should the intruder, after occupying the land for fifteen years,* or any other time,* acknowledge and submit to the real owner for however short a time, he will lose all advan- tage from his previous possession. So, should the tenant of the adverse claimant, under stress of a habere facias pos- sessionem, attorn to the true owner, his possession thereby be- coming that of the latter, and ceasing to be that of the former, the former would gain no advantage from this possession, though in a year and a half he should resume the occupancy adversely.^ An attornment to the true owner by a tenant, or by one holding to the adverse claimant an analogous rela- tion, on account of a threat to bring suit, will terminate the hostile possession.* Uninterrupted Inclosure. § 76. If the possession is constituted by inclosure with possession of an undivided third, * Sailor v, Hertzog, 4 Wh. 259; and another co-tenant executes a Olwine ti. Holman, 23 Pa. St. 279; mortgage of the whole, under which Bead v. Thompson, 5 Pa. St. 327 ; a sheriflf's sale takes place, the pos- Calhoun v. Cook, 9 Pa. St. 226; Shaf- session of the whole taken by the fer v. Lowry, 25 Pa. St. 252. purchaser will not be supposed to "Groft i;. Weakland, 34 Pa,. St. 304; be a continuance as to the one-third Schuylkill and Dauphin Improve- of A.'s possession, unless there is ment Co. v. McCreary, 58 Pa. St. 304. affirmative evidence that he also 'Shaffer v. Lowryy 25 Pa. St. 252.. entered under a contract of some Thus, the widow of the intruder con- sort with A. Moore v. CoUishaw, tinuing in possession, may, on threat 10 Pa. St. 224. of suit which she could not resist, 'Collins V. Benedict, 5 Luz. Leg. attorn, and so prevent the future Eeg. 109; Id., 5 W. N. C. 549. possession from inuring to the ad- ' Criswell v. Altemus, 7 W. 575. vantage of the children in the ma- • Id. ■ turing of a title. 102 LAW OF LIMITATIONS. claim of title and occasional use, this incjosure must continue for the limitary period. If the fence protecting a tract from intrusion from the highway be allowed to gradually disap- pear, and an interval should elapse before a new fence is put up, it would be necessary that this latter fence should endure twenty-one years to make a title.^ When the occu- pation is by inclosure, it behooves the occupant to keep up the fences or building, and prevent the place from becoming yacant, or the ground from being turned into a common.* Hence, if, for three years, the fences are down in places," the fields exposed, and cultivation is suspended, the previous and subsequent periods of inclosure and the possession held by means of it, are disconnected. If neither of these periods of inclosure is twenty-one years old, the true title is not lost under the statute of limitations.^ When a city or town lot used for pasture, is claimed by adverse possession, it must be fenced, the fence must be kept up at all times, as well during the season when not actually used for pasture, as when so occupied, and the taxes must be paid upon it. If the fences are broken down they must be restored so - -speedily 'that no interruption of the occupancy occurs.* Uninterrupted Cultivation. § 77. As the possession might be by cultivation, the cessation of such cultivation for more than the customary time, deter- mined by the recurrence of the seasons inimical to agricultural operations, or by the usages of good husbandry with regard to the giving of rest to the soil, that is, for so long a time as to 'Lundt). Brown, 14 W.N. C. 489. of no use to the intruder claiming ' Stephens v. Leach, 19 Pa. St. 262 ; by limitation when the possession is Lund D. Brown, 14 W. N. C. 489 ; De intermitted. Id.; Susquehanna &c. Haven v. Landell', §1 Pa. St. 120. R. R. Co. v. Quick, 68 Pa. St. 189. 'Stephens v. Leach, 19 Pa. St. 262. «De Haven v. Landell, 31 Pa. St. The law of title by limitation differs 120. It is not necessary that the lot from that of title by improvement, held adversely, for pasture, should The improver might give up the .be divided by a fence from the adju- possession for some time, if the ani- centproperty of the person whoholds mus revertendi existed, without losing it. He may include it with this ad- his right. The animus revertendi is jacent property in a common fence. LIMITATIONS AS TO LAND. 103 ■warrant the owner to believe that the person formerly culti- yating has withdrawn from the claim and use of the land, will stop the running of the statute. If the fields have been in- closed, and along with the total suspension of tillage for three years the fences are allowed to go down for that time, this will still more emphatically indicate the abandonment of the possession.^ But it is not necessary that there should be cultivation every year, for good husbandry requires that the soil should have occasional annual rests.*^ N^r is it neces- sary that there should be cultivation except ia such seasops of the year as are suitable to that industry.* Uninterrupted Residence. § 78. If possession is had by residence, the residence must be maintained for twenty-one years for the purpose of making title. Every cessation of the actual occupancy of the house and land will not destroy the continuity of the possession. A tenant may move off unexpectedly, and it may be some time before another can be procured. If proper diligence is used in replacing the abandoned residence of the tenant by another or by the person adversely claiming the land himself, the running of the statute will not be interrupted.* In such a case, though no one is actually on * Stephens v. Leach, 19 Fa. St. 262. Co., 35 Pa. St. 191 ; Sailor v. Hertzog, Baising a crop of corn one or two 4 Wh. 259. A man does not discon- years, in a canal-bed, and 'grazing tinue his possession by locking up a cow on it at other times, will not his house in town, if he doe's Hot make title by limitation. Union suffer it to be thrown open. Ste- Canal Co. v. Young, 1 Wh. 410. phens v. Leach, 19 Pa. St. 262. An 'Schall V. Williams Valley R. E. interval between the occupancy by Co., 35 Pa. St. 191. To suspend the one tenant and that by another, of a cultivation does npt discontinue the town house and lot does not break possession, provided the fields are the possession, the real owner hav- - not suffered to be thrown open, ing none, so as to destroy the efficacy Stephens v. Leach, 19 Pfi. St. 262; , of the possession of the house for Susquehanna &c. K. K. Co. v. Quiok, Kiaking title to two and one-half feet 68 Pa. St. 189. of its width, to which extent it is 'Cunningham v. Patton, 6 Pa. St. over the line dividing the adjacent 355. lots. Mackentile v. Savoy, 17 S. & * Schall V. Williams Valley R. R. R. 104. In order to break the con- 104 I/AW OF LIMITATIONS. the premises, the house is there, and if it is kept in such condition as to suggest, and there are other indicia on the premises which show, that the actual possession has not been abandoned, the continuity of the possession might be found by the jury despite the interruption of the residence.' Among such indicia, besides the fact that the house remains there, and the cleared land, and the coincidence of the vacancy of the premises with the winter when the farmer does not bestow his labor on the soil,^ may be the circum- stance of cattle left grazing in the fields, crops left in the ground, and large improvements.^ While, therefore, it would be error to instruct a jury that " a vacancy in the possession caused by a tenant's going out for a few months before another tenant comes in, does not break the con- tinuity of the possession," it would be permissible to tell them that such a suspension of residence is not inconsistent with a continuity of possession. As there are several modes of possession, the cessation of on^ of these modes is not a cessation of the possession, if it continues in some other modes.* But even when the pedal occupancy of a tract tinuity of the possession of a house which there is a house and cleared and yard, occupied by tenants, the fields, leaves with his family in De- vacancy must be otherwise than cember to earn, at a factory, enough accidental. It must not be merely to buy a horse with which to carry incident to a change of tenants, or on the farming, and returns in April, for want of a tenant. If, however, he having meanwhile the purpose to there is an abandonment for any resume the residence, and never in- time, or if one disconnected with tending to intermit his possession, the previous holder, takes the pos- will not be an interruption of the session, the continuity is broken, possession. Cunningham v. Patton, Thompson v. Kauffelt, 17 W. N. 0. , 6 Pa. St. 355. 257. 'Susquehanna &c. Ei E. Co. v. ' Susquehanna &c. E. E. Co. v. Quick, 68 Pa. St. 189. Quick, 68 Pa. St. 189 ; Cunningham * Susquehanna &c. E. E. Co. v. V. Patton, 6 Pa. St. 355. Quick, 68 Pa. St. 189. An iuterrup- ' Cunningham v. Patton, 6 Pa. St. tion of possession is as fatal when 355 ; Susquehanna &c. E. E. Co. v. the adverse claimant has on record Quick, 68 Pa. St. 189. The circum- a deed from his predecessor in the stance that the occupant of land on adverse holding as when he has not. LIMITATIONS AS TO LAND. 105 beyond its interference witli a senior survey, was held, in the absence of any actual possession of this survey by its owner, to give possession to the whole of the tract, including the interference, it was held that an entry by its owner on the senior tract beyond the interference, hot only interrupted this possession as to all of it not then covered by the inclosures and cultivation of the intruder, but deprived the latter of the right to tack his constructive possession of the site of his improvements before they were begun, to his possession of that site during and after the making of the improve- ments. ; Unless they had lasted twenty-one years when the senior owner entered, he could gain no title even to their site.* Uninterrupted as to Sxtent. § 79. It is elsewhei;e seen that while in general there must be residence, or cultivation or inclosure somewhere within the area claimed by adverse possession, yet that the possession so acquired is not limited to the part covered by the house, garden, field or inclosure, when a larger, quantity of land with defined boundaries is claimed, but is considered as extending to the lines up to which the intruder regards himself as holding, and shows that he regards himself as holding, by appropriate declarations and acts. But title can be made to only so much as is continuously claimed for twenty-one years.^ If the lines should be changed so as, retaining all the land claimed at the beginning of. the twenty-one years' possession, to embrace more, title to the excess could not be made.^ If the lines should be changed 'Altemus v. Long, 4 Pa. St. 254. so as to exclude marauding cattle, Where the possessor leaves the prem- though not under immediate culti- ises, his intention to return, oritself, vation, and facts of a like character, will not avail to continue his posses- Burke v. Hammond, 76 Pa. St. 172. eion ; there must be some indication ' Hockenbury v. Snyder, 2 W. & 8. left in or upon the property which will 240. ' give notice of such intent. Among ' Barnhart v. Pettit, 22 Pa. St. 135 ; such indications are buildings kept in Bishop «. Lee, 3 Pa. St. 214; ,Sheik a good state of r'epair, though not oc- v. McElroy, 20 Pa. St. 25 ; McGin- cupied, and fields properly fenced, ness v. Sawyer, 63 Pa. St. 259. It i» l06 LAW OF LIMITATIONS. SO as to exclude a portion of tlie land originally claimed, title would not be made to this excluded portion. So, if," entering on a tract of 300 acres belonging to another with marked lines, the intruder should originally claim all the tract, but should subsequently, without marking new lines, cause or permit himself to be assessed for 200 acres, or other quantity less than 300, he would be regarded as abandoning the lines of the tract and not marking other lines within them by which his claim could be defined, his possession for the twenty-one years would be regarded as confined to what he had, for that period, culti- vated or inclosed.^ The possession which is imputed to the woodland and other uncultivated or uninclosed portions of a tract, by a clearing and cultivation into it, from the adjjoining tract, with claim of the whole,: ceases on the ces- sation of this clearing and cultivation, and if it has not endured twenty-one years, no title is acquired.*^ Since when a tract with definite boundaries is claimed, a clearing and cultivation or residence anywhere within it will be posses- sion of all of it, even of such parts as are not cultivated or inclosed, it is not necessary that there should be contiguous cultivation or iiiclosure of the same spot, nor residence on the same site, for twenty-one years. One part of the sur- face might be cultivated for a time and another part another not eiaough to show that the person the tract. In less than that time in possession has, at the time of trial title only to the inclosures and cul- of the ejectment, so much land in tivated ^elds, no lines being marked, his possession. He must show that would be made. Farley v. Lenox, his possession of that quantity has 8 8. c& R. 392. So, to make a title continued back twenty-one years be- beyond the area of the pedis possessio forethecommencementoftheaction. it must appear that the lines up to Barnhart ii. Pettit, 22 Pa. St. 135. which the possession is claimed were If possession begins without color drawn twenty-one years before suit, of title to give definiteness , to the Schrack v. Zubler, 34 Pa. St. 38; boundaries, but some years after- Wood v. Figard, 28 Pa. St. 403; wards a title is bought in, which Crum v. Burke, 25 Pa. St. 377. defines the boundarief, it would re- 'Clarke v. Dougan, 12 Pa. St. 87. quire possession for twenty-one years ^ Washabaugh v. Entriken, 34 Pa. after this purchase to make title to St. 74. LIMITATIONS AS TO LAND. 107 time, or the site of the residence might be shifted, the house being transferred from one spot to another, of one house being destroyed or removed from the tract, another might be put on it at another place. If no interval of time occur, the occur- rence of an interval in space does not break the continuity of the possession. But when, from the absence of a color of title, or a designation of the boundaries of the land claimed, the intruder acquires only a pedis possessio, i. e. when his possession does not extend beyond his inelosures and fields, any shifting of the position of these, whenever it results that the same spot is not covered by them for twenty-one years, will be fatal to the acquisition of title by limitation. Such title can, in the case indicated, be acquired only to such surface as for twenty-one years has been culti- vated or inclosed.^ So, if, to the area inclosed and cultivated, at the beginning of and throughout the period of twenty- one years, successive increments should be made, so that it grows from twenty acres when that period began to 120 acres' when the action was brought, title will be acquired only to the twenty acres, if owing to want of designation of boundaries, or claim up to them by the- payment of taxes, only a, pedis possessio is available to the intruder.^ ' Potts V. Gilbert, 3 Wash. 0. C. Rep. the boundaries of the second intruder 475 ; Hole v. Kittenhouse, 25 Pa. St. would give him an available posses- 491. sion by means of his improvements ^ Bishop V. Lee, 3 Pa. St. 214. Here within it, up to the lines, as against the person in possession blazed his the previous intruder. Huey v. lines but caused no taxes to be Smith, 3 Pa. S,t. 353; Hoey v. Pur- assessed against him. On that ao- man, 1 Pa. St. 295. But when the count he was held confined to his first occupant has procured a war- jpedis possessio. The decision is ques- rant and survey, which trenches on tioned in Hole v. Rittenhouse, 25 Pa. an older survey, a, second intrusion St. 491. The adverse possession may, within the interference will interrupt as to the area covered by it, be re- the possession of the first occupant duced by a subsequent intrusion of only as to what is covered by inclos- another person without title. If the ures and improvements. Though first has not marked'his boundaries, the second intruder. should procure 108 LAW OF LIMITATIONS. Possession Interrupted by Action. ' § 80. The person who has had residence, inclosure or cul- tivation on a tract, may, of choice, cease to maintain them, and so terminate the possession ; or he may, by excluding a portion of the area originally circumscribed by his lines, withdiraw from the occupancy of a part, while that of the rest abides. So, though his physical occupancy continues as before, his animus of hostility may be abandoned. He or his tenant may attorn to the owner, whereupon the adverse- ness of the possession would cease.^ The bringing of an ejectment,^ trespass quare clausum fregit^ or other action, will, so far as the adverse possession can avail in that action, terminate it. If this possession has not then endured the necessary period, it will be useless. But if, after the eject- ment is brought, land not embraced in the original prcecipe is made the subject-matter of the litigation by substitution of a new description for that in the prcecipe and the writ,* or by the addition of a new tract,® or if, it being discovered that a fractional interest in the land described is in a person not made plaintiff, the name of such person is added,^ the possession of the defendant will be counted, as to the land or interests introduced by the amendment, down to the date of the amendment. As to the land or interests originally a patent for the older survey, with- right of the occupant will not stop out title from the original warrantee, it. Okeson v. Patterson , 29 Pa. St. 22. this, while defining his claim, will " Leeds ti. Lockwood, 84 Pa. St. 70 ; not extend his possession beyond his Miller v. Bealer, 100 Pa. St. 583 ; pedal occupancy, as against the ear- Pederick v. Searle, 5 S. & R. 286. lier occupant, whose right, as earlier, 'Shroder v. Breneman, 21 Pa. St. is superior, both being destitute of 225; Greenr. Kellum, 23 Pa. St. 254; other title than possession under Lund v. Brown, 14 W. N. C. 489; color of right. Smith y. Steele, 17 Darlington v. Painter, 7 Pa. St. 473. Pa. St.- 30. * Leeds v. Lockwood, 84 Pa. St. 70. • Groft V. Weakland, 34 Pa. St. 304. » Miller v. Bealer, 100 Pa. St. 583. The statute of limitations runs, so * Kaul v. Lawrence, 73 Pa. St. 410 ; long as the adverse possession lasts, Kille v. Ege, 82 Pa. St. 102 ; Leeds v. until entry or action. Protestations Lockwood, 84 Pa. St. 70. of the owner and his denials of the LIMITATIONS AS TO ITAND. 109 properly sued for, the adverse possession terminates with the suing out of the writ.^ Interruption by Former Action. § 81. In a second ejectment the possession of the intruder, against whom the first action was brought, will not be con- sidered as terminating with the inception of that action, unless it is prosecuted to judgment against the defendant therfein. An ejectment simply begun by service of the writ, but not carried further,'' or ending in a voluntary' or an involuntary non-suit,* or probably in a verdict on which no judgment was, entered, would not interrupt the possession, so far as use of it might be attempted in a second ejectment. So, under the former rules which governed actions of ejectment, if having recovered a judgment, the plaintiff allowed the term laid in his declaration to expire without taking possession by habere facias or otherwise, the defendant's possession pending the first ejectment would be tacked to that which preceded it, for the purpose of making him a title by which he might defend a second ejectment by the owner.' At present, if a judgment is recovered, whether on confession or on a verdict, the possession of the defendant between the inception of the ejectment and the entry of this judgment 'Miller v. Bealer, 100 Pa. St. 583; possession, should appear and defend Kaul D. Lawrence, 73 Pa. St. 410. , the suit by counsel; A. would be ' Groft D. Weakland, 34 Pa. St. 304. bound by the judgment recovered The first ejectment relied upon as by the plaintiff. In other cases, an having interrupted the possession, ejectment against one not in posses- must have been against the same sion, could not affect him who was party as the second, or one in in .possession. Susquehanna &c. R. privity with him. An ^ ejectment E. Co. ■!). Quick, 68 Pa. St. 189. An against one of several heirs of the ejectment against a husband could disseizor, who have made partition not affect his wife who remains in of the land and entered into a sev- possession pending it and afterwards, eral possession of their purparts, Collins v. Benedict, 5 W. N. C. 549. cannot interrupt the possession of ' Burrell v. Little, 1 Pittsb. 287. the others, with respect to their pur- * Workman v. Guthrie, 29 Pa. St. parts. Lawrence v. Hunter, 9 W. 64. 495. If, the earlier ejectment being against ^Pederick v. Searle, 5 S. & R. 286. B., not in possession, A., who is in 110 LAW OF LIMITATIONS. will probably be valueless in any future action, so far as the making of title by limitation is concerned, even thougb pos- session was not actually taken in pursuance of it.^ A fortiori will the possession retained during an earlier ejectment which ends in a judgment against the intruder, and his dispossession . by means of a habere facias, not contribute towards making a title on which he may regain possession in a second eject- ment.^ The same effect follows the attorning of the party in possession, when threatened with eviction under a habere facias.^ It scarcely needs to be stated that if an ejectment ends in a judgment for the defendant, he may, in a second ejectment, defend by means of the continuance of his pos- 'Brolasky v. McClain, 61 Pa. St. 146 ; Collins v. Benedict, 5 Luz. Leg. Reg. 109 ; <•/. S. C, 5 W. N. C. 549. An opinion on this question was de- clined in Weaver v. Wible, 72 Pa. St.- 469. But in Workman v. Curran, 89 Pa. St. 226, it was decided that, A. having brought trespass quare clau- sum /regit against B. for using a way over his land, in the assertion of a right of way, and recovered judg- ment, which was affirmed in the Supreme Court, B. could not, in a subsequent action against A. for obstructing the way, make a title to the right of way by any user prior to the judgment of affirmance in the Supreme Court, sufficient time to make an easement not having elapsed ' between the recovery of that judgment and the bringing of the second action. In Farley v. Lenox, 8 S. & R. 392, the owner had recovered in ejectment and issued a habere facias which was never exe- cuted. A second ejectment was iifteen years afterwards brought by him, and the defendant successfully defended as to his inclosures and fields by means of the possession begun before and maintained dur- ,ing and after the first. ejectment. ^Bannon v. Brandon, 34 Pa. St. 263; Brandon 7). Bannon, 38 Pa. St. 63 ; Susquehanna &c. Coal Co. v. Quick, 61 Pa. St. 328; Id., 68 Pa. St. 189. Of -course, the possession pend- ing the action will not be added to that which precedes it, nor other- wise considered to defeat a recovery by the owner in that action, {hough it might endure more than twenty- one years, and the intruder remain in possession throughout it.— To a scire facias quare exeautio non, on a judgment in ejectment, it is no de- fence that the possession prior to the action, added to that pending the action till judgment, and to that since the judgment, has lasted twenty-one years. The judgment recovered 1850, and affirmed in 1856, in the Supreme Court, could be re- vived by sci. fa. issued 1865, tried 1868, and in the Supreme Court in 1870, despite the fact that the ad- verse possession began in 1847. Weaver v. Wible, 72 Pa. St. 469. 'Groft V. Weakland, 34 Pa. St. 804. LIMITATIONS AS TO LAND. Ill session, from before, during and after the first action.' If, in this second ejectment, the plaintiff should recover aind gain, the possession, the defendant may institute a third action and recover by means of the title by limitation made by his possession before, during and after the first ejectment.^ By Whom the Adverse Possession Maintained. § 82. The ' adverse claimant of land may, by personal possession of it, or by possession by means of a succession of tenants,* gain a title by the statute of limitations. It is unnecessary that there should be any privity between the successive tenants. It is enough if they enter into posses- sion under the skme landlord, or under successive landlords who are in privity with each other.* The person cohtem- * >^McGinniss v. Sawyer, 63 Pa. St, 259 ; Lawrence v. Hunter, 9 W. 64. 'McGinniss v. Sawyer, 63 Pa. St. 259. So, if in a first ejectment the owner should recover against one in possession, despite his being entitled by limitation, the latter may recover in a second ejectment by means of the statute. Carlisle v. Stitler, 1 P. & W. 6 ; Mercer v. Watson, 1 W. 330. Though the possession of the defend- ant in an ejectment pending the action which results in his disposses- sion Tby a habere facias possessionem, will not avail him for the making of a title by limitation, it does not fol- low that the plaintiff therein will be considered as having possession prior to the actual possession ob- tained by the habere. If in a subse- quent ejectment against him he should seek to make a title by lim- itation, he will fail unless twenty-one years of possession subsequent to the habere can be shown. He cannot re- late that possession back to the incep- tion of the ejectiflent in which he recovered; stilLless back tothe date of the demise laid in his declaration therein; and still less back to the commencement of an earlier eject- ment by him, oi the date of the demise laid therein, which ejectment abated by the death of the defend- ant. Mercer v. Watson, 1 W. 830. 'Thompson v. Kaufifelt, 17 W.,N. C. 267 ; Susquehanna &o. Coal Co. v. Quick, 61 Pa. St. 328; Collins v. Benvedict, 5 W. N.C. 549; Id., 5 Luz. Leg. Eeg. 109 ; Sailor v. Hertzog, 4 Wh. 259 ; Malson v. Fry, 1 W. 433 ; Kankin v. Tenbrook, 5 W, ,386 ; Id., 6 W. 388 ; Jones v. Porter, 3 P. & W. 132; Sheaffer v. Eakman, 56 Pa. St. 144; McCoy ■;;. Trustees of Dickin- son College, 5 S. & R. 254. *Thpmpson v. Kauffelt, 17 W. N. C. 257. Between a life-tenant and the remainderman, under a will, there is no other privity than be- tween successive tenants under the same landlord. But the possession of the life-tenant will be added to that of the devisor for the purpose of completing the title by the stat- ute of limitations in favor of> the 'remainderman as well as of the life- tenant. Wallace v. Fourth Presby- 112 LAW OF. LIMITATIONS. plating the acquisition of a title by limitation, may contract with another to enter and keep the possession for twenty-* one years, and, after that time shall have expired, to divide the land between them in equal parts, and thus both may gain the title/ He may engage an adjacent owner to watch over the tract and pay the taxes, in consideration that the latter shall have the privilege of tilling a part of it, and so expropriate the true owner .^ The tenant dying in possession leaving children who continue thereon, their possession will be that of the person under whom their father entered, and will contribute to the making for him of a title by limita- tion.^ If the tenant holds over, after the expiration of his lease, his continued occupancy inures to the benefit of his lessor, whether he pays rent or not.* Declarations of the person in possession, while in possession, that he holds terian Church, 111 Pa. St. 164. If, after A. has been in possession un- der a parol exchange, the holder of the legal title makes a lease to a third person for a year, who goes into possession jointly with A., this will not interrupt A.'s possession, the lease being ntade at A.'s instance, to give color to his contention in a suit by his wife for alimony, that the land was not his. Miles v.. Miles, 8 W. & S. 135. ' Black V. Moore, 1 Pa. St. 344. 'Bead v. Thompson, 5 Pa. St. 827. The Commonwealth may employ an agent to take possession of certain of its lots in Erie, for the purpose of a sale. If he mistakenly takes a lot of another and incloses it, and three years afterwards sells it, his possession, as agent, will redound to the benefit of the Co^nmonwealth. The Commonwealth's possession will be added to that of the vendee, for the purpose of making title by lim- itation. Parker v. Southwick, 6 W. S77. ' St. Clair v. Shale, 20 Pa. St. 105. A.- having married a second time, his iirst wife being alive and undi- vorced, died, leaving the unlawful wife and his children by her in pos- session. She caused guardians to be appointed for them, who leased the land for some time. Subsequently remarrying, her husband joined her in the possession. Her possession and his were a continuation of the possession of the children, and in twenty-one years made a title for them, as against A.'s heirs, and also as against the widow and her second husband. The mother, it is said, must noi» be allowed, beginning the possession consonantly with the chil- dren's presumptive ownership, after- wards to change it into one adverse to them and for her own benefit, or that of her second husband. Beedy V. Dine, 31 Pa. St. 13. 'Schuylkill and Dauphin Improve- ment Co. V. MoCreary, 58 Pa. St. 304. LIMITATIONS AS TO LAND. 113 mediately or immediately under X. as his landlord, are admissible for X. to make for him a title by limitation against the real owner, or some other claimant, through adverse possession,' but declarations of such a person that he , is not X.'s tenant, but claims for himself, cannot be shown by the "real owner, for the purpose of proving an interruption in X.'s possession, the declarant being alive and susceptible of being called as a witness, and it not distinctly appearing whether the declarations were made while he was in posses- sion or afterwards.^ Tacking Possession. § 83. The possession which in twenty-one years will make a title under the statute of limitations, must be uninterrupted and continiious. But, though there should be constant pos- session by means of a succession of trespassers, each of whom entered immediately upon the vacation of the premises by his predecessor, but without privity with him, none of these tres- passers remaining in possession less than twenty-one years would acquire title.^ If, however, there is privity between the successive occupants of the land and their immediate successor, the latter gains the right to take advantage of all the possessions of his predecessors as well as of his own, for the purpose of defeating, in his favor, the title of the true owner. If, added to the possession of his predecessors, his own inakes ah unbroken occupancy for twenty-one years, hfe 'Sheaffer v. Eakman, 56 Pa. St. title for the remainderman. Wal- 144; Brolasky v. McClain, 61 Pa. St. lace v. Fourth Presbyterian Church, 146; Eankin v. Tenbrook, 6 W. 388. " 111 Pa. St. 164. The continuity of ' Rankin v. Tenbrook, 6 W. 388. the adverse possession may be re- ' Graffius i;. Tottenham, 1 W. ■& S. futed by showing an ejectment 488; Overfield v. Christie, 7 S. & R. against another than the person 173; Sailor v. Hertzog, 4 Wh. 258; claiming adversely, and a recovery Moore v. CoUishaw, 10 Pa. St. 224; against him, less than twenty-one Wallace v. Fourth Presbyterian years before the ejectment in which Church, 111 Pa. St. 164. The pos- the statute is set up as a defense, session of a devisee for life will be , Pipher v. Lodge, 16 S. & R. 214. added to that of a devisor to make H 114 LAW OF LIMITATIONS. gains a title. This privity exists when the successor in pos- session has taken it under a devise,^ or by descent,'' from the predecessor. A widow, with the children of her deceased husband, may, by remaining on the premises, continue hia adverse possession for herself and the heirs.* As possession is, as against all but the true owner, a title, this title and the possession may be transferred to another.* The occupant may convey the land, thus giving the possession of it to the gran- tee and empowering him to add his possession to that of hia 'Peppard v. Deal, 9 Pa. St. 140; Grafflua v. Tottenham, 1 W. & S. 488 ; Wallace v. Fourth Presbyterian Church, 111 Pa. St. 164. 'Malson v. Fry, 1 W. 433; Law- rence V. Hunter, 9 W. 64; Watson v. Gregg, 10 W. 289; Royer v. Benslow, 10 S. & R. 303 ; Munshower v. Pat- ton, 10 S. & R. 384; Grafflus v. Tot- tenham, 1 W. & S. 488 ; Bradford v. Guthrie, 3 Pittab. 213; Id., 4 Brewst. 351 ; Overfield v. Christie, 7 S. & R. 173; Sailor v. Hertzog, 4 Wh. 259. ' St. Clair v. Shale, 20 Pa. St. 105 ; Id., 9 Pa. St. 252; Shaffer v. Lowry, 26 Pa. St. 252; McMasters v. Bell, 2 P. & W. 180 ; Cook v. Nicholas, 2 W. & S. 27; Yoder v. Yoder, 18 Pa. St. 471. A. dying in adverse pos- flession, his widow remained in pos- session till her death, when one of A.'s sons entered. He subsequently conveyed the whole land. The pos- session of his grantee would con- tinue the previous possessions and in time make a title for himself, and for A.'s other children, his tenants in common. Graiiius v. Tottenham, 1 W. & S. 488. Generally, if on the death of the person in adverse pos- session, one of his children remains in possession, this possession will be tacked to that of the decedent for* the benefit of all the children, in the absence of a clear ouster of the latter. Watson d. Gregg, 19 W. 289; Grafflus v. Tottenham, 1 W. & S. 488 ; Miller v. Miller, 60 Pa. St. 16. If the widow of the settler on vacant land sells it without authority to A., who takes and keeps adverse pos- session for thirteen years, when he dies, and shortly afterwards hi& widow marries B., who goes on the land, B. is not precluded from recog- nizing the better title of the heir of the original settler by buying it in. If he buys it, his or his grantee's- subsequent possession will be con- sidered as being not in pursuance of the right of A., but in pursuance of the true title. The title by limitation cannot be completed by means of it. Yoder v. Yoder, 18 Pa. St. 471. * Mercer v. Watson, 1 W. 330; Overfield v. Christie, 7 S. & R. 177 ; Miller v. Shaw, 7 S. & R. 129; Leiiox V. Farley, 8 S. & R. 392 ; Schrack «. Zubler,34 Pa. St. 38. The opinion of Judge Washington, in Potts v. Gilbert, 3 Wash. C. C. Rep. 475, that an intruder has no title which could be validly conveyed, is erroneous. Overfieid v. Christie, 7 S. & R, 177 ; Scheetz v. Fitzwater, 5 Pa. St. 126; Mercer v. Watson, 1 W. 330. ' LIMITATIONS AS TO LAND. 115 predecessor;' or he may make a contract to sell it, putting the vendee in possession. The possession of the latter will be tacked to the previous, for the advantage of the latter; or — he failing to pay the purchase-money, and defending on the ground that the vendor's title is imperfect — ^in aid of the vendor's action to recover the purchase-money.^ Tacking Possession — Continued. § 84. While a deed by a stranger to the title of the person in possession, though intended and believed to convey it, will not give to the grantee the right to connect with his posses- sion that of his predecessor,^ it is not necessary that a con- tract or conveyance, executed by the person in possession, should be such as could be enforced against him. A parol sale, though not susceptible of specific enforcement, is sufii- cient to prevent a possession taken under it from being a trespass upon the vendor, and would tack the latter's posses- sion to that of the vendee.* So, though a parol mortgage is invalid in Pennsylvania, the possession of the mortgagee under it would be regarded a continuation of that of the mortgagor, as agkinst the owner of ,the true title.® Two, in adverse possession as tenants in common, may make parti- tion, each taking several possession of his purpart, and the 'Parker v. South wick, 6 W. 377; v. Winn, 53 Pa. St. 122; Kiland v. Sorber v. Willing; 10 W. 141 ; Farm- Eckert, 23 Pa. St. 215. era' and Mechanics' Bank v. Wilson, 'Congregation v. Miles, 4 W. 146 ; 10 W. 261 ; Hatch v. Smith, 4 Pa. St. Allen v. Getz, 2 P. & >V. 810. 109; Hollinshead v. Nauman, 45 Pa. "ScShrack v. Zubler, 34 Pa. St. 38. St. 140 ; Shaflfer v. Lowry, 25 Pa. St. In this case a brother-in-law of the 252 ; Bell v. Hartley, 4 W. & S. 32 ; deceased occupant, by the advice of Dikeman v. Parrish, 6 Pa. St. 211 ; the overseers of the poor, /old the Overfield v. Christie, 7 S. & E. 173 ; improvement right of the decedent. Graffius «. Tottenham, 1 W.&S. 488; His grantee could not tack the Schall V. Williams Valley Railroad possession taken by him to the pre- Co., 35 Pa. St. 191; Fitch v. Mann, 8 vious possession, as against the true Pi. St. 503; Walkers. Walker, 16 S. owner. & B. 379 ; Susquehanna &c. R. R. * Cunningham v. Patton, 6 Pa. St. Co. 1). Quick, 68Pa. St. 189; Schuyl- 355. kill and Dauphin Improvement .Co. ' Id. D.McCreary,58Pa.St.304; Wheeler 116 , LAW OF LIMITATIONS. previous joint possession will be tacked to their several pos- session for the purpose of making title by limitation.' A sheriff's sale on a judgment," or on a warrant by county commissioners against a defaulting tax collector,^ or on a treasurer's warrant for hon-paynient of taxes/ will convey to the purchaser, taking possession, not only the right of ■defendant, but the prerogative of connecting the possession of the latter with his own, as against the owner out of pos- session. But when the owner of two undivided thirds mort- gages the whole land, a sheriff's sale under the mortgage will not authorize the purchaser to tack to his possession the pre- vious possession of the other third by one who did not own it, for the purpose of defeating the recovery of the real owner of this third.* The burden is on the last of a series of per- sons in possession (who needs to tack to his own possession that of his predecessors, for the purpose of making a title by limitation), to prove that he and they entered under theit predecessors,* but it is error to exclude evidence of the pos- session of a former 0C9upant, and of its adverseness, because it is not already shown to have been connected with the suc- ceeding possession. The connection may be shown subse- quently.'' ' Patterson v. Eeigle, 4 Pa. St. 201. purchaser, and then attorns, by tak- 'Hunt V. Devling, 8W. 403; Graf- ing a lease, the sheriflF's purchaser fius V. Tottenham, 1 W. &. S. 488 ; may tack the possession before the Scheetz V. Fitzwater, 5 Pa. St. 126; sale, and between the sale and the Miller «. Miller, 60 Pa. St. 16; Riland attormnent, to his possession by V. Eckert, 23 Pa. St. 215. ' means of the attornment. 'Schall V. Williams Valley R. R. f* Moore v. Collishaw, 10 Pa. St. Co., 35 Pa. St. 191. 221. * Schuylkill and Dauphin Improve- 'McCoy v. Trustees of Dickinson ment Co. «. McCreary, 58 Pa. St. 304. College, 5 S. & R. 254; Frick v. If for some time, e. g. six months O'Farrell, 1 Phila. 18; Moore i). Col- after the sheriff 'a sale, the person as lishaw, 10 Pa. St. 224. whose the land was sold continues in 'McCoy v. Trustees of Dickinson possession, without attorning to the College, 5 S. & R. 254. LIMITATIONS AS TO LAND. 117 CHAPTEK IX. EXCLUSIVE AND NOTOKIOTJS POSSESSION. Exclusive Possession. § 85. It is often said that the possession by which the ^ true title is to be divested must be exclusive. I^t need not be exclusive of all the world, however, for two or more per- sons may concurrently acquire a title against the real owner.^ One tenant in common might be divested of his interest by I the possession taken of his undivided share, which Would not be necessarily exclusive of his co-tenants. Possibly, if a definite fractional right were asserted for twenty-one years, e. g. under a voidable grant or contract from the former owner of the whole, and the corresponding possession were had for ,twenty-one years, the title would be perfected de- spite the imperfection of the conveyance. When, however, fugitive acts, though often repeated, are the manifestations of possession relied upon, and they are not referable to any distinct fractional title claimed, they would not, if inter- spersed with similar acts of the owner of the title, be suffi- cient to destroy the latter and transfer it to the alleged hostile possessor. Thus, equally frequent entries on wood- land, 'on the interference of two tracts, by the respective owners, would prevent the owner of the junior survey, in pedal possession of part of the interference, froin gaining title to the rest of the interference, as against the owner of the senior survey also in possession beyond the area of superposition.^ So, any possession consisting of acts of the ' Black v. Moore, 1 Pa. St. 344. part for himself and the other part One intruder might bargain with an- for the first intruder, other to enter and hold for both as 'O'Hara v. Bichardson, 46 Pa. St. , tenants in common, or, to hold one 385. 118 LAW OF LIMITATIONS. claimant alternating with, acts of the owner, of the same character, e. g. cutting of timber, digging of turf or ore, grazing cattle, would be ineffectual under the statute of limitations.^ If a mother and her children live together on land, the legal title to which has been conveyed to her, but, it is alleged, bought by money of her adult son, her posses- sion not being exclusive of him, would not make title as against the trust resulting to him, by limitation.^ The pos- session must be such as excludes, and shows a purpose to exclude, the use of the land by its owner. If he has bought it for a particular purpose, e. g. to flood it, when the height of the water shall lead to that result, by a dam to be erected on his adjacent land,^ or to make it a part of the channel of a canal,* the grazing of cattle on it by the former owner,^ or the occasional growth of a crop of corn on it, pending its appropriation to its contemplated use, or after that use has been abandoned ® (as such acts would, at best, be a possession concurrent with the possession attributed to the owner, in virtue of his title), would not destroy that title. The virtue of an entry to toll the statute, it is said, consists in the fact that it momentarily destroys the exclusiveness of the occu- pancy of the intruder, and gives it a mixed character.'' Visible and Notorious Possession. § 86. The possession must be visible and notorious. These are terms employed to denote that the possession must be more than secret and unknown to the disseized owner. But ' Wheeler v. Winn, 53 Pa. St. 122. is not in privity with the owner is 'Clarke t). Trindle, 52 Pai St. 492. an adverse and hostile possession. ' Buckholder v. Sigler, 7 W. & S. Hence, to tell the jury that the party 154. claiming by limitation shown to * Union Canal Co. v. Young, 1 Wh. have been in sole possession, with- 410. out privi'ty with the owner, must ' Buckholder i;. Sigler, 7 W. & S. have held exclusive possession, is to 154. . tell them that he must have held ' Union Canal Co. v. Young, 1 Wh. adverse and hostile possession. The 410. use of the words "adverse" and 'Altemas v. Campbell, 9 W. 28. "hostile" is unnecessary. Sheaflfer An exclusive possession by one who v. Eakman, 56 Pa. St. 144. LIMITATIONS AS TO LAND, 119 it is unnecessary that these words should be employed by the court in instructing the jury, if equivalent expressions are employed. If the jury are told that the possession must be acquiesced in for twenty-one years, in a case in which there was either residence or cultivation for that whole time, they are practically told that the possession must be visible and known to the owner, for otherwise he, could riot acqui- esce in it.^ While the possession must be such as tends to warn the owner of its existence and adverseness, it is not necessary that he should have actual notice of it. If the acts on the ground — the behavior of its occupant towards it- show a possession and hostile claim, actual notice to the owner is immaterial.^ CHAPTEK X. DISABILITIES. Disabilities Supervening after Adverse Possession Begins. § 87. In case, when the right of action began, the person vested with it was under the disability of coverture, of being non compos mentis, under age or imprisoned, the act of 26th March, 1785, gives the period of ten years after the termi- nation of this disability, however long it may have endured, for the bringing of the action. The first section of the act of 22d April, 1856, allows a maximum of thirty years. But if, when the adverse possession began, the owner was not under disability, the subsequent supervening of such a disability upon him, or the devolution of title by his death, or grant or otherwise, upon one who is subject to one or more of these disabilities, does not prolong the limitary period beyond the twenty-one years.* Thus, the death of the ' Sheaflfer v. Eakman, 56 Pa. St. 144. Lynch v. Cox, 23 Pa. St. 265 ; Thomp- 'Dikeman v. Parrish, 6 Pa. St. 210. son v. Smith, 7 8. & E. 209; Landis^ 'Carlisle v. Stitler, 1 P. & W. 6; v. Torney, 4 Penny. 151. 120 LAW OF LIMITATIONS. owner a few months after the adverse possession began, leaving heirs who are femes covert^ or minors,'* would not prolong the period in which the action could be brought, the owner being under no disability when the adverse pos- session began. When the time once begins, it runs over all mesne acts, or states such as coverture and infancy.^ Successive Disabilities. § 88. If, when the adverse possession begins, the owner is subject to' more than one of the. enumerated disabilities, he has, under the act of 26th March, 1785, ten years after the termination of the last surviving of these disabilities, in which to bring the action.* Should, for example, the owner be both a minor and a, feme covert, she may delay the action till ten years after the expiration of the minority or of the coverture, according as the former or the latter shall con- tinue longest. But no disability that originates subse- quently to the beginning of the adverse possession and the consequent right of action, can prolong the term for the bringing of the action beyond what would have been allowed had such second disability not supervened.® Thus, the owner being a minor when the right to sue originates, the action must be brought within ten years after the attain- ment of majority, although she marry after the rise of the right of action, and before or after the expiration of her minority, or of twenty-one years after the adverse posses- sion begins.* As a disability supervening on the person in Wholh was the right of action when the adverse possession 'Lynch v. Cox, 23 Pa. St. 265; "Carlisle i;. Stiller, 1 P. & W. 6; Thompson v. Smith, 7 S. & R 209 ; Altemus v. Long, 4 Pa. St. 254. Hall V. Vandegrift, 8 Binn. 374. 'Thompson v. Smith, 7 S. & E. 'Coulter V. Philips, 20 Pa. St. 154; 209; Smith v. Thompson, 2 S. & R. Peppard V. Deal, 9 Pa. St. 140; Hall 49; Burrell v. Little, 1 Pittsb. 287; «. Vandegrift, 3 Binn. 374; Thomp- Irvine v. Sibbetts, 26 Pa. St. 477; son V. Smith, 7 S. & R. 209. Rankin v. TenbrOok, 6 W. 388 ; Rider •Neilly v. MoCorrtiiok, 2 Y. 447. v. Maul, 46 Pa. St. 376; Reimer v. •A remark of Huston, J., to the Stuber, 20 Pa. St. 458; Schenley v. contrary, in Rankin v. Tenbrook, 6 Commonwealth, 36 Pa. St. 29. W. 388, is scarcely accurate. LIMITATIONS AS TO LAND. 121 began, subsequently to the origin of that right, would not affect the limitary period, neither would the subsequent devo- lution of that right on another who, at the time of such devo- lution, was under a disability.^ Hence, possession being taken under A.'s deed, who is a lunatic, by B., A.'s grantee, and A., dying ten je^rs afterwards, devising his land to minors, the minority of the latter would not prolong the term for their bringing an action against B. beyond what would have been allowed them had they been of age.^ The infant heir of a woman dying covert, would have ho longer time in which to sue than she would have had, had her coverture ceased otherwise than by her own death, and she had brought the action herself,^ or had the heir been of full age at her death.* Insanity. § 89. If, when the right to maintain an action for the recovery of land accrues, the person having such right is non compos mentis, he is entitled to ten years after attain- ing soundness of mind.® If he recover soundness of mind within twenty-one years, he has only so much time beyond the tT^enty-one years as is' necessary to give him ten years of mental soundness. If he recovers his sanity ten or more years before the expiration of the twenty-one years, he must sue within that term, as if he had not been insane.^ In ho case, however, can the suit be delayed because of the insanity of the person entitled to maintain it, beyond thirty years from the inception of the adverse possession, though the disability may continue during all or a considerable part of this period.' If the disability of mental unsoundness termi- nates only with death, the person on whom the title devolves 'Thompson v. Smith, 7 S. & R. 'Bensell i). Chancellor, 5 Wh. 371. 209; Rankin V. Tenbrook, 6 W. 388 ; 'Section 1, act '22d April, 1856; Bensell v. Chancellor, 5 Wh. 371 ; McCall v. Webb, 88 Pa. St. 150. In Marple i;. Myers,'12 Pa. St. 122. thirty years of adverse possession 'Bensell V. Chancellor, 5 Wh. 371. the title is barred notwithstanding 'Carlisle v. Stitler, 1 P. & W. 6. any disability at the' beginning of *Marple v. Myers, 12 Pa. St. 122, it. Shober v. Dutton, 6 Phila. 185; 5 Section 4, act 26th March, 1785. Pratt v. Eby, 67 Pa. St. 396. 122 LAW OP lilMITATIONS. t Iby inheritance or devise, will have the same time that the lunatic would have had, had he recovered his reason instead of dying, at the time of his death. If, by a will executed prior to lunacy, the lunatic devises a life estate to A. and a remainder in fee to B., B. will be barred of an action as soon as the lunatic himself would have been, had he recovered his sanity at the time of his death, notwithstanding that, during the life estate, his right of action was suspended. Thus, the adverse possession beginning in 1803, when the owner was a lunatic, and the latter dying in 1805, devising a life estate and a fee in remainder, an action by the remainderman, brought in 1831, was barred, though the life estate had not ^terminated until 1827.^ Coverture. § ^0. Both under the act of 26th March, 1785, and that of 22d April, 1856, the period of limitation does not begin to run until the right of action to recover possession also begins. As prior to the Married Woman's act of 11th April, 1848,^ the husband had the right to possess the wife's land, held in fee, during her life and until hig own death, and this right could be transferred to another by his own deed or by a sheriff's sale in execution against him, neither she nor her heirs could have dispossessed him or the grantee, by action, till his death. The limitary period, as applied to married women whose coverture and seizin began before 11th April,' 1848, both under the act of 1785 and that of 1856, would not begin to run till the husband's death. She, surviving him, or, (she dying before him,) her heirs, would in that case be entitled to twenty-one years after his death, or, if at his death under disa- bility, to the additional ten years, (provided that not thirty years in all elapsed,) in which to bring the action.^ In the • Bensell v. Chancellor, 5 Wh. 371. " P. L. 536 ; 2 Bright. Purd. 1150. More than twenty-one years (during ' Ege v. Medlar, 82 Pa. St. 86 ; Hogg more than ten of which there had v. Ashman, 83 Pa. St. 80; Miltenber- been no disability of insanity) had ger v. Croyle, 27 Pa. St. 170. then elapsed since the commence- * ment of the adverse possession. LIMITATIONS AS TO LAND. 123 case of seizin of women married both before tlie act of 11th April, 1848, and since, if one not claiming under the hus- band took possession adverse to him and to her, the act of 26th March, 1785, allowed to her or her heirs for the bring- ing of the action, ten years after the cessation of the cover- ture (though more than twenty-one years should then have elapsed since the beginning of the adverse possession), and as much more than ten years as was necessary to make the duration of the adverse possession twenty-one years. The first section of the act of 22d April, 1856, prescribes, how- ever, as the utniost limit for the bringing of the action, the period of thirty years after the adverse possession , begins, notwithstanding the coverture then existing and since con- tinuing over a part or the whole of that period,' Hence, when one claiming independently of the husband and wife, took, during their lives, adverse possession of her land and retained it thirty years, her title was lost, and that of her heirs, whether the coverture had ceased before the thirty years had run or not,** The same is the rule if the possession is taken under a parol sale by the wife. Thus, the possession being taken Iby the vendee in 1835, the feme dying subsequently in the j?ame year, an ejectment brought by her heirs in 1870 was barred, though the husband did not die till 1863.^ Coverture — Continued. § 91. On the death of the feme covert, intestate, her title is broken into two reciprocally independent titles, the cur- tesy of the husband and the remainfler of the heirs. Inde- pendently of the first section of the act of 22d April, 1856, the adverse possession during the curtesy would not be 'Hogg V. Ashman, 83 Pa. St. 80; minor at her death, would be enti- Ege V. Medlar, 82 Pa. St. 86; Hunt tied to thirty years absolutely,^ with- •w. Wall, 75 Pa. St. 418; Pratt v. Eby, out respect to the duration of the ■67 Pa. St. 896. Woodward, J., seems coverture. to imply, in Miller v. Franciscus, 40 ^Hogg v. Ashman, 88 Pa. St. 80. Pa. St. 335, where a /erne coveH was ' Hunt v. Wall, 75 Pa. St. 413. the owner, that she and her son, a 124 LAW OF LIMITATIONS. added to that which had preceded the feme\ death, for the purpose of affecting the remaindermen, but they would be entitled to ten years after the termination of the curtesy (whether such termination occurred by the death or by the surrender of the tenant by the curtesy) ^ in which to sue.* The act of 1856, as already seen, introduces an important difference, and under it the possession which is begun with- out derivation of right from the husband, during the wife's life, in thirty years bars the wife, (though she should con- tinue so long covert,) or the heirs, (though the coverture of , the wife and the curtesy of the husband should extend over this whole period.^) The curtesy estate of the husband would be likewise barred in thirty years.* When thirty years have not run since the adverse possession began, the case is determined by the act of 26th March, 1785. The heirs have ten years (or so much longer as may be needed to make the duration of the hostile possession twenty-one years) after the expiration of the curtesy, allotted to them for the purpose of bringing suit. But an action brought both more than twenty-one years after the beginning of the hostile possession and more than ten years after the expiration of the curtesy, will be barred, though not thirty years have elapsed since the possession began.*^ Husband and wife may bring an action for the wife's land against one who has taken possession of it during coverture, whether within or beyond the period of twenty-one years after, the commencement of such possession. Their alienee may, during their lives, do the same, within ten years after ' Marple v. Myers, 12 Pa. St. 122. possession beginning during infancy 'Carli8leD.Stitler,lP.&W.6; Mar- or coverture will make a marketable pie v. Myers, 12 Pa. St. 122; Hogg v. titleinthirtyyears as against alienees Ashman, 83 Pa. St. 80 ; Henry v. C«r- of particulur estates or estates in re- son, 59 Pa. St. 297 ; Hunt v. Wall, 75 mainder. Pratt «. Eby, 67 Pa. St. 396. Pa. St. 413. ' ' Hogg V. Ashman, 83 Pa. St. 80. 'Hunt V. Wall, 75 Pa. St. 413 ; Hogg » Henry v. Carson, 59 Pa. St. 297. V. Ashman, 83 Pa. St. 80. An adverse LIMITATIONS AS TO LAND. 125 the conveyance,^ but, since the act of 22d April, 1856, this action, whether by the husband and wife, or their alienee, or her heir or devisee, must be brought in every case when the possession began not under the husband's title, within thirty years.^ Infancy. § 92. Though when the adverse possession begins, the owner of the land is a minor, he will be barred of his action in thirty years thereafter, in all cases.^ When thirty years have not elapsed when the action is brought, the case will be regulated by the provisions of the act of 26th March, 1785. The minor will have. ten years after attaining his majority* for the bringing of the action, though more than twenty-one years of adverse possession shall have elapsed with the expiration of these ten years.^ If, however, when the period of twenty-one years of adverse possession is com- plete, he has been of age ten years, he will be entitled to no additional period,* and in any case he will be allowed only so much more than twenty-one years as will make him ten years older than his majority when he brings his action.'' Thus, one claimant reaching age in 1835,* and another in 1844,° the former must sue in 1845, and the latter in 1854, » Marple v. Myera, 12 Pa. St. 122. L, 532 ; Pratt v. Eby, 67 Pa. St. 396 ; But, in Crow v. Kightlinger, 25 Pa. St. Warn v. Brown, 102 Pa. St. 347. 343, it was decided that, as the estate * But not twenty-one years. Wed- of the husband, prior to the Married die v. Robertson, 6 W. 532. Woman's act of 1848, in his wife's ' Weddle v. Robertson, 6 W. 486 ; land, would be^ barred by possession Irvine v. Sibbetts, 26 Pa. St. "477. held adversely during the coverture, 'Lenhart t). Ream, 74 Pa. St. 59; though the wife's own estate would Weddle v. Robertson, 6 W. 486; not be, he could not evade this result Henry v. Carson, 59 Pa. St. 297. by joining her with himself in an ac- ' Pipher v. Lodge, 16 S. & R. 214; > tion, after the twenty-onfe years had Irvine v. Sibbetts, 26 Pa. St. 477. run, though the coverture still con- ' Irvine v. Sibbetts, 26 Pa. St. 477. tinned. He and his wife could not ' ° Burrell v. Little, 1 Pittsb. 237. In recover in such action. ' so far as this case teaches that a " Hun ti). Wall, 75 Pa. St. 413; Hogg minor will be barred in ten years V. Ashman, 83 Pa. St. 80. after attaining his majority, though " Section 1, act 22d April, 1856, P. the adverse possession has not then 126 LAW OF LIMITATIONS. though the adverse possession having begun in the former case in 1822 and in the latter in 1828, has then continued only twenty-three and twenty-six years respectively. In no case will he be barred until the adverse possession has lasted twenty-one years, however far beyond his majority he may be when that term has expired.' If there are sev- eral co-tenants, the minority of some will not extend beyond twenty-pne years, the period in which those who are adults must bring their action. Each must sue as early as he would have been obliged to sue were he the owner of the whole.^ The action of each co-heir to recover his indi- vidual portion of the land, held adversely to all of them, must be brought before he reaches ten years above his majority, if the adverse possession has then lasted twenty- one years'.^ Beyond the Seas and Imprisoned. § 93. The act of 26th March, 1785, made the same con- cessions to owners who were imprisoned or "beyond the seas or from and without the United States of America," when the adverse possession began, as to persons who were non compotes mentis, femes covert or minors. The first section of the act of 1 Ith March, 1815,* repeals the exemption in favor of persons "beyond the seas or from and without the United States of America."* But when an adverse possession had begun prior to this act, the owner, living beyond the limits lasted twenty-one years, it is erron- will make a title against the cestvti eous. Cf. Henry v. Carson, 59 Pa. que trust in twenty-one years, not- St. 297. withstanding that the latter was a 'Weddle D. Robertson, 6 W. 486. minor when it commenced. Smilie '/the possession of herself and second husband, during that interval could not be adverse to the son or his heirs. Zeller's, Lessee v. Eckert, 4 Howard 289. 1 Warn v. Brown, 102 Pa. St. 347 ; Kille V. Ege, 79 Pa. St. 15 ; Ege v. Medlar, 82 Pa. St. 86 ; Montgomery's Estate, 3 Brewst. 806 ; Harper's- Es- tate, 1 Brewst. 471 ; Price's Appeal, 54 Pa. St. 472; Morton v. Funk, 6 Pa. St. 483; Garnet v. Lynn, 31 Pa. St. 94; Croww. Kightlinger, 25 Pa. St. 343 ; Irvine v. Sibbetts, 26 Pa. St. 277 ; McElroy v. Railroad, 7 Pa.' St. 536; Craig v. Harbison, 4 Penny. 488; Davis v. Dickson, 92 Pa. St. 365. The thirty years' limitation of the first section of the act of 22d April, 1856, does not modify this principle. Ege v. Medlar, 82 Pa. St. 86 ; Warn v. Brown, 102 Pa, St. 847. ''McElroy v. Railroad, 7 Pa. St. 536; Shallenberger v. Ashworth, 25 Pa. St. 152; Tullooh v. Worrall, 49 Pa. St. 133. Prior to the Married Woman's act of 1848, the possession of the husband, or his alienee, dur- ing his wife's life, of her lands, was in pursuance of his life estate (Shal- lenberger V. Ashworth, 25 Pa. St. 151 ; Ege v. Medlar, 82 Pa. St. 86) ; ' and not hostile to the fee of the wife till the termination of that estate. But since the act of 22d April, 1856, one who took possession before 1842, riot by any conveyance of the husband's interest^ but ad- versely to him and to her during the life of both, in thirty years acquired a title, as against the wife or her heirs, though when the ejectment was brought only three months had run since the death of the husband. Hogg v. Asliman, 83 Pa. St. 80. 'Ege V. Medlar, 82 Pa. St. 86; Warn v. Brown, 102 Pa. St. 347; Miltenberger v. Croyle, 27 Pa. St. 170. * Marple v. Myers, 12 Pa. St. 122. ^Gernet v. Lynn, 31 Pa. St. 94; Irvine v. Sibbetts, 26 Pa. St. 477; Wolford V. Morgenthal, 91 Pa. St. 31. When, prior to the act of 1848, the husband and wife executed a deed for her land, which she did not acknowledge, the possession of the , grantee was protected by it during the husband's life, but this posses- sion was not hostile to her heirs till his death. Miltenberger v. Croyle, 27 Pa. St. 170. LIMITATIONS AS TO LAND. , 131 an adverse possession by one claiming a fee long enough to destroy the life estate, would al^o destroy the contingent remain der." A fee-tail is also destroyed by a possession for twenty-one years during the life of the tenant in tail, by one claiming a fee-simple. On the death of the tenant in tail, there could be no recovery by the issue.* Estate under Power to Sell. § 97. When land is devised to three trustees, with direc- tion to sell, though the persons among whom the proceeds, are to be distributed may elect to take the land, this election, is not the acquisition of a new title, against which a posses- sion previously taken by the vendee under the power (whose title, however, is void because only one trustee exe- cuted it), would be inoperative. The vendee's possession for twenty-one years will give him title.* A.'s will gave B. a life estate, then after his, death directed the rents and pro- . fits to be used in supporting C, D. and E. during life, and they dying, ordered a sale of the land and a distribution of its proceeds, but named no trustee. Though the application of the rents to C.'s, D.'s and E.'s support may require a- trustee, to be appointed by the proper court, and the agent for making the sale may be an administrator cum testamento annexo, the functions of the latter being successive to those of the former, an adverse possession taken on the death of B., and continued twenty-one years, would make a good title as against the equitable interest of C, D, and E., or of the trustee of whom they might have procured the appointment ; as against the administrator cum testamento annexo, then raised up ; and as against the persons to whona he sold the land in execution of the power. Since C, D. and E., or ' Baldridge v. McFarland, 26 Pa. St. tail was held not to be adverse to 338. the heir in tail until the death of ^ Baldridge v. McFarland, 26 Pa. St. the grantor ; in lea's than twenty-one 338 ; Ransley v. Stott, 26 Pa. St. 126. years after which the heir, bringing Hall V. Vandegrift, 3 Binn. 374, seems an ejectment, was permitted to re- cohtrary. A possession taken by cover. , the grantee in fee of the tenant in ' Smilie v. Biffle, 2 Pa. St. 52. 132 LAW OF LIMITATIONS. any of the distributees of the proceeds of sale, could have had a trustee appointed, and compelled him to institute an ejectment before the statute had run, their interests are not in such sense successive,^ that the right of possession of the .latter did not exist through the trustee whom they might have appointed, until the death of the former." After-Born Grantee. § 98. When land is deeded to A. in trust for his children then born, and those that may thereafter be born, the trust being a dry trust, and therefore executed ab initio, a posses- sion taken by one who purchased at a sheriff's sale in exe- cution against the trustee, and continued for thirty years, would bar the interest of all the children, those not born when the deed was made, as well as those that were then in esse? Particular Estate Ended. § 99. A possession continued twenty-one years after the termination of, the particular estate, will, if adverse, bar the remainderman. Thus, land being devised to the testator's widow " during her lifetime or widowhood," but, in case she remarry, to her and her five children in equal shares ' The right of possession of a pur- thirty years, and therefore not chaser at sheriff's sale under a judg- capable of supporting an action, ment does not relate back to the would have been barred. Or were date of the judgraent,'so as to make the after-born children considered -the defendant's possession or that of as taking by a species of devolution his grantee, who bought subject to from the previously born, and so the judgment, adverse from that affected by the adverse possession time. The statute of limitations already begun, at their birth, as Tuns only from the delivery of the heirs are affected by the possession sheriff's deed. Coulter v. Philips, 20 begun adversely in the lifetime of Pa. St. 154. their ancestors ? It was tacitly as- ^ Maus V. Maus, 80 Pa. St. 194. sumed in Leyburn v. Muench, 1 'Warn v. Brown, 102 Pa. St. 347. Pittsb. 173, where a deed had been It does not appear whether the made to A. in trust for his heirs, youngest of these children were that, as he could have no, heirs thirty years old or not. The Ian- until his death, the statute of guage of the court does not indicate limitations would not run, as against that the question was considered them, in favor of the trustee claim- whether children, not in esse for ing adversely until his death. LIMITATIONS AS TO LAND. 133 in fee, if she remarries and conveys the land, the title of the children to the five undivided sixths will be barred in twenty-one years after the commencement of adverse possession by her or by her grantee. The estate in more than the one-sixth, which is durante viduitate, ceases with her second marriage, and the right of action of the . remaindermen then accrues, if the possession is then and subsequently adverse.^" CHAPTEE XII. TITLES LOST AND GAINED BY LIMITATION. Titles Acquired. § 100. Undivided interests may be concurrently acquired by possession hostile to the true owner.* Thus, a father beginning the possession, and dying, his children may con- tinue it, and so perfect for themselves a title.^ The illegiti- mate children may, on the death of their father, continue in possession of his land, and so defeat the title of his lawful heirs, acquiring it for themselves.* ^ Two heirs may hold adversely to the rest, arid thus acquire for each of them- selves an undivided half.^ Beginning the possession as tenants in common, the disseizors may subsequently make partition, and each take exclusive possession of his allot- ment and continue it , sufficiently long to defeat the true title." Two congregations, wotshiping in the same church, may concurrently gain a right to a neighboring grove for the hitching of horses and the stationing of carriages/ ' Irvine v. Sibbetts, 26 Pa. St. 477. A. an undivided interest by distinctly 'Blacki). Moore, 1 Pa. St. 344. asserting it by joint possession for 'Miller v. Miller, 60 Pa. St. 16. twenty-one years, and so become co- *Beedy v. Dine, 31 Pa. St. 13. tenant with A. But if a body of * McCall V. Webb, 88 Pa. St. 150. seceders from a congregation wor- ' Patterson i;. Beigle, 4 Pa. St. to. ship for twenty-one years every ' Trauger v.- Sassaman, 14 Pa. St. alternate Sunday in the church, hav- 514. . Perhaps B. could acquire from ing their own preacher, and observ- 134 LAW OF LIMITAXrONS. Generally, an adverse possession of the surface will be deemed a possession usque ad inferos and usque ad caelum. Thus, the hostile occupancy of a site for a privy, continued long enough to give title to the surface, will also give title to all that is. above it. He who has maintained the privy for twenty-one years, may abate it and project over its site, from the second story of his adjacent house, a balcony, which will be equally protected.^ But when there has been a severance of the title to the surface from that to certain substances below it, e. g. when all the coal has been granted by the original owner of the land to another, the occupancy of the surface will -no longer import a possession of all below it. Tor its owner or another to acquire the coal by an adverse possession, the coal itself, as distinct from the surface, must be occupied.^ But it may be stated, generally, that all cor- poreal hereditaments, including sub-surface rights, rights to timber, &c., may be lost and acquired by the statute of limitations.^ liife Estate Acquired. § 101. When one enters into land, treating it as his own, and recognizing no subordination to another, he will be pre- ing their own rites, they do not 225. Cf. remarks of Lewis, C. J., in become co-tenants with the original Hole v. Eittenhouse, 25 Pa. St. 493. congregation of the church, when 'Caldwell v. Copeland, 37 Pa. St. their use of the church is merely 427 ; Armstrong v. Caldwell, 53 Pa. permissive. Landis' Appeal, 102 Pa. St. 284. St. 467. Possession taken adversely ' Caldwell v. Copeland, 37 Pa. St. of land owned by several co-tenants, 427 ; Armstrong v. Caldwell, 53 Pa. may give the intruder the title of St. 284. When one is in possession one of them not under disability, for twenty^one years of the surface while it does not divest the title'of of land, claiming an easement in it the others, who are femes covert, simply, e. g. the right to abut a Crow V. Kightlinger, 25 Pa. St. 343. bridge upon it, he acquires not the So, the Commonwealth owning an land itself, but the easement undivided fourth, an intruder may, claimed. On the destruction of the by adverse possession, gain the other bridge and the abandonment of the three undivided fourths. Holmes v. purpose to replace it, the right to Pattison, 25 Pa. St. 484. the possession of the land reverts to 'Shroder v. Breneman, 21 Pa. St. the owner. Bogers v. StoeV/Cr, 24 Pa. St. 186. LIMITATIONS AS TO LAND. 135 sumed, prima facie, to be claiming and asserting no less an estate than a fee-simple, until it appears that he is in pos- session under a pretension to some less estate. In the vast majority of cases in which the statute of limitations is in- voked, the largest title known to the law is predicated upon it. If, however, the person in possession claims the right' to it only for life, it would confer, though continued more than twenty-one years, only a life estate, after whose expiration, the true owner, whether in fee^ or for life,^ would he entitled to resume the possession. An unlawful wife, who, with her children, retains possession on the death of the husband, acquires dower in the land as against the true heirs.^ If, in partition between the widow and heirs, a lot is assigned to her for life, this would be "all but conclusive" that she entered, and kept possession xis a life-tenant, which, though it endured forty-three years, would not make for her a title in fee.* As one claiming a fee under a sale voidable because of the statute of frauds, or of other circumstances, may nevertheless gain it by adverse possession lasting sufficiently long, so there can be no doubt that he might gain a title to a leasehold for a long term, by possession in assertion of it, though the lease under which he claimed was voidable. Titles that May be Lost. § 102. Against the Commonwealth, title cannot be acquired by the statute of limitations. But every title involving the right of possession, which resides in any other than the State, may be lost by a possession, long enough continued, which ' Calhoun i;. Cook, 9 Pa. St. 226 ; years would doubtless have given St. Clair v. Shalf, 9 Pa. St. 252; Id., her an indefeasible life estate, and a 20 Pa. St. 105; Long v. Mast, 11 Pa. fee to the remainderman. Her pos- St. 189. session for thirty-eight years, termi- 'Breidigam v. Hoffm aster, 61 Pa. nating with her death, made a fee St. 223. One in adverse possession for the remainderman. Wallace v. of a ground-rent for eleven years, Fourth Presbyterian Church, 111 Pa. devises a life estate in it to his widow, St. 164. and a remainder in fee to another. ' Beedy v. Dine,, 31 Pa. St. 13. The widow's possession for. ten * Davis v. Dickson, 92 Pa. St. 365. J36 LAW OF LIMITATIONS. is in defiance of that title. Thus, the title of the patentee of lands/ or of one having but an equitable title over against the state, as, e. g., by improvement, under the act of 3d April, 1792, of land lying north and west of the Ohio and Alleghany rivers and Conewango creek,^ or by settlement,* or by warrant and survey,* may be transferred by adverse possession. So may that to donation tracts,* or that which arises from settlement on undrawn donation tracts, under the act of 26th March, 1813, [6 Sm. L. 64.] « Undivided interests may be lost by hostile possession by the other co- tenant,^ or by strangers to the right. The loss oi the fee- simple by adverse possession, is an ordinary effect of the statute of limitations. Lesser interests may also be destroyed by it. JDo'wer Lost by Adverse Possession. § 103. The dower of the wife is incident to the fee of the husband. If a possession begun adversely to the husband destroys his title in his lifetime, her dower will also be extinguished.' It is likely that if the possession begins during the husband's life, without, right derived from him, it will, if continued after his death till it has lasted twenty- one years, bar the dower, though at his death it had not endured long enough to bar his title. When, however, the ' McCall V. Neely, 3 W. 69 ; Heiser Miller v. Shaw, 7 S. & E. 129 ; Koyer V. Eiehle, 7 W. 35 ; Criswell v. Alte- v. Benlow, 7 W. 35 ; Porter v. Mc- mus, 7W.565; McCaffrey «. Fisher, Ginniss, 1 Pa. St. 413; McCoy v. 4 W. & S. 186 ; Black v. Moore, 1 Pa. Trustees of Dickinson College, 4 S. St. 344; Johnston v. Irwin, 3 S. & K. «fe E. 302. 291. 'Rankin w. Tenbrook, 5 W. 386; 'Rush V. Barr, 1 W. 110; McCul- Hockenbury v. Snyder, 2 W. & S. lough V. McCall, 10 W. 367. 240; Hatch v. Smith, 4 Pa. St. 109; ' Munshower v. Patton, 10 S. & R. Patterson v. Reigle, 4 Pa. St. 201. 384. In Johnston v. Irwin, 3 S. & R. • Thompson v. Milford, 7 W. 442. 291, the question was left undecided ' Workman v. Guthrie, 29 Pa. St. whether the right of a settler, with- 495; Lodge v. Patterson, 3 W. 74; out survey and patent, could, by Susquehanna &c. Coal Co. i;. Quick, possession hostile to him, be ac- 61 Pa. St. 828 ; Allen v. Getz, 2 P. & quired by another. W. 310. * Sweeney v. McCulloch, 3 W. 845 ; « Culler v. Motzer, 13 S. & R. 356. LIMITATIONS AS TO LAND. 137 possession is begun during his life, under a contract of sale with or a grant from him, it will not, however long continued before his death, bar the widow's dower.^ But the continu- ance of such possession for twenty-one years after his death, and after her right of action begins, will bar it.* Curtesy Lost by Adverse Possession. § 104. When possession adverse" to k feme covert is begun in her lifetime, her title would be destroyed, if it continu,ed thirty years agreeably to the first section of the act of 22d April, 1856. After that length of time neither she, nor her heirs, nor her husband, who survived her, could recover.* His curtesy would be destroyed. When less , than thirty years since the adverse possession began, hs|,ve run when the action of ejectment is brought by the husband as tenant by the curtesy, it is likely that the provisions of the act of 1785 apply. The husband, not having the right to main- tain the action to, recover possession for himself, since the Married Woman's act of 11th April, 1848,* would probably be allowed so much of ten years after the death o:f his wife as was within thirty years from the beginning of the adverse possession, and would be allowed so much more than ten years as would be necessary to make the adverse possession of at least twenty-one years' duration." Prior to the act of 11th April, 1848, the estate of the husband by the curtesy included a right to the possession during his wife's life. Hence, a possession adverse to him and. her for twenty-one years before her death, would bar his recovery after her death.* Possession adverse to the tenant by the curtesy. ' Culler i). Motzier, 13 S. & R. 356 Innis V. Campbell, 1 E. 373. 'Care v. Keller, 77 Pa. St. 487 Landis v. Torney, 4 Penny. 151 Though the legal title is not con' veyed till many years after the hus- 'Hogg V. Ashman, 83 Pa. St. 80; Pratt V. Eby, 67 Pa. St. 396. *P. L. 536. . " Cf. Crow V. Kightlinger, 25 Pa. St. 343; Moore v. Luce, 29 Pa. St. 260; Henry u. Carson, 59 Pa. St. 297. band's death, the possession held 'Crow v. Kightlinger, 25 Pa. St. prior thereto, under the contract of 343. sale, is adverse to the widow. 188 LAW OF LIMITATIONS. Ibegun and continued after the death of his wife, for twenty^ one years, will destroy his life estate.^ Life Estate and Other Particular Estate Lost by Adverse Possession. § 105. The title of the tenant by the curtesy, it has be^a seen, may be destroyed by a possession commencing during it and continuing for the necessary period." And what is true of life estates by the curtesy is true of all life estates. If one without right enters into possession adversely, to the life-tenant, and continues in it for twenty-one years, the life- tenant, being under no disability, will be barred.^ Estates pur autre vie, and for a term of more than twenty-one years, would be destroyed, also, by a possession adverse to them, begun and prolonged for the limitary time, during their continuance. Subjects to Whose Possession the Statute Gives Virtue. § 106. All corporeal hereditaments, without regard to their shape, size or situation, may be lost and gained by adverse possession under the statute of limitations, e. g. town* and city^ lots, an island in the Susquehanna,^ farms and tracts of land large enough to be occupied severally, and smaller pieces capable of occupation only in conjunction with contiguous land. Thus, a narrow strip between two tracts,^ e. g. one only four feet wide,' another from five to 'Moore v. Luce, 29 Pa. St. 260. 'Parker v. Southwiok, 6 W. 377; His subsequent release of the cur- Brown v. McKinney, 9. W. 565; tesy to the rernaindeniian would not Campbell v. Braden, 96 Pa. St. 388; impair the title so acquired. Thompson v. Kauffelt, 17 W. N. C. 'Moore v. Luce, 29 Pa. St. 260; 257; Ewing i;. Ewing, 9 W. N. 0. Crow V. Kightlinger, 25 Pa. St. 343. 489. 'Baldridgei).McFarland,26Pa.St. ^ Leeds v. Bender, 6 W. & S. 815; S38; Harmon's Appeal, 2 W. N. C. Brolasky v. McClain, 61 Pa. St. 146; 62; Breidigam v. HoflFraaster, 61 Pa. De Haven v. Landell, 31 Pa. St. 120. St. 223. Even if the life-tenant is " Malson v. Pry, 1 W. 433. an infant when the adverse posses- ' McGinnisS v. Sawyer, 63 Pa. St. fiion begins, his title will be barred 259 ; Hogg v. Ashman, 83 Pa. St. 80. in every case in thirty years. Warn ' Hoopes «. Garver, 15 Pa. St. 517. V. Brown, 102 Pa. St. 347. LIMITATIONS AS TO LAND. 139 fifteen feet wide,' anthat V. McKinney, 9 W. 565. the statute of limitations does not 'Union Canal Co. v. Young, 1 Wh. directly confer a title, but only indi- 410. rectly, by limitation of the remedy 'Gray v. McCreary, 14 Y. 494; Co- of the former owner. The inference megys v. Carley, 8 W. 280. is drawn that even after a title is 'Thompson v. Milford, 7 W. 442. acquired to an easement over a way, 'Thompson v. Kaufi'elt, 17 W. N. the legislature may provide a method C 257. by wtiich it may be destroyed. Thus, ' Moore «; Luce, 29 Pa. St. 260. The it may authorize the vacation of title of the original owner is not ways to which such easements attach, afiected until the last moment of when, having been acquired by ad- the twenty-one years' adverse, pos- verse user, they have become use- session. Then it is destroyed, and a less, inconvenient and burdensome. 140 LAW OF LIMITATIONS. defended against the owner of the otherwise better title,' or can be recovered in ejectment from an intruder,^ or even from the former owner.* The existence of a title by limita- tion in a third person may be set up by one who intrudes into the possession, subsequently to th.e running of the stat- ute, . to defeat a recovery of the possession by the former owner.* The title by limitation will support trespass quare clausum fregit, against the former title,^ or against an ' Pederick v. Searle, 5 S. Care v. Keller, 77 Pa. St. 487 ; Cul- 6 W. & S. 502 ; Hoopes v. Garver, 15 ler V. Motzer, 13 S. & R. 356 ; Landis Pa. St. 517; Peck v. Ward, 18 Pa. St. V. Torney, 4 Penny. 151. 506. 'Mather v. Trinity Church, 3 S. & "Shroder v. Breneman, 21 Pa. St. E. 509. 225. The defendant may allege a ' McElrpy «. Eailroad, 7 Pa. St. 536. right to enter the plaintiflf 's close in *Lund V. Brown, 14 W. N. C. 489; the nature of an easement, acquired Green v. Kellum, 23 Pa. St. 254; by twenty-one years' enjoyment. Eung V. Shoneberger, 2 W. 23; Por- Darlington v. Painter, 7 Pa. St. 473. ter «. McGinnis, 1 Pa. St. 413; Id., 'Mehafify v. Dobbs, 9 W. 363. 150 LAW OF LIMITATIONS. the Orphans' Court, the respondent may deny the title of the petitioner on the ground that a hostile possession for twenty- one years has dissevered the co-tenancy ;* or, the respondent asserting that the title was not in the ancestor of the peti- tioners, but in his own ancestor, the former may reply that it was transferred by the statute of limitations." In actions of debt on bonds, or other actions for the purchase-money of land, the defendant alleging a defect of title, the plaintiff may show that the title has been perfected by limitation.* So, under a bill in equity, by a vendor of land to enforce specific performance of the contract of sale, he may show that he has a good and marketable title by adverse posses- sion.* The statute protects as well in equity as at law." CHAPTEE XV. ENTKY. Virtue of an Entry. § 114. The bringing of an action of ejectment stops the running of the statute of limitations so far as that action is itself concerned. In like manner, the act of 26th March, 1785,^ recognizes that an entry made on lands shall interrupt any adverse possession previously begun, and compel the ' Mehaffy v. Dobbs, 9 W. 363. tenementa or hereditaments, after '' Black's Estate, 18 W. N. C. 455. the expiration of twenty-one years ' Allen V. Getz, 2 P. & W. 310 ; next after his, her or their right or Baker li. Findley, 20 Pa. St. 163 ; title to the same first descended or Pratt V. Eby, 67 Pa. St. 396 ; Culler accrued." Section 8. " Provided, V. Motzer, 13 S. & R. 356. that any person or persons now hav- * Harmon's Appeal, 2 W. N. C. 62. ing right, title of entry as aforesaid, 'Lynch u. Cox, 23 Pa. St. 265; Ir. * * » may, within fifteen years ■win V. Cooper, 92 Pa. St. 298; Fricke from this time, enter or commence V. Magee, 10 W. N. C. 50. any action or suit, as he, she or they • Section 2. " From henceforth no * * * might have done before person or persons whatsoever shall the passing of this act." make entry into any manors, lands. LlHtlTATIOIirS AS TO LAND. 151 continuance of that possession for another term of twenty- one years.' From the date of that act until the 13th April, 1859, such was the law, as judicially accepted and applied. An entry was the transient gaining of possession by the owner, and dispossession of. the intruder, and made necessary for the latter a possession for a new period of twenty-one years.^ The first section of the act of 13th April, 1859,' declared that "no entry on lands shall arrest the running of the statute of limitations, unless an a6tion of ejectment be commenced therefor within one year thereafter, nor shall such entry and action, without a recovery therein, arrest the running of said statute in respect to another ejectment, unless it be brought within a year after the first shall have been non-suited, arrested or decided against the plaintifi" therein." An entry, therefore, made since the passage of this act, is without effect on the running of the statute, unless an eject- ment is brought within one year thereafter.* And, conse- quently, since the entry must be made before the statute has closed, if twenty-two years have elapsed since the adverse possession began against an owner under no legal disability, 'An entry is not necessary in Phillibaum, 4 Wash. C. C. Kep; 356. Pennsylvania as a preliminary to the An intruder, defending against a bringing of an action of ejectment, plaintiff in ejectment who claims by Carlisle v. Stitler, 1 P. & W. 6. a title by limitation, may defeat it 'McCombs V. Kowan, 59 Pa. St. by showing a fo,rmer entry of the 414; Altemas u. Campbell, 9 W. 28; true owner. Hole «. Rittenhouse, 19 Hinman v. Cranmer, 9 *a. St. 40; Pa. St. 305. Altemus V. Long, 4 Pa. St. 254 ; Car- 'P. L. 603; 2 Bright. Purd.> p. others v. Dunning, 3 S. & R.,373; 1065, pi. 16. The wisdom of this act (jraflftus V. Tottenham, 1 W. & S. is commended in McCombs D.Rowan, 488; Miller v. Shaw, 7 S. & R. 129; 59 Pa. St. 414. Criswell v. Altemus, 7 W. 565 ; Hoi- ' * McGinniss v. Sawyer, 63 Pa. St. linshead v. Nauman, 45 Pa. St. 140; 259. The person setting up the en- Hole t). Rittenhouse, 19 Pa. St. 305; try must show clearly that it hap- McGinniss V. Sawryer, 63 Pa. St. 259; peried within a year prior to the O'Hara i;. Richardson, 46 Pa. St. 385 ; bringing of the ejectment; other- Collins V. Benedict, 5 W. N. 0. 549 ; wise it will be assumed to have taken S. C, 5 Luz. Leg. Reg. 109 ; Hood v. place before, and therefore to be Hood, 25 Pa. St. 417 ; Holtzapple i;. valueless. ' 152 LAW OF LIMITATIONSi when he brings his ejectment, he will be barred, whatever may have been the entries he has made.^ By Whom the Entry May be Made. § 115. The entry, to be effectual, must, in all cases, be , made by the owner in person,^ or by another having author- ity from him to make it.* This authority must be affirma- tively shown,* and the declaration of the person while making it, that he was authorized, is not, ipso facto, proof thereof.* One co-tenant is considered as so far the agent of the others, that an entry by him will, unless he expressly limits its virtue, operate in favor of them likewise, though he does not refer to them while making it and declaring his purpose in so doing.' The entry of the agent appointed by one co-tenant will inure to the benefit of all, as would that of his principal.' But when two of the three former co-tenants, 'Pratt V. Eby, 67 Pa. St. 396. 'Hole V. Eittenhousc, 119 Pa. St. 305; Carothers v. Dunning, 3 S. & R. 373; Lawrence v. Hunter, 9 W "64; McGinnies v. Sawyer, 63 Pa. St, 259 ; Hughes v. Snaith, 4 Penny. 210 Workman v. Guthrie, 29 Pa. St. 495. •Miller v. Shaw, 7 S. & E. 129 Bradford v. Guthrie, 3 Pittsb. 213 Smith V. Steele, 17 Pa. St. 30; Hughes V. Smith, 4 Penny. 210; Caldwell v. Copeland, 37 Pa. St. 427; Hollins- head v. Nauman, 45 Pa. St. 140; Altemas v. Campbell, 9 W. 28; Hood V. Hood, 2 Gr. 229; Id., 25 Pa. St. 417; Workman v. Guthrie, 29 Pa. St. 495 ; Lawrence v. Hunter, 9 W. 64 ; Caro- thers V. Dunning, 3 S. & E. 373. The entry of a mere intruder, having ng title, upon one who is already in adverse possession, will not stop, the running of the statute as against the true owner, nor as against the in- truder. Green v. Kelluila, 23 Pa. St. 254. So, such an entry by one hav- ing color of title, e. g. having a patent for previously warranted and sur- veyed land, but showing no posses-, sion by him of the title of the war- rantee, will not disturb the possession of the previous intruder. Smith v. Steele, 17 Pa. St. 30. 'Miller v. Shaw, 7 S. <& R. 129; Hughes V. Smith, 4 Penny. 210. 'Hughes V. Smith, 4 Penny. 210. Whether it is evidence is not con- sidered^ •Carothers v. Dunning, 3 S. & E. 373; Graffius v. Tottenham, 1 W. & S. 488 ; cf. Criswell v. Altemus, 7 W. 565. If one of several brothers, co- tenants, has a survey of a tract made, and lays the foundation of a house, claimipg the tract for himself and brothers, and expressing a determin- ation to have possession, his entry is valid for the whole interest. Hole v. Eittenhouse, 19 Pa. St. 305. ' Carothers v. Dunning, 3 S. & E. 373; Graffius «. Tottenham, 1 W. & S. 488. \ LIMITA,TIONS AS TO LAND. 163 having parted with their title, give a power of attorney to X. to forbid intrusions on the land, and take care of it, X.'s entry will not inure to the benefit of the third co-ten- ant, who still retained his interest in the land, but who was not an executant party to the power.^ And if the third co-tenant, as administrator of the second, joins with tlie first in executing the power to X., since X. represents him only in his capacity of administrator and not for his own interest in the land, X.^s entry does not inure to the benefit of that interest.^ The agent immediately employed by the owner may, in turn, employ another, whose entry will then be effectual. Thus, an agent to look after lands may engage a surveyor: to survey them with a view to resuming posses- sion, and the' surveyor's entry will toll the statute.^ If the general terms of the power fairly embrace the making of an entry, should intrusion on the land make that necessary to conserve the -interests of the principal, there is no doubt that the entry made in pursuance of the power would be con- sidered as made by the owner, and have the same validity as one made by him. In any event, though the power of attorney does not authorize an entry, if the agent in fact enters for thje principal, the subsequeijt ratification of his act, by the principal, will make it effectual. Thus, if the agent, in excess of his authority, has a survey made, and the principal subsequently pays for it, the surveyor's entry inures to the benefit of the principal.* On What the Entry Must be Made. § 116. The entry must be made upon the area which, is in adverse possession of the intruder. If parts of the owner's 'Workman v. Guthrie, 29 Pa. St. possession, he stops the running of 495. the statute, partly because it is more 'Id. ' ' than doubtful whether the owner 'IngeraoU v. Lewis, 11 Pa. St. 212; could make an entry to avoid the Hinman v. Cranmer, 9 Pa. St. 40. statute when there was none in pos- *Hinman v. Cranmer, 9 Pa. St. 40. session to enter upon. Stephens v. If the adverse., bolder vacates the Leaph, 19 Pa. St. 262. 154 LAW OF LIMITATIONS. tract are severally held by diflferent disseizors, there must be an entry made into each part, otherwise the possession will be regained of those parts only into which entry is actually made/ But an entry into any part of the same continuous itrea held adversely to the same owner by the same person (in the same county)," will be effective to restore possession of the whole,* subject to the limitation that to interrupt the possession of cultivated or inclosed portipns of the tract, an entry within them would be necessary. Entry, within the uninclosed woodland to cut timber or exercise other acts of ownership would not be enough to interrupt the possession of those improved portions.* , Were this not so, it would be impossible for an intruder to acquire by adverse pedal pos- session, title to any part of a tract into whieh, even beyond the parts in pedal occupancy, the owner ever made the most transient entries.^ Nature of the Entry. § 117. The entry must be made as the exercise of a right to the^ possession of the tract on which it is made. Hence, it must not be accidental,* nor in pursuance of an invitation 'Lawrence v. Hunter, 9 W; 64; interference), would displace even Miller v. Shaw, 7 S. & R. 129, per the pedal possession of the owner of Gibson, J. The act must be such as the junior tract, would be a trespass, if the person 'In Nearhoflf v. Addleman, 31 Pa. making it had not the authority of St.' 279, it seems to be assumed that the true owner. Holtzapple v. Phil- an entry within a tract, though be- libaum, 4 Wash. C. C. Eep. 356; yond the part of which adverse Hoopes V. Garver, 15 Pa. St. 517; possession is taken, would toll the Bradford v. Guthrie, 3 Pittsb. 213. statute. It is decided that when the '■'Altemus v. Long, 4 Pa. St. 255. owner owns two contiguous tracts, 'Lawrence v. Hunter, 9 W. 64; not shown to have been surveyed Miller v. Shaw, 7 S. & R. 129. together as a block, and until re- *0'Hara w. Richardson, 46 Pa. St. cently having been disunited in 385; Collins v. Benedict, 5 W. N. C. ownership, an entry on one of them 649. Yet, in Altemus v. Long, 4 Pa. will not toll the statute as to an St. 255, and Smith v. Steele, 17 Pa. St. adverse non-pedal possession of a 30, it seems to be held that an entry part of the other tract, anywhere within the owner's tract, ^Hood v. Hood, 25 Pa. St! 417; Id., even beyond its interference with a 2 Gr. 229. O'Hara v. Richardson, 46 junior tract (o fortiori, if within that Pa. St. 387. If the entry is made in LIMITATIONS AS TO LAND. 155 by the intruder/ nor for the doing of something which does not imply the assertion of a title to the land, and of a right to the immediate possession of it. Thus, if the edge of a tract along one of its lines is in the adverse possession of the adjoining owner, the entry on this edge by its owner for the purpose of obtaining the other lines of the tract, by measure- ment from this one, with a view to a partition of, the tract, exclusive of the edge, would not be an entfy in pursuance of, and therefore assertive of, a right to the possession of this edge, and would not, therefore, toll the adverse possession.* The act must be done with an intent, not necessarily to begin a pedal occupancy,^ or any other form of occupancy implying oft-repeated acts of ownership, but nevertheless with the intent in doing it, to exercise a right of imtoiediate possession, i. e. the act must be done as an act of possession, and therefore as a resumption of the previously broken pos- The act ("an act of notorious dominion")* may, in session. ignorance that the land entered on belongs to the party entering, e. g. if made by one to whom coal has been deeded, but in ignorance that the' coal he is taking is within the confines of his deed, it will not toll the adverse possession of the coal by the owner of the surface whomines it. Caldwell v. Copeland, 37 Pa. St. 427. ' Hood V. Hood, 25 Pa. St. 417 ; Id.' 2 Gr. 229. If the owner is invited by the intruder to come upon the prem- ises, though for the purpose of arrang- ing a settlement of their claims, the entry will not affect tlje possession. Altemaa v. Campbell, 9 W. 28. ' McCombs V. Rowan, 59 Pa. St. 414; ' It is said in Hood v. Hood, 25 Pa. St. 417; in Altemas v. Campbell, 9 W. 28, and in HoUinshead v. Nau- man, 45 Pa. St. 140, .that the entry must be with intent to '" regain a pedal possession." But many acts which, in the cases, have been decided or assumed to be efficient entries, were without indication of the purpose to immediately reside, till or incl'ose.' The surveying of the tract into lots, and sale of-some of them, are said to evidence the intent " to resume actual possession," in Hinman v. Cranraer, 9 Pa. St. 40. * Altemas v. Campbell, 9 W. 30; McCombs V. Rowan, 59 Pa. St. 414 ; Bradford v. Guthrie, 3 Pittsb. 213; Carothers v. Dunning, 3 S. & R. 373. The instruction to the jury that if the owner entered on the land for the purpose of making a survey, or the exercise of any other act of ownership, he would toll the statute, might be correct, it was said, if there was any evidence of entry for any other purpose than making the sur- vey ; other'wise not. McCombs v. Rowan, 59 Pa. St. 414. "Altemas v. Campbell, 9 W. 30; McCombs V. Rowan, 59 Pa. St. 414. 156 LAW OF LIMITATIONS. its very nature, show the purpose or intent witH which, it is done, in which case any declaration of its purpose at the time would be superfluous,' or being ambiguous in its nature, that nature may require illustration by the declaration of the party in making the entry.* The owner's entry on land for the purpose of surveying it,' or a part of it,* as a preliminary to a conveyance of the tract or of this part of it, or to estab- lish a provisional boundary line between the tract in question and an adjoining owner,* as preparatory to any subsequent uses h^ may care to make of the land, or for the purpose by survey, of running the lines of the original survey, animo clamandi,^ would toll the statute, while a survey simply to ascertain the locality of a tract would not,^ nor would one 'Hood v: Hood, 25 Pa. St. 417 Ingersoll v. Lewis, 11 Pa. St. 212 Bradford v. Guthrie, 3 Pittsb. 213 Altemas v. Campbell, 9 W. 28. 'Bradford v. Guthrie, 3 Pittab. 213. 'Hoopes V. Garver, 15, Pa. St. 517; Bradford v. Guthrie, 3 Pittsb. 213. Yet, in Hollinshead v. Nauman, 45 Pa. St. 140, where there was evidence that the survey was made, as pre- paratory to a sale of the land, and the expense of it was paid by the purchaser, the court below were sustained in submitting to the jury the sufficiency of the entry; the jury finding it insufficient. " Cer- tainly," says Strong, J., " there was no evidence that the survey was made with the intention of claiming pedal possession by Keim." It is added, however, that " no notice of it was given by the surveyor to the defendants who were in actual pos- session." — When the survey is made in part to define the boundaries of the land in possession of the intruder, and to arrange with him for a lease or purchase, the entry to make it will toll the statute. Collins v. Bene- dict, 5 Liiz. Leg. Eeg. 109; Id., 5 W. N. C. 549. *Hood V. Hood, 25 Pa. St. 417. So, the owner's survey of a tract, and subdivision of it thereby into lots, and entering into contract for the sale of some of them, would toll the statute. Hinman v. Cranmer, ^ Pa. St. 40. A survey of a tract, followed by the putting up of the foundations of a house, by the owner, claiming the land for himself and expressing a determination to have possession, would toll the statute. Hole v. Eit- tenhouse, 19 Pa. St. 305. = Hood v. Hood, 2 Gr. 229. •Miller v. Shaw, 7 S. & B. 129; Ingersoll v. Lewis, 11 Pa. St. 212; McCombs v. Rowan, 59 Pa. St. 414; Adams v. Robinson, 6 Pa. St. 271. 'Hollinshead v. Nauman, 45 Pa. St. 140; Collins v. Benedict, 5 Luz. Leg. Reg. 109 ; Id., 5 W. N. C. 549. The intent, it is said in the former case, must be to resume the posses- sion. It is not said whether the pos- session contemplated consists of acts to follow the survey, nor what the character of such acts. LIMITATIONS AS TO LAND. 157 made by a surveyor sent at the request of the party in possession, by the true owner, to make a survey for the formfir.^ An entry by the owner's agent, to seed the land, and to challenge the right of the persOn in possession to 'seed it, would doubtless be effectual," as, in a case of dis- puted boundary, would the removal by A. of a boundary fence from the line where it had stood to the line to which he claimed, several rods over on his neighbor's tract, though a few days afterwards'the fence was moved back by the neigh- bor to its former position.^ The levy of the sheriff, under an execution against the owner, on " 1,000 acres of land in Nippenose Valley, adjoining J. W.," the land not being described in his return, nor stated to be in the possession of any one, is not an entry on a tract of 400 acres embraced therein, Of which the purchaser at the sheriff's sale can take advantage to arrest the running of the statute in favor of the person in adverse possession.* Efforts of the owner to get upon his land and resume possession, defeated by the threats or violence of the intruder, are not equivalent to an entry, and will not prevent the latter's acquiring a title in twenty-one years.' Knowledge by the Intruder of the fintry. § 118. At the time when it was conceded that an effective adverse possession of one tract of land could be had by a pedal possession of adjoining land, and inclusion of the former land adversely claimed within the same boundariesy it was decided that the owner was, in making the entry, not bound to give notice to the intruder. Not residing nor clearing over upon the land, the latter had left no indication upon it of his identity or of the connection of the cuttings of timber or other trespasses with him. The owner, in making the entry, was not bound to hunt after him, merely ' Hood V. Hood, 25 Pa. St. 417. * Miller v. Shaw, 7 S. & R. 129. ' Hughes V. Smith, 4 Penny. 210. ° Malson v. Fry, 1 W. 433. 'McGinniss i;. Sawyer, 63 ta. St. 259. 1 158 LAW or LIMITATIONS. because he found that a quantity of his timber had been cut down and carried away, a very common kind of trespass on wild lands.^ But when the adverse holder- resides on the owner's land, or extends his fields over upon it, it would be necessary that he should have notice of the entry, when fugitive in character, and not such as would naturally arrest his attention, as it is, e. g. when the entry is for making a survey.^ The entry must be of such a character and accom- panied by such notice as clearly indicate to the occupant that his possession is invaded and his right challenged.* Proof. § 119. There should be full proof of the entry, both of the acts which constitute it and of the purpose to resume possession; which must characterize it.* When the. intent is doubtful, it must be left to the jury,^ though it is indeed implied, in some cases, that the act of the person making the entry must bear on its face an unequivocal intent to resume the possession.* The intent must be clearly manifested to the intruder in possession, and, in the trial of the action in which the entry is set up to defeat the statute, this intent and the manifestation of it to the intruder, when he was in possession, must appear to the jury.' The sufficiency of a given state of facts, to constitute an effectual entry, is a ' Hinman v. Cranmer, 9 Pa. St. 40 ; 'ance of the ceremony " was required McComba v. Rowan, 59 Pa. St. 414. in Altemas v. Campbell, .9 W. 28. ' Hinman ^). Cranmer, 9 Pa. St. 40; But no particular form of words is McCombs V. Rowan, 59 Pa. St. 414; prescribed by the law. Hoopes v. Bradford v. Guthrie, 3 Pittsb. 213 ; Garver, 15 Pa. St. 517. Hood V. Hood, 25 Pa. St. 417; Id., 2 ^Hollinshead u.Nauman,45Pa.St. Gr.229; Hollinshead r. Nauman, 45 140; Ingersoll ?;. Lewis, 11 Pa. St. 212 ; Pa. St. 140. There was notice of the Miller v. Shaw, 7 S. & R. 129 ;. Caro-, surveyinMilleri). Shaw,7S.&R.129; thera,i). Dunning, 3 S. & R. 873; Mc- Ingersoll v. Lewis, 11 Pa. St. 212; Combs v. Ro\«h.n, 59 Pa. St. 414; Collins V. Benedict, 5 Luz. Leg. Reg. Hoopes v. McGarver, 15 Pa. St. 517. 109 ; Id., 5 W. N. C. 549. « Hinman v. Cranmer, 9 Pa. St. 40 ; 'O'Hara v. Richardson, 46 Pa. St. Hollinshead v. !Nauman, 45 Pa. St. 385. 140. 'Hollinsheadi).Nauman,45Pa. St. ' Hood d. Hood, 25 Pa. St. 417 ; Id., 140. "Strict proof of a formal observ- 2 Gr. 229. > LIMITATIONS AS TO LAND. 15& question of law. The court, when the evidence, if belieted, shows an entry, with a purpose to resume possession made known to the intruder in possesion, should give a binding instruction to the jury that if they believe the evidence, tlie statute was tolled.^ On the other hand, when the evidence does not reveal a legally sufficient entry, it should not be submitted to the jury.^ Thus, if the act of going on the land is shown by the same testimony which proves it to have taken place on the invitation of the intruder, the jury should be told that the statute was not tolled by it.^ CHAPTEE XVI. INCOBPOREAL HEKEDITAMENTS. The Principle of the Statute Applicable. , § 120. The principle of the statute of limitations applies not only to corporeal, but also to incorporeal hereditaments. Titles to these can be acquired, as against the owner of the land with respect to which they are asserted, by a sufficiently long hostile enjoyment of them: that is, they may be created, or, already created, the right to them may be transferred, by an enjoyment of them hostile to the person in whom the right originally was. The owner of the land may also obstruct and deny the enjoyment of them for a pesriod of twenty-one years, and thus merge and extinguish them in the land previously affected by them. 'Ingersoll 'v. Lewis, 11 Pa. St. 212. 'Altemas v. Campbell. 9 W. 28. It 'Hollinshead v. Nauman, 45 Pa. is unnecessary to state that an entry St. 140. When the evidence would after the statute of limitations has justify a jury in finding a sufficient made a title for the intruder, is too entry, it is, of course, erroneous for late. Hood v. Hood, 2 Gr. 229 ; Al- the court to instruct them that the temus v. Long, 4 Pa. St. 254 ; Brad- entry is insufficient. Hoopes t). Gar- ford v. Guthrie, 3 Pittsb. 213; -Mo- ver, 15 Pa. St. 517. Combs ■!). Eowan, 59 Pa. St. 414; Malson v. Fry, 1 W. 433. 160 LAW OF LIMITATIONS. Ground-Rent Acquired. § 121. Perhaps if, under a claim of right by A. to a' perpetual ground-rent from land of B., B. paid the rent for a period of twenty-one years, A. would acquire a title to the rent, no longer dependent for its effectiveness on the sub- mission to his claim by B.' However that may be, a ground- rent, once created, may be transferred from the ground-land- lord to another by the latter's pernancy of it without the consent or will of the former, and in claim of right.* The mere receipt by A. for twenty-one years, of the rent, not shown to have been as agent, or in virtue of the consent of the original owner of it, is prima fade adverse, and makes it incumbent on the jury, unless qualified by evidence of A.'s receiving it in subservience to the owner, to infer a right in A.^ Thus, if A. and B. were co-tenants of a ground- rent, and from a certain date, for twenty-one years, A. received a definite part of this rent from the owner of a part of the premises, and B. the other part from the owner of the rest of the premises, the jury should infer a valid partition between A. and B.* But the presumption, from the mere receipt for twenty-one years of the rent, that it is adverse to the owner, may, of course, be rebutted by accouht- ' McElroy ti. Railroad, 7 Pa. St. to account for the pernancy of the 536, implies that, from this fact, a rent by A., rather than by the-former jury would be obliged to presume a owner of it. Newman v. Butter, 8 grant, though no such grant were ' W. 51. That the recipient of the •otherwise shown. Cf. Heckerman i;. rents is taxed for them, and the for- Hummel, 19 Pa.'St. 64; Wallace v. mer owner is not taxed, would be a Fourth Presbyterian Church, 111 Pa. confirmation of the hostility of the St; 164. possession of the recipient. McEl- ' McElroy v. Eailroad, 7 Pa. St. roy v. Railroad, 7 Pa. St. 536. That 536; Wallace V. Fourth Presbyterian the apparent owner recognized the Church, 111 Pa. St. 164; Newmans, right of the person receiving the Rutter, 8 W. 51. rent by collecting it in his name 'McElroy v. Eailroad, 7 Pa. St. from the ground-tenant, would be 536; Wallace V. Fourth Presbyterian evidence of adverseness. Wallace €hurch. 111 Pa. St. 164. The jury v. Fourth Presbyterian Church, 111 is required, or at least may be ad- Pa.. St. 164. vised by the court to infer a grant, * Newman v. Rutter, 8 W. 51. LIMITATIONS AS TO LAND. 161 ing for it consistently with the title of the owner/ It might be shown that the rent had been assigned for some definite period, and that the annual receipt of it had been^ in pursu- ance of this assignment, or it might be shown that the rents having belonged to a married woman, the claimant, both before and after her death, as tenant by the curtesy, had continued to receive them." Ground-Rent Destroyed. § 122. Prior to the act of 27th April, 1855,* the lapse of twenty-one or more years, without payment of or demand for the rent accruing under a ground-rent deed, did iiot con- stitute a bar to the rent, nor a presumption of its release or extinguishment.^ The seventh section of that act^ enacted that " in all cases where no payment, claim or demand shall have been made on account of or for any ground^rent, annuity or other charge upon real estate for twenty-One years, or no declaration or acknowledgment of the existence thereof shall have been made within that period, by the owner of the premises subject to such ground-rent, annuity ' Newman v. Eutter, 8 W. 51. the rent to that extent, though, pos- 'McElroyv. Railroad, 7 Pa. St. 536. sibly, a right to no more than $14 ' McElroy v. Railroad, 7 Pa. St. 536. would be acquired. The receipt in That he received the rentas husband, 1836, for only $11.22, was not incon- « will not be assumed without proof, sistent with a right to $14, for that In this case tjie rents, originally re- sum was paid, avowedly, on account served in 1748 by two deeds, were of the same rent, and the single' respectivly £4 10s. and £3. Two or variation in amount was immaterial, three years before 1820 rent was paid, * P. L. 369 ; 2 Bright. Purd. p. 1063, it's amount being uncertain. In 1820 pi.. 11. A. received $25.22 as rent, being the ^St. Mary's Church v. Miles, 1 Wh. amount due, leiss $25.36 for taxes. 229; McQuesney v. Hiester, 33 Pa. From 1821 to 1831 he received, an- St. 435; Kurr v. Brobst. 2 Woodw. nually , $14. In 1832 and 1833, rent, its 187 ; Lindeman w. Lindsey, 69 Pa. St. amount being uncertain, was paid. 93. From 1834 to 1841, excepting 1836, . " The opinion of the Supreme receipts were shown for $14, an- Court was equally divided in Pratt nually. In 1836 the receipt was for v. Eby, 67 Pa. St. 396, as to whether $11.22. It was held that the fact this act extinguishes mortgages upon that only $14 was paid would not which no demand or payment had militate against the right of A. to been made for twenty-one years. 162 LAW OF LIMITATIONS. or charge, a release or extinguishment thereof shall he pre- sumed, and such ground-rent, annuity or charge shall there- after be irrecoverable ; provided, that the evidence of such payment may be perpetuated by recording in the recorder of deeds' office of the proper county, the duplicate of any receipt therefor, proved by oath or affirmation to be a true copy of that signed and delivered in the presence of the payer, and wit- nessed at the time by the deponent, which recorded duplicate, or the exemplification of the record thereof, shall be evidence until disproved; and the evidenge of any such claim or demand may be perpetuated by the record of any judg- ment recovered for' such rent, annuity or charge, in any court of record, or the transcript therein filed of any recov- ery thereof by judgment before any alderman or justice of the peace, which records and judgments shall be duly indexed ; provided, that this section shall not go into effect until after three years from the passage of this act." This act, according to this second proviso, did not apply in any actions for ground-rent brought prior to the 27th April,. 1858, three years after the passage of the act.^ But in any actions instituted on or after that date, for the recovery of arrears of ground-rents, it had fiill virtue. It affected rents created before its passage, and made intermission of pay- ment, demand or acknowledgment prior to its enactment,, as well as subsequent, available, if the action was not begun within three years ensuing upon its becoming a law.^ The burden is on the plaintiff" suing for the rent, to rebut the jorima facie extinction of the rent by the lapse of twenty-one years, since the deed reserving it was made, by showing payments, demands for payment, or declarations and acknowledgments by the ground-tenant, that the rent still subsisted, if the 'Kurr V. Brobst, 2 Woodw. 187. ground-rent being created in 1834, An action brought for arrears of in an action of covenant for arrears, rent on April 26th, 1858, was not begun in 1868, the non-payment and affected by the act, non-demand for rent for twenty-one •Korn V. Browne, 64 Pa. St. 55; years preceding, prevented a re- Kurr V. Brobst, 2 Woodw. 187. The covery. LIMITATIONS AS TO LAND. 165 defendant gives him notice that on the trial he will be expected to prove these facts.^ The demand for the rent, which will repel the presumption of extinguishment, may be made by an action on the covenant, in which, on two returns of nihil habet, judgment is taken by default. Thus, the rent being reserved by deed of January 8th, 1857, an action on the covenant was brought, in which, on two returns of nihil habet, judgment was entered June 20th, 1876.^ This repelled any presumption that the rent was extinguished, in a second action for arrears brought February 8th, 1881, against a purchaser of the land at a sheriff's sale of the original covenantor's title." ^ Rights of Way. § 123. Rights of way may be acquired by adverse enjoy- ment, as against the owner of the soil over which the way lies.^ They may, when acquired, be transferred,* and they may also be extinguished by an adverse user for the period of twenty-one years. By the actual use of a way or route over another's land for twenty-one years, without concession from him, he loses a part of the rights which constitute ownership of the soil, and the other party acquires a corre- 'Korn V. Browne/64 Pa. St. 55. gain a right to draw his netsonthead- ' McConnell v. Gates, 4 Penny. 377. jacent beach. Tinicum Fishing Co. v. 'Herschbergerw.Kacheljl Woodw. Carter, 61 Pa. St. 21. Nay, in Bird «, 488 ; Caldwell v. Copeland, 37 Pa. St. Smith, 8 W. 434, it was assumed that 427; Biddlec. Ash, 2 A8h.211; Plitt while there could be no ferry right V. Cox, 43 Pa. St. 486. over a navigable stream acquired by * By continued, uninterrupted use user, one could, by ferrying between of a way by A., adverse tp B., who two points on the opposite shore* has a right of way, A. may acquire of such a stream, and adversely using a concurrent right of way. Esling the landing-places, acquire a right V. Williams, 10 Pa. St. 126 ; Williams to so use them exclusive of the right V. Esling, 4 Pa. St. 486. Possibly the of the owner of the riparian lands, owner of a ferry might, as appurte- The easement thus gained would be nant to it, acquire a right of way in gross and not appurtenant to the over the land at its termini by ad- ownership of any land. As to pr^ verse user. Cooper v. Smith, 9 S.,& scriptive easements in gross, qf. Tini- K. 26. And the owner of a several- cum Fishing Co. v. Carter, 61 Pa. fishery- ofif the shore might, by user, St. 21. 164 LAW OF LIMITATIONS, > spending right. To suppoi;'t this acquisition, in many cases, a grant is postulated. The long user is said to warrant and to require the presumption of a grant of a right of way.* This presumption is, however, a fiction which has nothing substantial in it, and is only tolerated for the purposes of the remedy.^ Hence, though the evidence repels any prob- ability of a grant, if the user, with its necessary qualities, can be shown, it will make a right, without the hypothesis of a grant.* , Properties of the User. § 124. The same route must be used to give a right to a way. If A. should travel, now in one direction, now in another, across B.'s land, such a use, however long continued, would create no right of way.* When an owner of land, separated from the public road by X.'s tract, uses a way over the latter, which, near its terminus at the road, bends in two directions towards the road, and he adopts each of these bends, according to the direction on the road which he wishes to take^ this bifurcation would not be inconsistent with the acquiring of a right to the way.* It is not necessary 'Arnold v. Cornman, 50 Pa. St. 361 ; quired by user. Steflfy v. Carpenter, Okeson v. Patterson, 29 Pa. St. 22; 37 Pa. St. 41; Arnold v. Cornman, 50 Workman v. Curran, 89 Pa. St. 226; Pa. St. 361. A grant to go over a 'Lazarett's Road, 1 Ash. 417 ; Root v. way on foot does not prevent the Commonwealth, 98 Pa. St. 172; Wor- growth of a right by prescription rail V. Rhoads, 2 Wh. 427 ; Deniuth to go over it on horseback or with V. Araweg, 90 Pa. St. 181 ; Phillips v. wagons. Wheatley v. Chrisman, 24 Phillips, 48 Pa. St. 178; Pierce v.' Pa. St. 298. Cloud, 42 Pa. St. 102; Gerrett v. 'Arnold v. Cornman, 50 Pa. St. Jackson, 20 Pa. St. 331; Wallace v. 361; Reimer v. Stuber, 20 Pa. St. Fourth Presbyterian Church, 111 Pa. 458. When A. grants to B. a lot St. 164; Gehman i>. Erdman, 105 Pa. whose front is separated from a St. 371; Cooperi). Smith,9S. &R. 26. street by a strip of ground, the ^ Krier's Private Road, 73 Pa. St. ' habitual use of this strip for twenty- 109 ; Okeson v. Patterson, 29 Pa. St. one years, to reach the street in all 22. directions, will give B. a right that ' Okeson v. Patterson, 29 Pa. St. 22. it be kept open. Plitt v. Cox, 43 Pa. A grant of a particular way being St. 486. shown, a right to use another, some- 'Worrall v. Rhoads, 2 Wh. 427. what deviating from it, may be ac- The changing of the track where it LIMITATIONS AS TO LAND. 16^ that the whole of the breadth of the way should be on one owner's land. Two adjoining owners may set their fences back from their line, and so form a lane, each, by adverse user, acquiring the right to use the other's half in conjunc- tion, with his own as a way.' Prior to the enactment of the' twenty-first section of the act of 25th April, 1850,^ a right of way could be acquired through land in any state, culti- vated or wooded, inclosed or uninclosed.^ That section forbids that thereafter any right of way shall be acquired by user, where such way passes through uninclosed -yfobdland. When a user had under the previous law created a right, it was not destroyed by this act, though the litigation in regard to it originated subsequently to the enactment thereof.* But that enactment interrupted the virtue of an adverse user not then already of twenty-one years' duration, though begun before.,* Properties of User — Continued. § 125. The user must last through twenty-one years." It came out into the road, does not militate against a right of way. Pierce v. Cloud, 42 Pa. St. 102. Alterations in the route, made more than twenty-one years before the dispute as to the right of way, could, of course, not affect it. Gar- rett V. Jackson, 20 Pa. St. 331. 'Schnable v. Koehler, 28 Pa. St. 181 ; Steffy v. Carpenter, 37 Pa. St. 41. »P. L. 572. 'Peter v. Hunsicker, 28 Pa. St. 202; Wprrall v. Rhoads, 2 Wh..427 Pierce v. Cloud, 42 Pa. St. 102 Okeson v. Patterson, 29 Pa. St. 22 Reimer v. Stuber, 20 Pa. St. 458. * Pierce v. Cloud, 42 Pa. St. 10^ Fisher v. Farley, 23 Pa. St. 501 Peter v. Hunsicker, 28 Pa. St. 202 Okeson v. Patterson, 29 Pa. St. 22. * Okeson v. Patterson, 29 Pa. St. 22. •Pierce v. Cloud, 42 Pa. St. 102; Garrett v. Jackson, 20 Pa. St. 331; Root V. Commonwealth, 98 Pa. St. 172; Schenley «. Commonwealth, 36' Pa. St. 29; Demuth' v. Amweg, 90 Pa. St. 181 ; Plitt v. Cox, 43 Pa. St. 486; Worrall v. Rhoads, 2 Wh. 427; Lewis t). CarBtairs,6 Wh. 193; Okeson V. Patterson, 29 Pa. St. 22; Reimer V. Stuber, 20 Pa. St. 458 ; Rhea v. Forsyth, 37 Pa. St. 503 ; Krier's Pri- vate Road, 73 Pa. St. 109 ; Stuber's Road, 28 Pa. St. 199; Steflfy v. Car- penter, 37 Pa. St. 41 ; Workman v. Curran, 89 Pa. St. 226. In some cases twenty years' user is mentioned as making a right to a way. Esling y. Williams, 10 Pa*. St. 126; Biddle v: Ash, 2 Ash. 211 ; Lewis v. Carstairs,' 6 Wh. 193. User for less than the •period of presumption, with other circumstances, may be referred to the jury as evidence of a grant. Lewis V. Carstairs, 6 Wh. 193. ' 166 LAW OF LIMITATIONS. must be continuous arid uninterrupted. An occasional use for some purposes, or on extraordinary occasions, will not make a right.^ Yet, on the other hand, it is unnecessary to travel over the way every day. A steady use of it whenever one pleases, apparently for all his necessary purposes, is The right need not be exclusive of a similar right enough,^ ' Workman v. Curran, 89 Pa. St. 226 ; Cooper v. Smith, 9 S. & R. 26 ; Plitt V. Cox, 43 Pa. St. 486 ; Esling v. . Williams, 10 Pa. St. 126; Pierce v. Cloud, 42 Pa. St. 102; Reimer v. Stu- ber, 20 Pa. St. 458 ; Okeson v. Patter- fion, 29 Pa. St. 22 ; StefFy v. Carpen- ter, 37 Pa. St. 41; Garrett v. Jack- son, 20 Pa. St. 331. That the owner of the soil objects to the enjoyment of the way, or denies, the right to it, does not, ipso facto, interrupt the user nor the running of the pre- scriptive period. Okeson v. Patter- son, 29 Pa. St. 22. Equally ineflffect- ive is a public declaration at a sheriif 's or other sale of the servient property that there is no right to use the alley by the adjoining owner, the use, nevertheless, contin- uing. Demuth v. Amweg, 90 Pa. St. 181. But the bringing of an action of trespass q. c. I., or the deprivation of the enjoyment of the way by a phy- sical obstruction of it by the owner, would arrest the acquisition of the prescriptive right. Okeson v. Pat- terson, 29 Pa. St. 22. And no enjoy- ment between the commencement of such action and its termination by a judgment for the plaintiff, the owner of the serrtent land, in the Supreme Court, could be considered as contributing to make a title to an easement. Workman v. Curran, 89 Fa. St. 226. (It is said in this case that a denial by the servient owner to the dominant owner, of the right of the latter, and a remonstrance with him against his enjoyment, would inteirrupt the hostility of the user and defeat the acquisition of a right.) Simply hanging a gate at the exit, which the claimant of the right may open when he pleases, will not interrupt the user. Demuth v. Am- weg, 90 Pa. St. 181; Connery v. Brooke, 73 Pa. St. 80. Nor would locking it ipso facto interrupt the user, if, in fact, the claimant forced his way through, (y. Pierce i). Cloud, 42 Pa. St. 102. But if an obstruc- tion is made which the claimant of the right of way respects by not breaking it down, and makes the basis of an action for hindering his enjoyment of the way, he must show adverse possession for twenty-one years prior to the obstruction. De- muth V. Amweg, 90 Pa. St. 181; Peters v. Hunsicker, 28 Pa. St. 202 ; Steffy V. Carpenter, 37 Pa. St. 41. * Reimer v. Stuber, 20 Pa. St. 458 ; Okeson v. Patterson, 29 Pa. St. 22. In Tinioum Fishing Co. i;. Carter, 61 Pa. St. 21, it was intimated that if the way over a beach or shore be- tween high and low-water marks was exercised appurtenantly to a several fishery in the waters of the stream before it, the use of the shore for the purpose of fishing four or six weeks, annually, at the shad season, might have been sufiBicient to make a right, but inch user would not make a right of way in gross. LIMITATIONS AS TO LAND. 167 in another. To the use of a road rightfully used by its owner, the owner of contiguous land may also acquire a right.^ Two adjacent owners, each contributing a strip to make a lane, may have the concurrent right to use it,*^ and the right to use a court or alley may belong to the Occupants of several houses on it. So, another by making: use of it, whenever he likes, for the necessary time, may acquire a right, simultaneous with that of the dwellers on it, to use it.' The user must be open and visible, not secret and by stealth, so that the knowledge and acquiescence of the owner may be presumed.* Adverseness of User. § 126. The user must be adverse to the owner of the ser- vient land.* If it takes place in pursuance of an express ' Garrett v. Jackson, 20 Pa. St. 331 ; Lewis V. Carstairs, 6 Wh. 193. •Schnable v. Koehler, 28 Pa. St. 181 ; Stefify v. Carpenter, 37 Pa. St. 41. • Williams v. Esling, 4 Pa. St. 486; Esling V. Williams, 10 Pa. St. 126. * Pierce v. Cloud, 42 Pa. St. 102 ; Es- ling V. Williams, 10 Pa. St. 126 ; Root V. Commonwealth, 98 Pa. St. 172; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21 ; Reimer v. Stuber, 20 Pa. St. 458; Worrall v. Rhoads, 2 Wh. 427 ; Cooper v. Smith, 9 S. & R. 26. But the mere fact that the owner is ignorant of the use of a way through uninclosed woodland, be living at a distance and never visiting it, will not prevent the adverse user, for twenty- one years, from making a right. The party is bound to know what takes place, palpably and oi^enly, upon his land. Reimer v. Stuber, 20 Pa. St. 458. It ia not necessary that the claimant of the right of way verb- ally proclaim in the face of the owner of the soil that he uses the land under a claim of right. Pierce V. Cloud, 42 Pa. St. 102. When the user is open and notorious, the .owner is presumed to know and ac- quiesce if he makes no objection. Esling V. Williams, 10 Pa. St. 126. Since the trespass on one's land by another having no neighboring land or fishery right, or ferry right, would not be likely to warn the owner that it was regular, constant and in -claim of right, a right of way in gross may probably not be acquired by adverse user when there is no express notice of the hostility of the claim and of the constancy of the assertion of it through twenty-one years. Hence, one having no several fishery can probably not gain a right to the use of the shore to haul his seines dui' ing the five or six weeks of the annual shad season by the use of the shore for this purpose for twenty-one years. Tinicum Fishing Co. v. Carter, 61 Pa. St. 21. 'Stefly V. Carpenter, 37 Pa. St. 41 ; Worrall v. Rhoads, 2 Wh. 427 ; Oke- son V. Patterson, 29 Pa. St. 22 ; Pierce V. Cloud, 42 Pa. St. 102; Garrett v. 168 LAW OF XIMITATIONS. license or permission for a pre-determined ^period, it will not tend to create a right to continue the use beyond that p6riod.^ A passage by one man over the land of another with the special permission of the latter, on every occasion of its use, will not, however frequent, or however long con- tinued, make a right.* So, if the way is traveled over, by the tacit sufferance and indulgence of the owner of the soil, with the concession to oneself or others, that the latter has the right to prevent, and with the purpose, as soon as he signifies the wish to prevent, to desist from the use of the way, such use will not make a title.' An alley on the rear of one city lot between it and the side of another fronting on a street perpendicular to that on which the former fronts, has a gate at its exit into the street. If the owner of the latter lot uses this alley only at such times as its owners have the gate open for their own use of the alley, without any assertion of any right to use it at other times, or to oppose in any way the exclusive control of its owners, the use being by the leave, courtesy or permission of the owners, it will not create a right.* The use for twenty-one years must be under a claim of right;' whether strictly legal, by presumption and adverse user, or by deed confirming the right, or though not strictly legal, yet lawful to the extent Jackson, 20 Pa. St. 331; EsHng v. *Demuth v. Amweg, 90 Pa. St. Williams, 10 Pa. St. 126; Workman 181. «. Curran, 89 Pa. St. 226 ; Krier's Pri- "Root ■». Commonwealth, 98 Pa. vate Road, 73 Pa. St. 109. St. 172; Demuth v. Amweg, 90 Pa. 'Garrett v. Jackson, 20 Pa. St. 331 ; St. 181 ; Pierce v. Cloud, 42 Pa. St. Pierce t). Cloud, 42 Pa. St. 102 ; W^or- 102; Ealing v. Williams, 10 Pa. St. rail J). Rhoads, 2 Wh. 427 ; Okeson v. 126 ; Tinicum Fishing Co. v. Carter, Patterson, 29 Pa. St. 22. 61 Pa. St. 21. In this respect the 'Garrett V. Jackson, 20 Pa. St, 331; prescription for a right of way is Pierce v. Cloud, 42 Pa. St. 102. different from the operation of the 'Pierce v. Cloud, 42 Pa. St. 102; statute of limitations. Under the Worrall v. Rhoads, 2 Wh. 427; latter a claim of title is not neces- Esling V. Williams, 10 Pa. St. 126; sary; it is necessary to make a right Biddle v. Ash, 2 Ash. 211. of way by user. Esling v. Williams, 10 Pa. St. 126. LIMITATIONS AS TO LAND. 169 6f excusipg a trespass.^ If it has been had, under a contract to pay rent, for the use of the strip of land over which the way runs, and the rent is paid, no presumptive ri^ht airises, however long the enjoyment.* The use made by a tenant, of a road on the premises for access to a ferry conducted by him across a river, on which the leased land skirts, will not be added to that of others who acquire the right to the ferry from him, for the purpose of making a right to the use of the road adverse to the owner of the land.' Mere objections or denials of the right by the owner of the land, do not deprive the user of its adverseness.* Nor is resistance of the owner, which must be overcome by force, essential to make the user adverse." When one uses an easement for twenty -one years, whenever he sees fit, without asking leave and without objec- tion, it is adverse, and a title will be acquired to the con- tinued use of it.® By and Against Whom the User May be Maintained. § 127. It is not necessary that the owner of land, who, as such, claims a right of way, should hiinself have occupied that land and used the way for twenty-one years.^ The user of his grantor,* devisor,^ ancestor,'® or, in general, any from whom he derived the land, may be tacked to his own ; or, if the user of his predecessors has lasted for twenty-one years^ he may claim in virtue of it without any user of his own." So, his land being occupied by his tenants, their enjoyment of the way will inure to his benefit as owner of the soil.^'* A 'Pierce v. Cloud, 42 fa. St. 102. It 'Garrett v. Jackson, 20 Pst. St. 331. is said in Garrett 1). Jackson, 20 Pa. 'The present claimant may, by St. 331, that the use must not have his own user for tWenty-one years, been because of a mistake. have acquired the l-ight. Beimer v. 'O'Brien's Appeal, 11 W. N. 0. Stuber, 20 Pa, St. 458. 229. Failure of evidence to 'show , 'Okeson r. Patterspn, 29 Pa. St.'22; payment for nineteen years, if there- Steffy v. Carpenter, 37 Pa. St. 41. after rent is paid for thirty-three 'Garrett «. Jackson, 20 Pa. St. 331. years, will not make the user hostile. " Pierce v. Cloud, 42 Pa. St. 102. ' Cooper V. Smith, 9 S.&R. 26. . "Jd. *Oke8on v. Patterson, 29 Pa. St. 22. " Okeson v. Patterson, 29 Pa. St. 22. 'Pierce v. Cloud, 42 Pa. St. 103. 170 LAW OF LIMITATIONS. life-tenant may claim in yirtue of the user of the previous owners in fee, and his own.^ The use by a tenant of a road over the contiguous land, in the occupancy of his landlord, does not make an easement. The landlord devising the de- mised land to the tenant, he could not set up his previous user as tenant against the devisee of the contiguous land.** * Changes of ownership of the servient land, during the ad- verse user of a way, does not arrest the acquisition of a right thereby. As soon as the twenty-one years' use is complete, a title will be made against the person who then happens to be owner ^ and his successors. That the land is in the pos- session of tenants does not prevent a right of way's being acquired over it by adverse user.'' But enjoyment for twenty- one years of a way during a life estate in the land, does not affect the remainderman or reversioner.' When the adverse user begins during the minority or coverture of the dwner of the soil, its continuance during that disability makes no title. But if it begins during infancy and continues twenty-one years after the attainment of majority, it will make a title, though the minor being a feme, marries during minority. The coverture, supervening on minority, will afford no im- munity." Evidence of Adverseness. § 128. When there is evidence of a continuous user of a way for twenty-one years over another's land, without further 'Garrett D. Jackson, 20 Pa. St. 331. tenant, like his other acts or his ' Phillips V. Phillips, 48 Pa. St< 178; declarations, cannot affect the land- O'Brien's Appeal, 11 W. N. C. 229. lord. "Steffy V. Carpenter, 37 Pa. St. 41; "Keimer v. Stuber, 20 Pa. St. 458; Demuth v. Amweg, 90 Pa. St. 181 ; Lindeman v. Lindsey, 69 Pa. St. 93. Eeiiiier v. Stuber, 20 Pa. St. 458; 'Schenley v. Commonwealth, 36 Plitt V. Cox, 43 Pa. St. 486. Pa. St. 29 ; Reimer v. Stuber, 20 Pa. 'Reimer v. Stuber, 20 Pa. St. 458. St. 458. It seems to be assumed Yet, in Lindeman v. Lindsey, 69 Pa. that the adverse, user must last, not St. 93, it is said that a user of an ease- ten years, as prescribed by the act of ment, on land in the possession of a 26lh March, 1785, but twenty-one tenant, will not make a right to it, years after the attaining of age. as the act of acquiescence of the LIMITATIONS AS TO LAND. 171 evidence qualifying this user by showing its subordination to the will of the owner of the land, its adverseness is presumed/ This presumption must be rebutted by showing a license, or agreement, or other circumstan'ces negativing adverseness.* Statements by the claimant of a right of way to the owner of the land over which the way runs the right to which is claimed, may be shown to repel the presumption that a pre- vious or a subsequent user was adverse. But the circum- stance that after long use of the way, they met at the public road, and the former said to the latter that he wanted a way where he had been using one, and the latter replied that he never should have a way there, did not tend to show that the previous enjoyment had been interrupted, or had not been adverse.^ So, when the person now asserting a right is shown to have stated, after the user had continued twenty- one years without indication that it was subordinate to the owner's will, that he enjoyed the way on sufferance, would not be conclusive against the previous adverseness of a user had for a time sufficiently long to make a right, unless it distinctly appears that he intended by that word to say, not, merely that he had not been molested, but that he in fact had no right, and that he was aware of the facts and of their legal value in making rights.* After a user for twenty- one years has created a right, no oral concession that the ' Esling V. Williams, 10 Pa. St. 126 ; joyment, to the owner not to occlude Garrett v. Jackson, 20 Pa. St. 331; his way, would not impair the etfeo- Pierce v. Cloud, 42 Pa. St. 102 ; Steffy tiveness of his previous user. Pierce V. Carpenter, 37 Pa. St. 41 ; Worrall v. Cloud, 42 Pa. St. 102. V. Rhoads, 2 Wh. 427. The uninter- * Pierce v. Cloud, 42 Pa. St. 102. A rupted user for twenty-one years is disclaimer of right to the use of the evidence of a grant, and therefore of way, made with understanding of a right. Okeson v. Patterson, 29 Pa. the disclaimer's right and of the St. 22. significance of the language used , 'Pierce v. Cloud, 47 Pa. St. 102; by him, would preclude his afisert- Garrett v. Jackson, 20 Pa. St. 331. ing a right. Beimer v. Stuber, 20 ' Okeson v. Patterson, 29 Pa. St. 22. Pa. St. 458. Appeal, after twenty-one years' en- 172 LAW or LIMITATIONS. present or future enjoyment of it is contingent on the will of the owner, of the land, will destroy it.^ • Extinction of Right of Way. § 129. When a right of way is acquired by adverse user or otherwise, it can be destroyed only by the means by which such a right, acquired by grant or otherwise, could be ex- tinguished. Mere non-user^ or verbal acknowledgments that the way is enjoyed by the sufferance of the owner of the land, will not destroy the right. If the purpose for which the right of way existed can no longer be realized, the right is suspended until that purpose becomes . again attainable. Thus, if the way was used as a means of access to a highway, and this highway is vacated and placed on a route which is several rods from the terminus of the way, the right to which, by adverse user, has been acquired, the right to use the way intermits until, by a purchase of a right to traverse the intermediate ground, or by a change in the position of the road^ the way becomes again available for its former purpose.' Adverse obstruction of the enjoyment of a way for twenty-one years, by the owner of the servient land, will destroy the right.* But different and disconnected ' Okeson V. Patterson, 29 Pa. St. 22 ; gained, and when acquired by an Pierce v. Cloud, 42 Pa. St. 102. A adverse possession it may be lost by right of way may be lost by witness- non-user for the same period. When ing, without protest, the erection by the right is acquired by grant, it will the purchaser of a servient lot, of a not be lost by non-user. This dis- building over the route. Arnold v. tinction is recognized in Grubb v. Cornman, 6Q Pa. St. 361. Guilford, 4 W. 233. 'Cf. Meyer v. Young, 7 W. N. 0. 'Herschbergerv.Kachel,l Woodw. 60 ; Yeakle ti. Nace, 2 Wh. 123 ; Erb 488. V. Brown,. 69 Pa. St. 216; Hall v. *Spackm.an«.Steidel,88Pa.St.453; Caughey, 51 Pa. St. 43 ; Crow d. Wol- Shroder v. Brenneman, 23 Pa. St. bert, 7 Phila.178; Spackman v. Stei- 348; Bombaugh v. Miller, 82 Pa. St. del, 88 Pa. St. 453; Bombaugh v. 203 ; McKee «. Perchment, 69 Pa. St. Miller, 82 Pa. St. 203; Lindeman v. 342. But if it appears that the ob- Lindsey, 69 Pa.St. 93; Butz ti. Ihrie, struction was in pursuance of an 1 R. 218; Nitzell «. Pa8chall,3 R. 76. agreement that such obstruction In Nitzell v. Paschall, 8 R. 7S, Gib- might be placed on the way for a son, C. J., supposed that a right may definite time, or until the owner of be lost in the mode in which it is the right of way chose to demand LIMITATIONS AS TO LAND, 173 acts of trespass, extending over parts of several years, are clearly insufficient to make a right to obstruct an alley, or to destroy the right of way over the alley by the owner of the dominant tenement.' Light and Air. § 130. The fact that a house on one lot has enjoyed an uninterrupted influx of air and light for twenty-one or any other number of years, on account of the absence of inter- ■ fering structures on adjacent land, does not create a right to the continued enjoyment of this air and light, and, as a means thereto, to the continued nudity of the neighboring land. The doctrine of ancient lights and of a prescriptive right to light and air has no recognition in Pennsylvania.* Such an easement would, in this State, destroy the usufruct of the servient property.^ A fortiori will the mere fact that on one of two adjacent lots a building is erected, with lateral windows looking over the adjacent lot, not give the owner that it be removed, the maintenance of the obstruction till the expiration of such time, or the manifestation of such choice, would not be adverse. McKee v. Perchment, 69 Pa. St. 342; Bombaugh v. Miller, 82 Pa. St. 203. Kesidence for twenty-one years with- in a lot whose boundaries embrace the heus of a lane, the right of way over which is by deed in- another, does not destroy, ipso facto, the ease- ment. There must be a denial of the right of way and an actual ob- struction to its enjoyment. Bom- baugh V. Miller, 82 Pa. St. 203. But, if the owner of the servient land over which the way runs incloses it by fences with the rest of his lot for twenty-one years, this, prima facie, destroys the right of way, though no effort to use the way by the dominant owner is shown. Yeakle v. Nace, 2 Wh. 123. 'Transue v. Sell, 105 Pa. St. 604. It is constitutionally competent for the legislature to provide a way for vacating private roads, the right to which has been acquired by adverse user. They have done so in the first section of the act of 21st April, 1846. P. L. 416; Krier's Private Road, 73 Pa. St. 109 ; Stuber's Road, 28 Pa. St. 199. ''Rennyson's Appeal, 94 Pa. St. 147; Hazlett v. Powell, 30 ta. St. 293 ; Wheatley v. Baugh, 25 Pa. St. 528 ; Hoy v. Sterrett, 2 W. 327 ; Hav- erstick v. Sipe, 33 Pa. St. 368; Neill V. Gallagher, 10 Phila. 172 ; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21. The doctrine of ancient lights was recognized in McDonald v. Bromley, 6 Phila. 302; Biddle v. Ash, 2 Ash. 211 ; Burd v. Smith, 8 W. 434. 'Tinicum Fishing Co. v. Carter, 61 Pa. St. 21. 174 LAW OF LIMITATIONS, any right that on the latter lot, then without buildings, no obstruction shall be erected.' Public Rights of Way. § 131. A dedication may be made of land for a highway, and, once made, it will be irrevocable, without regard to the length of time that may have elapsed since,'' A use by the public for twenty-one, or any other number of years, in conformity with the dedication, would, perhaps, add no addi- tional virtue to it. When the land which is left open to the use of the public is so related to other property of the owner as to explain his permitting and inviting that use by the hypothesis that it is designed by him to be merely incident to his use of his adjoining premises, and is intended to cease as soon as he chooses to have it cease, the hypothesis neither of dedication^ nor of acquisition of a right by adverse user,* will be admissible. Thus, if for his own convenience, or to satisfy his own taste, the owner of a city lot, in building his frqnt wall, recedes from the prescribed building line of the street, two and a half ^ or, five feet,* and the house stands in this position for twenty-one years, the excluded area forming an apparent part of the foot-way, the public does not acquire a right thereto by adverse' user, nor do the owners of adja- cent lots on the same side of the street acquire the right ' Vollmer's Appeal, 61 Pa. St. 118 ; • Biddle v. Ash, 2 Ash. 211 ; Gowen Milne's Appeal, 81 Pa. St. 54. v. Phila. Exchange Co., 5 W. & S. 'Gowen v. Phila. Exchange Co., 5 141; ef. Neill v. Gallagher, 10 Phila. W. & S. 141 ; Griffin's Appeal, 109 172. The mere fact that the owner Pai St. 150. of a lot fronting on a street, set^ "Gowen V. Phila. Exchange Co., 5 back his front fence thirty feet from W. & S. 141 ; Neill v. Gallagher, 10 the street for his own convenience, Phila. 172; Griffin's Appeal, 109 Pa. to provide standing room for St. 150. wagons, &c., and that for more than *Gowen V. Phila. Exchange Co., 5 twenty-one years -the public have W. & 8.141 ; Eootu. Commonwealth, with him a common enjoyment of 98 Pa. St. 170 ; Griffin's Appeal, 109 the space thus left open, will not Pa. St. 150. create' a public easement which will 'Duncan v. Hanbest, 2 Brewst. preclude his inclosing this space 362. when he so desires. Griffin's Ap- peal, 109 Pa. St. 150. LIMITATIONS AS TO LAND. 175 that the house shall not be advanced, when its owner so chooses, to the true building line. In like manner, if the owner of a tract bordering on a navigable stream,* along which, but at some distance from it, a highway penetrates the tract, with a view to the establishment of a ferry, pre- pares a landing-place, and constructs a lane, connecting it with the highway, and expressly or tacitly invites patronage for his ferry, and the use of his lane for approach to it, this use of the lane by thp public, continued for twenty-one years, does not give it a right thereto. On ceasing to operate the ferry, he may bar up the lane, and prevent travel over it.^ Other Easements. § 132. By an adverse enjoyment for twenty-one years, the following kinds of easements may be acquired : the right to dig up a neighbor's soil and lay pipes" or a race' through it, and maintain them there for the purpose of conducting water to or from one's premises; to maintain a ditch or channel (and to enter from time to time for the purpose of cleansing and repairing it), on adjoining land, as a conduit for the excess of water used in irrigating one's meadow;* to maintain a tail-race across a neighbor's land;* to build and keep a dam on an upper riparian tract for the supply of a mill on the lower tract,^ or for the watering of horses and cattle;' to flood land of the upper riparian owner, or obstruct the operation of his mill, by means of a dam used for the ^EootD.Commonwealth, 98Pa. St. 'Darlington v. Painter, 7 Pa. St. 170. As the business of ferriage and 473. A turnpike company may, by the desire not to divert the public to user, acquire a right to drain the road other routes, explains the owner's by channels through the adjacent permitting the public, even when farms. Chestnut Hill and Spring not intending to use the ferry, to House Turnpike Co. v. Piper, 77 Pa. haul and travel over his lane, such St. 432. hauling and travel cannot be con- 'Graver v. ShoU, 42 Pa. St. 58. sidered as adverse. 'Keller v. Stoltz, 71 Pa. St. 356; 'Lewis V. Carstairs, 6 Wh. 193. Law v. Mumma, 43 Pa. St. 266. 'Randall v. Silverthorn, 4 Pa. St. ' Wheatley v. Chrisman, 24 Pa. St. 173. 298. 176 LAW OP LIMITATIONS. benefit of his lower neighbor;^ to abut one end of a bridge over a river, on the shore land;" to cast sawdust' from a saw-mill into a stream, with the effect that, carried down the current, it fills up the head-race of a lower owner's mill,* or fills up the basin of a canal company;* to pollute the water of a stream flowing through one's land, and so render it unfit for culinary, drinking and manufacturing purposes on the lower tract-;* to work a particular mine of coal or ore belonging to another, or to fish in another's Waters ;* to enter on the upper riparian tract and cleanse the bed of the stream and deposit the dirt and stones taken from it upon the banks, in order to increase or quicken the flow of the water into the lower tract;' to divert or permanently detain more than •Lacy V. Arnett, 33 Pa. St. 169; Meyer v. Horst, 106 Pa. St. 5S2 ; Jes- sup V. Loucks, 55 Pa. St. 350 ; Keller V. Stoltz, 71 Pa. St. 356; Mertz v. Dorney, 25 Pa. St. 519; Gehman v. Erdman, 105 Pa. St. 371; McKillip V. Mcllhennj', 4 W. 317; Hoy v. Sterrett, 2 W. 327 ; Bovard v. Christy, 14 Pa. St. 267; Eeagan d. Grim's Adm., 13 Pa. St. 508 ; Alexander v. Kerr, 2 R. 83. 'Schuylkill Navigation Co. v. Stoever, 2 Gr. 462; Rogers v. Stoe- ver, 24 Pa. St. 186; Beidelman v. Foulk, 5 W. 308. •Jones V. Crow, 32 Ta. St. 398. * Delaware and Hudson Canal Co. ^. Torrey, 33 Pa. St. 143. 'McCallum v Germantown Water Co., 54 Pa. St. 40; Howell v. McCoy, 5 R. 256 ; Warren v. Hunter, 1 Phila. 414. 'Caldwell v. Copeland, 37 Pa. St. 427. Yet, in Tinicum Fishing Co. v. ■Carter, 61 Pa. St. 21, doubt is ex- pressed by Sharswood, J., whether a. profit a prendre c?in be acquired by prescription ; especially such a right in gross, and not appurtenant to land. The right of a borough to continue to dig gravel and quarry stone in a public square in it belonging to the county, after having exercised these acts for twenty-one years, by the sufferance and courtesy of the county, was denied in County of Susquehanna v. Deans, 38 Pa. St. 131. 'Scheetz's Appeal, 35 Pa. St. 88. The owner of one lot does not ac- quire,, by the maintenance of a house upon it for twenty-one years, the right that his neighbor shall not excavate the latter's lot for the pur- pose of building, if the effect of such excavation shall be to injure the ad- joining house, because of the imper- fect material or mode of construc- tion of the house. One neighbor by using improper, material, or an unfit mode of construction, cannot destroy the right of the neighbor, twenty- one years afterwards, to improve his lot, except on the condition of in- suring the safety of the house. Richart v. Scott, 7 W. 460; Myers v. Winters, 23 Pittsb. L. J. 66. The owner of land on which is a spring, LIMITATIONS AS TO LAND. 177 an ordinary and reasonable quantity of water, whereby the supply to the lower ripari?in owner is diminished ;/^ to main- tain and use an underground vault on the premises of a neighbor ;^ to use riparian land of another as a landing-place for a ferry ; ^ to use as a place for hitching horses and station- ing carriages during divine service, a grove adjoining to a church ;* to change the natural channel of permanent water- courses, or of such as are formed periodically from rains, and to maintain the artificially-formed channel.® Properties of the User. § 133. The right to the several kinds of easements indi- cated is acquired by the enjoyment of them for a certain period, adversely to the owner of the land which is bur- dened by them. This period is twenty-one years.^ The eupplied by percolations through the soil of an adjacent tract, does not,, by a use of this spring for twenty.-one years, acquire a right that the owner of the adjacent tra.ct shall not rlaine it, or otherwise so change its state as to intercept the percolations and destroy the spring. Wheatley v. Baugh, 25 Pa. St. 528. So, the operation of a mill for twenty-one or more years, on a stream, does not entitle its owner to perpetual abstinence by the supra-riparian owner from building a mill, and from incidentally so diminishing the supply of the water. Hoy V. Sterrett, 2 W. 327. ' Howell V. McCoy, 3 R. 256 ; Han- num V. Borough of W. Chester, 63 Pa. St. 475; Whetstone v. Bowser, 29 Pa. St. 59; Delaware and H. Canal Co. v. Tor^ey, 83 Pa. St. 143 ; Messinger's Appeal, 109 Pa. St. 285. Even if the lower riparian owner did not have, ipso facto, a right to an essentially undiminished flow of the water through his land, his use. in conjunction with his mill, of a certain. supply for twenty-one years, would give him a right to its con- tinuance. Strickler v. Todd, 10 S. &i R. 63. ^Stillew. Simes, 12 W. N. C. 437; Id., 40 Leg. Int. 4 ; Smith v. Button, 4 Phila. 73. 'Cooper V. Smith, 9 S. & R, 26; Bird V. Smith, 8 W. 434. ^Tfauger v. Sassaman, 14 Pa. St. 514 ; of. Tinicum Pishing Co. v. Car- ter, 61 Pa. St. 21. ' ^ Stout V. Kindt, 24 Pa. St. 449. For flooding of A.'s land by means of a changed Channel, he .has a right of action, unless the change has continued u.ndisputedly without interruption twenty-one years. — There can be no right to an exclu- sive ferry over a navigable stream, acquired by adverse user. Bird v. Smith, 8 W. 434; Cooper v. Smith, 9 S. & R. 26; Johnson v. Crow, 87 Pa. St.- 184. •Krier's Privatfe Road, 73 Pa. St, 109; Crawford v. Nefif, 3 Gr. 175; M 178 LAW OF LIMITATIONS. user must have been continuous.^ Wlien a lower riparian owner maintains on his land a dam of a certain height, at a certain place, in the same condition, for the period of twenty- one years, he acquires a right to flood the water back upon the upper riparian land to any height to which such a dam will flood it, according to the quantity of water in the stream. That quantity being variable from season to season and year to year, the height to which it is thrown back on the upper land is also variable. This variableness, however, is imma- terial ; the continuousness of the maintenance of the dam in the same state, and at the same site, 'is sufficient to protect the person maintaining it from any action, for any height, however exceptional, to which it shall occasion the water to MertzD. Dorney, 25 Pa. St. 519; Stu- ber's Koad, 28 Pa. St. 199; Wallace V. Fourth Presbyterian .Church, 111 Pa. St. 164 ; Keller v. Stoltz, 71 Pa. St. 356; Scheetz's Appeal, 35 Pa. St. 88; Hoy v: Sterrett, 2 W. 327 ; Strickler V. Todd, 10 S. & E. 63; Wheatley v. Chrisman, 24 Pa. St. 298; Jessup v. Loucks, 55 Pa. St. 350 ; McCallum v. Germantown Water Co., 54 Pa. St. 40; Warren v. Hunter, 1 Phila. 414; Stoutly. Kindt, 24 Pa. St. 449; Jones V. Crow, 32 Pa. St. 398; Richart v. Scott, 7 W. 460; Dyer v. Depui, 5 Wh. 584; Gehman v. Erdman, 105 Pa. St. 371; Graver v. Sh'oll, 42 Pa. St. 58; Messinger's Appeal, 109 Pa. St. 285. There are cases in which twenty years are spoken of as the term. McKillip v. Mcllhenny, 4 W. 317; Howell vl McCoy, 3 R. 256; Darlington v. Painter, 7 Pa. St. 473 ; Lewis V. Carstairs, 6 Wh. 193. 'Lacy V. -Arnett, 33 Pa. St. 169; Chestnut Hill and Spring House Turnpike Co. v. Piper, 77 Pa.' St. 432; Warren v. Hunter, 1 Phila. 414; Jones v. Crow, 32 Pa. St. 398; Gehman v. Erdman, 105 Pa. St. 371 ; Graver v. Sholl, 42 Pa. St. 58; Hoy V. Sterrett, 2 W. 327. That the inter- vals between the ^successive acts of enjoyment or use are considerable, is not inconsistent with that continu- ousness which is demanded to 6reate a right. Thus, one who plies a ferry over a navigable stream and makes use of a landing-place on -his neigh- bor's land only when the water is very high or very low, and he is on that account unable to use his own landing, may acquire the right to use this landing-place in those states of the water. Bird i;. Smith, 8 W. 434. The use, by an upper riparian owner, annually (at the season when the growth of grass would be pro- moted by irrigation), of water from a stream for that purpose, continued twenty-one years, would give a right to continue to divert the water for that purpose by the same arrange- ment. Messinger's Appeal, 109 Pa. St. 285. Limitations as to land. 179 rise.^ The user must be open, notorious and visible,^ with the knowledge and acquiescence of the owner of the servient land.' Hence, the maintenance, for twenty-one years, of a vault under the pavement in front of A.'s house, by the owner of the contiguous house, not manifest in any way to A., will not make a right to its continuance.* That the user is known and acquiesced in for some years, less than twenty- one, by the owner of. the servient land, will not avail, if the title thereto then passes to one who has no knowledge of it, and who is not, on account of its clandestine character, •affected with constructive notice.^ The user must be adverse ^ under a claim of right.^ That there was a grant or license 'Gehman v. Erdman, 105 Pa. St. 371. , In Jones v. Crow, 32 Pa. St. 398, it was held that a change in the use of a saw-mill, from one upright Saw to two circular saws, would not le important if the quantity of saw- f^dust thrown into the stream re- rpaained the same. Soi the adoption ■ of a chute for pouring the sawdust ^into the tail-race, if it did not in- .^erease the quantity that went into ..|he tail-race, would be unimportant. ■ "Gehman v. Erdman, 105 Pa. St. 371 ; Graver v. Sholl, 42 Pa. St. 58 ; ''Messinger's Appeal, 109 Pa. St. 285. ' Jessup V. Loucks, 55 Pa. St. 350 ; Hoy V. Sterrett, 2 W. 327 ; Scheetz's Appeal, 35 Pa. St. 88 ; Jones v. Crow, 82 Pa. St. 398; Stille v. Simes, 12 W. N.C.437; Jd., 40 Leg. Int. 4. If a user, to flood water back on land, begins under the right of eminent domain, it is not with the acquiescence of the owner of the land. Hence, this user cannot be tacked to that which sub- sequently happens after the right u,nder eminent domain ceases. Jes- sup V. Loucks, 55 Pa. St. 350. * Stille V. Simes, 12 W. N. C. 437; Id., 40 Leg. Int. 4; Smith v. Button, 4Phila. 73. ''Stille V. Simes, 12 W. N. C. 437'; Id., 40 Leg. Int. 4. «Hoy V. Sterrett, 2 W. 327; Craw- ford V. Neff, 3 Gr. 175 ; Darlington v. Painter, 7 Pa. St. 473; Graver v. Sholl, 42 Pa. St. 58; Hannum 'v. Borough of W. Chester, 63 Pa. St. 475 ; Jones v. Crow, 32 Pa. St. 398 ; Stille V. Simes, 12 W. N. C. 437 ; Wallace v. Fourth Presbyterian Church, 111 Pa. St. 164; CJiestnut Hill and Spring House Turnpike Co. V. Piper, 77 Pa. St. 432 ; Scheetz's Ap- peal, 85 Pa. St. 88. ' Gehman v. Erdman, 105 Pa. St. 371 ; Messinger's Appeal, 109 Pa. St. 285; Scheetz's Appeal, 35 Pa. St. 88; Bird v. Smith, 8 W. 434. The user must be such as will give a right of action to the party against who;n it is alleged to make a right. Hence, as no right can be main- tained by A. against his neighbor for using a spring on his own land, tliough it is supplied by percolations through A.'s land, no right will be acquired by him that A. shall make no use of his soil that will intercept these percolations and destroy the spring. Wheatley v. Baugh, 25 Pa. St. 528. 180 LAW OF LIMITATIONS. for a certain quantity or degree of a form of user, is not incompatible with the adverseness of the enjoyment of a greater degree thereof. Thus, though by grant, B., the lower riparian owner, is authorized io maintain a dam of a certain height only, he may, nevertheless, from the time of the grant or afterwards, build and maintain, for twenty-one years, a higher dam, and so acquire a- right to maintain it, notwithstanding that it floods the upper land- injuriously at times.^ So, a grant of a right to a lower owner to maintain on an upper tract, a dam, and conduct the water from it, by an artificial channel, to his land, for the irrigation of his meadow, will not prevent his acquiring a right, by twenty- one years' user, to give the water to his cattle to drink.^ liXtent of the Rights Acquired. § 134. When uses susceptible of variation of quantity are the foundation of a right, the quantity of the enjoyment during the twenty-one years during which the right is ac- quired, will prescribe the limit to the quantity of the use the right to which is asserted. Thus, if the right to pollute water in a stream is asserted by an upper riparian owner, from the habit of doing so for twenty-one years, this right is restricted to that degree of pollution existing at the begin- ning of and through that period. If at the beginning the pollution was slight, he cannot at any time within the period increase it five or tenfold, and so destroy the water for drink- ing and domestic purposes.^ If a turnpike company has drained its road by letting the water upon adjacent land for twenty-one years, it has no right after this period to increase the capacity of the.drain and pour a larger quantity of water on this land.* The casting of sawdust into a stream for twenty-one years, while authorizing the continuance of such ^Gehman v. Erdman, 105 Pa. St. 'McCallum i;.Germantown Water ^71. - Co., 54 Pa. St. 40; Warren v. Hunter, ' Wheatley v. Chrisman, 24 Pa. St. 1 Phila. 414. '298. * Chestnut Hill and Spring House Turnpike Co. v. Piper, 77 Pa. St. 432. LIMITATIONS AS TO LAND. 181 act, authorizes the casting of only the same or a less quantitjr therein.^ The use for twenty-one years of a channel over B.'s land by A. to drain off the water used in irrigating A.'s. land, will not authorize the use of this channel for carrying; off a larger quantity of water as a tail-race for a mill.^ By means of a dam, the lower riparian owner causes water to> flow back to a certain extent on the upper land, for twenty- one years. This gives him no right to increase the height of the flow by changing the position of the dam,^ or by increasing its tightness.* If the use for twenty-one years of a landing-place for a ferry, has been exclusive of the use of it for a similar purpose by the owner of the soil, the right acquired will be exclusive of him, but if he has used the landing also for purposes of ferriage^ the easement will b& concurrent with the owner's right. But the jury ought tO' presume the use to have been exclusive, in the absence of evidence to the contrary, whenever the value of the right claimed by the person asserting a ferry right, would have ^ Jones V. Crow, 32 Pa. St. 398. After which the water is backed, he is not throwing in sawdust for twenty-one liable in case, for the backing ,- years, to a certain amount, a right though, if in changing the place of would be acquired to continue to the dam, he should, without right,, do so, notwithstanding' that, by the locate it on the upper land, he- lower owner's constructing a new would be liable for that in trespass- race to supply his mill, he admitted q. c. I. Keller v. Stoltz, 71 Pa. St, a larger quantity of this sawdust to 356. But when the dam is not in- his mill wheels. creased in height or tightness, and ' Darlington v. Painter, 7 Pa. St. the position ig not changed so as to- 473. Whether the change of use flood back more water, the merei would alone be a transgression of fact that from an increase in the- the right, not decided, but if the volume of water pouring down change led to the carrying of a (Gehman v. Erdman, 105 Pa. St. 371),. larger quantity of water through the or from the filling up of the bottom, servient land, it would be iii excess of the bed a,nd pool, were that pos- of the right. sible (Bovard v. Christy, 14 Pa. St. 'Keller v. Stoltz, 71 Pa. St. 356; 267), the water is bacfc-ed higher Law V. Mumma, 43 Pa. St. 267 ; Lacy than before in the twenty-one years, V. Arnett, 33 Pa. St. 169. But if, by will not be a cause of action, changing the position of the dam,' he , * Mertz v. Dorney, 25 Pa. St. 519. causes no increase of the height to 182 LAW OF LIMITATIONS. been lessened in the least degree by the participation of the owner of the soil in it.' If an upper riparian owner builds a low dam across the stream and cuts a sluice or ditch therefrom into his land, and so diverts the water for the irrigation of his • gra,ss in the dry season, the fact that after twenty-one years of such use (during which, owing to the abundance of water in the stream, the lower owners suffered no scarcity), the supply became so scant that after the same quantity was diverted, there did not remain enough for the lises of the sub-riparian owners, would not make the diversion action- able. The upper owner has a right to maintain his dam at the same height, and divert the water by the same sluice, notwithstanding that the variation in quantity of water in the stream makes the residuum insufficient for those who own lands lower down.^ By and Against Whom Sasement May be Acquired. § 135. The user, whose continuance for twenty-one years creates a right, to its future continuance, is not interrupted by a change in the ownership of the servient land. The devisee, heir or grantee of such land takes it subject to the inceptive process incident to the previous user.^ A fortiori, ' after the user has continued for twenty -one years, a change in the ownership of the land will not impair the completed easement.* But when the purchaser of the servient land has no express notice of the easement, there must be some indication on the premises calculated to arrest his attention and suggest the exercise of it.^ A change in the ownership of the dominant tenement, during or after the running of the twenty-one years' user, does not, in the former case, interrupt the process of acquiring an easement, nor, in the 'BirdD. Smith, 8 W.434. N. C. 437. The beginner of the ' Messinger'a Appeal, 109 Pa. St. user may devise the incipient ease- 285. riient to A. for life, remainder in fee. "Keller v. Stoltz, 71 Pa. St. 356; Bird ■«. Smith, 8 W. 434. Jones V. Crow, 32 Pa. St. 398; Bird 'Warren v. Hunter, 1 Phila. 414. V. Smith, 8 W. 434; Bovard v. Christy, ^ Bird v. Smith, 8 W. 434. 14 Pa. St. 267; Stille v. Simes, 12 W. LIMITATIONS AS TO LAND. 183 latter case, extinguish tlie easement already acquired/ That the practice of the user for some years has not been resisted by a suit, does, however, not make an estoppel in favor of the purchaser, against the owner of the servient premises suing, if he sues in less than twenty-one years from the com- mencement of the user.^ Easements Extinguished. § 136. As the rights which constitute the easement may be acquired as against the owner of the servient land, so the latter may re-acquire or extinguish these rights by an ef- fectual obstruction of their enjoyment for the period of twenty-one years. When the easement originates in a grant, it will not be destroyed, by mere non-user.^ Nothing less than an absolute denial of the right, accompanied by an enjoyment inconsistent with its existence for twenty •^one years, can extinguish it.* When two riparian owners, on 1 Keller v. Stoltz, 71 Pa. St. 356; Gehman v. Erdman, 105 Pa. St. 371; Alexander v. Kerr, 2 E. 83; Mertz v. Dorney, 25 Pa. St. 519; Bird v. Smith, 8 W. 434; Stille v. Simes, 12 W. N. C. 437. The evidence to prove the user must be clear, definite, un- equivocal as to its duration, and as to its extent. Jones v. Crow, 32 Pa. St. 398. 2 Alexander v. Kerr, 2 R. 83. Silence by the servient owner con- cerning injury to his land by the flooding back of water on it by a dam on the lower land, when the latter is being sold, does not estop against subsequently suing for the injury^ So, one who buys land from B. containing a dam which crosses the stream and abuts on A.'s land on the opposite side, is bound tp in- quire by what right the abutment is . maintained. He will not be pro- tected frotn A.'s action merely be- cause he did not know that B.'had , no right to abut on A.'s land. Beidelman v. Foulk, 5 W. 308. 'Lindsey v. Lindeman, 69 Pa. St. 93 ; Grubb v. Guilford, 4 W. 223 ; Erb V. Brown, 69 Pa. St. 216. Though non-user of an easement does not destroy it, the owner of the ease- ment may rebut the attempt to show non-user by proving a demand for leave to exercise it, and the conces- sion of the servient owner or his tenant to his demand. When the easement originates by adverse user, a cessation of the use for a term less than twenty-one years will not de- stroy it. Chestnut Hill and Spring House Co. V. Piper, 77 Pa. St. 432. But non-user for twenty-one years will destroy it. Grubb v. Guilford, 4 W. 223; Mertz v. Dorney, 25 Pa.. St. 519. * Lindsey v. Lindeman, 69 Pa. St. 93 ; St. Mary's Church v. Miles, 1 Wh. 229; Butz v. Ihrie, 1 E. 218; Nitzell V. Paschall, 3 E. 76 ; Buckholder v. 184 LAW OF LIMITATIONS. Opposite sides of a stream, jointly erect a dam and covenant that each shall have the right to one-half of the water, the mere fact that one of them habitually uses more than half, the other having all he needs and demands, for twenty-one years, will not prevent the latter from insisting on one-half,, if, for any cause, the total supply becomes so small that he begins to need one-half.^ So, a right to maintain a dam, whereby water is flooded back on the upper land, granted by deed, is not lost because thirty-two years run by before the dam is erected.*^ CHAPTEE XVII. PEESUMPTION OF GKANT, DEVISE, DESCENT. Presumption of Title. § 137. The statute of limitations operates only through a possession maintained for twenty-one years adversely to other ' titles, and it destroys the title of the original owner, however clearly deduced from the warrantee or patentee. As against one not deducing the title from the warrantee or patentee, -i. e. as against an intruder, the transmission of this title to any par- ticular person who contests with the intruder the right to the Sigler, 7 W. & S. 154. In Dyer v. mum natural purity, was assumed ■ Depui, 5 Wh. 584, it was decided to extinguish the easement or right that a privilege by deed to maintain of the lower owner to this maximum a dam on supra-riparian land, and natural purity, or to any greater de- to divert the water from its natural gree of purity than had existed dur- coursebymeanaofachannelthrough ing the twenty-one years. Warren this land to the grantee's, could not be v. Hunter, 1 Phila. 414. lost by twenty years' non-user; could 'Butz v. Ihrie, 1 R. 218; P. L. 56; 2 Bright. Purd. p. 1065, 374; Dauchy v. Pond, 9 W. 49; An- pl. 15. drews v. Bell, 56 Pa. St. 343. "Du Bois V. Baum, 46 Pa. St. 537; ' Websterv. Webster,53 Pa. St. 161; Miller v. Henlan, 51 Pa. St. 265 ; Cad- Harris v. Harris, 19 Pittsb. L. J. 121 ; -walader'8Appeal,57Pa.St.l58; Tarr Donovan v. DriscoU, 93 Pa. St. 509; V. Scott, 4 Brewst. 49; Irvine v. Bull, Eider v. Maul, 46 Pa. St. 376; Maul 7 W. 323 ; Patterson v. Martz, 8 W. v. Eider, 51 Pa. St. 377 ; Id., 59 Pa. St. 167; Eider v. Maul, 70 Pa. St. 15. LIMITATIONS AS TO LAND. 191 So, a vendee's assumpsit or other action for the vendor's refusal to convey the land, would be barred in five years.^ Equity of Redemption. § 144. The act also bars actions to enforce any equity of redemption after re-entry made for any condition broken, after five years have fled since the equity accrued, unless the continued existence of this equity has been acknowledged in writing within five years before the action is commenced, This provision applies to re-entries for conditions broken under ground-rent deeds which contain a clause for such re-entry for non-payment of rent. It may and doubtless does comprehend other cases,^ but it cannot be extended to the equity of redemption of a mortgagor. He is not limited to five years for the bringing of an ejectment or the filing of a bill, to permit him to redeem the land by paying the un- paid mortgage debt,^ whether the mortgage be in the ordinary, form, or in the form of a conveyance with a separately writ-' ten* or oral,* but simultaneous agreement for a resale. Implied and Resulting Trusts. § 145. The act of 1856 forbids the enforcement of any ^ Harris 1). Harris, 70 Pa. St. 170. obligation, would be practically a ' Harper's Appeal, 64 Pa. St. 315. mortgagee, and, if he continued in 'The mortgagor's equity of re- possession twenty-one years after demption is barred when the mort- the time stipulated for B.'s payment, gagee has been in possession for B. meantime exercising no owner- twenty-one years after the time of ship, the equity of B. would be ex- payment, if nothing has taken place tinct. But if, so far from this being'the between the parties showing that case, B. paid all the taxes assessed, the original relation is s.till kept up. guarded the land from intruders by This principle would apply when agent, redeemed parts of it sold from A. makes application for and pro- time to time for taxes, occupied parts cures warrants, the purchase-money of it, &o., the debt for which A.'a lien of which is paid to the State by B., existed would be deemed satisfied, and A. and B. contract that the for- and no recovery of the land from B. mer is to complete the title by patent could be had by the patentee. Brock for B., and B. is in turn to pay the v. Savage, 31 Pa. St. 410. expense of survey and patent and a 'Harper's Appeal, 64 Pa. St. 315 ; certain additional compensation. A., Ballentine v. White, 77 Pa. St. 20. obtaining the patent as security for ' Staflford «. Wheeler, 93 Pa. St. 462. B.'s compliance with his pecuniary 192 LAW OF LIMITATIONS. implied or resulting trust as to realty, by action instituted after the lapse of five years since the accruing of the' trust, ■or since its acknowledgment in writing by the holder of the legal title. The ordinary case of a trust resulting to A. (who furnishes the purchase-money for lands which he in- tends to acquire to himself) when the title is conveyed to B., is within this provision. A.'s proceeding to compel B. to recognize his right is subject to the limitation therein pre- scribed.'^ Thus, one partner buying land for the partners, -and paying for it by partnership assets, but taking title to himself, will be protected from the assertion of the trust by the other partner, when the time limited in this act shall have elapsed.^ So will an administratrix who, in payment of a debt due the estate of her deceased husband, accepts a •conveyance in fee to herself of land of the debtor.^ The ^ 1 Miller v. Bealer, 100 Pa. St. 583 McBarfon v. Glass, 30 Pa. St. 133 ■ €larke v. Trindle, 52 Pa. St. 492 Black's Estate, 43 Leg. Int. 446 Layton v. Brightfield, 3 Penny. 181 Arthurs v. Weisley, 3 Penny. 29 , Wiser v. Allen, 92 Pa. St. 317. Prior to the act pf 1856, the twenty-one gears' limitation was applied to the enforcement of trusts resulting by the payment by one man of the purchase-money of land conveyed to another., ^ Unless possession was taken, or action brought by the ■cestui que trust in less than twenty- one years after the trust arose, it •could no longer be enforced against the owner of the legal title, though the latter had had no possession, nor paid taxes, nor otherwise asserted a right. Strimpfler v. Roberts, 18 Pa. -St. 283; MoBarron v. Glass, 30 Pa. . St. 133. "McNinch v. Trego, 73 Pa. Sti 52. So, when two persons agree to bear the expense of discovering vacant land, procuring a warrant, survey- ing it, and paying the purchase- money to the State, and the patent is subsequently issued to one of them. Douglass y. Lucas, 63 Pa. St. 9. So, when one of four co-ten- ants of a house conveys it to X. in exchange for another which X. con- veys to him, and the other co-tenants ratify this act by estopping them- selves from denying X.'s title to the house formerly held by them, the re- sulting trust in their favor attaching to the legal title of their co-tenant, to the house obtained from X., is subject to the five years' limitation. Broom- all V. McCallion, 6 Cent. Eep. 715. ' Best V. Campbell, 62 Pa. St. 476. One of seven heirs purciiased the decedent's land at a partition sale. He subsequently procured the exe- cution of the deed to him, on his alleging that he, had the power of attorney of three of the heirs to re- ceive their shares, and on his under- taking to execute as such attorney LIMITATIONS AS TO LAND. 193 trust which affects one who, holding a fiduciary relation to the owners of land with respect to it, purchases it at a sale which takes place in pursuance of his fiduciary function, is sub- ject to the act of 1856. Thus, if one of several co-tenants of land should buy it in at a tax sale,' or should purchase an out- standing hostile title,^ or if claiming by descent from their com- mon ancestor, as against one to whom he had devised the land by — as they alleged-^a void devise, several co-tenants should employ the husband of one of them to prosecute the neces- sary suits to have the devise declared null, and he sl^ould compromise with the devisee by purchasing the title of the latter ;^ or if an executor, selling under a testamentary power,* or an administrator, selling under an order of the Orphans' Court for the payment of the decedent's debts,^ should become an acquittance to the trustee who made the sale, for their shares and his own, and to pay the money rep- resenting the other three shares to the owners thereof. One of the three heirs denying that he had a power of attorney, brought eject- ment sixteen years afterwards for his share of the land, alleging a result- ing trust from the use of his share of the money to pay for it. Such trust was subject to the bar of the act of 1856. Eoy v. Townsend, 78 Pa. St. 329. 1 Eider v. Maul, 46 Pa. St. 376. A husband tenant in common with his wife, procured an execution on a judgment which bound the land, and became the purchaser for the purpose of divesting her title. A bill in equity filed ten years after the husband's purchase, nearly ten years after she became aware thereof, and more than six years after she had been divorced from him, was sustained. Though one of the de- fendants pleaded the bar of the act of 1856, it is hot alluded to in the opinion of the court. Swisshelm's Appeal, 56 Pa. St. 475. "McCall V. Webb, 88 Pa. St. 150. » Dickey's Appeal, 73 Pa. St. 218. *Taggart v. Reilly, 3 Phila. 196. The enforcement of the trust was here denied under the general equity , doctrine of laches, the case having originated before the act of 1856. The trust could not be enforced, twenty years having elapsed since the right of action of the cestui que trust originated. In Peters v. Ker- per, 5 W. N. 0. 523, three executors agreed that one of them should, at a sale under an order of the Orphans' Court, become the purchaser, and oft a resale should divide the ad- vance of price obtained between himself and the other devisees. The purchase being accordingly made, the trust thereby accruing to the other devisees was within, the act of 1856. 'Mussleman v. Eshleman, 10 Pa. St. 394. A delay here of eleven N 194 LAW OF LIMITATIONS., the purchaser at the sale, the trusts thus a,rising would be enforceable only within the prescribed period. If an attor- ney-at-law, who supervises an execution, becomes the pur- chaser at the sheriff's sale thereunder, for less than his client's debt, the trust arising^ would fall within the opera- tion of the act of 1856," save for the first section of the act of 27th March, 1865. But that act, while it abolishes the limitation of five years to the assei;tion of the trust against the attorney, leaves that limitation operative in favor of the attorney's grantee, for it would be difficult to find any valid reason why one who buys from an attorney should be in a worse position than if he obtained the title from any other source.^ Other Resulting Trusts. § 146. Besides the resulting trust from payment of the purchase-money, which may * or may not ® be founded on a contract between the party taking the title and the party furnishing the money, that the former shall take it and hold it subject to the other's rights, there are other trusts emerg- ing from contractual engagements that are within the pro- visions of the act of 1856. An example is, when A. devises land to B. on her express promise to devise it at her death to certain persons;* when the judgment creditor is permitted to purchase, without counter bids from the debtor or his friends, the debtor's land, at an execution sale, on his prom- years, after the eestui que trust 'Barrett d. Bamber, 81 Pa. St. 247. reached majority^ barred the action The attorney in this case had con- to enforce the trust. The case was veyed the land before the act of 186& prior to the act of 1856. was passed. •The trust must, when the pur- 'Miller v. Bealer, 100 Pa. St. 583; chase is of personalty, be enforced Arthurs v. Weisley, 3 Penny. 29. in six years. Downey v. Gerrard, 3 'Best v. Campbell,' 62" Pa. St. 476. Gr. 64. In this case trust funds, i. e. assets of * Barrett v. Bamber, 81 Pa. St. 247. the estate, were used by the admin- If a trustee under a deed of trust is istratrix in purchasing the land for the client, the trust which affects herself without authority from the the attorney is, nevertheless, only next of kin. an implied one. 'Church v. Ruland, 64 Pa. St. 432. LIMITATIONS, AS TO LAND. 195 ise when he shall be paid his judgment and the amount paid for the land, to reconvey it ; ^ when A. and B. owning in severalty two equal parts of a tract under one warrant and survey, B. conveys his part to A., that A, may obtain a patent for the whole tract, and so save fees and. the expense of two locations under the graduation law;'* when C. gives > to D. the money with which to buy in certain claims against C, in order that, obtaining judgment thereon, he may sell C.'s land on execution, becoming himself the purchaser, under an agreement to hold for C.^ Without contract with the debtor, the purchaser at a sheriff's sale may obtain the land at a less price than he otherwise would, by falsely representing that he is buying it for the debtor, br by some other device, but the trust implied from this fraud must be enforced in five years.* If one of two co-vendees of land induces the vendor, by false representations, to believ© that the other has lost his right in the contract by a tax sale, or has abandoned it, aind so procures from the vendor a new contract, and, four years afterwards, a conveyance to himself alone, the trust growing out of this fraud (as distinct from that which springs from the original contract, or the pur- chase of the entire title by one co-tenant under a tax sale), will be subject to the five years' limitation." When the Five Years Begin. § 147. Prima facie, the five years begin to run with the • Hollinshead's Appeal, 103 Pa. St. 27(?). The contrary seems to have 158 ; Fricke v. Magee, 10 W. N. 0. 60. been assumed in an equity proceed- " Lingenfelter v. Eitchey, 58 Pa. St. ing to compel the fraudulent grantee 485. to convey to the purchaser of the ■^ Smith V. Tome, 68 Pa. St. 158; grantor's title at sheriflF's sale, though Blaich V. Bixenstein, 2 W. N. C. 301. in that case the limitation had not 'Christy v. Sill, 95 Pa. St. 380. But run since the plaintiff's discovery of a creditor of one who has conveyed the fraud, in Dicken v. Hays, 5 Cent, in fraud of creditors, is not subject Eep. 517. to the five years' limitation as to 'Maul v. Rider, 59 Pa. St. 167; bringing an ejectment on his sher- Rider v. Maul, 70 Pa. St. 15; Id., 46 iff's deed against the fraudulent Pa. St. 376 ; Maul v. Rider, 51 Pa. St. grantee. Dunn v. Truitt, 8 Phila. 377. 196 LAW OF LIMITATIONS, date at which, under the contract for conveyance, the land should have been conveyed, or when the facts occur which give origin to the right to enforpe the equity of redemption or other trust. A, devising land in fee to B., on B.'s oral promise to devise it to C. and D., C.'s right to enforce the trust arises only with the death of B. and the going into effect of B.'s devis6 of the land exclusively to D, in violation of her promise. Then, only, the limitary five years com- mence.^ When a trust affects one devisee in favOr of the other two, from bis purchase of the testator's land at an Orphans' Court sale, under an agreement with the executors that he would, in a reasonable time, resell it and share the advance price procured with the other devisees, and he dies twelve years afterwards, not having resold it, as the trust is a continuing one, the action to enforce it will not be barred if brought within five years- after his death.^ If the trust inures to the benefit of a life-tenant and a remainderman, the latter, not claiming through the former, will not be sub- ject to the running of the limitary time till his right of action accrued.^ So, under A.'s devise of the rents of his land to his widow B., two-thirds thereof for the support of his minor children till the youngest of them attains majority, and the other third for herself until her death, remainder to the children, if, before the youngest child reaches majority and during B.'s life, the legal title of the land is acquired by another, but subject to an implied trust in favor of the devi- sees, the act of 1866 will not begin to operate against the children as to the two-thirds, until the majority of the ' Church V. Ruland, 64 Pa. St. 432. money advanced by him in its pur- ' Peters v. Kerper, 5 W. N. C. 523. chase was repaid, and then to hold Yet, where a trust was alleged to it for the uses of the original trust, grow out of a purchase, by the hus- it was said by Mitchell, J., that the band of a co-ceatui que truxt, of a por- five years would run from the date tion of the trust land under liens, in of the purchase. Hollinshead's Ap- pursuance of a promise to hold the peal, 103 Pa. St. 158. property for his own use till the ' Black's Estate, 43 Leg. Int. 446, LIMITATIONS AS TO LAND. 197 youngest, nor, as to the remaining third, until the death of B.* But, perhaps, when the remaindermen are not in esse when the trust arises, the limitary term is not postponed till they arrive in esse and acquire the right of possession, but commences when the trust begins.* There is, in the sixth section of the act of 1856, no saving for minority, coverture or other personal disabilities. Hence,. the fact that the per- son is a minor,' or a feme covert,'^ or a lunatic," who is enti- tled to enforce the trust at its origin, will not prolong the right to sue for its enforcement beyond five years. Possession by the Cestui Que Trust or Vendee. § 148. When a right to the possession is an ingredient of the rights of the cestui que trust, with respect to the land affected by the trust, the cestui que trust's possession is deemed to be in pursuance of the trust. If before or at the inception of it this possession is taken, the five years limitation does not begin to operate until that possession is lost.* If possession is taken after the trust originates, but 'Petera v. Kerper, 5 W. N. C. by A.'s children, born after the im- 523. The youngest child reaching plied trust originated, age, 28th February, 1876, and a bill » Hollinshead's Appeal, 103 Pa. being filed 19th January, 1877, pray- St. 158; Warfield v. Cox, 53 Pa., St. ing for a decree that the execu- 382. tor who had bought the testator's 'Warfield v. Cox, 53 Pa. St. 382. land at an Orphans' Court sale, The cases of Miller v. FranciscuS, 40 in 1864, was a trustee and should Pa. St. 335 ; Rider v. Maul, 46 Pa. St. account for the rents and pi-ofita, 376 ; Black's Estate, 43 Leg. Int. 446, it was decreed that the executor which assume that these disabilities must account for the rents for five are exempt from the five years' lim- years preceding the filing of the itation, are erroneous, bill. "McCall V. Webb, 88 Pa. St. 150. 'Hollinshead's Appeal, 103 Pa. St. 'Wiser v. Allen, 92 Pa. St. 319 158. There was a spendthrift trust Williard v. Williard, 56 Pa. St. 119 for A. for life, remainder to his lineal Harris v. Harris, 70 Pa. St. 170 ; Lay descendants, if , any. Thei implied ton v. Brightfield, 3 Penny. 181 trust accrued during A.'s lifetime Clark d. Trindle, 52 Pa. St. 492 ; Bar from X.'s purchase of the trust prop- rett v. Bamber, 81 Pa. St. 247 ; Lin- erty under a contract to hold it for genfelter v. Ritchey, 58 Pa. St. 485 the trust on being re-imbu^-sed, but McNinch v. Trego, 73 Pa.' St. 52 the bill to enforce it was filed more Smith v. Tome, 68 Pa. St. 158 thfin fourteen years after A.'s death, Broopiall v. McCallion, 6 Cent. Rep. 198 LAW OF LIMITATIONS. before five years have elapsed, the period will stop running with the beginning of the possession.' Nor will it begin to run again until the possession terminates. Hence, at any distance of time after the making of a contract to convey land, if the vendee, at or within five years after the contract was made, went into possession, and continues in it uninter- ruptedly, he can defend against the vendor's ejectment by means of his equity, and insist that the verdict for the vendor be conditioned on the vendee's not paying the pur- chase-money ascertained by the jury to be still due.^ If the vendee having been in possession, should lose it by the vendor or the alienee of the vendor taking possession, he can, at any time within five years from the loss of the pos- session, however long since the contract was made, recover it by ejectment or bill in equity.* Possession m'ay be taken not only personally,* but also by tenants.* And if the ground-tenant pays the rent, not to the purchaser of the ground-rent at a judicial sale, but to the person to whom this purchase inures by a resulting trust, the latter will be regarded as in possession of the rent, and exempt from the operation of the limitation.^ Possession — Continued. § 149. On the death of the vendee of land, ih possession, his widow or children may continue the possession. If the 715. If the vendee, under a parol 161 ; Harris v. Harris, 19 Pittsb. L. J. contract, goes into possession, and 121. continues therein for however long 'Donovan v. Drisooll, 93 Pa. St. a time, e. g. twenty-two years, his 509. So, at any distance of time, action for the vendor's refusal to the vendee whose possession has not convey, is in time- if brought within been interrupted for five years since five years after losing possession, making the contract, may defend an Harris V. Harris, 70 Pa. St. 170. ejectment by means of his equity. 'Lay ton v. Brightfield, 3 Penny. Wiser v. Allen, 92 Pa. St. 319; Wil- 181; Williard i;. Williard, 56 Pa. St. Hard v. Williard, 56 Pa. St. 119; 119 ; Black's Estate, 43 Leg. Int. 446 ; Clark v. Trindle, 52 Pa. St. 492. Wisert). Allen, 92Pa. St. 319; Clark * Lay ton v. Brightfield, 3 Penny. V. Trindle, 52 Pa. St. 492. 181. 'Webster v. Webster, 53 Pa. St. '•Id. ' Barrett v. Bamber, 81 Pa. St. 247. LIMITATIONS AS TO liAND. 199 ■widow continues in possession, as she is entitled to it, and cannot be dispossessed until h.er dower is set apart to her, it will be considered as an assertion of the vendee's right, and in subordination thereto, until she gives notice to the heirs that she holds adversely thereto. Nor will her paying the residue of the purchase-money, and taking a deed in fee- simple to herself, be proof that her possession thereafter is adverse. If, many years thereafter, she denies to the heirs their right to the land, in some plain, decisive and unequiv- ocal way, and sells it, the heirs may recover in ejectment against her and her vendee, brought within five years after such denial of their title.' If the cestui que trust should lose the possession for five or more years, at any time after the rise of the trust, he cannot recover it on the trust title,^ nor would any subsequent possession restore the equity, though a distinct title, under the general statute of limita- tions, might be acquired. Thus, if after being out of posses- sion more than five years, the cestui que trust recovers posses- sion in ejectment on a legal title, not on his equity, as this recovery does not bar a subsequent, ejectment against him, he cannot, in such second ejectment, successfully defend his possession by his equity. That became extinct before "his recovery in the first ejectment.^ Transient occupancies, from time to time, of the land, for the purpose of cutting timber, (though, during the annually recurring season for cutting ' Donovan «. Driscoll, 93 Pa. St. title by means of the resulting trust 509. If A., with B.'s money, pur- Black's Estate, 43 Leg. Int. 446. chases land, but takes the title to 'Lay ton v. Brightfieldp 3 Fenny, himself, and shortly after marrying 181. B., she, with him, resides on the 'McNinch r. Trego, 73 Pa. St. 52;. land, this joint possession will pre- Koy v. Townsend, 78 Pa. St. 329. If vent the bar of the statute running, he gets into possession without suit, if it would otherwise run. B. dying, after being out of it for more than A.'s continuance in possession will five years, he can be dispossessed by be attributed to his curtesy, and ejectment. Douglass v. Ludas; 63 therefore be in subordination to B.'s Pa. St. 9. Nor is it different, though title. Her heirs may, within five the owner of the legal title is like- years after his death, niaintain their wise out of possession. Id. 200 LAW OF LIMITATIONS. timber, the person alleging a trust, or his agents, with their families, temporarily dwell in a shanty on the premises,) will not constitute the possession which will suspend the running of the limitary term.' Ackno-wledgment of the Trust. § 150. If, at any time later than the -origin of the equity of redemption, of the vendee's right to specific performance of the vendor's contract to convey, land, or of the resulting or implied trust, the holder of the legal title acknowledges in writing that the trust still subsists, an action to enforce it begun within five years subsequent to such acknowledgment will be in time. The acknowledgment need not be a formal declaration of trust, but may be by letter addressed to the party ,^ or by a will. Thus when A. having with B.'s money bought land for B. but taken the title to himself, and having gone into possession and retained it until, his death, ^ directs in his will that the executor shall convey the land to B. on B.'s repaying any portion of the purchase-money that may be still due to him, B. may, in five years from the date of the will, sustain an ejectment to recover the posses- sion, though the will, as such, was inoperative against the widow and child of A., having been made before his mar- riage.* 'Douglass V. Lucas, 63 Pa. St. 9; paid, he would make a report and Layton v. Brightfield, 3 Penny. 181. settlement. In so far as Clark v. Trindle, 52 Pa. 'Arthurs v. Wiesley, 3 Penny. 29. St. 492 ; Williard v. Williard, 66 Pa. When the trust is acknowledged, St. 119 ; Best v. Campbell, 62 Pa. St. and extinguished by paying over to 476, irapl^ the contrary, they are the tcestui que trust a sum of money erroneous. as its equivalent, of course it cannot - 'Dickey's Appeal, 73 Pa. St. 218. be subsequently asserted. Hollins- Here the letter stated the writer had head's Appeal, 103 Pa. St. 158. declined to give a written pledge to When it is denied formally and carry out the trust, on the ground with the knowledge of the cestui que that he had purchased the lands at trust, it will be barred in five years ' great expense, but added that when thereafter, if not before. Blaich v. he sold them, and his expense and Bixenstein, 2 W. N. C. 301. a proper compensation had been LIMITATIONS AS TO LAND. , 201 Knovrledge of the Facts. § 151. When the facts which create the trust are not known, and their existence could not be suspected for some time, the five years' limitation first. begins to run when they become known or circumstances become known sufficient to awaken inquiries which would lead to their discovery if made. Thus, A. puts money into B.'s hands, with the instruction to purchase land for A. B. takes the title to himself, contrary to the understandilig between them. A. not discovering this fact until more than a year after the deed was executed, the five years would not begin to run till that time.* So, when one of three executors became the purchaser at an Orphans' Court sale of land of the testator,, under an arrangement with the other two, that should he be able to resell the land in a reasonable time for an advance, he would share it with the other devisees, the latter would not be barred of an action to enforce the trust until five years had elapsed after they became aware of the conditions under which he had made the purchase.^ When a trust afiects the holder of the legal title by means of a fraud perpetrated by him, the five years l?egin to rtin only from the discovery thereof, or when, by reasonable diligence, the party defrauded might have discovered the same. A. having contracted to convey land to B. and C, B., on a false pre- tense, procures the article from C, in whose custody it was, carries it to A., (falsely informing A. that C.'s title has been divested by a tax sale, the title made by which he, B., has purchased,) and surrenders it to A., who is thus induced to execute a new contract with B. alone. C.'s heir bringing ejectment- eleven years subsequently to the new contract, was not barred, unless C, before his death, had knowl- ' Miller v. Bealer, 100 Pa. St. 584. run from the origin of the trust, not But, Mitchell, J., exfyressed the opin- , from the discovery'of the facts which ion, in HoUinshead's Appeal, 103 Pa. give rise to it. St. 158, that in cases of resulting ' Peters d. Kerper, 5 W. N. C. 523. arid constructive trust the five years . 202 LAW OF LIMITATIONS. edge, or might, with reasonable diligence, have acquired knowledge of the fraud used in procuring it more than five years before the action/ , . Knowledge — Continued. § 162. The fact that B., in the case just mentioned, four years after the new contract, obtained a deed from A. and put it on record, did not ajffect C. with notice of the fact that B. was claiming the sole title to the land." And though the fact that B., after the new contract, went into sole possession, making valuable and extensive improvements, selling portions of the premises and residing on the residue, would be enough to put C. on inquiry from B. as to whether B. was not claiming the exclusive ownership, and the result of this inquiry would probably have been the information that the new contract had been made with B. and a deed executed to him, still, as the facts which constituted the trust for C. were not these, but the fraud by which B. obtained the original article from C, his fraud in permitting a tax sale for the purpose of divesting C.'s title, when he had money from C. with which to pay the taxes, his false representation to A. that C. had lost and abandoned his interest in the land, whereby A. was induced to make the new contract with and the deed to B. exclusively, and as the inquiry from B. would not probably have led to the discovery of this fraud, the possession of B. was not enough to affect C with knowledge.' When a trust of a continuing nature exists, the five years' limitation runs only from the time when the death of the person affected with the trust,* or some other event, shows that the trust ' Maul V. Eider, 51 Pa. St. 377. As deed. Dicken v. Hays, 5 Cent. Eep. against a bill in equity by a sherifif 's 517. vendee of the title of the grantor in ' Maul v. Rider, 59 Pa. St. 167. Nor a deed fraudulent as to creditors, to would the general rumor of a convey- compel the fraudulent grantee to ance to B., coming to the ears of C, convey the title to him, the five have been notice of such a deed, years run only from the discovery ' ' Bider i). Maul, 70 Pa. St. 15. of the fraudulent character of the 'Peters v. Kerper, 6 W. N. C. 528. LIMITATIONS AS TO LAND. 203 will not probably be executed amicably and extra-judicially, or wben there is a distinct repudiation of it.^ Thus, when the trustee is to resell and account for the excess of the price obtained beyond his own outlays, and he dies twelve years afterwards, not having resold,^ or when, six years after the trust arises, he tenders a settlement with the cestui que trust which denies the obligation of the triist,^ the bill in equity to enforce it is not too late if filed within five years after such death or repudiation. Ho-w Operative. § 153. The five years' limitation bars the cestui que trust's recovery of the possession through the trust by wa. action of ejectment,* or his retention of the possession as against an ejectment brought by the holder of the legal title.^ It bars a bill in equity for a decree that the holder of the legal title holds it in trust, and that he account for the rents- and profits,^ or that, having sold the land, he account to the cestui que trust for the proceeds of the sale.^ But when the claim to land is not asserted by the cestui que trust in an ejectment against the trustee on the trust, but on a title acquired by a possession for twenty-one years, adverse to the trustee, and, to show that this possession was in fact not adverse, the latter exhibits a lease executed by him for the land during this possession, to which the cestui que trust was a subscribing witness, the inference drawn from this fact,' that he recognized the title to be in another, may be evaded by showing that the -title he so recognized was simply the ' Dickey's Appeal, 73 Pa. St. 218. years are, as to' this land, counted 'Peters v. Kerper, 5 W. N. C. 523. back from the time of the amend- ' Dickey's Appeal, 73 Pa. St. 218. ment. Miller v. Bealer, supra. 'Christy v. Sill, 95 Pa. St. 380; " Douglass i). Lucas, 63 Pa. St. 9. Miller v. Bealer, 100 Pa. St. 583; " Hollinshead's Appeal, 103 Pa. St. Church V. Ruland, 64 Pa. St. 432. 158; Peters v. Kerper, 5 W. N. C. The five years run back from the 523; Blaich v. Bixenstein, 2 W. N. issue of the writ. But, if an amend- C. 301. ment to the prxaipe is made, so as ' Dickey's Appeal, 73 Pa. St. 218 ; to embrace additional land, the five Fricke v. Magee, 10 W. N. C. 50. 204 LAW OF LIMITATIONS. legal title, the recognition of which was quite consistent with his assertion of a right of possession as against the legal title, under an equity.' ' Neel V. McElhenny, 69 Pa. St. 300. The sixth section of the act of 22d April, 1856, applied to trusts that had arisen before its passage. Those which were three years old or more were not to be barred in less than two years after its passage. It has been applied to pre-existing trusts. Hollinshead's Appeal, 103 Pa. St, 158; Best v. Campbell, 62 Pa. St. 476; Rider v. Maul, 46 Pa. St. 376; Id., 70 Pa. St. 15; McNinchw. Trego, 73 Pa. St. 52; Roy v. Townsend, 78 Pa. St. 329; Blaichv, Bixen8tein,2 W. N. C. 301 ; Smith v. Tome, 68 Pa. St. 158; vide Korn v.' Browne, 64 Pa. St. 55. This act is said to be a statute of repose, rather than of limitation, in Christy v. Sill, 95 Pa. St. 380; Douglass V. Lucas, 63 Pa. St. 9. BOOK II. LIMITATIONS TO PERSONAL ACTIONS. CHAPTEE I. THE STATUTES. Act 27th March, niS."^ § 154. Section I. On the 27th day of March, a. d. 1713, the General Assembly of the Province of Pennsylvania enacted, almost in IJhe words of the act of 21 James, c. 16, §§ 3, 7, the following : "Be it enacted. That all actions of trespass quare clausum fregit, all actions of detinue, t'rdver and replevin, for taking away goods and cattle, all actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants), all actions of debt, grounded upon any lending, or contract without specialty, all actions of debt for arrearages of rent, except the proprie- taries' quit-rents, Bind all actions of trespass, of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought at any time after the five-and-twentieth day of April, which shall be in the year of our Lord one thousand seven hundred and thirteen, shall be commenced and sued within the time and limitation here- after expressed, and not after; that is to say, the said actions upon the case, other than for slander, and the said adtions for account, and the said actions for trespass, debt, detinue and replevin for goods or cattle, and the said actions of trespass quare clausum fregit, within three years after the said five-and-twentieth day of April next, or within six ^1 Sm. L. 76; 2 Bright. Purd. p. was, "An act for limitation of ac- 1065, pi. 18. The title of this act tions." 206 LAW OF LIMITATIONS. years n6xt after the cause of sucli actions or suit, and not after. And the said actions of trespass, of assault, menace, battery, wounding, imprisonment, or any of them, within one year next after the said fiverand-twentieth day of April next, or within two years next after the cause of such actions or suit, and not after, and the said actions upon the case for words, within one year next after the words spoken, and not after." Section II. § 155. "And be it further enacted. That if, in any of the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill, then, and in every such case, the party plaintiff, his heirs, executors or administrators, as the case may require, may commence a new action' or suit from time to time within a year after such judgment reversed or given against the plaintiff as aforesaid, and not after." Section V.' § 156. " Provided, nevertheless. That if any person or persons, who is or shall be entitled to any such action of trespass, detinue, trover, replevin, actions of account, debt, actions for trespass, for assault, menace, battery, wound- ing or imprisonment, actions upon the case for words, be, or at the time of any cause of such action given or accrued, fallen or come, shall be, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond sea, that then such person or persons shall be at liberty to bring ^ Section 3 directs that in trespass bar any subsequent action for the guare cfausMm /rfgrii, if defendant dis- same trespass. Section 4 provides claims title to the hcua in quo, and that when damages less than forty the trespass being involuntary or by shillings are awarded in actions op negligence, tenders sufficient amends the case for slanderous words, the before the action is brought, a judg- plaintiff shall receive " only so much ment on an issue upon such facts, in costs as the damages so given or as- favor of the defendant, or a non-suit sessed do amount unto, without any suffered by the plaintift' after an further increase of the same." .issue on such facts is formed, shall LIMITATIONS TO PERSONAL ACTIONS. 207 the same actions, so as they take the same within such times as are hereby before limited, after their coming to or being of full age, discoverture, of sound memory, at large, or returning into this province, as other persons." Act 28th May, 1715. § 167. Section VI. The sixth section of the act of 28th May, 1715,^ provides : "And be it further enacted. That all and every such actions on such promissory notes' shall be commenced, sued and brought within such time as is appointed for commencing or suing actions upon the case, by an act of this Province, passed in the eleventh and twelfth years of the late Queen Anne, entitled, *An act for limitation of actions.' " Act 25th April, 1850. § 158. Seeiion XXXV. The thirty-fifth section of the act of 25th April, 1850,^ enacts " That the limitation provided in the last paragraph of the first section of the act entitled 'An act for liinitations of actions,' passed the 27th March, 1713, to which this section is supplementary, in relation to words spoken, shall be held to extend to all cases of slander or libel whether spoken, written or printed." Act 30th July, 1842. § 159. Section XXVII. By the twenty-seventh section of the act of 30th July, 1842,* it is enacted " That the pro- '1 Sm. L. 91; 2 Bright. Purd. p. Sections 4 and 5 provide for recovery 1068, pi. 25. The title of this act is, in every such action of costs and for "An act for the assigning of bonds, execution, specialties and promissory notes." ' P. L. 575 ; 2 Bright.Purd. p. 1067, ' The first section of this act enacts pi. 19. The title is, "An act relating that all notes in writing, promising to the bail of executrixes ; to parti- to pay to any person, his order or tion in the Orphans' Court and Corn- assigns, any sum of money, may be mon Pleas," &c. assigned, indorsed or made over by *P. L. 456; 2 Bright. Purd. p. 1067, the payee to any other person. The pi. 22. The title of the act ,18^ "An second section permits the indorsee act to provide for the education of in turn to indorse, toties quoties. The the poof in the non-accepting school third section authorizes action on the districts of this Commonwealth, and note in the name of the indorsee, for other purposes." 1208 LAW OF LIMITATIONS. Tisions of the act of 27th March, 1713, entitled 'An act for limitation of actions,' shall hereafter not extend to cases -where the defendant or defendants in any suit shall be "beyond sea at the time of such cause of action accrued; jprovided, that such suit be brought within the times limited by said act, after the return of such defendant or defendants from beyond sea." Act 16th April, 1849. § 160. Section . VI. The sixth, section of the act of 16th April, 1849,^ prescribes " that the provisions in the fifth section of the act entitled 'An act for limitation of actions,' approved the 27th day of March, 1713, so far as the same save rights of action to any person or persons beyond the sea, be and the same is hereby repealed, except so far as respects citizens of the United States of America ; and it is hereby provided that no person, other than citizens of the United States of America as aforesaid, shall be entitled to bring or enforce any of the several actions in the said section mentioned, that may have been brought oi* may hereafter be brought by him, her or them, notwithstanding he, she or they may have been or may be beyond sea at the time of &nj cause of such action given or accrued, fallen or come." Act 25th April, 1850. § 161. Section VII. In the seventh section of the act of 25th April, 1850,^ it is enacted "that the provisions of the act passed the 27th March, 1713, entitled 'An act for the limita- tion of actions,' shall not hereafter extend to any suit against . any corporation or body politic which may have suspended business or made any transfer or assignment in trust for creditors, or who may have, at the time and after the accru- ' P. L. 664 ; 2 Bright. Purd. p. 1067, " P. L. 570 ; 2 Bright. Purd. p. 1067, pi. 23. The title of the act is, "A pi. 24. "An act relating to the bail .supplement to the act relating to of executrixes; to partition in the lunatics and habitual drunkards ; to Orphans' Court and Common Pleas," punish aldermen and justices of the &c. peace for misdemeanors," &c. LIMITATIONS TO PERSONAL ACTIONS. 209 ing of the cause of action, in any manner ceased from or suspended the ordinary business for which said corporation was created." Aet 28th March, 1867. § 162. The act of 28th day of March, 1867,' is as follows : , "Whereas, doubts have been raised as to the proper con- struction of the statutes of limitation ; and whereas, it is just that suits for supposed claims should be speedily brought, before the lapse of time destroys the evidence of defense, or impairs the recollection of witnesses ; therefore, "Section I. Be it enacted by the Senate * * * that it is hereby declared to be the true intent and meaning of the statutes of limitation, that no suit at law, or in equity, shall be brought or maintained against any stockholder or director in any corporation or association, to charge him with any claim for materials or moneys for which said corporation or association could be sued, or with any neglect of duty as such stockholder or director, except within six years after the delivery of the materials or merchandise, or the lending to or deposit of money with said corporation or association, or the commission of such act of negligence by such stock- holder or director." Act 21st May, 1881. § 163. By the act of 21st May, 1881,' it is enacted " that in all proceedings hereafter had before a justice of the peace of this Commonwealth, to recover in any cause of action of which he shall have jurisdiction, when either party shall remove the case, after judgment rendered, to any court of Common Pleas by writ of certiorari, and the judgment of , the justice be reversed or set aside by the said court, and another suit be instituted for the same cause of action, and 'P. L. 48; 2 Bright. Purd. p. 1068, ute of limitations running during pi. 27. The title is, "An act declara- the time of the pendency in court tory of the statute of limitations." of writs of certiorari to justices of 'P. L. 26; 2 Bright. Purd. p. 1068, the peace." pi. 29. "An act to prevent the stat- O 210 LAW OP LIMITATIONS. .the statute of limitations be pleaded by the defendant, or by the plaintiff to any set-off the defendant may have, the time during which the said certiorari was pending in court, shall not be computed as part of the six years, necessary to have elapsed, since the cause of action occurred, to make the plea of the statute of limitations a bar." Act 26th April, 1855. § 164. The act of 26th April, 1855,^ is as follows : "Section I. The persons entitled to recover damages for any injury causing death, shall be the husband, widow, children or parents of the deceased, and no other relative ; and the sum recovered sha.ll go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors. "Section II. The declaration shall state who are the parties entitled in such action ; the action shall be brought within one year after the death, and not thereafter."^ Constitution of 1874. § 165. Section XXI., Article III The twenty-first section of Article III. of the Constitution of 1874 ordains : " No act of the General Assembly shall limit the amount to be recov- ered for injuries resulting in death, or for injuries to person or property; and in case of death from such injuries, the right of action shall survive, and the General Assembly shall pre- scribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes, different from those fixed by general laws regulating actions against natural persons; and such acts now existing are avoided."* ' P. L. 309. widow for the death of her husband, ' This act, being general, is consti- brought sixteen months after its oc- tutional. It does not collide with currence, against a railroad com- the twenty-first section of Article pany, was barred. Id. III. of the Constitution. Kaehnerv. 'This avoids the first section of Lehigh Valley Railroad Co., 41 Leg. the act of 4th April, 1868. P. L. Int. 346. Hence, an action by a 714 ; 2 Bright. Purd. p. 1068, pi. 28, LIMITATIONS TO PEKSONAL ACTIONS. 211 CHAPTEK II. CONSTITUTIONALITY, Constitutionality of Acts of Iiimitation. § 166. It is within tlie recognized power of the General Assembly to pass statutes of limitation. The constitution- ality of such laws has been often decided, if the limitation therein affords a reasonable time within which to invoke the aid of the law to enforce Contractual rights.^ Acts limiting the time for bringing suits might constitutionally apply to causes of action already accrued when the period of limita- tion prescribed in such acts begins, if the time therein allowed for the bringing of the action is reasonably suffi- cient.^ Thus, an act of Assembly ^ might legally limit the pre-existing lien of a judgment, or a shferiff's recognizance, which theretofore had been without limitation, or had had a which liipiits to six months, actions was, by construction, a part of the act for damages for injuries or death of 1868, one who was still in his min- against any passenger railway com- ority when the new Constitution was pany, whose route is wholly within adopted, and when he brought his the county of Philadelphia. Cf. action, could maintain it for an in- Lewis V. Hollahan, 103 Pa. St. 425, jury to him done in 1870, though it whibh declares the above section of was brought to December Term, the constitution to abrogate the sec- 1874. McCarty v. Hestonville &c. ond section of the act of 4th April, Passenger Railroad Co., 1 W. N. C. 1868, (P. L. 58,) which limits the 312; cf. Wasson v. Penna. Co., 25 amount recoverable against railroad Pittsb. L. J. 184. companies, for injury resulting in ' Union Canal Co. i). Gilfillin, 93 Pa. .death, to $5,000. But as to actions St. 95; Metz v. Hipps, 96 Pa. St. 15. already barred by the six months' * Kenyon i;. Stewart, 44 Pa. St. 179 ; clause, when the new Constitution 'Korn v. Browne, 64 Pa. St. 55. was adopted, perhaps that instru- ' Section 74, Act , 15th April, 1834, ment did not revive them. As, how- P. L. 549; 2 Bright. Purd. p. 1533, ever, the exemption for disabilities pi. 14. found in the act of 27th March, 1713, 212 LAW OF LIMITATIONS. longer period of limitation than that prescribed in the act.' A right of action to contest- — as to land devised in it^— a will already probated when the act is passed, may be reduced from the period of twenty-one years — running from the beginning of an adverse possession commenced in pursuance , of the devise — to a period of two years, from the passage of the act.^ An act^ extinguishing ground-rents, if no pay- ment, claim or demand for rent should have been made for twenty-one years, and going into effect three years after its passage, could be constitutionally applied to a rent, in an action for arrears brought only ten years after the act went into effect. The omission of all payment of or demand for rent during the eleven years preceding the going into opera- tion of the act could be considered, in conjunction with such omission subsequently thereto, for the purpose of barring the rent as an estate in the land.* " If -the legislature should pass an act by which a right of action then existing should be barred, without any allowance of time for the institution of the action in future, it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property." ° ' Miller v. Commonwealth, 5 W. & ' Kenyon v. Stewart, 44 Pa. St. 179 ; S. 488. It was not decided whether Metz v. Hipps, 96 Pa. St. 15. The the act of 15th April, 1834, did, in act of Congress of 2d March, 1867, fact, alter the duration of the lien of entitled "An act to establish a uni- a sheriflf's recognizance. form system of bankruptcy through- ' Kenyon v. Stewart, 44 Pa. St. 179 ; out the United States," supersedes Folmar's Appeal, 68 Pa. St. 482 ; the State statute of limitations as to Section 7, Act 22d April, 1856, P. L. a debt due by or to the bankrupt not 533 ; 1 Bright. Purd. p. 509, pi. 12, barred when the assignee in bank- ' Section 7, Act 27th April, 1855, ruptcy is appointed, and substitutes P. L. 369; 1 Bright. Purd. p. 862, pi. therefor a two years' limitation, be- 18. ginning with his appointment. An 'Korn V. Browne, 64 Pa. St. 55._ actionbyhim,broughtaftertwoyearB The act of 22d April, 1855, barring' have elapsed from his appointment, i resulting trusts, applied to trusts will be barred, though the State stat- originating before its passage, two ute would not have barred it. Pei- years being allowed subsequently per v. Harmer, 8 Phila. 100. thereto for bringing action. Id. LIMITATIONS TO PERSONAL ACTIONS. 213 Constitutionality — Qontinued. § 167. As already existing rights of action, not subjept to ' any limitation, or subjept to one of a certain duration, may, by subsequent legislation, be subjected to a limitation, or to a briefer one tban heretofore applied to them, so, on the other hand, periods of limitation may be validly extended by the General Assembly, even with respect to rights of action already accrued.^ But when the bar of an existing statute is complete, the legislature "cannot revive a right of action by lengthening the term of limitation.^ After title to land is acquired by the act of limitations, the legislature could not defeat it by extending the time for an action by the party out of possession.^ If the right of a party to a sum of money is finally adjudicated by the affirmance by the Su- preme Court, of the judgment of the lower court, the lav^ operative when this affirmance is rendered, not permitting the opposite party to sue out a writ of error, it is not com- petent for the legislature to deprive the party on whose writ the affirmance was rendered, of the advantage of it, by an act authorizing the other party to sue out a writ of error.* As the legislature may, in their pleasure, create limitations, so they may macke those limitations available against whom- soever they will. They may except persons subject to cer- ^ Commonwealth v. Duffy, 96 Pa. by statute of limitations, at the time St. 506. of the abatement. 'Dillon V. Dougherty, 2 Gr. 99; 'McCabe v. Emerson, 18 Pa. St. . Morford v. Cook, 24 Pa. St. 92. 111. When, by alienation of plaintiff's *McCabe v. Emerson, 18 Pa. St. title, pending an ejectment, the ac- 111. But the Supreme Court say, in tion abated and at the time of alien- Robb v. Harlan, 7 Pa. St. 292, " We ation, the alienee, under existing law, do not say that the legislature has must have resorted to a new action, no constitijtional power to restore a which would have been barred by right of action barred by the statute lapse of twenty-one years' adverse of limitations, which operates not possession, a subsequent act of on the right but on the remedy, ex- Assembly permitting substitution of cept in the case of a right of entry ; the alienee cannot constitutionally but nothing less than plain and'une- apply so as to deprive the defendant quivocal words would convince us of the benefit of the title, perfected that they meant to do so." 214 LAW OF LIMITATIONS. , tain disabilities, such as infancy, coverture, unsoundness of mind ; but they need not. If they make no exceptions of persons who are under such disabilities, it is not competent for the courts to create such exceptions.^ Subjects of the Six Years' Limitation. § 168. The cause of action, not the form of it, determines the applicability of the statute.* Hence, the statute is not evaded by filing a bill in equity for what might be made the subject of a suit at law,^ nor by bringing an action of debt, where, also, assumpsit would lie.* Since, to an action of trespass qvxtre clausum fregit, the limitation will apply, so it would to a special statutdry remedy to accomplish the same result.* As mesne profits may be recovered either in an action of trespass or in an ejectment, and as, in the former, the statute of limitations would apply, so it applies in the latter.* Set-oflf being a counter-action by the defend- ant, if the statute of limitations woujd apply to the subject- matter sought to be set off, were an action brought by th^ defendant for it, so it will apply, if attempted to be set off against the plaintiflf's claim in an action by the latter, under , the plea of payment, or of set-off, or otherwise.' As in an 1 Metz V. Hippa, 96 Pa. St. 15. ' « Lynch v. Cox, 23 Pa. St. 265 ; ^ = Mitchell V. Buffington, 10 W. N. Forster v. C. V. Railroad Co., 23 Pa. C. 361 ; Patterson v. Nichols, 6 W. St. 371. 379 ; Thompson v. McGaw, 2 W. 161 ; ' Gonder v. Estabrook, 33 Pa. St. Doebler 4;, Snavely, 5 W. 225; Dille- 374; McClure v. McClure, 1 Gr. 222; 'baugh's Estate, 4 W. 177 ; Todd's Bank of Gettysburg v. Thompson, 3 Appeal, 24 Pa. St. 429; De Haven v. Gr. 114; Vincent v. Watson, 40 Pa, Bartholomew, 57 Pa. St. 126; Han- St. 306; Reed v. Marshall, 90 Pa. St, num V. Borough of W. Chester, 63 345; Gilmorev. Reed, 76 Pa. St. 462 Pa. St. 475 ; Wickersham v. Lee, No. Shreiner v. Cummins, 63 Pa. St. 374 2, 83Pa. St. 422;^Rank,i;. Hill, 2W. Wisecarver v. Kincaid, 83 Pa. St & S. 56; Forster v. C. V. Railroad 100; Taylor v. Gould, 57 Pa. St. 152 Co., 23 Pa. St. 371. Hinkley v. Walters, 8 W. 260 » Todd's Appeal, 24 Pa. St. 429. King's Ex. v. Coulter's Ex., 2 Gr. 77 •Wickersham v. Lee, No. 2, 83 Pa. Palmer v. Gillesp.ie, 95 Pa. St. 340 St. 422. Verrier v. Guillou, 97 Pa. St. 63 "Forster v. C. V. Railroad Co., 23 Mayfarth's Appeal, 1 Cent. Rep. 348 Pa. St. 871. Forster v. C. V. Railroad Co., 23 Pa. St. 371. LIMITATIONS TO PERSONAL ACTIONS. 215 action, a counter-claim may be set off, sOj in a proceeding in the Orphans^ Court, distributing the estate of a decedent, a claim of the decadent against the creditor,^ or against the legatee* or distributee,^ may be set off against the creditor's demand, the legacy, or the distributive share, and the statute of limitations may be invoked by the creditor, the legatee or the distributee. Against claims of creditors, in distribu- tion of decedents' estates in the Orphans' Court, the statute of limitations may be opposed.* So, the executor, on the settlement of his account, wherein it is attempted to sur- charge him with a debt due from him to the estate, may show that the debt is barred by the statute.* The committee of an habitual drunkard is bound to refuse to pay a debt of the drunkard barred when the committer is appointed. If he pays it he will be surcharged on settlement of his account.* In the distribution by an auditor of the proceeds of an estate assigned in trust for the benefit of creditors, the bar of the statutory limitation may be opposed to claims that were six years old at the date of the assignment.'' In Equity. § 169. When a bill in equity is resorted to, to settle par- nership accounts and to recover a sum due from the defend- ant partner to the plaintiff partner on account of the partnership business, the statute applies* as it does to a bill in equity founded on negligence of an attorney-at-law ' Mayfarth'B Appeal, 1 Cent. Kep. Kittera's Estate, 17 Pa. St. 416; 398. Ritter'g Appeal,23Pa. St.95; Camp- 'Ueed V. Marshall, 90 Pa. St. 343; bell v. Fleming, 63 Pa. St. 242; Cur- Lang's Estate, 16 Pittab. L. J. 9 ; cf. cier's Appeal, 28 Pa. St. 261 ; Bew- Thompson's Appeal, 42 Pa. St. 345. ley's Estate, 12 Phila. 56. •Milne's Appeal, 99 Pa. St. 483; ■ " Bell's, Estate, 25 Pa, St. 92. James v. Milne, 3 Penny. 394; Drys- "Hannum's Appeal, 9 Pa. St. 471. dale's Appeal, 14 Pa. St. 531. 'Zutz's Appeal, 40 Pa. St. 90; * York's Appeal, 17 W.. N. C. 17; Finkbone's Appeal, 86 Pa. St. 368; Barclay's Appeal, 64 Pa. St. 69; Keed v. Marshall, 90 Pa. St. 345; Hoch'B Appeal, 21 F». St. 280 ; Mo- Mitoheltree v. Veach, 31 Pa. St. 455. Clintock's Appeal, 29 Pa. St. 360 ; ' Hamilton v. Hamilton, 18 Pa. St. McCandless' Estate, 61 Pa. St. 9; 20. 216 LAW OP LIMITATIONS. in marking a mortgage satisfied, when in fact it was not paid, the result being that the plaintiff having been induced to purchase the premises, was compelled to pay the mort- gage to save them from sheriff's sale.^ The statute applies to a bill in equity, as it does to an action at law, to charge any stockholder or director in any corporation or association, with any claim for materials or moneys furnished to the association, or with any neglect of duty as such stockholder or director.'^ It applies to a bill to redeem a pledge;^ to compel a bailee to surrender the thing deposited;* to compel the principal debtor to re-imburse the surety whose land, mortgaged for the debt, has been sold under the mortgage;* to annul a forfeiture of stock in a corporation for non-pay- ment of assessments ;* to a creditor's bill to compel subscrib- ers to stock of a corporation to pay the unpaid portions of their stock;'' to compel a director in a corporation to pay debts of the latter, because the capital stock has not all been paid in, as the act of 18th July, 1863, (P. L. 1864, p. 1106,) requires;* to compel the holder of the legal title, when the statute has made a presumption that he has been re-imbursed his advances on the security of it, to convey it to the cestui que trust? Other Proceeding^. § 170. The statute applies in proceedings in the Quarter Sessions, by a jury of view to assess damages for the altera- tion of the grade of a street;^" or in the Common Pleas, to 'Brown v. Binney, 17 W. N. C. '^Wesley Church v. Moore, 10 Pa. 401 ; Binney's Appeal, 19 W. N. C. St. 273. 385. " Whethem v. Pa. and N. Y. Canal ''Act 28th March, 1867, P. L. 48; and Railroad Co., 9 Phila. 417. 2 Bright. Purd. p. 1068, pi. 27 ; Sper- ' Cornell's Appeal, 5 Cent; Rep. ing's Appeal, 71 Pa. St. 11; Spering 181; Mack's Appeal, 5 Cent. Rep. V. Smith, 6 Phila. 524. 186 ; Bell's Appeal, 6 Cent. Rep. 160. •Morrell v. Trotter, 12 W. N. C. 'Roberts' Appeal, 4 W. N. C. 417. 143. ' Barnholt v. Ulrich, 11 W. N. C. 51. *City Cavalry v. Morris^ 3 Leg. ""Jw re Grape St., 103 Pa. St. 121. Gaz. 77. LIMITATIONS TO PEKSONAI< ACTIONS. 217 assess damages for widening streets.^ It applies to a petition for a citation from the Orphans' Court to compel one who had been a guardian to settle his account, when in substance the proceeding was an action for negligence in not recover- ing the estate of the ward," and to an attempt in that court to surcharge a guardian, thirteen years after his ward, on arrival at majority, had given him a receipt in full, with profit made on a resale by the guardian of land of the ward, purchased by him on execution on a judgment against the administrators of the ward's ancestor;' to a petition by a vendee to compel specific execution of the deceased vendor's contract to convey/ Courts vrhich Recognize and Apply the Statute. § 171. It has already incidentally appeared that the stat- ute prescribing the limitation of six years is enforced in the Common Pleas, both at law and in equity, by the Quarter Sessions,* and by the Orphans' Court.^ It is also applied by justices of the peace in actions brought before them,'' and in appeals from their judgments to the. Common Pleas.* The 'Borough of Eaaton v. Walters, 'Bones' Appeal, 27 Pa. St. 492^ 18 W. N. C. 117 ; Id., 2 Cent. Rep. 589. ■ Chorpenning's Appeal, 32 Pa. St. ' Bones' Appeal, 27 Pa. St. 492. 315 ; Thompson's Appeal, 42 Pa. St. The proceeding was more than 345; Milne's Appeal, 99 Pa. St. 483;. eighteen years after the ward had Drysdale's Appeal, 14 Pa. St. 531; arrived at age.^ — So,: in a feigned York's Appeal, 17 W. N. C. 17; issue directed by the Orphans' Court Barclay's Appeal, 64 Pa. St. 69 ; to determine whether a guardian Hoch's Appeal, 21 Pa. St. 280; Mc- had, during his trust, received more Clintock'a Appeal, 29 Pa. St. 360,- of the estate of his ward than he Ake's Appeal, 74 Pa. St. 116; Fur- had accounted for, the statute of ney's Appeal, 12 W. N. C. 82. limitations was applied to moneys 'Act 21st May, 1881, P. L. 26; 2 received by the guardian after the Bright. Purd. p. 1068, pi. 29; Pries termination of his trust. Bull v. v. Boisselet, 9 S. & E. 128 ; Church v. Towson, 4 W. & S. 557; of. Walker's Fetrow, 2 P. & W. 301. Estate, 41 Leg. Int. 214. » Smith v. Freel, Add. 291 ; Ingram • Chorpenning's Appeal, 32 Pa. St. b. Sherard, 17 S. & R. 347 ; Wann v. 315. Pattengale, 14 Pa. St. 313 ; Porter v, *Akp's Appeal, 74Pa. St. 116. School Directors, 18 Pa. St. 144; ' In re Grape Sti'eet, 103 Pa. St. County of Lancaster v. Brinthall, 29 121. Pa. St. 38. 218 LAW OF LIMITATIONS. ' Federal courts sitting in Pennsylvania, and having concur- rent jurisdiction with the State courts, recognize and apply the statute,^ It was enforced in actions brought in the former District Courts,^ and in the Supreme Court,^ or re- moved into the Supreme Court from the Common Pleas,* and in the late nisi prius sessions of the Supreme Court.* The Lex Fori Regarded. § 172. In all proceedings in Pennsylvania to enforce the payment of money, the law of this State with respect to limitation of action is applied, not that of the State in which the contract may have been made, or in which the plaintiff or the defendant may, at the making of it or at the bringing of the action, have resided." The statute of limitations does not enter into the terms of contracts made in the State in which it operates ; hence, when these contracts are trans- ported to other States for ex'ecution, the provisions of this statute are not transferred with them. Thus, on a note exe- cuted in California, where the lapse of four years bars an action, suit 6ould be sustained in Pennsylvania at any time within six years from the falling due of the note, whether the defendant continued to reside in California until the note was barred there or not.' In debt in this State, on a judgment rendered in the United States District Court for Mississippi,' or on a judgment recovered in the State of 'Price, Eeceiver of Venango Na- 1 Y. 329; Peaceable v. Whitehill, 2 tional Bank, V. Yates, 7 W. N. C. 51. Y. 279; Jones v. Wister, 5 Binn. 573. The action here was to compel the * Smith v. Porter, 1 Binn. 209; stockholders in a national bank to 'Spering's Appeal, 71 Pa. St. 11; contribute a sum of money equal Titman v. Titman, 64 Pa. St. 480. and additional to their stock, for " Watson v. Brewster, 1 Pa. St. 381 ; payment of the debts of the insol- Dougherty v. Snyder, 15 S. & R. 84. vent bank. 'Hoag v. Dessan, 1 Pittsb. 390. 'Hudson V. Carey, 10 S. & R. 10; The limitation law of Pennsylvania Rush V. Fales, 1 Phila. 463 ; Dobson applies to an action in the courts of *. Quantrell, 1 Phila. 204; Airy v. this State, on a note made in West Smith, 1 Phila. 337 ; Storm v. White, Virginia. Tenant v. Tenant, 3 East. € Phila. 531. Rep. 398. 'Ward V. Hallam, 2 Dall. 217; Id., . "Rogers v. Burns, 27 Pa.. St. 525. LIMITATIONS TO PERSONAL ACTIONS. 219 New York,^ the law of Pennsylvania, as to limitation of actions, not tliat of Mississippi or of New York, will apply. If a right of action accrues only through the operation of a foreign statute of limitations, and the enforcement of this right is sought in the courts of Pennsylvaniia, it will of course be necessary and proper to consider the provisions of the foreign statute. Thus, A. having contracted to indemnify B. against a debt contracted in New York, and due to a citi- zen of that State, and B. ]iaving paid a judgment recoyered for this debt, in New York, the liability of A. depends on the absence of a sufficient defence for B. in the action against iim in that State. Whether the statute of limitations there w^ould, under the circumstances, have furnished B. a defense, had he chosen to avail himself of it, must be considered and ■determined in B.'s action in Pennsylvania against A. on the guaranty." In this case, the statute of New York is not used to bar, by lapse of time, the action in Pennsylvania, but to determine whether the New York action* was not barred by lapse of time, when it was brought, under the statute there ■obtaining. The statute of limitations does not creditors in this state, who, under apply, however, to debt on a judg- the Maryland statute of limitations, ment rendered in another State. prescribing three years for bringing ^ Loveland v. Davidson, 3 CI. 377. suits, had, in the distribution of the 'Case «. Cushman, 3 W. & S. 544; assigned estate in Maryland, been Jd., 1 Pa. St. 241'; Forney v. Bene- held barred, though she would not •diet, 5 Pa. St. 225. In Smith's Ap- have been under the Pennsylvania peal, 104 Pa. St. 381, a pitizen of law. Held, the assignees could, by Maryland made a voluntary assign- bill in equity, compel her to account tofent for the benefit of creditors, for it. It must be distributed in which carried with it personalty in Maryland under the law of that Pennsylvania. This personalty was State. The statute of limitations of taken possession of by one of his Maryland applies. 220 LAW OF LIMITATIONS. CHAPTEE III. DISABILITIES. Disabilities — Beyond Sea. § 173. The general piiinciple, as will be hereafter more particularly stated, is that the statutory period of limitations begins to run from the time the plaintiff could, if he brought it, support an action. There are exceptions to this princi- ple, however, some statu tpry and some by judicial construc- tion. When the plaintiff, the person entitled to any action of trespass, detinue, trover, replevin, &c.,^ being a citizen of the United States,^ or when the defendant in any such action* shall, when the cause of action accrues, be " beyond sea," the statutory period does not begin to run until the return of the said plaintiff into this Province,* or of the said de- fendant from beyond sea. By "beyond sea," both when applied to the plaintiff^ and to the defendant,* is meant be- ' Section 5, Act 27th March, 1713, postpone the running of the term of 1 Sm. L. 76; 2 Bright. Purd. p. 1065, limitation. Nathans v. Bingham, 1 pi. 18. M. 164. This act did not apply to 'Section 6, Act 16th April, 1849, cases where the debt was already P. L. 664; 2 Bright. Purd. p. 1067, barred, at the time of its passage, pi. 23. Since this act, creditors be- e. g. to a case in which the debt waa yond seas, not citizens of the United contracted ia 1822, and the defend- States, stand where domestic credi- ant was then, and until 1841 con- tors stand. They are barred in six tinned, beyond sea, the action being years from the accruing of the ac- brought in 1841. Eobb ti. Harlan, 7 tion. Fleming v. Culbert, 46 Pa. St. Pa. St. 292. 498. Before this act, subjects of 'InSohaefifer'sEstate,9S.&R.263,. Great Britain were, as plaintiffs, not it is said by Duncan, J., that the act within the operation of the statute of limitation does not run against of limitations. Eddowes v. Niell, 4 a creditor beyond seas till ,he comes Dall. 133. into the United States. " Section 27, Act 80th July, 1842, ' Ward v. Hallam, 2 Dall. 217 ; Id., P. L, 456; 2 Bright. Purd. p. 1067, 1 Y. 329; Kline v. Kline, 20 Pa. St. pi. 22. Prior tothis act, the absence 503 ; Thurston v. Fisher, 9 S. & R. 288. of the defendant beyond sea did not 'Gonderi;.Estabrook,33 Pa.St.374. LIMITATIONS TO PERSONAL ACTIONS. . 221 yoiid the limits, not of the Province or Commonwealth of Pennsylvania merely, but of the United States. Thus, a resident in South Carolina,^ or in New York,^ was not pro- tected by the exception in favor of plaiintiffs beyond sea. But the absence of the plaintiff in Ireland,* or of the de- fendant in Mexico* or Canada,^ was an exemption. The statute of limitations begins, to run so soon as the plaintiff, having been beyond sea, enters Pennsylvania, even for a transient sojourn ; it does not wait until he begins to reside here." A replication to the plea of non assumpsit infra sex annos, that the plaintiff has not resided in Pennsylvania since the debt was contracted, prior to six years before bring- ing suit, would be bad on general demurrer.' When the defendant returns from beyond sea into the United States, or never has been beyond seas, the limitary term begins, in the latter case, with the accruing due of the debt, or, in the former case, with the return into the United States.* It is not necessary that he should have been within Pennsylva- niia to initiate the operation of the statute. Hence, a repli- cation to the plea of non assumpsit infra sex annos, that the defendant was not within the State of Pennsylvania at the time the cause of action accrued, nor at any time since, would be bad on general demurrer.' Though the only " actions upon the case " mentioned in the fifth section of ^ Ward v. Hallam, 2 Dall. 217 ; Id., and were non-residents; but in the 1 Y. 329. * report of the same case ■ in the ^ Thurston v. Fisher, 9 S. & E. 288. lower court (Reid v. Geoghegan, 1 M. 'Geoghegan v. Reid, 2 Wh. 152. 204), it is said the replication was Absence in Natchez, prior to the that plaintiff was " beyond seas." purchase of t]ie territory by the ' Schaeffer's Estate, 9 S. & E. 263. United States, was being beyond sea. XGronder v. Estabrook, 33 Pa. St. Schaeffer's Estate, 9 S. & E. 263. 374. The defendant, with respect to * Bevan v. Cullen, 7 Pa. St. 281. matter pleaded in set-off, is to be re- ^ Nathans v. Bingham, 1 M. 164. garded as plaintiff. If the plaintiff ' Thurston v. Fisher, 9 S. & E. 288. in the action replies the statute of ''Id. In Geoghegan i;. Eeid, 2 Wh. limitations, the rejoinder that he had 152, the replication to the statute i? notbeeninPennsylvaniasincetheac- said to have been that plaintiffs are tion accrued, would be demurrable. 222 LAW OP LIMITATIONS. the act of 27th March, 1713, and in the twenty-seventh section of the act of 30th July, 1842, are " actions upon the case for words," actions on the case in assumpsit are within the equity of the saving clause,' Feme Covert. § 174. Whe4 the person entitled to the action is, at the time the right accrues, a feme covert, such person shall be entitled to six years after discoverture within which to bring the action.^ This exemption applies when the action is brought against some other debtor,^ or tort-feasor,* than the husband ; a fortiori, when it is brought upon a debt due by the husband to her, against his executor or administrator or against himself, if the coverture cease prior to his death. In this case there is the double disability that she is covert, and th^t she cannot sue her husband.* Nor is it necessary that the feme covert should wait till the termination of the married relation, to avail herself of the exemption. As, on discoverture she could sue for a cause of action accruing, however long before, during coverture, so she can, while yet covert, sue at any distance of time, &c., after the accruing 'Reid V. Geoghegan, 1 M. 204; dent of Pennsylvania, first enters Geoghegan v. Keid, 2 Wh. 152. Such New York, some time after the was the English construction of the cause of action accrues, the statute statute of 21 James I. c. 16, prior to then begins to run, and does not the passage of the act of 27th March, stop running on his speedy return 1713, which is a copy of the English to his domicile in Pennsylvania, statute. In Case v. Cushman, 1 Pa.* ^Section 5, Act 27th March, 1713, 1 St. 241, it is said of the New York Sm. L. 76; 2 Bright. Purd. p. 1067, statute of limitation (which pre- pi. 21. scribes that if, when the cause of ' McDowell v. Potter, 8 Pa. St. 189 ; action accrues, the defendant shall Etter v. Greenawalt, 98 Pa. St. 422. be out of the State, the action nj'ay 'Peterman v. Mullen, 13 W. N. C. be commenced within six years after 13 ; Bailey v. Seed, 8 W. N. C. 106 ; his, return to the State; and if, after Id., 14 Phila. 167. the cause of action accrues, he shall 'Towers v. Hagner, 3 Wh. 48; depcurtfrom and reside out of the state, Dougherty v. Snyder, 15 S. & R. 84 ; the time of his absence shall not be Marsteller v. Marsteller, 93 Pa. St. deemed a part of the six years), that 350 ; In re Mitchell's Estate, 1 Pears, under it, when a defendant, a resi- 428; Kutz's Appeal, 40 Pa. St. 90. LIMITATIONS TO PERSONAL ACTIONS. 223 of the right, and her husband may unite with her in the action.^ Though, since the act of 11th April, 1848,'^ the married woman, if compelled to join the name of her hus- band at all, can use his name, despite his dissent, as a co- plaintiff, and hence can bring an action at any time during coverture, she is nevertheless, even with respect to an action brought by her and her husband, exempted from the opera- tion of the statute during coverture. The act of 11th April, 1848, has not removed this exemption.^ So, as to matters in which she has an equitable separate estate, under a will or deed of trust creating a sole and separate use, she may, at any distance of time after the accruing of the action and during marriage, bring an action, joining or not joining her husband with her.* Feme Covert — Continued. § 175. Perhaps, notwithstanding the right cif a married woman invested with the status of a feme sole trader, to Bfiaintain actions without joining her husband,* the statute of limitations will not run against such actions until six years after the termination of the coverture.® As the 'Etter V. Greenawalt, 98 Pa. St. years after his death in -which to 422; Peterman v. Mullen, 13 W. N. bring an action. C. 13; Hill V. Goodman, 1 Woodw. 'P.L.536; 2 Bright. Purd. p. 1150. 207. In the first of these cases, A married woman seized per tout et thirty-three years had run since the non per nie with her husband of land cause of action accrued. In Mc- may recover for trespass committed Dowell «. Potter, 8 Pa. St. 189, before on it during a series of years, the the act of 11th April, 1848, it was last of which is more than six years said that, as the husband had the before the bringing of the action, right to reduce his wife's choses in whether her husband joins in the action into possession, an action action or not. Dexter d. Billings, 17 brought by him and her would be W. N. C. 20. presumed to be for his benefit, in 'Etter v. Greenawalt, 98 Pa. St. the exercise of this marital right. 422. Hence, the statute would run against * Id. such action in six years from the ac- ' Section 1, Act 22d February, 1718, cruing^ of the cause of action. But 1 Sm. L. 99 ; 1 Bright. Purd. p. 801, if the husband died without suing, pi. 1. the discovert widow would have six 'Vide Etter v. Greenawalt, 98 Pa. 224 ' LAW OF LIMITATIONS. exemption applies to actions in the ordinary- form, so it applies to any proceeding wherein the right of a married woman is asserted. Thus, having Joaned a sum of money to a firm of which her husband is one, she may insist, her husband consenting, on a distribution to, her of a dividenji from the proceeds o:^ the assets of this firm, assigned in trust for the benefit of its creditors.' The exemption on account •of coverture applies, not simply to those cases with respect to which six years are the limitary period, but in respect to all actions embraced in the act of 27th March, 1713. The one year's limitation for actions for words, whether slander or libel, spoken, written or printed,''^ does not run during the coverture of the woman who is slandered or libeled.^ In six years after the cessation of the married relation, in the cases in which that time is the limitary term, the action by the discovert feme is barred.* Though actions on the case in assumpsit^ are not enumerated among those as to which, if the plaintiff" be a feme covert, the statutory period shall not begin to run until discoverture, they are within the equity of the statute.^ Minors, Non Compotes Mentis, Imprisoned. § 176. If any person entitled to any action to which the act of 27th March, 1713, extends, shall be within the age of twenty-one years when the cause of action accrues, he shall be at liberty to bring the action at any time within the lim- itary period, considered as commencing with his coming of St. 422, where it is said that the * Section 35, Act 25th April, 1850, exemption of all married women P. L. 575; 2 Bright. Purd. p. 1067, from the operation of the limitation pi. 19. act of 27th March, 1713, " has never ' Peterman v. Mullen, 13 W. N. C. been repealed expressly or by impli- 13; Bailey v. Reed, 8 W. N. C. 106; cation." Qf. remarks of Rogers, J., Id., 14 Phila. 167. in Towers v. Hagner, 3 Wh. 48. * Etter v. Greenawalt, 98 Pa. St. 'Kutz's Appeal,40Pa. St. 90. The 422. •dividend was obtained twelve years 'McDowell v. Potter, 8 Pa. St. 189; after the note became payable, the cf. Reid v. Geoghegan, 1 M. 204; •coverture still continuing. Geoghegan v. Reid, 2 Wh. 152. LIMITATIONS TO. PERSONAL ACTIONS. 225 full age.^ But it is not neqeesary that the minor should wait till he attains his majority in order to sue and avail himself of this exemption. During his minority, the statute does not apply to an action brought by his guardian," or his next friend,^ however long after the right accrued, if it accrued in his minority. The proviso in favor of minors extends to actions on the case, e. g. for injuries by the negligence of a railroad company, though, literally, it is confined to actions on the case for words.* The limitations do not begia to run, as against plain tiflfs who are non compotes mentis when the cause of action accrues, until they recover " sound memory."" But the insane person could sue at any distance of time after the maturity of his right of action, provided he had not yet recovered sanity. The period of limitation has no applica- tion till the termination of the insanity.^ CHAPTER IV. COMPUTATION OF THE ^.IMITAEY TERM. Computation of the Limitary Period. § 177. The actions described in the act of 27th March, 1713, are classified into three species, and for each a different limitary period is prescribed. Of the first class it is said that they "shall be commenced and sued * * * -yyithin six ' Section 5, Act 27th March, 1713. *Hasson v. Penna. Bailroad Co., 1 Xockey v. Loxikey, cited in App v. Pa. C. C. Rep. 531 ; McCarty v. Hes- Driesbach, 2 R. 287. tonville, Mantua and Fairmount ' Hasson t). Penna. Railroad Co., 1 Passenger Bailroad Co., 1 W. N. C. Pa. C. C. Rep. 531 ; McDowell v. Pot- 312. ' , ter, 8 Pa. St. 189; Hill v. Goodman, ^ Section 5, Act 27th March, 1713. 1 Woodw. 207. "Hill v. Goodman, 1 Woodw. 207. . 'McCarty v. Hestonville, Mantua Of course insanity. supervening after and Fairmount Passenger Railroad the action was barred, would not re- do., 1 W. N. C. 312. vive it. Gilkyson v. Larue, 6 W. & S. 213, 226 LAW OF LIMITATIONS. years next after the cause of such action or suit, and ncA after;" of the second class that they shall be sued "wijthin two years," and of the third class that they shall be sued "within one year" next after the cause of such action or suit, and not after. These limitations are inexorably applied in the proper case. "A day less than six years, and there is no bar; a day after, and the claim is gone."^ "The rule must now be regarded as settled that when an act of Assembly requires a thing to be done within a certain time from or after a prior date, and deprives the party of a right for omitting it, the most liberal construction is to be chosen and the fiarthest time given from which the reckoning is to be made. In other words, the day from or after which the count is to be made, is to be excluded in computing the time within which the act may be done."^ Hence, for the price of lumber sold October 6th, 1862, and then payable, the action brought October 6th, 1868, was in time.^ In an action brought 19th November, 1859, for damages for flood- ing land, there could be a recovery only for damages from 19th November, 1853.* In an action brought 4th August, ' Huston, J., in McEuea V. Girard, 1883, (P. L. 136,) which, while not 2 R. 311. Under a contract to build retroactive, harmonizes with the law and complete a saw-mill" by Novem- as previously declared. Edmundaon ber next," the work must be done v. Wragg, 104 Pa. St. 500. The day before November. An action for on which judgment is entered is ex- damages for the negligence of the eluded from the count of the five builder, brought on November 29th years within which sdre facias should of the sixth year following that in issue. Green's Appeal, 6 W. & S. 327. which the work was to be finished, Land sold for taxes, 10th June, 1850, was too late. Rankin v. Woodworth, was redeemed in time on 10th June, 3 P. & 'Vy. 48. A delay of seventeen 1852. Cromelien v. Brink, 29 Pa. St. days beyond six years is fatal. Ken- 522. A distress being made for rent sington Bank v. Patton, 14 Pa. St. on 27th November, an appraisement 479 ; McEuen v. Girard, 2 R. 311. So on 2d December was one day too is one of fourteen days. Brown v. soon, because it did not allow five Bridges, 2 M. 424. ' days for redemption. Brisben v. •Williams, J., in Menges v. Prick, Wilson, 60 Pa. St. 452. 73 Pa. St. 137. This rule is pre- ,' Menges v. Frick, 73 Pa. St. 137. scribed by the act of 2dth June, ' Brown v. Bush, 45 Pa. St. 61. It LIMITATIONS TO PERSONAL ACTIONS. 227 1870, the promise of the defendant, relied on to exempt the claim from th6 bar of the limitation must not have been; made earlier than 4th August, 1864/ When the last day- of the six years — that is, the day bearing the same number and of the same month as that on which the cause of action accrued, but of the sixth year after the close of that in which the action so accrued — falls on Sunday, the Monday follow- ing is added to the statutory term, and an action on it will be in time.^ Terminal Point of the Limitary Period. § 178. The "actions" designated in the act of 27th March, 1713, "shall be commenced and sued within the time and .limitation " expressed therein. The limitation applies to the "commencing" of the actions, not to their prosecution subse- quently to their commencement. Begun within six years from the accruing of the cause, a recovery in an action can- not be barred because of the lapse of seven years since the inception of the suit till the filing of the declaration.* If was said in Marseilles v. Kenton, 17 St. 372; Goswiler's Estate, 3 P. &W. Pa. St. 238, that an action brought 200; Brisben v. Wilson, 60 Pa. St. November 9th, 1844, on a promis- 452; McKinney i). Reader, 6 W. 34 ; scry note payable November 9th, Harker v. Addis, 4 Pa. St. 515 ; Act 1838, was one day too late. In Faw- 20th June, 1883, P. L. 136. cett V. Fawcett, 95 Pa. St. 376, the » Hemphill «. McClimans, 24 Pa. St. plaintiff having been employed, at 367; Beale v. Commonwealth,,? W. a yearly salary, by a iirm, from July 183. A very'long delay after issuing: 23d, 1868, to its dissolution, on March the summons may sometimes be 9th, 1871, it was conceded that in the taken as evidence that the cause is action brought March 9th, 1877, all abandoned, and the court might salary for service before March 8th, refuse to compel the defendant, after 1871, was barred. such, delay, to plead. But a volun- ' Watson's Ex. v. Stem, 76 Pa. St. tary pleading is a waiver of the right 121. On a promissory note, payable to treat the action as abandoned, in three months after its date, which Hemphill «., McClimans, 24 Pa. St. is 12th February, 1873, the action is 367. If an amendment to a credit- in time when brought 15th May, or's bill, calling in a new defendant, 1879. Scattergood v. Carberry, 7 W. is allowed within six years after the N. C. 213. cause of action accrued, the fact 'Edmundson v. Wragg, 104 Pa. -St. that he filed no answer for fourteen 600 ; Mark's Ex. v. Russell, 40 Pa. months afterwards, tea months after 228 LAW OF LIMITATIONS. the writ of summons issues from the Common Pleas, and service thereof is had within the statutory term, but nothing - more is done, and the debtor dying, distribution is made of his estate in the Orphans' Court five years after the action was commenced, the pendency of the action preserves the right of the debt to p9,rtake in the distribution/ The action begins, not with the date of the prcecipe,^ but with the issue of the summons or capias? Its commencement is not post- poned to the time when service of the writ is effected. Nor is it necessary that the writ whose issuance is the beginning of the action, should be served at all. But it must be returned non est inventus, nihil habet, or otherwise ; if not so returned, it will be considered as abandoned.* When returned nihil habet,^ or non est inventus,^ the action vasLj be continued by the issue of an alias, or, after an alias, by a pluries writ; or, after the quashing of the alias for some irregularity, by a second alias? But the alias' writ must issue within six years of the issue of the original writ, else it will be considered, so far as the statute of limitations is the lapse of the six years, would not return of failure to make service. bar the bill as to him. Bell's Appeal; Jones v. Orum, 5 R. 249. 18 W. N. C. 551. * McClurg v. Fry er, 15 Pa. St. 293 ' Yearsley's Appeal, 48 Pa. St. 531. Schlosser v. Lesher, 1 Dall. 411 " Though the date of the prxdpe, Hudson v. Carey, 11 S. & R. 10 in the absence of other evidence, Magaw v. Clark, 6 W. 528 ; Bickel's was taken in the Supreme Court to Appeal, 86 Pa. St. 204; Pennock v. be prima fade, but not conclusive Hart, 8 S. & R. 380 ; Allen v. Lig- evidence of the time the action gett, 81 Pa. St. 486. commenced. Rankin u. Woodworth, ^Curcier's Estate, 28 Pa. St. 261; 3 P. & W. 48. Magaw v. Clark, 6 W. 528; West- 'McOlure v. McClure, 1 Gr. 222; moreland Bank v. Rainey, 1 W. 26. Hudson V. Carey, 11 S. & R. 10; 'McClurg v. Fryer, 15 Pa. St. 293. Magaw V. Clark, 6 W. 528 ; Bickel's « Logan v. Green, 1 Pittsb. 43; Appeal, 86 Pa. St. 204 ; Jones v. Curcier's Estate, 28 Pa. St. 261. Ten Orum, 5 R. 249. years would be too long. Jones v. •Magaw V. Clark, 6 W. 528; Bick- Orum, 5 R. 249. A fortiori would el's Appeal, 86 Pa. St. 204. If the twenty-one years. Bailey v. Veh- sheriflf returns a mode of service meier, 7 W. N. C. 195. St. 483. Whether the statute would most of this interval, there had been run from the date of the offense, or no administrator. Since the creditor from the expiration of the period of may cause an administrator to be criminal limitation, in case no pros- appointed, the doctrine of Levering ■eoution were instituted, qusere. v. Rittenhouse must probably be so ' Levering v. Rittenhouse, 4 Wh. qualified aa to require action or de- 180. Cf. York's Appeal, 17 W. N. C. mand brought in six years frpm the l7, where the decision in McCand- expiration of such time as was rea- less' Estate, 61 Pa. St. 9, that in dis- sonably sufficient to procure the ap- tribution proceedings in the Orphans' pointment of an administrator, the Court, a debt accruing due before parties entitled declining -to apply, the intestate's death, was not barred, "Levering v. Bittenhouae, 4 Wh. ' though more than six years had 130. elapsed since his death, was justified LIMITATIONS TO PEESONAL ACTIONS. 245 have recovered if the testator had been alive," ^ When the creditor dies before the statute has begun to run, it will not commence to run until the appointment of an administrator. Thus, a husband being indebted to the wife before her death, and the administrator to her estate being appointed twelve years after her death^ an action by the administrator, imme- diately after his appointment, against the husband, was not barred.^ Statutory Prohibition. ^ § 190. When there is a statutory prohibition of an action for^a certain time after the subject-matter has occurred, out of which the right accrues, the statute will not begin to run until the expiration of this legal bar to the commencement of a suit. Thus, the fourteenth section of the act of 26th March, 1814,' made it lawful for the court which dischai^ges the debtor under the earlier provisions of that act, to order that whenever a majority, in number and value, of his credi- tors residing in the United States, shall consent in writing thereto, he shall be released from all suits and executions for any debts contracted previously to his discharge, for seven years after such discharge, and authorized the court to set aside any process issued in contravention of this immunity. 'Man V. Warner, 4 Wh. 454; Camp- wards, an administrator was raised bell V. Fleming, 63 Pa. St. 242. up on A.'s. estate, who less than two 'Marsteller V. Marsteller, 93 Pa. St. years afterwards sued B. for the 350; Appeal of Amole's Adm., 19 money. The action, being within W. N. C. 186. Whether the creditor's six years from administration death before the accruing of the granted, though more than six right of action would prevent the after the right of action accrued, - statute from running until an ad- was in time. Johnston v. Hum- ministrator of' his estate was ap- phreys, 14 S. & R. 394 ; explained by pointed, was not decided, because Woodward, J., in Zacharias v. Zach- the question was not fairly presented arias, 23 Pa. St. 452. by the pleadings, in Webster" v. New- ' "An act for the relief of insolvent bold, 41 Pa. St. 482. After A.'s death, debtors." 6 Sm. L. 195. This act money becoming then due him, was was repealed by the act of 16th paid over to B., to be transmitted to June, 1836, but only as to contracts Ireland for A.'s next of kin. B. did made subsequently to that date, not transmit it. Some years after- 246 LAW OF LIMITATIONS. Since this act was constitutional with, respect to contracts made subsequently to its passage, suit for a debt maturing 19th April, 1834, could not be brought in 1837, but a sum- mons in assumpsit then issued would be quashed. The right to maintain the action would hot begin till 19th April, 1841, and in computing the limitary term these seven years would be excluded.^ Other Interruptions. § 191. There are instances in which fraud of certain kinds will suspend, till it has been detected, the running of the statutory terni, which had already begun to run when the fraud was perpetrated. Thus, the limitation not having closed on an action, at the death of the creditor, if, imme- diately after his death, the debtor fraudulently possesses him- self of the notes, and prevents their falling into the custody of the administrator, the latter may maintain an action upon them, on the discovery of the fraudulent abstraction, though at that time the notes have been payable more than six years.^ A. dying, his widow appropriated certain of his bonds, alleging an ante-mortem, gift. Under A.'s will, B. was ^Eckstein t). Shoemaker, 3 Wh. 15. States must be subtracted from the " In computing time with a view to whole time that has elapsed between the bar, the seven years allowed by the accruing of the tfause of action the act of 1814 would be struck out." and the bringing of the suit. If the Per curiam. Of. Feather's Appeal, 1 remainder is less than six years, the P. & W. 322. The fourth section of action is in time ; if more, the action the act of 18th April, 1861, (P. L. 409,) is barred. King •». Baxter, 7 Phila. provided that " no civil process shall 186. The time covered by a second issue or be enforced against any per- enlistment would not be ' excepted son mustered into the service of this from the computation of the six State or of the United States, during years. Id.; Breitenbach v. Bush, the ^term for which he shall be en- 44 Pa. St. 313. gaged in such service, nor until thirty * Bricker v. Lightner, 40 Pa. St. 199. days after he shall have been dis- If acli;al fraud be used to conceal charged therefrom : provided thatthe from an administrator the existence operation of all statutes of limitations of a debt due his intestate, the lim- shall be suspended upon all claims itation would not begin to run until against such persons during such the discovery of the fact. Sankey v. term." Under this act, the time McElevey, 104 Pa. St. 265. spent in the service of the United LIMITATIONS TO PEKSONAIi ACTIONS. 247 appointed executor, and as such acted for six months. What purported to be another will, in fact a forgery, was then pro- duced, by which the widow was made executrix, and the letters already issued to B. were revoked and letters granted to the widow. Four years afterwards, an issue was awarded to determine the validity of the second will, which, three years later, resulted in a determination that it was a forgery^ The other will was rehabilitated, and letters testamentary granted anew to B. As to an action now brought by B. against the widow to recover the bonds, the statute of limi- tations was suspended during the executorship of the widow, "whether the will under which she enjoyed this o£&ce had been forged by her or not.^ A bequest payable ten years after the death of the testator, but conditioned on the lega- tee's not making any claim against the estate, does not give an option to the legatee for ten years, whether to make the claim or accept the legacy, and suspend the running of the limitary term, until the option is exercised by claiming th€ debt.^ Under the seventh section of the act of 25th April,/ 1850, (P. L. 570,)^ the running of the statute is suspended, when, if after a claim against a corporation has accrued and become payable, but before six years have barred an action for the claim, its property and franchises are sold on execu- tion on a mortgage.* ' Marsden's Appeal, 102 Pa. St. 199. equity, filed fourteen years after the ' Cresman v. Caster, 2 Bro. 123. work was finished ft.nd thirteen years ' Vide p. 208, ? 161. after the rportgage was executed, and *Shamokin Valley and Pottsvilte eleven years after the sheriff's sale Kailro'ad Co. v. Malone, 85 Pa. St. 25. thereunder, was not barred. In The mortgage had in this case been Hayes' Appeal, 18 W. N. 0. 322, the made subsequently to the comple- contractor's claim accrued in 1859; tion of the work of construction for a mortgage on the road was then which A. claimed. On this mort- executed and foreclosed in 1861. A gage a sale was made to several per- bill filed in 1884 was barred by the sons, who became incorporated into twenty years' presumption of pay- a railroad company. This sale was ment, but not by the statute of |lim- Bubject to the lien for the claim be- itations. Cf. Tyrone and Clearfield stowed by the joint resolution of 21st Eailway Co. v. Jones, 79 Pa. St. 60. January, 1843. P. L. 367. A bill in 248 I/AW OF LIMITATIONS. Suspension of Right of Action. § 192. When the law accords no remedy for a claim that is valid in' good conscience, .until some time after it arises, and then such ^remedy is given, the statute applies to the time which elapses from the origin of the remedy, not from the origin of the ground of claim. Thus, a township supervisor having been shown by the, settlement of his accounts by the auditor to be creditor of the township by a certain balance, but for fifteen years subsequently the law giving no remedy to thp supervisor, the limitation would begin to run only from the passing of the act giving the right of action.^ Perhaps, as to a debt owing by A. to B., on whose death A. becomes the executor or administrator, the time that elapses since the death of B. would not be computed in applying the statutory limitation, since the duty of suing is combined with the liability to be sued, in the same person. For the same reason, perhaps, if the executor should become pos- sessed of chattels of the decedent, and retain them as his own adversely to the testator, the statute of limitations would not begin to run as against an action by a successor in the administration until the devolution of the trust upon such successor.^ CHAPTER VI. FEATTD. Fraud the Gravamen as Delaying the Running of the Statute. § 193. In cases in which fraud is the fact out of which a cause of action arises, the commencement of the statutory term will be postponed until the discovery of this fact. "The rule is different," says Sterrett, J., "in cases where the ' Leasure v. Mahoning Township, ' Marsden's Appeal, 102 Pa. St. 199. 8 W. 551. I/IMITATIONS TO PERSONAL ACTIONS, 249 cause of action springs not from a breach of duty or an implied undertaking, but from the fraudulent act of the defendant. In the latter class of cases, the statute does not begin to run until the fraud is discovered."^ Nor must the victim of the fraud, having no cause to suspect its perpetra- tion, make inquiries of the records of the courts, or other sources of information, in order to ascertain whether such fraud has not been perpetrated.^ Thus, if, after assigning a judgment, the assignor should, without authority, mark it satisfied of record, whereby the surety for the same debt, believing it paid, is led to neglect to keep the lien of the judg- ment against the principal alive, and if, intervening liens consuming all the proceeds of the property of the latter, the assignee of the judgment should thus be defeated in his suit against the surety, the assignee will have an action against the assignor of the judgment, for his fraudulent entry of satisfaction of it, and the statute of limitations will not begin to run until the assignee has knowledge of the entry of satisfaction. He is not bound to examine the records for the purpose of finding out whether a fraud has been com- mitted upon him. "The law is not so tenderly solicitous about the interest of tort-feasors as to presume that the injured party had notice of their wrongful acts when in fact he had none.'" ' Mitchell V. Buffington, 10 W. N. when X. discovered it. Mussi v. Lo- C. 361 ; Jones v. Eees' Ex., 4 Y. 109 ; rain, 2 Bro. 55. Ferris v. Henderson, 12 Pa. St. 49; ''Mitchell v. Buffington, 10 W. N. Pennock v. Freeman, 1 W. 401. A. C. 361. It was intimated in Overton takes a note from hie debtor, with a v. Tracy, 14 S. & K. 311, that in an blank for the name of the payee, action for deceit in falsely represent- He then inserts a fictitious name as ing the solvency of X. with respect such payee, and, indorsing the name to a debt, and so inducing a party to of this payee on the back of the purchase a security, the statute note, sells the note to X. for value, would run from the \\me of the assuring him that the payee and deceit. indorser had obtained the note for • Mitchell v. Buffington, 10 W. N. cash and goods. The statute of lim- C. 861. Fraud not participated in itations began to run against X.'s by the defendant, but which has de- action against A. for the fraud only ceived him, will not stay the running 250 LAW OF LIMITATIONS. Fraud the Gravamen — Continued. § 194. A., a negro slave of B., became free in 1780, under the law of Pennsylvania, by B.'s failure to register him. Caused to believe that he was still a slave by his master, he was induced to work for the latter until 1810, on a promise then to manumit him should he work faithfully, but, other- wise, to keep him in servitude for life. Having worked till 1810, A. did not discover the fact that he had been, in law, free since 1780, until 1846, when he soon filed a bill in equity against the hpirs and next of kin of the former mas- ter. The fraud of the master, which induced the doing of the work, and the concealment of the fraud after its per- petration, i. e. the failure to remove the erroneous belief which had been engendered and exploited by B., as to the continuance of A.'s servitude, prevented the running of the statutory limitation until A. learned the facts.' If a bank with which securities have been deposited for safe-keep- , ing, pledges them for its own debt, and conceals that fact, and the fact that they have been sold by the pledgee, the statute will not run against an action to recover their value, until six years from the discovery of the fact?." of the statute until discovery. Thus, the laborer, is not such fraud as pre- the United States being indebted to vents the running of the statute, an assistant surgeon of the army for The labor continuing through twenty his pay, an order on the paymaster years, in reliance on parol promises, purporting to be signed by him,' but from time to time repeated, to give in fact forgedi was put into the a farm, which did not specify the hands of Jay Cooke & Co. to collect, time of giving, nor the farm, the They presented it to the paymaster action for compensation for the labor ' and received the money. It was not should have been brought at the end discovered for six years that it was of every six years. The laborer can- a forgery, and less than five months not set up his dependence on the after the discovery, the United States promises as an obstacle to the run- brought suit against Jay Cooke & ning of the statute. Stewart «. Mc- Co., to recover back the money. Burney, 1 Cent. Eep. 616. The action was held too late. United " Hughes v. First National Bank of States V. Cooke & Co., 9 Phila. 468. Waynesburg, 17 W. N. C. 178. If A. 'Ferris v. Henderson, 12 Pa. St. conveys land in fraud of C, his cred- 49. A breach of a promise to reward itor, to B., who participates in the for farm labor by conveying land to fraud, and B. conveys it to an inno- LIMITATIONS TO PERSONAL ACTIONS, 251 Perhaps, if a Tactor to whom, being in Mexico, goods are sent, states an account in which he claims credit for Mexican duties paid in excess of the amount actually paid, the statute of limitations would not begin to run against the recovery of this excess till the detection of the faqt.^ A school treasurer improperly receiving credit, in the settle- ment of his account by the township auditors, for $75 as paid out by him, and using art to conceal this fact from the school directors, the running of the statute would be delayed until it was ascertained.^ If the owner of land, after con- tracting to convey it to A., and receiving from A. the pur- chase-money, conveys it to B., the action by A., in rescission of the contract, for the recovery back of the purchase-money, may be brought in six years from the discovery of the con- veyance to B.* Fraudulent Concealment of Fraud. § 195. Decisions in other, States, to the effect that in actions at law for negligence, want of skill and fraud in the performance of work, the defendant having pleaded the cent purchaser, 0. may issue execu- the vendor of the parol contract, by tion-attachmentonhisjudgmentand / a conveyance toathird person, who, attach the purchase-money received by ejectrbent, dispossesses the v'en- by B., at any tim'e within six years of dee, is barred in six years, not from his discovery of the fraudulence of the termination of the ejectment but B.'s act in taking the conveyance from the discovery of the vendor's from A. Dicken v. Hays, 5 Cent, breach of contract by his convey- Eep. 517. ance. Thurston v. Franklin College, ^Bevan«.Cullen,7Pa.St.281. But, 16 Pa. St. 154. Two parties, A. and as there was no special replication of B., had bought land together, B., by fraudulent concealment, its effect was agreement, taking the title, A. pay- not decided. ing one-half of the purchase-money. * Porter 1). School directors, 18 Pa. B. refused to convey an undivided St. 144. But, not being responsible half to A. Against an action by A. for the mistake of the auditors, and to recover the money he had paid to his books not'being in his custody, B., it was said that, as the right of so that he practiced no concealment, action depended on a secret fraud, the statute protected him in six years the statute would not begin to run from the close of his term. till the discovery of it, The nature 'Leinhart v. Forringer, 1 P. & W. of the fraud, other than the refusal 492; vide dictum of Gibson, C. J. So, by B. to convey, is not stated. Pen- an action by a vjendee for breach by nock v. Freeman, IW. 401. 252 LAW OF LIMITATIONS. statute of limitations, the plaintiff could not reply a fraudu- lent concealment of the fraudulent badness of the work, on apcount of which he did not discover the fraud until within six years before bringing his action, and could not so deprive the defendant of the benefit of the statute, seem to be approved by Green, J.^ While this doctrine is said to be specially appli- cable in common law actions, it is said that "even in courts of equity we apprehend that there must be some relation of trust and confidence between the parties, imposing a duty to give information or some affirmative act of fraud, something more than mere silence," with regard to the existence of the cause of action, to defeat the operation of the statute, where the basis of the reply to the , statute is the concealment of the cause of action.^ A., a county commissioner, buys a chose in action from B., paying him in cash $300, and giving him a receipt for a note due by B. to the county. When B. called • to get his note at the commissioner's office, A. told him it was lost. B.'s payment being good, the county brought an action against A. after his term had expired, and more than six years after the date of the arrangement with B. Since A. was agent for the county it was held the statute would not begin to run till the county became aware of the facts, A. having neglected to charge himself, in settling his account, with B.'s debt.* If A. having directed B. to loan his money ' Sankey D. McElevey, 104 Pa. St. operation of the statute in this- 265. This rule is by him discovered action." in Troup v. Smith, 20 Johns. 33; 'Sankey v. McElevey, 104 Pa. St. Smith V. Bishop, 9 Verm. 110; Fee 265. t). Fee, 10 Ohio 469; Allen v. Mills, 'Cunninghamw. AlleghenyCounty, 17 Wend. 202; Baines v. Williams, 1 Pitbtb. Eep. 267. The judgment 3 Iredell 481. In Bankin v. Wood- of the court below was affirmed by worth, 3 P. & W. 48, \vhich was an an equally divided Supreme Court. assumpsit for defective construction In Porter v. School Directors, 18 Pa. of a mill by the defendant, it is said, St. 144, the auditor improperly per curiam, " if there were a fraudu- credited the school treasurer with lent concealment of its quality, a payment of a certain order which special action on the case, perhaps, was, in fact, not paid for six years- would be the remedy for that; but afterwards. The action by the school it is not a matter to suspend the directors to recover back the amount LIMITATIONS TO PEKSONAL ACTIONS. _ 253 on a mortgage, B. instead loaned it on a judgment, but told A. he had loaned on a mortgage, and by reason of this mis- information A. failed to preserve the lien of the judgment by revival, perhaps the statute of limitations would run only from the discovery of the facts, as against an action by A. against B. for the negligence or fraud in taking only a judg- ment.^ Non-Fraudulent Concealment. § 196. There are certain relations, one of the parties to which has a right to information from the other, and may safely depend on it as a protection against the barring, by limitation, of his claim. Thus, one who has put a debt in the hands of an attorney-at-law,^ or of a collection agency,^ riot only may, but is bound to inquire, reasonably often, as to whether the debt has been collected. Any information that conceals the fact that the debt has been collected, though , given bona fide, will excuse from action at least for six years from the receipt of such information. Thus, if one of two law partners has collected the claim without the knowledge of the other, and the'other informs the client that it has not been collected, the action agaiiist the partner giving this information will be preserved for six years.* So, if a collec- tion agency employ distant and undisclosed agents to make its collections, the client has a right to receive information from the agency, and to rely upon it." If a firm, after receiving a claim for collection, sells out to another firm, which under- takes to finish the work of collection of all claims in the of this credit, brought more than ' Styer v. Super, 38 Leg. Int. 394. six years after the treasurer's term 'McCoon v. Galbraith, 29 Pa. St. of ofiBce had expired, was too late. 293. " Had he used any act to conceaj the ' Wickeraham v. Lee, No. 1, 88 Pa. fact, it would have suspended the St. 416. statute; but no such thing could 'McCoon v. Galbraith, 29 Pa. St. be practiced, for the books were not 293. in his custody, but. open to the in- ' Wickersham v. Lee, No. 1, 83 Pa. spection of all. If there was mis- St. 416. ' take by the auditors, he is not chargeable with it." 254 LAW OF LIMITATIONS. hands of the former firm, and application made to this firm is misleading or insufficient, it will stay the statute of limita- tions as to an action against the former firm.^ A part of a debt entrusted to the law firm A. & B. for collection, having been paid in cash to A., without B.'s knowledge, and for the rest, collateral securities given, the client was informed of the receipt of the collaterals, but not of the cash. Later, B., of the law firm, informed him that he was igno- rant of the state of the case, but that collaterals had been received, and promised to ascertain and inform him further. The statute would not close on the client's claim until six years from this communication.^ Non-Fraudulent Concealment — Continued. § 197. Independently of actual fraud, where a collection agency is entrusted with a discretion as to the collection, by law or otherwise, of a distant claim, it having its own undisclosed agents, its duty is to give full and prop.er information to the inquiring creditor who has no other means of knowledge, and therefore, if the creditor calls from time to time within the time of the running of the statute of limitaticftis, and receives from the agency information by which he is misled into supposing the money uncollected, the statute of limitations does not bar his action before knowledge of the receipt of the money by it. So long as it gives him to understand that his claim is uncol- lected he is put off his guard. The duty of inquiry lies on him, but having made inquiry of his agents and being misin- formed by them, they cannot set up the statute when they have misled him, and thereby induced him to delay his action.^ A ' Wickersham v. Lee, No. 1, 83 Pa. run only with the termination of the St. 416. case by complete success or failure, ' McCoon V. Galbraith, 29 Pa. St. or until the dissolution of the rela- 293. For partial payments to an tion of attorney and client in the attorney, on a claim in his hands given case. for collection, the statute would be- ' Wickersham v. Lee, No. 1, 83 Pa. gin to run from the time of notice of St. 416, per Agnew, C. J. In Morgan such partial payments; without no- v. Tener, 83 Pa. St. 805, a collection tice, the statute would commence to agency in Philadelphia senttheclaim MMITATIONS TO PERSONAL ACTIONS. 255 payment made by a debtor to an orphan-house, to one who had been, and was by the debtor still supposed to be, a trustee, but who had been removed from the trust, is not so far. fraudulent that the action by the orphan-house against the former trustee will not be barred in six years from his receipt of the money, if there was no evidence of conceal- ment of the receipt, nor of the time when the plaintiff first became aware of the facts.^ The chief engineer of the Phila- delphia Gas Works having the privilege to purchase goods from his own son, for use in the works, on condition that he pay no more to the son than he would need to pay to any other seller of such wares, approved his son's bills, though he knew them to be excessive, and transmitted them approved to the finance committee of the Gas Trust. This committee reported them to the board of trustees, by whom they were paid. Against the right of action by the city against the chief engineer, from these facts accruing, the statute of lim- itations ran from the time of the approval of the bills, in the absence of a fraudulent concealment of their excessiveness and of fraudulent participation with his son in the excessive profits. His non-communication of the fact that the bills were too large was not, ipso facto, di, fraudulent concealment. So soon as he began to sell, in partnership with his son, the wares furnished at improper prices for the gas works, his conduct would become fraudulent, and the statute of limita- tions would not run against the action to recover the excess of prices paid for goods thus purchased from himself and son to A.' in Denton, Md. A. employed per cent., and had the judgment sat- B., in Baltimore, to bring suit, which isfied. Ten years after this satisfac- was done and judgment recovered, tion, but three years after the last in- Frequent inquiries by the plaintiff formationthatthe judgment was un- from the agency in Philadelphia collectible, suit was brought ag^nst elicited the answer that the judg- the agency in Pliiladelphia. The ac- ment was uncollectible. Without tion was not barred, their knowledge, however, A. had ' Emaus Orphan House v. Kendig, compromised the claim for twenty 1 Fears. 34. 256 LAW OF LIMITATIONS. as partners, till the trustees of the trust discovered the fact of the excess.^ Fraudulent Concealment of Non-Fraudulent Ground of Action. § 198. As the ground of action may be some fraudulent act, and the statute of limitations will not begin to operate upon the remedy until discovery of the fraud, so when the cause of action, not consisting in a fraud, is, e. g., a debt or a breach of contract, the fraudulent concealment of the exist- ence of the debt or of the breach of contract, will defer the beginning of the statutory term until their discovery.* A., about leaving for California, delivers a note payable to him, and certain book accounts, to B., who engages to collect them, to pay a debt owing to C by A., and to turn over any balance to A.'s wife. On A.'s return from California, ten years afterwards, a scire facias on C.'s judgment against him was sued out, and he subpoenaed B. to prove (what B. had already assured A. he had done) that B. had paid the judg- ment. B. failed to appear ; the debt had in fact not been paid, and judgment was entfij-ed against A. B. had on sev- eral occasions declined to pay the proceeds of the note col- lected by him over to A.'s wife, alleging that he intended to pay C. He had turned over the book accounts to her, say- ing he could not collect them. She suing some of them, discovered that B. had collected them. This was such fraudulent concealment as prevented the statute^s running till the discovery of the facts. An action brought two years after A.'s return from California was in time.^ A. and B. being jointly indebted to X., A. puts money equal to his share of the debt into B.'s hands, who undertakes to procure A.'s discharge. B. settles with X., but for a less sum, but tells A. he has paid X. the whole sum received from him. ' City V. Brown, 44 Leg. Int. 80. A.'s wife was his agent, the false • Stewart v. McBurney.l Cent. Kep. statements made to her were pre- €16. sumed to have been conveyed to A., •Stall V. Meek, 70 Pa. St. 181. As and induced his delay. LIMITATIONS TO PERSONAL ACTIONS. 257 Eight years subsequently A. discovered the facts. The Stat- ute in such a case runs only from their discovery.^ If an attorney-at-law^ or a collection agent, when applied to for information as to the collection of the money, falsely conceals the fact that it has been collected, the statute begins to run only from the detection of the fact.^ But the mere silence of the collection agent, his mere failure to give notice that he has collected the debt, does not constitute a fraudulent conceal- ment. Where there is mere silence,- it is the duty of the client to ask for information. If he fails to do so, the period of limitation will begin to run when the right of action accrues ; that is, from the receipt pf the money by the col- lection agent,* or (since in this respect there is no difference between them)^ by the attorney-at-law employed to collect.* 'Gandolfo v. Hood, 1 Pears. 269. 'McCoon V. Galbraith, 29 Pa. St. 293. ' Wickersham v. Leie, No. 1, 83 Pa. St. 416 ; Sankey v. McElevey, 104 Pa. St. 265 ; Campbell v. Boggs, 48 Pa. St. 524; Funk v. Smith, 66 Pa. St. 27. If one of two attorneys in a case, who have agreed to equally divide a certain fee, receives it, concealment of the receipt of it would probably stop the running of the statute till discovery. Webster v. Newbold, 41 Pa. St. 482. So, concealment by con- trivance, of the fact that the assignee, as collateral security, of a judgment, has collected it, will delay the run- ning of the statute as to an action by the assignor for the excess beyond the debt for which it was assigned, till discovery. Bickel's Appeal, 82 Pa. St. 204. * Campbell's Adm. v. Boggs, 48 Pa St. 524; aienn v. Cuttle, 2 Gr. 273 Fleming v. Culbert, 46 Pa. St. 498 Funk V. Smith, 66 Pa. St. 27; Wick ^rsham v. Lee, 88 Pa. St. 122; of. Harper's Estate, 1 Brewst. 481. ' Campbell v. Boggs, 48 Pa. St. 524 ; Rhines v. EVans, 66 Pa. St. 192; Glenn «. Cuttle, 2 Gr. 273. In Der- rickson v. Cady, 7 Pa. St. §7, Burn- side, J., said the rule in Pennsylvania was that the statute begins to run against a client's Action for money* collected by the attorney only from the time he has notice of the collec- tion. « Rhines v. Evans, 66 Pa. St. 192; Downey v. Garard, 24 Pa. St. 52. McDowell V. Potter, 8 Pa. St. 189, is partially overruled. Rhines v. Evans, 66 Pa; St. 192 ; Hanna v. Meconkey, 33 Leg. Int. 330. It is on the ground of fraudulent concealment alone i that McDowell v. Potter, 8 Pa.^St. 189, can be sustained, says Wood- ward, J. Campbell v. Boggs, 48 Pa. St. 524. The fact that the attorney in fact to receive a distributive share of a decedent's estate and transmit it to the next of kin, in- stead of doing so, invests it in his own name in bonds and mortgages, or that the next of kin is a citizen of a foreign country,, never in this 258 LAW OF LIMITATIONS. So, mere silence by the debtor as to the existence of a debt, will not protract the time in which the administrator of the creditor may bring an action. So, when, the payee of a note dying not long after it became payable, the maker informed the administrator that he had been indebted to the intestate, but, agreea;bly to an arrangement with him, had in payment conveyed some land to the intestate's sister, but (not being asked) did not inform him that this debt was secured by a note (which had been deposited with a third party for safe- keeping), nor what its amount was, this was not such con- cealment as prevented the running of the statute.' Non-Fraudulent Concealment. § 199. There are cases, however, where it is the duty of the debtor to bring to the' notice of the creditor the existence and payableness of the debt, and where failure to do so will, ipso facto, delay the running of the statute until, by some other means, actual notice is brought to the creditors. Thus, the cashier is the custodian of the notes due the bank ; and it is his official duty to call the attention of the directors to such of them as are overdue. If he omits to bring his own notes to the notice of these officers, the statute will not bar an action for them merely because brought more than six years after their maturity.^ So, if one of two co-tenants to whom the legal title is conveyed, sells and conveys the land, it is his duty to inform the other of the sale. Until the other obtains this information, the limitary period -will not commence to run against his action for his share of the country, will not make such a fraudu- not worth more than half the debt, lent concealment of the collection There were no false representations as will preserve the right to sue the of its equality of value with the debt, attorney in fact for eight or nine ' Harrisburg Bank w. Forster, 8 W. years after he received the money. 12; McDowell v. Potter, 8 Pa. St. Fleming v. Culbert, 46 Pa. St. 498. 189 ; Marsden's Appeal, 102 Pa. St. 'Sankey v. McElevey, 104 Pa. St. 199. In Hanna v. McConkey, 33 265. In this case the action was Leg. Int. 830, Butler, P. J., thinks brought thirty-four years after the that Harrisburg Bank v. Forster, as note matured. It was alleged that well as McDowell v. Potter, is over- the land conveyed by the debtor was ruled. LIMITATIONS TO PERSONAL ACTIONS. 259 purchase-money.' It is not the duty of an attorney-at-law, lininterrogated by his client, to inform the latter that he has collected moneys on claims put in his hands for that purpose, or that he has acted unskillfully or negligently. His silence will' not stay the running of the statute.^ So, it is not the duty of the recorder of deeds,^ or of the prothono-^ tary,* to discover and to disclose his mistake in making searches for liens ; but contrivance or artifice, or misrepre- sentation, with respect to the collection of money by attor- neys, or to the unskillful or negligent act of such attorney,* recorder or prothonotary,^ whereby the plaintiff is prevented from discovering it, will delay the operation of the statute until discovery. Constructive Fraud and Negligence. § 200. There are cases where an act of negligence, entirely free frOm fraudulent intent, can be done under circumstances not calculated to awaken the suspicion of the person injuri- ously affected, and to direct him to inquiry, and where the limitary period will commence only with the discovery of the act. A. having five years before; bought a negro, believing him a slave for life, sold him to B. as a slave for life. Thirteen years afterwards, the negro was, as entitled to free- dom, liberated on a writ de homine replegiando. Against B.'s action to recover damages from A., the statute of limi- tations ran only from the time B. discovered that the negro was a legally free man.'' In cases of contract, and in actions ex delicto quasi ex contractu, where there is no fraud, the 'Fox V. Cash, 11 Pa. St. 207. action against an attorney for im- ' Moore v. Juvenal, 92 Pa. St. 484 ; properly releasing the lien of a judg- Khines v. Evans, S6 Pa. St. 192. ment and neglecting to revive the ' Owen «. Western Saving Fund, 97 judgment, was held barred because Pa. St. 47 ; Ashton v. Walton, 10 W. brought over six years after/ the N. C. 452. client discovered these acts. ^Armstrong V. Levan, 1 Cent. Eep. "Owen v. Western Saving Fund, 137. 97 Pa. St. 47. ^Ehines v. Evans, 66 Pa. St. 192; 'Jones v. Eees' Ex., 4 Y. 109; Moore v. Juvenal, 92 Pa. St. 484. In Mitchell v. Buffington, 10 W. N. C. Derrickson v. Cady, 7 Pa. St. 27, an 361. 260 LAW OF LIMITATIONS. statute of limitations .begins to run from tlie breach of con- tract or duty, and not from the time when the damage accrues. In such cases, the cause of action arises imme- diately on the happening of the default, and is not postponed to the happening of the damage thereby occasioned.^ This is true with respect to both professional and official negligence." Thus, as to an action against the prothonotary for errone- ously, but not fraudulently, indexing a judgment, whereby its lien is subsequently superseded by later judgments,^ or as to one against the recorder of deeds for giving erroneously, but not fraudulently, a certificate certifying that there was no mortgage on certain premises, in reliance on which money was loaned to the owner of these premises upon a mortgage,* the statute begins to run from the day the judgment is 'Mitchell V. Buffington, 10 W. N. C. 361. * Mitchell .i;. Buffington, 10 W. N. C. 361. If a pawnee sells the thing pawned, in violation of the Contract to keep it simply, the statute would run from the sale, though the pawner did hot know of it, and though the contractofpawnwas unlawful. Pren- tiss ti.Hannay, 4 Wh. 508. Yet, if the assignee of securities for a debt sells them before the time for paying the debt arrives, the statute of limitations Tfill not run until a knowledge of this improper sale is attained by the assignor or until the expiration of the time of redemption, as originally stipulated. , Whitely v. Billington, 17 W. N. C. 254. 'Armstrong v. Levan, 1 Cent. Bep. 137. * Owen V. Western Saving Fund, 97 Pa. St. 47, reversing Western Saving Fund V. Owen, 8 W. N. C. 358. The certificate was given and mortgage taken in reliance on it in 1867. The mortgagee foreclosed this mort- gage and bought in the property. He then, in 1877, discovered the ex- istence of the prior mortgage, and in 1878 was compelled to pay it in order to save his property. The statute began to run in 1867. — The act of 13th April, 1872, (P. L. 1140,) makes the recorder, prothonotary, clerk of the courts and all other offi- cers of Philadelphia whose duty it is to make and certify searches for judg- ments, mortgages, liens, together with their sureties, liable for all loss or dam- age which may happen by reason of false certificates of search for a period of five years from the giving of such certificates. In an action against the recorder for a false certificate, he pleaded the general issue, and that the action was not brought in five years from the grant of the certificate. On demurrer to the latter plea, judgment was given for him. Ashton v. Walton, 10 W. N. 0. 452. On each of two adjoining lots, a and 6, belonging to X., he, on the same day, executed a mortgage for the same amount to the same person. The mortgages were recorded, one on page 543 LIMITATIONS TO PEKSONAIi ACTIONS. 261 erroneously indexed, or the inaccurate certifipate is given, and not from the time the damage accrues therefrom, and the negligence of the officer is discovered. Constructive Fraud and Negligence — Continued. § 201. When a note or other demand is put in the hands of an attorney-at-law to collect, and he neglects to collect it, the statute begins to apply as soon as he becomes liable to an action for his neglect ; that is, as soon as a reasonable time for collecting it has elapsed without his doing so.^ What is such reasonable time depends frequently on circumstances, and must then be left to a jury.'' A delay .of six months, after receiving a note to collect, before taking any steps thereto, was held to be unreasonably long in one case;* and when a suit was brought against an attorney for neglecting to collect a note, seven years a,nd five months after it had been put in his hands for that purpose, it was proper for the court, as matter of law, to instruct the jury that the right of action had accrued earlier than six years before ; that is, and the other on page 544' of the bill in equity against K.'s executor mortgage record. The mortgage on to recover indemnity. It was held a, recorded, page 543, became the that, as there was no actual fraud, property of M., on whose death K., and as the capacity in which K. pur- as his administrator, received pay- ported to execute the acknowledg- ment of it. In entering satisfaction ment of payment, together with the on the record, K. mistakenly wrote references to the assignments show- the acknowledgment of payment on ing the ownership of K.'s, intestate, the margin of page 544, signing it would, had they been duly cofisid- " K., administrator d. n. b. c. t. a. of ered, have led P. to a knowledge of M." Beside the entry of satisfaction, the mistake, an action for K.'s neg- were references to the records of the ligence was barred in six years from assignmentabywhichM. had become its commission. Binney's Appeal, owner of the mortgage. Five years 19 W. N. C. 385. afterwards, P., intending to purchase 'Rhines v. Evans, 66 Pa. St. 192; lot b, examined the record, saw the Campbell v. Boggs, 48 Pa. St. 424 ; entry of satisfaction on the margin, Glenn v. Cuttle, 2 Gr. 273; Downey and accepted a deed. Ten years v. Garrard, 24 Pa. St. 52; Morrison afterwards he first learned that the v. Mullen; 34 Pa. St. 17 ; Barton v. mortgage on lot 6 was, in fact, not Dickens, 48 Pa. St. 518. satisfied. A scire facias was sued 'Rhines v. Evans, 66 Pa. St. 192. out, judgment Recovered and the lot 'Livingston v. Cox, 6 Pa. St. 360; sold. He shortly afterwards fileid a Rhines v. Evans, 66 Pa. St. 192. 262 LAW OF LIMITATIONS. that the defendant was suable for negligence in less than one year aiid five months after receiving the note, unless the plaintiflf" gave affirmative evidence that the actionable negligence was not consummated prior to the bringing of the action.^ The negligence of the attorney, in tardiness "with respect to bringing suit until the debt is barred, will be complete at furthest when the bar of the statute is complete. A delay to sue him in six years from that time, for his neg- ligence, will preclude a recovery against him.^ When the attorney is chargeable with unskillfulness in the manage- ment of a suit or other professional conduct, the action accrues on the happening of the unskillful act, and the lim- itary period then commences. It does not wait till the neg- ligence is discovered, or the mischievous effects of it are realized,^ nor until the decision of the Supreme Court that the action, for whose tardy commencement by the attorney he is sued, was, when he brought it, in fact barred by the statute of limitations.* Constructive Fraud and Negligence— Continued. § 202. It is important to determine when the negligent act occurs, which ultimately occasions the loss. Thus, the failure of a creditor — to whom his debtor has assigned,, as collateral security, a judgment against a third person — to revive the lien, will not be the sole act of negligence if the defendant continues solvent for three years after the lapse of the lien. The failure to revive it for the purpose of lien and execution during these three years, would also be negligence. ' Rhines v. Evans, 66 Pa. St. 192. ment nisi on an award of arbitrators, If the defendant had given false in- whereby a lien fails to be acquired, formation to the plaintiff concern- must be brought in six years after ing steps taken in the case, this the judgment should have been might excuse the delay in suing, entered; not merely in six years Id.; Moore v. Juvenal, 92 Pa. St. after damage accrues by reason 484. thereof. Stephens v. Downey, 53 Pa. ' Moore v. Juvenal, 92 Pa. St. 484 ; ' St. 424. Id., 13 Phila. 10. An action against ' Glenn v. Cuttle, 2 Gr. 273 ; Camp- an attorney for not causing a final bell v. Boggs, 48 Pa. St. 524. judgment to be entered on a judg- * Moore v. Juvenal, 92 Pa. St. 484. LIMITATIONS TO PEBSONAL' ACTIONS. 263 If, at the end of tliat period, the defendant alienes the land, and shortly afterwards dies insolvent, an action brought by the assignor of the judgment against his assignee four years after the alienation of the land by the defendant in the judgment, and seven years after the lapse of the lien of the judgment, will not be barred. The negligence in this ease continues down to the actual development of its results.' When an agent to loan money took from his borrower, as collateral security, a judgment against a third person, but, neglecting to revive its lien, suffered the judgment to become worthless, whereby his principal became liable to re-imburse, and under compulsion xe-imbursed, the borrower, the action of the prin- cipal against the agent for this negligence, brought more than six years after the death of the latter and grant of administra- tion upon his estate, and still longer after the cause of action of the borrower against the former had accrued, was barred.^ An action for the unskillful and negligent construction of a mill is barred in six years from the completion of the work and its acceptance by the plaintiff. The statutory term does not delay commencing until actual damage is suffered as a result of the negligence.^ Ignorance of Existence of Cause of Action. § 203. In all cases of contract requiring the performance by one of the parties of a particular act at a certain time, the other party is conclusively presumed to know of the non-perform- ance of the act at that time, and the statute of limitations begins to run from that time, if there is then no legal of contractual obstacle to the bringing of a suit. Thus, a creditor is assumed to know that the debt is not, at maturity, paid. If the contract is for the making of a machine, the construction of a mill or other fabric, and the cause of action ' Hanna v. Holton, 78 Pa. St. 334. had been practiced, a special action ' Hanna v. Meconkey's Ex., 1 Ch. on the case for it would perhaps lie, Co. Bep. 187. and the statute not run as against it . 'Bankin v. Woodworth, 3 P. & W. till the discovery of the defect.' 48. If fraud to conceal the defect 264 LAW OP LIMITATIONS. is the imperfect manner in which the work is done, the plaintiff will be presumed to know of the imperfection from the time the work is completed and accepted, or, what is the same thing, his failure to know will not retard the running of the statute.^ So, when A. employs B. to collect moneys, the contractual relation known to him imposes on him the duty of knowing when B. collects the money. By passively refraining from inquiry the running of the statute cannot be deferred;^ The right of action to recover back money paid as interest, in excess of the legal rate, accrues as soon as the payment is made. It is difficult to imagine a case where the statute does not begin to run from the payment of the usurious money, for the owner almost necessarily has knowledge of the facts from the first.' When A. contracts to sell a chattel to B., on his paying the price at a future day, , he to have intermediate possession of it, A. is boilnd to know the failure of B. to pay the price on the day stipulated, and his action to recover the chattel will be barred in six years thereafter.* The next, of kin of an intestate is affected with knowledge of the time that his share in the estate is paid over to one whom he has authorized to receive it and to transmit it to him, and his action against such person for not transmitting it is barred six years after such person's receipt of it, though the next of kin resides in a foreign country.* The duty of a drawee of a forged draft or order to discover the spuriousness of the signature of the drawer, as respects an action to recoyer back the money from an innocent purchaser of the draft or order, to whom he has paid it, is immediate. ■ His action will be barred in six years after payment.® The ' Bankin v. Woodworth, 3 P. & W. collection becomes hopeless. Mc- 48. ' Coon V. Galbraith, 29 Pa. St. 293. 'Rhines v. Evans, 66 Pa. St. 192; 'Stephens v. Monongahela Na- Morgan v. Tener, 83 Pa. St. 305. tional Bank, 88 Pa. St. 157. But when partial collections are * Barton v. Dickens, 48 Pa. St 518. made by B., A. is not bound to sue 'Fleming v. Culbert, 46 Pa. St. 498. till six years from the last collec- ' United States v. Jay Cooke & Ca, tion, or from the time when further 9 Phila. 468. LIMITATIONS TO PERSONAL ACTIONS. 26& plaintiff in an execution must know that his attorney has^ bought the defendant's chattels, at the execution sale, for less than the debt, from the time of such purchase. The action to enforce the constructive trust could not be maixi- tained after six years therefrom.' The debtor must know when, at or after the maturity of the debt, the creditor has sold or appropriated chattels left as collateral security for the debt, and his action will be barred in six years thereafter to enforce a return of them or of the value of them in excess of the debt.' Ignoiance of Existence of Cause of Action — Continued. § 204. When the administrator makes an advance to the widow, he must know whether it is an over-payment of her share or not. His action to recover the excess cannot be sustained if brought after more than six years.^ Sp, when in making a settlement of accounts between A. and B., A. permits a credit to which, he is entitled not to be taken into- the settlement, he is charged with knowledge of the mistake from the moment it is made. An action to recover back the money paid in completing the settlement, which was too great -by the amount of this omitted credit, must not be deferred beyond six years.* Similarly, when three devisees who are charged with the payment of legacies, adjust the shares of these legacies, to be paid by them severally, to the values of their respective lands devised, and one of them gives notes to the legatee for his part' thus ascertained, he is affected with knowledge that the amount he pays is excessive,, if, in fact^ it be so, and he cannot, after six years from the settlement, bring an action to recover from the other devisees any excess he may have paid." The defendant in an execu- tion is bound to watch the proceedings, and to be aware that the purchase-money procured at the sheriff's sale is in excess 'Downey v. Grarard, 24 Pa. St'. 52; 'Montgomery's Appeal, 92 Pa. St. Jd, 2 Phila. 213. 202. ~ 'Morrell v. Trotter, 12 W. N. C. *B^ndel v. Ely, 3 Brewst, 270. 143. 'Steele v, Steele, 25 Pa. St. 154. 266 LAW OF LIMITATIONS. of the execution debt. He must sue the sheriff for that excess in six years from the sale,^ Ignorance of Existence of Cause of Action — Continued. § 205. The above are instances of -the principle that the plaintiff is not relieved from the closure of the statute of limi- tations against his right of action in six years from its accru- ing, by reason of the fact that he did not become aware of the cause of action for some time after it began, where the law imputes thef duty to him of acquiring such knowledge, and conclusively presumes that he has it. There are other cases in which there is no such irrebuttable presumption of the , plaintiff's knowledge ; cases in which he has no monition or warning that casts on him a duty of suspecting that a cause of action may exist, and therefore of taking steps to apprise himself whether it does or not. Thus, tha vendee out of possession is not bound to know that the vendor, in breach of his contract, has conveyed the land to another. He will have six years from acquiring that information for the bring- ing of an action.^ When a client settles a case pending in court, without the knowledge of the attorney who has been employed in it, to the latter will not be imputed knowledge of this settlement so as to compel him to sue within six years therefrom, for his fees.* When the holder of the legal title to land, who is trustee as to an undivided half of it for another, conveys it, the action of the latter for his share of the purchase-money will not be barred till six years after his ascertainment of the fact.* For the same reason, six years from his discovery of the fact, is allowed to the assignee of a judgment, to bring an action against the assignor for improperly marking the judgment satisfied after the assign- ment had been made.^ Other instances will occur elsewhere, and it is not necessary here to enumerate them. ' Alexander v. Lackey, 9 Pa. St. 120. ' Fox v. Cash, 11 Pa. St. 207. 'Leinhart v. Porringer, 1 P. & W. 'Mitchell v. Buffington, 10 W. N. 492. C. 361. In Iredell v. Klemm, 3 Pa,. 'Lichty V. Hugus, 55 Pa. St. 434. C. C. Eep. 137, a firm dissolved by LIMITATIONS TO PERSONAL ACTIONS. 267 CHAPTEE VII. INCEPTION OF LIMITARY TERM. Promissory Notes. § 206. The principle is general — exceptions to it are con- sidered elsewhere — that the statute of limitations begins to run, not — where the cause of action is a contract— from the time the contract is entered into,^ but from the time when the.right to sue accrues.^ As an action cannot be brought on a promissory note entitled -to days of grace, until after the expiration of the third day of grace, that is, until the fourth day following that named in the note foi" payment,* the statute of limitations would not begin to apply until then. An action brought 15th May, 1879, on a note dated 12th February, 1873, payable in three months after date,' the retirement of A., for $10,000. Subsequently, he. having made false entries in the firm books and em- bezzled a portion of its funds, a con- tract was made by which A. was to accept $5,000, instead of $10,000. Seven years afterwards A. filed a bill alleging a conspiracy, by threat of prosecution^ to compel hipi to inequitably sacrifice $5,000. As the evidenc^ did not show, clearly, this conspiracy, or that the substitution of $5,000 for $10,000 was inequitable, or that the conspiracy and iniquita- bleness had been first discovered within six years before filing the bill, it was barred by limitation. ' Eankin v. Woodworth, 3 P. & W. 48 ; Jones v. Bees, 4 Y. 109 ; Furney's Appeal, 12 W^ N. C. 82. ^Foster V.Jack, 4 W. 334; Leasure V. Mahoning Township, 8 W. 551; Andress' Appeal, 99 Pa. St. 421; Campbell v. Boggs, 48 Pa. St. 524 ; Hamilton v. Hamilton, 18 Pa. St. 20; Overton v. Tracy, 14 S. & E. 311; Morrison v. Mullen, 34 Pa. St. 12 ; Sinkler v. Turnpike Co., 3 P. & W. 149; Patterson v. Nichol, 6 W. 379; Harper's Estate, I Br6wst. 471 Leinhart v. Forringer, 1 P. & W. 492 Stewart v. Keith, 12 Pa. St. 238 Evans v. See, 23 Pa. St. 88; Vanhorn D. Scott, 28 Pa. St. 316; Glenn v. Cuttle, 2 Ga 273; Merchants' and Mechanics' Bank of Pittsburgh v. Watson, 46 Pa. St. 310; Finkbone's Appeal, 86 Pa. St. 368 ; Marsteller v. Marsteller, 93 Pa. St. 350; Watts v. Devor, 1 Gr. 267 ; Tonkin v. Baum, Supreme Ct. Dig. 297. 'Thomas v. Shoemaker, 6 W. & 8. 179; Bevan v. Eldridge, 2 M. 353; Bowers v. Bowers, 18 W. N. C. 80. 268 LAW OF LIMITATIONS. was not barred.^ The payee of a note, having paid it to his indorsee, must sue the maker on the note. He cannot sue on an implied assumpsit for money paid to the use of the maker. Hence, his action will be barred in six years from the day the note could have been sued; it will not be allowed six years from the time that he paid the indorsee.^ The statute commences to run, in favor of an indorser, from the time he is fixed with notice. The mere fact that, as attorney of the bank, the note is put into the hands of the indorser to collect it from the maker, there being no concealment of his liability from the directors, will not prolong the time of his liability.^ Surety. § 207. The operation of the statute of limitations on the liability of a surety is different from that on the liabiUty of a maker of a note towards the indorser. The surety has six years from the time of paying the debt, for the bringing of an action against the pi-incipal.* Thus, A. borrows money to lend to a church (which agrees to pay the interest and principal), and gives a bond and mortgage on his land to the lender. At length the mortgage is foreclosed, and payment of the residue of the debt, after appropriating the proceeds of the premises, is enforced out of other lands then in the possession of a devisee of A., who had died. The devisee 'Scattergood v. Carberry, 7 W. N. (Gibbs v. Cannon, 9 S. & R. 198; C. 213. In Kensington Bank v. Pat- Overton v. Tracy, 14 S. & R. 311) ; ton, 14 Pa. St. 479, an action brought and probably not with respect to 28th April, 1847, on a note dated inception of the limitary term. 11th January, 1841, payable in ninety ' Alexanders. WestmorelandBank, days, was said' to be six years and 1 Pa. St. 395. The liability of an in- Beventeen days after the right of ac- dorser of a bill of exchange is fixed tion accrued. The note was payable when it matures and is protested for 14th April, 1841. non-payment. The statute of limita- ' Kennedy v. Carpenter, 2 Wh. 344; tions then commences to run. Mer- Farmers' Bank" v. Gilson, 6 Pa. St. 51. chants' and Manufacturers' Bank of The relation of a guarantor of a note Pittsburgh v. Watson, 46 Pa. St. 310. is not like that of an indorser, with * Jones v. Trimble, 3 R. 381 ; Wea- respect to notice of non-payment ley Church v. Moore, lO'Pa. St. 273. LIMITATIONS TO PERSONAL ACTIONS. 269 could sue the church for re-imbursement at any time in six years from the taking of his land in execution/ The vendee of land retains a definite portion of the purchase-money, agreeing to' discharge with it arrears of a ground-rent for which the vendor is personally responsible. Sixteen years afterwards, the latter is compelled to pay the arrears. , Then only does the limitation begin to run against his action against the vendee.^ Tqn directors of a corporation desir- ing to borrow money, induced A. and B., two others, to borrow it from a bank, on their personal responsibility, and indemnified them by pledging all the stock of the company and by personally agreeing to guarantee each one-twelfth of the amount borrowed, if the stock should be insufficient. A. and B. borrowed the money, turning it over to the cor- poration. They made partial payments and renewal notes from time to time through a period of six years, at the close of which they paid the residue. The agreement with the ten directors had specified nothing as to the time when the loan was to be repaid by A. and B., or whether in one or several sums. The liability of tl^e guaranteeing directors became mature only when the" last payment was made, even as to the partial payments previously made. Hence, .an action by A. and B., on their guaranty, in six years from the last payment, was in time.' .3 'Wesley Church v. Moore, 10 Pa. matured. Patterson v. Colmer, Su- St. 273. A bill iri equity was here preme Court Dig. p. 290. resorted to. 'Jones v. Trimble, 3 R. 381. Cf. 2 Evans t). See, 23 Pa. St. 88. Yet, Ovierton v. Tracy, 14 S. & E. 311, when the vendee agreed to pay a where a mortgage debt, payable in bond of the vendor, not yet due,, as installments, was guaranteed, and a partial discharge of the purchase- the statute was held to run only, money, the action of the latter from the time the mortgage could against him was barred in six years be sued, i. e. one year after the time frdm the time the bond matured, the last installment was payable. He could not delay for six years Cf., also, Lytle v. Mehaffy, 8 W. 267, after being compelled to pay the where it is said that as one of several bond, fifteen years after the bond co-obligors cannotsplit up his action 270 LAW OF LIMITATIONS. Guaranty. § 208. On a guaranty by A. of payment of a bill of goods to be sold by C. to B., tbe statute begins to run when the goods are sold to B.-' If the guaranty, specifying no time when the guarantor should pay, were given after the pur- chase of the goods, but before the term of credit had expired, the limitation would, probably, begin to run in favor of the guarantor from the expiration of the term of credit.^ A promise to pay the debt of another is not barred in six years from the maturity of the debt, where the debt is already due when the promise is made.^ On a parol guaranty of the sufficiency of the land mortgaged to pay the debt, and of the solvency of the mortgagor, the statute would Operate froni the time the mortgage was suable, and the land could be sold under it, i. e. from the expiration of one year after the time the last installment became payable.* for contribution, by making partial payments of the common debt in excess of his share, his right of ac- tion, and the statute of limitations, will not begin to run until the last payment by him. But in Brady v. Colhoun, 1 P. & W. 140, it was deter- mined that if A. and B. arrange to buy land together, and A. makes successive payments of interest and of portions of the priqe, his right of action accrues for contribution with each such payment. — When, by the same instrument, a debt is made payable in installments, falling due at diffofent times, an action of debt or covenant cannot be brought for any part of the debt, until the last installment becomes payable. As- sum/psit, however, can be brought for any installmeht as soon as it falls due, and so toties quoties. Hence, if a note not under seal secures the payment of a sum in four annual installments, the statute of limita- tions will run as to each from the time it was payable, in an assumpsit brought after all have matured, for all. Bush V. Stowell, 71 Pa. St. 208. It was not decided in this case what would he the effect of bringing an action of debt on this note, whether it could be brought before all the installments fell due, and whether, therefore, in such action of debt, the statute could be pleaded eflfectively against any of the installments, un- less more than six years had elapsed when the action was brought, since the last installment became pay' able. 'Meade v. McDowell, 5 Binn. 195, 'McClurg V. Fryer, 15 Pa. St. 293. "Hesser v. Steiner, 5 W. & S. 476, * Overton v. Tracy, 14 S. & R. 311 If B. loans A.'s money for her, tak ing a judgment, and guaranteeing its payment to her, the statute runs from the time the judgment becomes payable. Styer v. Super, 38 Leg. Int. '394. LIMITATIONS TO PERSONAL ACTIONS. 271 Contribution and Subrogation. § 209. If one of two persons jointly liable for a debt pays it, or more than his share of it, the statutory period then commences as to an action for contribution.^ So, if a surety pays the debt, he must resort to his remedy for re-imburse- ment within six years from that time.^ If the surety in a judgment has paid it, he will not be subrogated to it after more than six years have elapsed from the payment.* An action on a sheriff's bond having been brought by A., whose execution the sheriff had failed to levy, a surety in the exe- cution debt having paid, A. was not entitled to substitution as plaintiff after the time (five years from its date) on which he could have brought the action on the bond.* But until '•Brady v. Colhoun, 1 P. & W.140 ; Brown v. Agnew, 6 W. & S. ?35. The land of one of four co-ol?ligors is sold in execution against all, for the debt. The right of action for contribution does not begin from the acknowledgment of the sheriff's deed, but from the time, subsequent, when the court decreed what part of the proceeds of sale should be appro- priated to this debt. From this time only would the limitation run. Lytle V. Mehaffy, 8 W. 267. One township, after becoming indebted to A., is divided, and the original township then pays A. The right of action for contribution from the new township then accrues, and is not barred for six years afterwards. Wheatfield Township v. Brush Val- ley Township, 25 Pa. St. 112. One partner, compelled to pay a debt for which all are liable, may, for six years thereafter, sustain an action for contribution, though, at the time of bringing the action, he could not file a bill for a general" accounting because of lapse of more than six yeajs from the dissolution of the firm. McKelvy's Appeal, 72 Pa. St. 409 ; cf. Brown v. Agnew, 6 W. & S. 235. ^Farmers' Bank v. Gibson, 6 Pa. St. 51; Montgomery D. Cunningham, 104 Pa. St. 349. 'Fink V. Mehaffy, 8 W. 384; Eit- tenhouse v. Levering, 6 W. & S. 190. * Bank of Pennsylvania v. Potius, 10 W. 148. In Bittenhouse v. Lever- ing, 6 W. & S. 190, it is said that when the surety on a bond brings suit after six years of paying the bond', he is barred by the statute of limitation. A., with B^ as surety, had made a bond. Then A., with C. as surety, gives a bond of indemnity to B. G. subsequently paid the original bond. In aij action by A., or A.'s next of kin, for a distributive share of the estate of C, A.'s father, the amount paid on the bond by C. could not be set off, because , six years had run. But in McCarty v. Gordon, 4 Wh. 320, it was said in an action against a surety on a bond to secure the principal of the widow's third to the heirs, brought nineteen years after the widow's death, and 272 LAW OF LIMITATIONS. payment of the. debt by the surety, the limitation does not . but, as he had taken jungentlemanly steps to get his money, he would keep him but of it as long as he could.^ He may announce his purpose to avail himself of the statute of lim- itations,* or of a discharge under a State insolvent law, ' Wesner v. Stein, 97 Pa. St. 322. tiff's agent, in regard to- a particular 'Girard Bank v. Bank of Penn note, "Yes, this is my name. What are Township, 39 Pa. St. 92. yougoingtodoabeutit?" Atanother ' Fries v. Boisselet, 9 8. & E. 128. time he said, " I never got the money *Hay V. Kramer, 2 W. & S. 137; on it." The first remark was held Read v. Wilkison, 2 Bro. App. 15; equivalent to saying, "I^lgnedthat Fries v. Boisselet, 9 S. & R. 128; note more than six years ago. Col- Murray V. Tilley, cited 9 S. & R. 131. lect it if you can." The statute waa At the hearing before the justice, not tolled. Norton v. Carpenter, 2 defendant said, "The debt is just, but W. N. 0. 306. Defendant admitted Burns .[a third person] ought to pay he had bought the goods, but thought it, and that he [defendant] ought not he had paid for them ; at all events, to pay it," and immediately pleaded would rely on the statute. The the statute of limitations. This did statute was not tolled. Guief v. not toll the statute. Hogan v. Bear, 5 Fearce, 2 Bro. 36. W. 111. Defendant said to the plain- ' 312 LAW OF LIMITATIONS. though this law wag unconstitutional.^ He may show an intention not to pay, by alleging that he is too poor, as when, the creditor remarking, "You have a fine place here ; I hope you will now be able to settle that old claim of mine," the defendant replied, " I am too poor yet to do anything of the kind/'^ or as when, the creditor requesting payment of a note, which the maker of it admitted he owed, the latter said, " I wish I could pay you all I owe you. I am sorry I cannot pay you all I owe you," and to a later request, said, "I have filed niy petition in bankruptcy. If you let this proceeding in bankruptcy go on I will do the best I can for you."^ The declaration that another ought to pay the debt, and that the defendant ought not, coupled with an expression of purpose to plead the statute of limitations, is inconsistent with a promise to pay the debt,* as is an administrator's admission of the debt, qualified by the statement that the widow is determined to plead the statute, and he would leave the matter to her.^ Within a year before the institution of the suit by A.'s executor against B., B. admitted that his father had had A.'s money to put out at interest, that he, B., got the money from his father and gave bonds for it, that when his father came to die, he, B., promised him he would take care of A. as long as he lived, and of his money, and that then his father surrendered to him his bonds. He asked the executor to say nothing about the last will of A., and that he would "satisfy" him. This was not consistent with a promise to pay.® If the admission of the debt is coupled with a denial of the right of the plaintiflf to receive the money, e. g. if A. having executed a promissory note pay- able to T., trustee, says to a third person, " I acknowledge I ' Hudson V. Carey, 11 S. & B. 10. *Hogan v. Bear, 5 W. Ill ; Hay ij. There was here, however, a denial of Kramer, 2 W. & S. 137. the debt also. 'Scull v. Wallace, 15 S. & R. 231. 'Airy v. Smith, 1 Phila. 337. 'Zachariaa v. Zacharias, 23 Pa. St. • Lawson v. McCartney, 104 Pa. St. 452. 856. LIMITATIONS TO PEKSONAL ACTIONS. 313 owe the money ; I got the money of T.,^and I intend to pay it. But it was not T.'s money. It is iny impression that legally it belongs to S., equitably it is J.'s" — the statute will not be tolled as to T.'s action.^ Intention to Pay Repelled— Continued. § 236. The circumstances under which an acknowleidg- ment of a debt is made, may repel the inference of an inten- tion in making it to express a purpose to pay it. Thus, no such purpose is inferable from the enumeration of the debt in the petition of the debtor for the benefit of the insolvent law. The whole proceeding is an assertion of inability to pay, and the schedule is furnished under the compulsion of the law, as the only means of obtaining its benefits.''' When the executor, in calling over the notes of the decedent to the appraisers, enumerates one drawn by himself, stating its principal as $661, and its interest as $342.06, the note being more than six years old when the decedent died, he does not so acknowledge it as to imply a promise to pay it, for he is simply discharging a duty to report all notes, whatever the defenses to them may be.* The defendant, in admitting items of charge against him as correct, also insists that he has charges against the plaintiff more than enough to absorb them, and so an intention not to pay the charges against him otherwise than by the set-off of the reciprocal demands. > Thus, when A. made a demand on B. for £214, and B. replying that he had counter-claims, A. said these had been taken into account by him, and the balance, after allowing credit for them. Was £214, A. did not so admit ' Gillingham v. Gillingham, 17 Pa. by the insolvent's assignee to a cred- St. 302. This, said the court, was itor, is not such an acknowledgment not a promise to pay to T., but rather as revives the debt as againrst the the expression of a purpose not to insolvent. Bunn v. Drovin, 2 Phila. pay the money to him. 306. 'Christy v. Flemington, 10 Pa. St. 'Bell's Estate, 25 Pa. St. 92; c/.Mer- 129 ; Brown v. Bridges, 2 M. 424. chanty' and Manufacturers' Bank of Mullen V. Ridgway, Add. 278, is con- Pittsburgh v. Watsoff, 46 Pa. St. 310. trary. The payment of a dividend 314 I/AW OP LIMITATIONS. these counter-claims as to impliedly promise to pay them otherwise than by allowing the credit as indicated by him. No action against him could be supported by this promise as against the statute of limitations.^ Intention to Pay Repelled — Continued. § 237. If, in an attempt to settle an account embracing var- ious items, the correctness of certain of them is admitted by one of the parties, but, for some cause, the settlement is never completed, this admission will not avail to toll the statute as to these items. The party making it may have contended that on a fair settlement there would be no balance against him. Hence, two parties attempting a settlement of the partner- ship business, in which they design to include a loan by one of them to the other, the admission of the loan by the latter will not exempt an action for its recovery from the statutory bar, the attempt at settlement proving abortive.^ So, though the items in A.'s charge against B. were serially examined, and admitted to be correct, but there was no admission by B. that the credits allowed B.^by A., which are less than the debits, are all to which he is entitled, and that he is indebted for the balance, the statute will not be tolled as to an action to recover this balance, or any part of it.^ The admission of part of a debt may be coupled with a refusal to pay another part, and the statute will be waived as to the former, but not as to the latter. Thus, the debtor may admit the principal of the debt, but deny his liability for interest thereon, and announce his determination not to pay it. The interest will, in that case, be barred, but not the principal.* 'Eokert v. Wilson, 12 S. & R. 393. was said that the acknowledgment 'Nixon V. Brownfield, 14 Pa. St. of the principal of the debt, though, 319. the interest was disputed, would take 'Allison V. Pennington, 7 W. & 8. the case out of the statute. It does 180. not appear whether the statute was ' Graham v. Keyes, 29 Pa. St. 189. deemed waived as to both principal In assumpsit for use and occupation and interest, or only as to the inter- of land lying in New Jersey, there est. Henwood v. Cheeaeman, 3 S. & being no special contract for rent, it R. 500. Probably the admission by LIMITATIONS TO PERSONAL ACTIONS. 315 But a part payment of a debt will be an acknowledgment by wMob, in case of doubt, it may be shown to have been a debt rather than an advancement, and the statute of limita- tions will be tolled as to the part not paid.^ A promise not to plead the statute, after it has barred a debt, does not imply that there are no other defenses, and does not toll the stat- ute;^ and if, at the trial of an action on the earlier of a series of bonds, the defendant, not having the evidence by which he hopes to prove a set-off, which was in fact barred, is told by the plaintiff's attorney,, whether with or without i authority, that he will have an opportunity to make the defense in an action on the later bonds, this would not exempt the set-off from the statutory bar.' Qtialities of the Acknowledgment Resumed. § 238. In conclusion on this point, it may be said, gener- ally, that when there is not an express promise, the acknowl- edgment from which the promise is inferred must be con- sistent with a promise to pay.* It must clearly, distinctly A. of a part of a debt due to B., e.g'. so land sold him in 1864, should-be much of it as will be necessary to sat- credited, but that the rest should be - isfy by set-off a debt due from B. to A., otherwise recoverable. Hence, in an would not revive any more of it. action of covenant by, A. for the pnr- But when A., being indebted to B. for chase-money of the land sold in 1864, a certain deficiency in land sold him, B. can set off what was due him for 7th July, 1858, conveys other land to the deficiency on the former sale and him 10th December, 1864, and agreed have a certificate for any excess, that a,n alleged deficiency in the mea- Shreiner v. Cummins, 63 Pa. St. 374. sure of the land sold in 1858 should 'Schmoyer v. Schmoyer, 17 Pa. St. be submitted to a referee, his de- 520. cision to be final, and the price of ^ Gilkysbn v. Larue, 6 W. & S. 213. the number of acres found wanting ' Crist v. Haldeman, 2 P. & W. 251. should be credited on the price of * Bailey ■;;. Bailey, 14 S. & R. 195; the land sold in 1864, it was held Fries i;. Boisselet, 9 S.& E 128; Sea- that this was not a mere revival of right v. .Craighead, 1 P. & W. 133 ; an old debt, but a new contract with Hogati v. Bear, 5 W. Ill; Scull v. a ne\y consideration, and that the Wallace, 15 S. & R. 231 ; Church v. intention was not merely that so Feterow, 2 P. & W. 301; Palmer v. much of the sum to whichB. was Gillespie, 95 Pa. St. 340; Hudson v. entitled for de'ficiency as did not Carey, 11 S. & R. 10 ; Eckert v. Wil- ezceed the purchase-money for the son, 12 S. & R. 393; Nixon v. Brown- 316 LAW OF LIMITATIONS. and unequivocally confess the subsistence of the debt.^ The acknowledgment of the debt must be express and direct ; an implied acknowledgment will be ineffectual.^ The whole of a discourse or speech, alleged to contain the promise or ac- knowledgment, must be considered together, and where the debtor is expressing a deliberation, his conclusion will be considered as embodying his final purpose rather than the "balancings" which preceded it. A promise, to bind the party, ought to be his deliberate^act, and the jury must not be suffered to conjecture whether words of acknowledgment and words of qualification, in the same discourse, proceeded from different acts of the mind.* It is probable that all the essential elements of a valid acknowledgment or promise must appear in each such acknowledgment or promise. It is not likely that if one acknowledgment identified the debt, and another, made at another time, to the same person, without identifying it, acknowledged some debt to exist, and prom- ised to pay it, the second making no reference to the first, the two could be combined so as jointly to make one efl&cient acknowledgment. Still less is it likely that two acknowl- field, 14 Pa. St. 319; Zacharias v. 12 Pa. St. 264; Davis v. Steiner, 14 Zacharias, 23 Pa. St. 452; Lawson v. Pa. St. 275; Gilkyson v. Larue, 6 W, McCartney, 104 Pa. St. 356; Fritz v. & S. 213 ; Morgan v. Walton, 4 Pa, Thomas, 1 Wh. 66; Miles i;. Moodie, St. 321; Emerson v. Miller, 27 Pa 3 S. & R. 211 ; Gleim v. Rise, 6 W. St. 278 ; McClelland v. West, 59 Pa, 44; Allison v. James, 9 W. 380; St. 487; Johns v. Lantz, 63 Pa. St, Schaeffer «. Hoffman, 16 W. N. C. 324; Magee v. Magee, 10 W. 172 501; Graham v. Keyes, 29 Pa. St. Wolfenberger v. Young, 47 Pa. St 189; Reed v. Reed, 46 Pa. St. 239; 516; Berghaus w. Calhoun, 6 W. 220 Yaw V. Kerr, 47 Pa. St. 333 ; Sense- Farley v. Kustenbader, 3 Pa. St. 418 man v. Hershman, 82 Pa. St. 83; Harbold v. Kuntz, 16 Pa. St. 210 Magee v. Magee, 10 W. 172 ; Bolton Hannum's Appeal, 9 Pa. St. 471 V. King, 105 Pa. St. 78; Painter's Davis v. Steiner, 14 Pa. St. 275 Appeal, 18 W. N. C. 441. Wesner v. Stein, 97 Pa. St. 322 ''Burr v. Burr, 26 Pa. St. 284 ; Suter Wambold v. Hoover, 16 W. N. 0. V. Sheeler, 22 Pa. St. 308; Mont- 327. gomery v. Cunningham, 104 Pa. St. 'Gest?;. Hei8kill,5 R. 134; Allison 349; Gerhard v. Gerhard, 3 Cent, v. James, 9 W. 380. Rep. 601 ; Lawson v. McCartney, 104 ' Hogan v. Bear, 5 W. 111. Pa. St. 356; Hazelbaker v. Reeves, LIMITATIONS TO PEESONAL ACTIONS. ' 317 edgments made to two diflPerent persons, neither alluding to the other, could be fused together. But, when the debtor> approached with respect to money claimed by A.'s fatter on the " Dry Farm," refrained from acknowledging The debt, saying he was destitute of money, and about the same time met another son of the creditor, to whom he said that he owed the latter some money and that his son had been after it, and that he was coming to Greensburg to make arrangements to pay it, it was held that the identification' of the debt in the first of these conversations could be coupled with the recognition of it, indicative of an intention to pay it, in the second ; and that by means of the two the statute was tolled.^ And, when an express promise to pay the debt is relied upon, it must, like the acknowledgment, be pMn, unambiguous, express, so distinct and palpable in its extent and form, as to preclude hesitation.*^ The promise must be proved in a clear and sat- isfactory manner, and its terms must be unequivocal and determinate.* Conditional Promise. § 239. If the acknowledgment of the debt is accompanied by a qualified promise to pay, this express promise precludes any implication of a general and unqualified promise. If the creditor wishes to take advantage of the promise, he must accept it as it was made.* Hence, to avail himself of ' ■ ' Davis V. Steiner, 14 Pa. St. 275. * In reviving a debt barred by the This case is discredited, in so. far as it statute, the debtor may impose con- teaches that the amount of the debt ditions by which the creditor will be need not be indicated, in Suter v. bound. Hence, probably, if with- Sheeler, 22 Pa. ^t. 308; Burrv. Burr, out a new consideration, the debt- 26 Pa. St. 284. or agreed that the unascertained ' Gilkyson i;. Larue, 6 W. '& S. 213 ; amount of an old debt should be Berghaus v. Calhoun, 6 W. 219 ; Ken- referred to a particular person, and singtonBank?;. Patton,14Pa.St. 479; his decision should be final, this Allison V. James, 9W. 380; Burr v. would revive the debt only if the Burr, 26 Pa. St. 284 ; Morgan ■». Wal- referee made his decision. He dying ton, 4 Pa. St. 321. ■» without deciding, the debt would not 'Shaflfer v. Shaffer, 41 Pa. St. 51; be revived. Shreiner «. Cummins, 63 Webster v. Newbold, 41 Pa. St. 482. Pa. St. 374. 318 LAW OF LIMITATIONS. a conditional promise, he must show the condition fulfilled. If the promise is to pay when able, the statutory bar will, not be removed without proof of ability to pay,^ but will be removed with^ proof of ability. A promise coupled with the condition of getting the money necessary, will not make subsequent and wholly disconiiected acknowledgments con- ditional. After making a qualified promise, the debtor may, on a diflFerent occasion, make an unqualified promise.^ Whether a promise to pay is absolute or conditional, may be a question of fact, and necessarily referable to the jury. Thus, the debtor, called on by the ageiit of the creditor, for payment, expressed regret that she could not pay any money, saying, " She had a friend who would give her means to pay the debt, but as he was absent she would, pay her as well as she had paid my [the agent's] note, some years before. I told her plaintiff was ever so, much in need. She said she would pay, not only the principal and lawful interest, but something extra." It was held that the court could not say that there was any condition annexed to the promise, for though the debtor had referred to the source from which she expected to obtain the funds with which to pay, this was followed by a promise in terms absolute.* A promise to pay when the debtot receives the amount of a certain order, will hot support a recovery in opposition to the statu- ^ Lafarge v. Jayne, 9 Pa. St. 410 : Christy v. Fleraington, 10 Pa. St 129; Barwell v.. Wirth, 61 Pa. St, 133 ; Patton v. Hassitiger, 69 Pa. St 311; Love v. Hough, 2 Phila. 350 promise to pay when able would be sufficient to take a case out of the statute, even on proof of ability. He supposed the promise ought to be to pay on demand, without quali- Storm V. White, 6 Phila. 531. ficatidn, or condition. Kensingtoiji ^Barwell v. Wirth, 61 Pa. St. 133. Bank v. Patton, 14 Pa. St. 479. When the debtor said that as soon ^ Barwell v. Wirth, 61 Pa. St. 183. as he had got as much mon"ey as was The interval between the promises necessary to pay the debt he would here was five years, pay it, there could be a recovery * Barwell v. Wirth, 61 Pa. St. 133. against him on proof that he had A verdict for the plaintiff, on such got so much money. Patton ». Has- evidence of promise, would support singer, 69 Pa. St. 311. Rogers, J., a judgment, had expressed a doubt whether a LIMITATIONS TO PERSONAL ACTIONS. 319 tory bar, unless there is proof that the amount of the order has been received/ but when proof is made that the debtor has sold certain coal lands, on the disposal of which he had previously promised to pay the debt, the debt may be recovered.^ A., "already indebted to B. on a note, and desiring to borrow from him $300 more, told B. he might, if he lent the $300, include it and the amount of the note in a bond, which he. A., would execute. The money not being lent, nor the bond executed, the note, already barred, was not revived.^ An offer to pay a part of a debt, for release of the whole, the offer not being accepted; will not be operative. Thus, A. being indebted to B., X. asked him what he would pay for the debt. A. replied $60. X. stating he did not think B. would accept that amount, A. offered $80. This B. subsequently refused to take. The debt was not revived.* Conditional Promise — Continued. § 240. Two attorneys agreed with a third, that for his assistance in a case they would give him a certain, share of the fees. A promise made by one of the former to the third to pay him $2,000 if the other would unite with him in the payment, would not revive the debt as to him if the other declined to unite in the payment.® The promise by the surety on a note whose principal has made an assign- ment for the benefit of creditors, to pay the balance of the ' Storm V. White, 6 Phila. 531. St. 189. If money is tendered in ^ Wetham's Estate, 6 Phila. 161. compromise of a debt, but declined, 'Hannum's Appeal, 9 Pa. St. 471. the tender will not be such an ac- The acknowledgment, says Burnside, ktiowledgment as will take the debt was conditional, and therefore in- from the statute. Tendered as part valid. payment, it would. Farley v. Kus- *Gest V. Heiskill, 5 K. 134. But tenbader, 3 Pa. St. 418. The offer yfhea an unconditional offer is made by the debtor on book account, of a to pay the principal, but payment of horse, not accepted, in part payment the interest is refused, the creditor, of the account, is not an acknowl- though he then declines to take the edgment of the debt. Huff v. Eich- one without the other, and sues for ardson, 19 Pa. St. 388. both, may, in the action, recover the ^Webster v. Newbold, 41 Pa. St. principal. Graham v. Keyes, 29 Pa. 482. 320 LAW OF LIMITATIONS. note, after the holder shall have applied for and received a dividend from the assigned estate, is binding only in case such a dividend is made, for it is predicated on that condi- tion. If the assigned estate is absorbed by lien debts, so that no dividend on the note is allowed from it, the promise to pay the balance has no effect. No part of the note is preserved from the limitation.' A deceased debtor had, by letter, congratulated the plaintiff on the former's prospect of selling her house for $20,000, saying, " Then, James, you shall have your $5,000." It did not appear that the house had been sold. This was insufficient to sustain, despite the statutory bar, an action against the administrator of the debtor, who never having paid the plaintiff, had bequeathed her property to charities.^ Care must, however, be taken to distinguish between a contingency without whose happening there is no intention that the debt shall be paid, and a con- tingency the postponement of whose happening the debtor intends to allege as an excuse for his own postpone- ment of making the payment. Thus, A. having borrowed B.'s bonds, and sold them, using their proceeds in his busi- ness, B.'s administrator shows to A. his receipt for the bonds, and asks for payment. He replies, "That is all right. I owe B. those bonds, and I will pay the money back to you as soon as I get better. You need not be worried." In feeble health then, he died about a year afterwards, not having got better. It was held that this language was not intended to condition the payment of the money on A.'s 'Senseman .«. Hershraan, 82 Pa. their precise nature is not stated. St. 83; Ross D. Long, 2 W. N. 0. 694 ; It is said the decedent "spoke of Id., 33 Leg. Int. 306. her indebtedness to James, oom- * Porter v. Trust Co., 3 W. N. 0. plaine'd of her restricted means, and 260. After suffering a non-suit in hoped soon to liquidate it." The the Common Pleas, the plaintiff claim was allowed by the Orphans' sought payment in the Orphans' Court (Mayfield's Estate, 4 W. N. Court. Acknowledgments later than C. 154), whose decree was affirmed •that which mentioned the expected by the Supreme Court. Mayfield's flale of the house were made, but Estate, 6 W. N. C. 27. LIMITATIONS TO PERSONAL ACTIjONS. 321 recovery from sickness, but only to suggest an excuse for not paying immediately.' Sufficient Ackno'wledginent. § 241. On tlie decease of tlie debtor, the creditor presents bis note to one of the administrators, who says, " It is too old; you should have collected it sooner." He, however, calculated the interest on it, and remarked, "If you can get the principal, I suppose that will satisfy you without the interest." The creditor said that if he took tbe principal without interest, he should expect to get it without further trouble. The administrator replied, " I have not funds in hand to pay you, but the debt is a just one. I will see my colleague and we will do what we can for you." He then offered to give a note due the decedent from a neighbor of the creditor in payment, which the latter declined to accept without seeing, this neighbor. The administrator said if the trade took place the creditor must pay hiih the excess of the note given over the creditor's note. At the conclusion of the interview, the administrator again said, "We will do what we can for you." This concession that the creditor's claim was just, and the promise to see what could be done for him, would be sufficient to toll the statute if the person making it had been speaking of his own debt, and not of that of the intestate.^ The indorser of a note discounted by a bank, of which he is president and attorney, in con- junction with other members of a committee appointed for that purpose, sends in to the directors a list of overdue notes, in which is enumerated that on which he is indorser, with a statement of his liability as such. This would be such an acknowledgment as would make a new starting-point for the limitary term of six ye3,rs, as to an action on his indorse- ment.* B. having given A. a check for $1,000 nine years 'Morgan v. Kirkpatrick, 2 Pa. 0. 'Alexander V.Westmoreland Bank, Q. Eep. 262. 1 Pa. St. 395. 'Fritz V. Thomas, 1 Wh. 66. V 322 LAW OF LIMITATIONS, before, in a conversation with A,'s clerk, said lie liad obtained the money which the check was made to repay, that he considered it a just and honorable debt, and did not consider it outlawed, and when A. wanted the money he should ask him. This was a clear acknowledgment of the debt, which waived the benefit of the statute/ C. was indebted to D. for money and goods furnished on C.'s order to Heck. Before six years had run, C. told D. "Nothing between you and me shall outlaw. I will not take that advantage of you." Two years afterwards, after C. had brought suit against D. on some claim, D. again spoke of the " Heck matter." C. replied that he would pay it. Just before thfe trial- of C.'s suit against D., D. showed his account of the " Heck matter " on his blotter, C. saying it was all right and he would pay it. This was sufficient to exempt the " Heck matter " from the statutory bar, and per- mit it to be effectually used as a set-off in C.'s suit against D,'^ The admission by the debtor in regard to a particular note, that it is a just claim, and the statement that about a certain designated day he will pay it, will toll the statute already closed against the note.^ A, having put his name as a subscriber, in a book used by him as agent of a railroad com- pany to take subscriptions to its stock, several years afterwards joins with others in a letter to the company, in which they say " we submit you the names of the following stock taken by us." Accompanying the letter was a list, with the names of the subscribers and the number of shares set opposite to them, and among them was that of the agent. With this letter, it was held, the original subscription first went into effect, or if it went into effect as to the agent, when he in- serted his name in the book, (which he had never delivered to the company,) this letter must be considered as an ac- " Wetham'B Estate, 6 Phila. 161. » Yaw v. Kerr, 47 Pa. St. 333. 'Seybert v. Hicks, 1 Luz. Leg. Beg. 46. LIMITATIONS TO PEKSONAL ACTIONS, 323 knowledgment of the debt, from whicli a jury might find an assumption within six years before suit/ Futurity of Promised Payment. § 242. As, in reviving a debt, the debtor may impose con- ditions by which the creditor will be bound^^ he may make any new period for the payment. This period may be made dependent on a contingency, such as the debtor's acquiring- pecuniary ability to pay,* or his paying in the future another creditor,* or another debtor jointly liable with him making a partial payment,^ or the death of the debtor.^ Thus, the debtor's admitting, shortly before her death, a debt of $400, with the statement that she would like to see it paid, and wanted it paid out of the estate, and her request of her children, who were present, to see her just debts paid, revived the debt.^ So, the debt was revived when the debtor admitted he had borrowed the money, and said he would pay it as soon as he could, and that if not paid until after his death, there would be plenty of property left to pay it.* A promise to pay a debt in a few days,' or at some future time, which is left wholly indeterminate, is sufficient; e. g. the written statement made to the attorney of the plaintiff, " we owe her the money ; we will pay it some day ; can't say when."" So is one which indicates the time of the intended payment ; as when the debtor promised, in February, that he would be in Buffalo, and pay on or about the 1st April, following." In general, it may be said that while, to be consistent with a ' Pittsburgh ?,nd Connellsville Kail- » Criswell v: Criswell, 56 Pa. St. 130. road Co. v. Plummer, 37 Pa. St. 413. ? Bond's Estate, 44 Leg. Int. 186,-; 'Shreiner t). Cummins, 63 Pa, St. Jd., 3 Pa. C. C. Eep. 263. 374. * i» Bolton v. King, 105 Pa. St. 78, ■ » Criswell i;. Criswell, 56 Pa. St. 130; Love v. Hough, 2 Phila. 350, is in- Barwell v. Wirth, 61 Pa. St. 133. consistent with this decision. * Miller v. Basehore, 83 Pa. St. 356. "Yaw v. Kerr, 47 Pa. St. 333. In. ' Senseman v. Hershman, 82 Pa. St. Wells v. Pyle, 1 Phila. 21, the promise- 83, to siettle in twelve months was con- •McCuUough's Estate, 18 W.N. C. sidered sufficient to submit to a. 348. jury. 324 XAW OF LIMITATIONS. promise to pay, the acknowledgment must be such as indi- cates that an intention to pay the debt exists at the time of the acknowledgment, the time of payment need not be immediate. But the intention to pay must be present.^ Identification of the Debt. § 243. The acknowledgment of the existence of a debt, or a promise to pay a debt, however distinct, must plainly refer to the very debt to whose exemption from the statutory bar it is sought to be applied.^ While it is not necessary that the language used by the debtor should describe the debt referred to, it must be shown that a note, book account or ^ other evidence of indebtedness was exhibited to him, and that his acknowledgment or promise was made with refer- ence to it, or that the indebtedness had been suflSciently described by the plaintiff or his agent, in the conversation which elicited the promise or the acknowledgment.* When, ' Senseman v. Hershman, 82 Pa. St. 83. In Kensington Bank v. Patton, 14 Pa. St. 479, it is said that the promise must be to pay on demand ; must be an immediate, unqualified promise to pay, without restriction or conditions. This dqctrine is stated in Lawson v. McCartney, 104 Pa. St. S56. In neither of these cases was this principle essential to the deci- sion. In the former the promise ■was to make some arrangement in a few days, with a statement that the debtor might pay it or could pay it in the course of a year. - In the latter case the plaintiff and the de- fendant gave conflicting versions of the language of the latter. Accord- ing to that of the latter, he simply wished he could pay ; was sorry he could not pay, though he admitted the debt. According to the plaintiff's version, the debtor promised to pay .the note when the plaintiff, then starting for Kansas, should, return. The court, assuming the defendant's version to make a waiver of the stat- ute, directed the jury to find a ver- dict for the plaintiff. This was ad- judged erroneous. " The case should have beensubmitted to thejury under proper instructions, to find what lan- guage was used, and whether it came up to the requirements of the law." Had the 'plaintiff's version, showing a promise to pay on his return from Kansas, been insufficient, it would have been erroneous to submit it to the jury. ^ Burr v. Burr, 26 Pa. St. 284; Suter V. Sheeler, 22 Pa. St. 308; Montgomery v. Cunningham, 104 Pa. St. 349; Gerhard v. Gerhard, 3 Cent. Rep. 601 ; Lawson v. McCart- ney, 104 Pa. St. 356; Hobaugh v. Mlirphy, 44 Leg. Int. 168. ' Mayfarth's Appeal, 1 Cent. Rep. 898''; Johns v. Lantz, 63 Pa. St. 324. LIMITATIONS TO PEESONAL ACTIONS. 325 in the conversation containing the alleged acknowledgment, the note is not produced, nor referred to by date, amount or balance due, a promise to pay a note will not be capable of application to any particular note sued on,^ unless there is aflfirmative evidence that but one debt of the class indicated, from the defendant to the plaintiff, existed at that time. The courts will not presume that there are no other debts till the existence of others is shown, but will presume that there are other debts, till it is proven that there are no others." A. said to B., "Can thee let me have a little interest- money oh that note which I hold 'of thine ?" the note not being exhibited nor otherwise described. B., said, " How much would thee like?" A. replied, " Four or five dollars." B. gave her |7, asking, " Is that sufficient ?" and A. answered, " It is for the present." This did not sufficiently identify the note as that on which the suit was subsequently brought.^ J), owes C. a note. C. visiting D. one day, says, " I came for money." D. replies, " I will pay you $600 in thirty days on the note. I will pay you the rest as quick as I can." The wife of D. jpresent, said, "We will pay you every dollar, if we have to pay it out of our pockets." D. added, " Yes ; we will pay you." The note was not ade- quately identified. Not produced, its date, or amount, or the balance due was not mentioned.* By directing in his will that "all my just debts and funeral expenses shall be paid," the debtor recognizes no particular debt, and therefore revives no particular debt barred by the statute,^ nor stops the run- ning of the statute as to one not yet barred,* nor prevents 'Mayfarth's Appeal, 1 Cent. Kep. 'Burr v. Burr, 26 Pa. St. 284. 398; Hobaugh v. Murphy, 44 Leg. 'Landis v. Roth, 109 Pa. St. 621. Int. 168. . * Smith v. Porter, 1 Binn. 299 ; Eck- •Burr V. Burr, 26 Pa. St. 284; ert w. Wilson, 12 S. & R. 393; Cole- Mayfarth's Appeal, 1 Cent. Rep. man v. Fobes, 22 Pa. St. 156 ; Agnew 398; Landis «. Roth, 109 Pa. St. v. Fetterman, 4 Pa. St. 56. 621; Shaflfer v. Shafier, 41 Pa. St. ^Rush v. Fales, 1 Phila. 463.. A. 51. The contrary was assumed in direction to pay debts, devise of land Davis V. Steiner, 14 Pa. St. 275. to the executrix, and authorization 326 LAW OF LIMITATIONS. the barring in six years from its maturity of a debt falliiig due after the testator's death.^ Identity of Debt — Continued. § 244. A direction in a will to pay a particular debt, will entitle it to payment, if not as a debt, then as a legacy — though it be twenty-five years old." A. and B. dissolving partner- ship by a sale of A.'s interest to B., a bond of indemnity by B. to A., to indemnify him against the debts of the firm, of which there were several, but which were not designated, is not such a recognition of any particular debt as exempts it from the limitary bar.^ Nor is the promise of an adminis- trator that all the debts of the decedent shall be paid.^ An acknowledgment of some indebtedness on notes, without evi- dence to show they were the notes sued on, or the amount of them, will not support a recovery even for a nominal sum, so as to carry costs." "I will pay you every cent I owe you" does not sufficiently designate a note owed by the speaker to the person addressed, to sustain an action on it.^ The remark by A. to B., "I am nearly through with my difficulties and I will pay all my honest debts, and I will of her to sell enough real estate to ' ^ Fawcett v. Fawoett, 95 Pa. St. pay debts, does not arrest the run- 376. f - ning of the statute as to debts due *Agnew v. Fetterman, 4 W. 56. by the decedent, but not barred, at 'Dobson v. Quantrell, 1 Phila. his death. Agnew v. Fetterman, 4 204 ; Tracy v. Newel, 3 Leg. & Ins. Pa. St. 56. , Rep. 59. To remove the bar of the ' Man V. Warner, 4 Wh. 454. A statute to a certain note, it. was •direction that "all my just debts alleged (1) that the maker had shall be paid," followed hy a power agreed the money should remain with to the executor to sell all real estate, him till it was called for in such ■whenever he may see fit, and to col- amounts as the promisee should from lect all debts due the testator, and timeto time need; (2) that the maker from the proceeds pay all debts, does had said, when the payee once told not affect the application of the stat- him he still held his note of 1861, " If ■ute to such debts. Man v. Warner, you show me a note of mine, for it, 4 Wh. 454; Trinity Church v. Wat- I'll pay it." On one or both of these «on, 50 Pa. St. 518. grounds the statute was tolled. Ray- ^Albertis' Estate, 1 W. N. 0. 559. ner v. Styer, 1 W. N. C. 281. Interest on it was allowed from the ' Hobaugh v. Murphy, 44 Leg. Int. death of the testatrix. 168. LIMITATIONS TO PERSONAL ACTIONS. 327 pay you too," will not be applied to a debt due by A. on account of a joint contract completed by tbem for a certain price, which A, had received.^ A note may be adequately described as then in the hands of a certain attorney for collec- tion, affirmative evidence showing that there was no other note of the plaintiff then, or at any other time, in that attorney's hands.^ A.'s agent presents a bill to the debtor, who examines it and acknowledges its correctness. In a sub- seqoient action on the book account, the agent not being able to say that the bill left with the debtor corresponds with the account in the book, the fact that the defendant having the bill, does not produce it, as he might, and show that it did not correspond with the account sued on, would justify the jury in applying the acknowledgment of the correctness of the bill to the book account, so as to waive the statute as to it.* Extent of Debt Ascertained. § 245. It is necessary that in the acknowledgment or promise of the debtor, the extent pf the debt be ascertained, so as to preclude hesitation regarding it, as well as the nature of the debt or the source from which it siprings.* If the debtor distinctly recognizes his note of hand, his bill or a book ac- count, barred by the statute of limitations, and promises to pay it, he revives the debt and deprives himself of the protection of the statute. If he acknowledges its existence in terms which are consistent with a promise to pay, the law will imply the promise and hold him liable. In such instances, the extent of the liability is readily measured by the instrument acknowl- edged. But where there are mutual dealings and unsettled ' Hamilton v. Hamilton, 18 Pa. St. Bond's Estate, 44 Leg. Int. 186 ; Id., 20. 3 Pa. C. C. Eep. 263. ' Yaw V. Kerr, 47 Pa. St. 333. * Harbold v. Kuntz, 16 Pa. St. 210 ; •Emerson v. Miller, 27 Pa. St. 278. Berghaus v. Calhoun, 6 W. 220;, The bill being presented to the debt- Magee v. Magee, 10 W. 172 ; Miller or by the creditor's son, he said " he v. Basehore, 83 Pa. St. 356 ; Farley could not pay it then, but would v. Kustenbader, 3 Pa. St. 418 ; Huff come down in a few days and pay v. Bichardson, 19 Pa. St. 388 ; Wolf- father." This revived the debt, enberger v. Young, 47 Pa. St, 516. 328 LAW OP LIMITATIONS. accounts between the parties, there must be, an acknowledgr ment of a fixed sum, or, at the least, of a balance which admits of a ready and certain ascertainment. Without this, it is not known to what sum or claim the confessions of the debtor are to be applied.^ Thus, it is not enough to admit a debt due to a physician for medical attendance, if there is no definition of its amount.'^ A. had a claim against B. for domestic service and farm work, rendered by himself, his wife and his minor children, who lived with B. on the farm, during a period of ten years, and also for rents of a house and farm of A.'s collected by B. It was shown that B. had said he had never settled nor paid A. for the ten years' ser- vice, and he did not know what he would charge; that he owed A. for his ten years' service ; that he had never paid him, and that he could pay him and would pay him ; that he had not settled with him for the rent of the house and lot ; that he would settle with him and pay him all he owed him; that he was old and wanted to settle up for the ten years' service and the rent ; that he had paid debts for A. and hauled stones for him. This was insufficient to waive the statute as to any part of the debt, for service or for rent. It was uncertain whether B. meant he had not paid for the ten years' service of A. himself, or of himself and his family also.^ In saying he would settle and pay all he owed, it is ' Huff V. Richardson, 19 Pa. St. ' But when there was evidence of 388. The agent of the plaintifif a debt from B. to A., for A.'s taking called on the defendant with bills, B.'s son, at B.'s request, to his home, exhibiting the indebtedness of the supporting him for a series of years, defendant. They were explained to and, on his death, causing him to be her, and she said that they were cor- buried, a promise by B. to A., on rect, and as soon as she had money A.'s demand for compen^tion for she would pay them. At the trial funeral expenses and for mainte- they were produced as evidence of nance, that as soon as he got as the plaintiff's claim. This was a much money, he would go back and sufficient identification of the debt, pay him, was held sufficient to and waived the statute. Barwell v. arrest the running of the statute, Wirth, 61 Pa. St. 133. though A. did not tell B., nor did B. ' Morgan v. Walton, 4 Pa. St. 321 ; otherwise know how much A.'s Emerson v. Miller, 27 Pa. St. 278. claim amounted to ; B. vaguely say- LIMITATIONS TO PERSONAL ACTIONS. 32^ uncertain whether he referred to the rent merely, or to the entire claim. The amount owing to A. for service was uncertain, for B. did not know how much A. would charge him. B. had an unascertained charge against A. for debts paid for him and for hauling stones, and presumably for A.'s occupying B.'s premises. What, then, was the balance on settlement? How much? What sum was in the mind of B. when he said he would settle and pay all he owed ? Was it $100 or was it $2,000 ? Being wholly uncertain as to the amount of the debt, the admission of B. is incompetent to waive the statute, which had run against the claim before suit.^ Extent of Debt Ascertained — Continued. § 246. It was alleged that A. had worked through a series of years as a dyer for his brother, B., who, A. being improvi- dent, had retained a portion of his weekly wages for the benefit of his family. It was also alleged that on his death- bed, A. requested B. to pay what was due from him to his widow, and that B. said he would do so. This was insuffi- cient to toll the statute as to A.'s claim agq,inst B., for the reason (1) that, under the circumstances, B. would not have denied that he owed anything, even if that were true ; (2) the acknowledgment was not precise as to the extent of the debt; did it admit $20 or $2,000 to be due? (3) nor was it certain as to the source and nature of the debt,^ So, B., three years after A.'s death, having been in partnership ing to another to whom he recited jury. We do not intend to relax his conversation with A., that A.'s the rules of law on this subject in charge "would be a good bit,, for the least, and if, there is any appear- when there was death and sickness, anoe of that in this opinion, it arises there was always a good deal of out of the peculiarity of the facts of trouble and expense." Said Thomp- the case and not in any change, of son, C. J. : " Here the only question the law." Patton v. Hassinger, 69 is the identification of the claim ac- Fa. St. 311. knowledged and promised to be ' Harbold's Ex. v. Kuntz, 16 Pa. St. paid. The testimony was sufficient 210. for that, and that being so, the ' Magee v. Magee, 10 W. 172. amount was ascertainable by the 330 LAW OF LIMITATIONS. with A.'s son, C, and proposing to withdraw from the busi- ness, referred to " what he owed " A.'s widow, and refused to permit C. to procure security for the payment of the pur- chase-money for B.'s interest in the firm, because this debt which, was due the widow from him and from the firm, would eat up all the stock that was in it. The stock was then worth $4,000. This was an insufficient acknowledg- ment of a debt to A. Did he mean all his own share of the stock, which was all he had to sell ? If so, what was that share, one-half or seven-eighths ? How much was due from him to A., and how much from the firm ? ^ A. had put money into B.'s hands to invest for him. Some of it B. lent to his son, C. The son of A.'s executor, on one occa- sion, told C. that he knew he had received $700 or $800 of . A.'s money, to which C. replied that he had, but nobody could prove it. C. said his father, B., had put the money of A. out on interest; that he got it from his father, giving him bonds for it; that in his father's last moments, he promised him he would take care of A. as long as A. lived, and would take care of his money ; and that then his father, B., gave him back the bonds. He further said that when A. came to him, as after B.'s death (with whom in his life- time he had lived) he did, he paid him. A., wages, and after he. A., could not earn wages he worked for his board. C. also asked the son of A.'s executor to say nothing about the last will of the decedent, B., and said he would satisfy A.'s executor. This was neither specific enough for an acknowl- 'MageeD.Magee,10W.172. Con- to be $2,200. In 1836 he said he versations, widely separated in time, would pay A.'s widow " what was will not be connected together for due from him." In 1839 he again the purpose of giving precision to acknowledged a debt due to A.'s the later one, with respect to the widow. The vagueness of the ad- amount of the debt acknowledged missions of 1836 and 1839 could not in it, the later one making no be supplied by the definiteness of reference to the earlier. Thus, in that of 1831. 1831, B. admitted the debt to A. LIMITATIONS TO PERSONAL ACTIONS. 331 edgment of a debt due from C. to A., nor consistent witli a promise to pay.^ A. was indebted to B. for tobacco sold in one day amounting to $109.63. A letter sent by bim to B. just three weeks before tbe expiration of six years from the time the debt was contracted, requested B. to wait two months, promising then to " pay some, and all before loug, and inter- est from April last." The letter was silent as to how much was due, the character of the debt, and what sum would be paid. It was insufficient to preserve the debt from the bar of the limitation in six years from its accruing.^ Sxtent of Debt — Continued. § 247. A. having come to live with and work for B. on his farm, where he continued fourteen years, much of the time working for B., but for, other portions of the time for B.'s sou, it was shown that on one occasion, after A. had left B., B. asked him to come back, adding, " I know the people are persuading you to sue me. You know I have always promised to pay you for your labor. I am not able tfi pay you now ; don't expect to be here long, and I will leave enough after my death to pay you. You have been a ^ood slave to me," and deprecating a suit. Held, this acknowledgment was inadequate. Did it relate to the time A. had worked for both B. and B.'s^son, or only to the time he had worked for A.? It would be unjust to charge B. for the labor rendered to his son, but if he is not to be charged for this, for how much ? The acknowledgment did not show what the indebtedness of B. for service rendered to him was.^ A. being indebted to a physician on book ' Zacharias v. Zacharias, 23 Pa. St. not constitute an estoppel against ' 452. pleading the statute. 'Shitler v. Bremer, 23 Pa. St. 413. 'Suter v. Sheeler, 22 Pa. St. 308. In this case the promise may have Not only did not the acknowledg- induced, as it evidently was intended ment ascertain the debt, but the. to induce, the plaintiff to defer suit evidence in the case was equally beyond the lapse of the six years. ' defective. The extent of B."s lia-_ Yet, because of its vagueness, it did bility, says Woodward, J., " was 332 LAW OF LIMITATIONS. account fbr medical attendance througli seventeen years, and for borrowed money, stated to the physician's agent, " I owe him in borrowed money and a doctor's bill, and I mean to pay every cent. I owe him a long-standing doctor's bill of twenty or twenty-JGive years and borrowed money, not exceeding $1,000." He afterwards said to the physician who attended him in his last sickness, " If it [the debt] is not attended to, I have made an acknowledgment to P. [the agent]. It is a shame that I have not paid the long-standing doctor's bill, and I mean to pay it." This would have been a sufficient promise to pay, had the debts been adequately identified, or so referred to as to clearly show what particular debts he intended to pay, and the amounts of, them. But since there was no reference to anything by which the amount of the doctor's bill, or of the borrowed money, could be ascertained, the doctor's book account not being alluded to, nor any note or other evidence of borrowed money, and since the statement that the two debts (which in fact did not exceed |400) did not exceed $1,000, was too vague, the promise, owing to defective identification of the debt whose payment was promised, was ineffectual to revive or preserve either debt as against the operation of the statu- tory limitation.' doubtless well understood by the and wheat from B., uncertain in parties, but it was hot shown on the amount. The court below holding trial, and therefore the plaintiff the acknowledgment uncertain as ought not to have recovered." to the amount of the debt, was re- ' Painter's Appeal, 18 W. N. C. versed. The source of the debt 441. In Hazlebaker v. Reeves, 12 being identified as the labor of C. Pa. St. 264, A. was indebted to B. and D., it was for the jury to ascer- for service of B.'s sons, C. and D., tain the sum due. That need not be between the years 1837 and 1839.' named or ascertained in the promise. An admission by A., in a conversa- In Davis v. Steiner, 14 Pa. St. 275, A. tion about the debt for C.'s and D.'s having contracted to sell land to B., service, that he owed it, wanted to arranged with C. that he should pay A. off, stating no particular sum, purchase it in at sheriff's sale on a was held sufficient, though it ap- judgment, and convey it to B., re- peared that A. had got some money imbursing himself from the pur- LIMITATIONS TO PERSONAL ACTIONS. 333 Extent of Debt — Continued. § 248. A. and, as Ms surety, B. make a joint promissory- note to C. A. subsequently assigning in trjast for tte benefit of creditors, C. demands payment from B.. B. directs him to call upon A.'s assignee and get the dividend on the note, and that he will pay the balance. At another time he said that as soon as he knew what amount was wanting after the assignee should pay the pro rata dividend, he would pay the balance. No dividend was ever made, the liens on A.'s property absorbing all its proceeds. As the promise was to pay not the whole, but a balance after a dividend, and, the dividend not being made, there was no means of ascertaining the amount intended to be paid, the promise was ineflfectual to preserve any portion of the debt from the bar of the statute.^ B. being indebted to A. on a note, on which partial payments have been made, writes to A., (professedly in re- sponse to a demand from A. to know what he "intended doing with balance of a note " owed by him,) that he calcu- lates to pay A. all he owes her ; just now he pannot pay her anything, on account of payments made and to be made to other creditors ; after these are paid, he will pay her all he owes her ; she need not trouble herself about his not paying, chase-BiOney received by him from cated. Both Hazlebaker v. Reeves B., and should account to A. for the and Davis v. Steiner are repudiated balance. A statement by 0. to A.'s in Suter v. Sheeler, 22 Pa. St. 308, son, in a conversation about the and Burr v. Burr, 26 Pa. St. 284. money claimed by A., with respect to ' Senseman v. Hershman, 82 Pa. this land, that he, C, had no.money St. 83; Boss i;. Long, 33 Leg. Int. and could not make any, and his ad- 306 ; Id., 2 W. N. C. 694. His note mission, to another that he owed A. being shown him by S., the holder, some money and he was coming to A. said, " This is all right," but Greensburg to make arrangements added, "I have done work for S., to pay it, were held sufficient to sub- which should be allowed in settle- mit to a jury. It was not necessary ment of this. I will bring a bill that the amount ofthe debt should be and we will make the settlement." ascertained in the admissions of the This was not an acknowledgment debtor. It was enough that there was of any definite sum as due. . Gor- an acknowledgment of a debt and don's Estate, 44~Leg. Int. 183; Id., that the source of the debt was indi- 3 Pa. C. C. Hep. 160. 334 LAW OF. LIMITATIONS. for he expects to pay all lie owes. This promise was too vague to toll the statute, the note not being indicated, nor the amount of the balance designated. B. promised to pay what he owed, but whether that was much or little, did not appear.' D. owing C. |1,500 on a due-bill, the fact that O.'s sister, in purchasing groceries from D., said she would pfiy for them, as she thought D. woilld not like her to get them on C.'s account, and that D. replied that it was all the same whfether she paid cash or got them on C.'s account, would be a recognition of the debt too vague to identify it.^ So would the giving of groceries to C. herself, from time to time, and charging them, generally, in D.'s book.^ Extent of Debt — Continued. § 249. The firm of A. & B. were indebted on book account to C. in 1179.36. A., by letter, says to C, "I thought of writing to yOU in regard to the.balance of the firm of A. & B. You said you would not release us until we pay flOO. Would you release me if I would give you a note for $50 for my part, payable in six months, with my brother as security ? * , * * I do not know whether my brother will even go my security, but I think he will." This is no express acknowledgment of any debt, refers to none specifi- cally, ascertains no amount to be paid, and makes no absolute promise. It would not support a verdict for the $179.36.* A.'s books showed a balance against B. of $130.20.' In a suit therefor before a justice, which he ultimately dismissed, the defendant admitted that he and the plaintiff had twenty months before talked over the debt, the account not being before them ; that B. had said he thought he ought to have more credit for some salt furnished by him to A. ; that they ' Miller v. Basehoje, 83 Pa. St. 356. ^ Clark vi Maguire, 85 Pa. St. 259. It does not appear whether A. 'a let- "Id. ter to B. had designated the balance * Wolfensberger v. Young, 47 Pa. still due on the note, nor what would St. 516. have been the effect if it hftd so desig- nated it. LIMITATIONS TO PEESONAIl ACTIONS. 335 had agreed to meet again when the books would be at home, and if B. could satisfy A. that he was entitled to further credits, they should be allowed ; the books should be settled and B. should pay A. This was not enough to toll the statute as to the book account. The one in suit not being before the parties in the conversation referred to, was not identified. Apart from this, the balance due on it would be diminished to an unknown extent, by the larger credits claimed by B., so that the balance admitted, if any was admitted, was unknown.^ A. was eniployed by B. as a miller. He was to have one-third of the tolls, and B. was to pay him cash for his share of the tolls, at the prices ruling when the tolls were taken. B. employed C. to settle his mill books, which C. did in the presence of A. and B. They ascertained the number of bushels of A.'s tolls that B. had got, and it was set down on paper, in B.'s presence. He was satis;fied with it. It was agreed that the value of these bushels should be ascertained by C.'s consulting the books of another miller. A. and C. examined these books and ascertained the balance due A. to be $153.11. This was a sufficient acknowledgment by B. of the balance, though he was not present at the ex- amination of the books from which the prices were derived. By indicating the sources whence these prices were to be taken, he sufficiently acknowledged the balance, which was ^ Huff V. Richardson, 19 Pa. St. expected it then amounted to $200." 388; Allison v. Pennington, 7 W. & There was a clear recognition of a S. 180. It is impossible to reconcile debt and a promise to pay it. Read, ■with several of the above cases Oris- J., says there was no other debt due well V. Criswell, 56 Pa. St. 130. A A., but it does not appear whether loan of $120 had been made of A.'s this was affirmatively shown or sim- money by her mother, the wife of B., ply" inferred from absence of evidence to B. Twent^r years afterwards B. of other debts. The amount of the said he was trying " to save money debt, as estimated by B., did not agree to pay off A. the money hd had bor- with, being less than, that sued on. , rowed from the old lady; he would Yet, because a debt for borrowed pay it as soon as he could; if not money was admitted and payment before his death, there would be of it promised, the statute was held plenty of property left to pay it. He to be tolled. 336 LAW OF LIMITATIONS. a multiple of them and the number of bushels. But when the mill account was thus settled, it was laid over till other accounts should be settled. B. meantime dying, two or three years afterwards referees were chosen by his administrator and A., to settle these other accounts, who cast up a balance^ in favor of A. of $200. The account on the mill books was left out, because the books were lost, and the copy made by C. was not shown to be correct, he being absent in the army. It was agreed that if, on his return, he made affidavit of the correctness of the copy, the administrator of B. would pay A. the an^ount found due on the mill account. It was said by Sharswood, J., that the laying over of the mill account till the settlement of the other accounts, in no degree dis- tilrbed the clear, distinct and unequivocal character of the acknowledgment of the mill account. At most it was an agreement to postpone the payment until those other accounts were settled. Hence, the acknowledgment of the mill account was such as would sustain a verdict for the balance due on it, as against the statute of limitations.* Extent of Debt — Continued. § 250. The acknowledgment of the fact of an indebted- ness for a service, and of the fact that no payments on account of it have been made, has been held sufficient to take the debt beyond the statutory bar, though there was no admission wi,thin six years before suit of the rate of compensation that had been agreed on, or of the time over which the service had been extended. A.'s daughter had worked for him for eighteen years prior to his death, under a contract, for $1 per week, till three years before his death, when it was agreed she should have $2 weekly. Just prior to his death, A. told her she should have her pay; she had nothing to account for on her work; had received nothing on her wages. This was enough to waive the statute of limitations. Says Sharswood, J., 'Johns V. Lantz, 68 Pa. St. 324. LIMITATIONS TO PERSONAL ACTIONS. 337 " He did not state the amount due her, but certainly this was not essential. He identified the claim for wages, and clearly admitted that the whole of it was due, that he had neither set-off nor payment in part to plead to it."^ A copy of A.'s account was left with the debtor, B., and, sometime afterwards, he was asked to pay it. He objected to certain parts of it that had the name of 8. to them. He said he would settle and pay all that had his own name. Some weeks later, he was again waited on by the agent of the creditor, and before anything was done, remarked that the statute of limitations had never paid a debt for him, but paid him a .good many. He then produced the account; marked the parts he objected to ; he said the balance of the bill was all right. He then produced his own books with charges against the creditor. The aggregate of these charges he set down under the aggregate of the charges against him, in the account left with him, and struck the balance. A claim of interest was then made, and added to this balance, making $428. He said " it was a pretty big bill, and that he would go over the next day and see A. himself. He thought he would throw off a part for the sake of getting his money." Later, when asked by the agent to pay a debt due himself, he said " it would take about all he could raise at present to pay the old man's bill off." This, said Agnew, J., was not the case of a party promising to settle an account, or using any such ambiguous terms. On the contrary, it was the case of an actual settlement of the amount, stating it, and striking a balance, and a computation of interest, by both parties, on the bq,lance. The paper 'Titman v. Titman, 64 Pa. St. 480. marriage, in 1854, the contract being Similar to this, except that the ac- for $2.50 per week, till her mother's knowledgment of the rate of com- death, in 1851, and $3 weekly after- pensation within six years before wards. A. died in 1870, and the action suit was shown, was Watson v. Stem, was brought the same year against 76 Pa. St. 121. A daughter of A. his administrator. The daughter re- worked for him from 1843 to her covered her whole demand. W 338 LAW OP LIMITATIONS. itself, on whicli the settlement was made, balance struck and interest added, was produced and identified. There could not be a plainer admission of a precise debt, and certain amount, accompanied by an express waiver of the statute of limitations, before the parties took off the accounts on both sides.^ Promise to Settle, Fix, Arrange. § 251. Whatever might be the effect of a distinct acknowl- edgment that a certain balance on a book account, or a cer- tain ascertained note, was due, accompanied by a promise to settle it, the promise to settle an account, showing a definite balance due the plaintiff, without an express acknowledg- ment that the account is correct or the balance is due, will not be sufficient to take the account or the balance out of the bar of the statute. Thus, A. stated an account against B. embracing |4,400 for a house and lot sold to him, and showing a balance due A. of $1,934.44. B. wrote at the foot of it, " Having received an order for a deed to me [upon A.'s vendor, probably] from A., I hereby agree to settle with him for the above balance and any other just claim between us." This was not an acknowledgment of the balance as due. The reference to " other just claims " imported that an inquiry into the existence and nature of other claims was intended.^ At the bottom of a bill, showing a balance due the plaintiff, the defendant wrote, " I agree to settle this bill with A." This was not a promise to pay the balance, nor an acknowledgment that it is due. It was an agreement to adjust, arid supposed examination and inquiry into the bill 'McClelland v. West, 70 Pa. St. " Weaver r;. Weaver, 54 Pa. St. 152. 183. The remark about calling in A statement by the debtor to the A. himself, who, B. thought, would creditor's agent, that he was unable throw off a part of the debt, was, to pay the debt then, but would call says Gilmore, P. J., the expression on the plaintifif at Christmas and of surprise at the amount, and a settle, was ineffectual to waive the declaration of a purpose to appeal statute. Storm v. White, 6 Phila. to the generosity of the creditor. 531. LIMITATIONS TO PEESONAX; ACTIONS. 339 and tlie accounts between the parties.^ If a physician's bill against him being shown C, he looks at it and says he will attend to it, will settle it, will fix it, this neither proves an express promise, nor does it imply one. If C. meant to be; understood as admitting the debt, or promising to pay it, why did he not say that it was right, or that he would pay it?^ So, when the son of the physician, in a conversation ; with C, asked him whether he had any corn to sell, and whether it would suit hiqa to let the son have any on his father's account, and C replied that he could not, but that if he had had any to spare he would have let the son have it on his father's account, adding "fos; I owe your father, but tell your father I cannot pay him this fall, not* before next spring, but next spring I intend to settle with your father ', and pay him what I owe him," this was not an acknowledg- ment or promise sufficient to take the account, the part barred or the part not barred at the time of the conversation, from the operation of the statute. It ist uncertain whether C, intended, by "what I owe him," to refer to the part that was barred, or to that which was not ; nor was any amount ex- hibited or specified as due in the conversation, as to which the promise to pay could be considered as implying recogni- tion that it was due.^ Promises to^Settle, &c. — Ooatijiued. § 252. The expression by A. of an intention to settle up for ten years' service rendered by B. and B.'s wife and. ' minor children to him, and for rents on B.'s house and lot,, which A. had collected, there being no indication of the amount of these debts, and A. also stating that he had paid. ' McClelland's Ex. v. West, 59 Pa. not tell what was in the mind of the' St. 487. ' person ; he, perhaps, thought noth- ''Emerson i;. Miller, 27 Pa. St. 278. ing was due." Harbold's Ex. v.. "To say that I will settle with you Kuntz, 16 Pa. St. 210. and pay you what I owe you, and ' Morgan v. Walton, 4 Pa. St. 321 ;. all such forms of admission, are Shaflfer v. Shaffer, 41 Pa^ St. 51 ; Em- wholly uncertain, because you can- erson v. Miller, 27 Pa. St. 278. 340 LAW OP LIMITATIONS. debts of B. and had other claims against him, would be insufficient to exempt B.'s claim, wholly barred when sued for, from the statutory inhibition, because leaving uncertain the amount of the debt claimed by B. and conceded by A., the amount of A.'s counter-claim, and the balance due from the latter to the former.^ The plaintiff sent his son to the defendant to ask whether it would be worth while for him to visit the latter in Harrisburg, to settle concerning rent for a house. This latter said he need' not trouble himself; that the defendant would call on him and settle with him, as he had made repairs to the house. This was not an acknowl- edgment sufficient to toll the statute.^ Jacob and William Hoflfinan and others, being indebted on a note to S., it was shown that Jacob said, "I and William will have to fix it. It ought to have been fixed long ago. It ought to have ' been paid long ago, and William and I must fix it ; would have to pay it." On another occasion he asked S. if he had the note with him. S. showed it to him. He said it was his bungled, haggled name, and that he and William must fix it. It must be paid; he had to pay it. Held, these expressions were not sufficient to preserve the note from the statutory bar. "To fix" is not the equivalent of "to pay;" the admission of the signature does not import assent to the continued indebtedness on the note; and the expression " have to pay it " may refer to a supposed liability rather than signify a present intention to pay.^ The agent of a ' Harbold v. Kantz, 16 Pa. St. 210. kin, saying that no part of the money. ' Gl.eim v. Rise, 6 W. 44. The ad- on the note had been received by A. ministrator of A., the maker of a A third letter announced that the note payable to B. & C, for their administrator would be in the city accommodation, by letter requested in a few days and "will settle the the holder of the note, D., to inform matter in some way." It was held him whether he might pay the assets that the jury might infer a promise over to the next of kin or must hold from these words. Jones v. Moore, them until his claim was satisfied. 5 Binn. 573. In a second letter he declined to 'Shaeffer v. Hoffman, 17 W. N. C. take the risk of a composition with 501. The statement that " William D. without the consent of the next of and I will have to pay it," contains LIMITATIONS TO PERSONAL ACTIONS. 341 pank which had discounted A.'s, note, called on him on the last day of the six years following its date, and informed him it was unpaid. He said he would call up at the bank, in the course of a few days, and make some arrangement re- specting the payment of it. He said he might pay it or could pay it, in the course of a year. This was not sufficient to waive the statute. Were it conceded that the note was acknowledged, it was not done in such a way as to be con- sistent with a promise to pay.' In the absence of B.?s (the creditor's) book containing his account against A., they agree to examine it at a future time ; thai B. shall allow certain additional credits claimed by A. if he can satisfy B. of their correctness; that the books shall be settled and A. shall pay what may be found due. This was insufficient to waive the statute as to B.'s account, (1) because the account was not identified, (2) because the balance was not ascer- tained. A promise to settle and pay is no better thari a promise to settle.^ nothing from which a promise that Jacob alone would pay could be inferred. Patton v. Craig, 7 S. & E. 116, is scarcely law. In that case there were accounts between A. and B. B. writes to A. that a copy of A.'s account sent him has been lost, and asks for another, promising on receipt of his own books to make out his account against A., and add- ing his regret to put A. to this trouble, and a promise to write again and inform A. when he shall return to the city to put a close to this affair in the best manner he can. Tilghman, C. J., by " closing" the aifair, understood paying the account of A., and decided that the promise took A.'s debt out of the statute. ^Kensington Bank v. Patton, 14 Pa. St. 479. The promise was said by Bogers, J., to be a promise to pay in a year, and therefore ineffectual, for the promise must be to pay on demand. The language rather imports a surmise that the debtor would in the course of the year be- able to pay. Doubtful is the follow- ing decision : Asked by A. to pay the bill for goods sold him, B. said,. " it was almost too bad for him to pay that bill because it was his cal- culation to have it go on Hoi man's- account," i. e. that Holman, against whom he h^d a claim, would pay- A.'s claim against him. B. added, when A. denied that this arrange- ment that Holman was to pay him, instead of B., was with his consent, that " the case being so, I suppose I must pay it, and I will call in and settle it." This wasdecided enough to toll the statute. Anthony v. Barnes, 1 Luz^ Leg. Keg. 27. 'Hufif V. Richardson, 19 Pa. St. 342 LAW OF LIMITATIONS. IBy Whom Auknowledgment Made. § 253. The acknowledgment or promise must be made by tbe defendant himself/ or by his agent having authority to make it.^ But the agent by whom the debt was contracted is not, ipso facto, qualified to acknowledge it.^ If, howeyer, he be held out as the proper person to discharge the debt, and is clothed with an apparent power to arrange with respect to its payment, his acknowledgments, in the. course •of negotiations concerning payment in response to the credi- tor's demand for payment, will bind the debtor.* If A., having bonds against B., and being likewise indebted to B. on a contract in parol, deputes X. as his agent to collect the bonds, this does not authorize X. to receive the set-off in partial pay- ment of one of the bonds. If X. receives the balance of the bond in cash and indorses on it a receipt of the cash, with a statement that the set-off, if it shall be allowed by A., shall 388. B. being indebted to A. for $500, which, as surety, A. had paid for him as well as for a loan to him, a promise to pay these debts, uncon- ditionally, would take them from the statute; but if the promise was to pay what should be found due upon ■examination and settlementof cer- tain business affairs, it will be inop- ■erative. Montgomery v. Cunning- ham, i04 Pa. St. 349. •Fries v. Boisselet, 9 S. & R. 128; JImeraon v. Miller, 27 Pa. St. 278; Hudson V. Carey, 11 S. & R. 10 ; Shit- Jer V. Bremer, 23 Pa. St. 413. The identification of the person making the acknowledgment with the de- fendant in the suit, is necessary. A. puts into the hands of an attorney-at- Haw a claim against one called Theo- dore Valney, for collection. The attorney writes a letter addressed to Theodore Valney, informing him of the claim which he desires to col- lect. A short time afterwards a gentleman, introducing himself as Theodore Valney, called on the at- torney, admitted the debt and prom- ised to pay it if suit for a short time should be delayed. At the subse- quent trial of the action against Theodore Valney, at which the de- fendant was absent, the above facts were sufficient to support a finding by the jury that the person mak- ing the acknowledgment was the defendant. The failure of the de- fendant to appear at the trial and deny his identity was an important circumstance. Kelly v. Valney, 5 CI. 300. ^ Wesner v. Stein, 97 Pa, St. 322. ' Watts V. Devor, 1 Gr. 267 ; O'Mal- ley V. Luzerne Building- and Savings Association of Pittston, 3 Luz. Leg. Reg. 863. * Downing v. Lindsay, 2 Pa. St. 382 ; O'Malley v. Luzerne Building and Savings Association of Pittston, 3 Luz. Leg. Reg. 363. LIMITATIONS TO PEESONAL ACTIONS. 343 he in full of the bond, this imposes on B. the duty of taking the initiative in procuring the consent of A. to the accept- ance of the set-off as part payment. It is not the, duty of A. to repudiate unquestioned. Hence, if B. suffers six years to elapse from the maturity of the set-off, without getting A.'s consent, the set-off will be barred.^ An attorney-at-law, employed to conduct a suit for a debt, has, as such, no author- ity to make a promise that shall exemjJt the defendant's cross- demand against the plaintiff, already barred, from exclusion as a set-off, in a subsequent suit by the plaintiff for another debt.^ The president of the Junior Steam Fire Engine Com- pany, of Reading, it was implied, might bind the company by admissions.^ A feme covert is not affected, in an action against her after discoverture, by admissions of her debt (contracted prior to marriage) made by her late husband.* One of two or more joint, or joint and several promisors, is not, ipso facto, agen,t for the rest to bind them by acknowledgments, promises or partial payments;^ nor, after dissolution of the partner- ship, is the non-liquidating partner.* The principal debtor cannot, by acknowledging the debt, affect one who has separ- ately guaranteed it.^ One adjudged an habitual drunkard, and whose property has been put in charge of a committee, cannot, by acknowledgment, revive a debt barred when the inquisition was had, so as to make it payable by the committee, from the estate in his hands.*. A feme covert is incapable of an effectual acknowledgment.' The executor or administrator ' Crist D. Brindle, 2 P. & W. 251. "Farnum v. Eastwick, 2 Am. L. 'Jd. Reg. 572. ' Junior Steam Fire Engine Co. of ' Meade v. McDowell, 5 Binn. 195. Heading v. Douglass, 2 Penny. 63. " Hannum's Appeal, 9 Pa. St. 471. 'Kline v. Guthatt, 2 P. & W. 490. The debt in this case had been due~ "Wesner v. Stein, 97 Pa. St. 322; to the committee's father and by Bott V. Stoner, 2 Penny. 154; Id., 12 him given to the committee. W. N. C. 106. If it is uncertain 'Kline v. Guthart, 2 P. & W. 490. which of two joint debtors made This was decided on the theory that partial payment on an acknowl- the new promise was the foundation edgment, neither will be bound, of the action, and not merely a Clark V. Burn, 86 Pa. St. 502. waiver of the right to plead the 344 LAW OF LIMITATIONS. cannot, by acknowledging a debt or promising to pay it, pre- vent the legatee, or next of kin,^ or creditors,^ or even him- self,^ from interposing against it the bar of the statute, in a proceeding in the Orphans' Court or in the Common Pleas. An acknowledgment by one of two executors does not bind the other or the estate. If one of them confesses a judgment for a barred debt, the other may contest it on a scire facias on that ground, as well as on the ground that one of two executors cannot validly confess a judgment to affect the estate.* A pronaise by one executor, who is also the residu- ary legatee, to pay th,e debt, will not keep it alive as against the other executor, who, as survivor, is sued for it.^ Though one of two executors acknowledges a debt and makes a par- tial' payment on it, thi^ will not preclude the other executor on the settlement of his separate account, and distribution of the balance in the Orphans' Court, from opposing the statute to the claim of this debt to share in the fund.* Whether the promise by an executor . not to take advantage of the statute be made before the six years have run, and be therefore instrumental in inducing a postponement of the suit by the creditor till after that period,^ or be made after that period has elapsed,* matters nothing ; in either case it is ineffectual. A promise by the executor, less than six years afteif the accruing of the debt, not to take advantage of the statute statute to an action on the original v. Bailey, 14 S. &. K. 195 ; Scull v. promise. What the effect of the Wallace, 15 S. & E. 231, are not adoption of the latter view, on the authority on this point. promise of a married woman, might *Hall v. Boyd, 6 Pa. St. 267. be, does not appear. ^ Reynolds v. Hamilton, 7 W. 420. ' Hoch's Appeal, 21 Pa, St. 280. The promising executor might be ^ Curcier's Estate, 28 Pa. St. 261. personally liable on his promise. 'Hoch's Appeal, 21 Pa. St. 280; « McWilliams' Estate, 3 CI. 321. Fritz V. Thomas, 1 Wh. 66 ; Campbell ' Forney v. Benedict, 5 Pa. St. 225 ; V. Fleming, 63 Pa. St. 242; Steel v. Steel v. Steel, 12 Pa. St. 64. Steel, 12 Pa. St. 64; Man v. Warner, 'Fritz v. Thomas, 1 Wh. 66; Clark 4 Wh. 454 ; Watts v. Devor, 1 Gr. v. Maguire, 35 Pa. St. 259 ; Forney v. 267 ; Clark v. Maguire, 85 Pa. St. 259. Benedict, 5 Pa. St. 225 ; Steel v. Steel, — Jones V. Moore, 5 Binn. 573 ; Bailey 12 Pa. St. 64. LIMITATIONS TO PERSONAL ACTIONS. 345 if plaintiff will delay suit till the death of the widow of the testator, will not bind his successor in the trust, the admin- istrator de bonis non, cum testamento annexo} As the admis- sion or promise of the debtor himself would be binding on him, so will it be on his administrator or executor, in an action brought against them in six years from the making of such promise or admission,^ or in one brought against the debtor, to which, he dying, they are brought in as defend- ants.^ The assignee in insolvency does not, by paying a portion of a debt, exempt the rest from the previous oper- ation of the statute, as against the person of the insolvent.* To Whom Acknovrledgment Made. - § 254, The promise or acknowledgment of the debtor, to be effectual to defeat the statute, must not be made to a stranger.^ It must be made to the creditor,* or to his agent.^ The agent may be an attorney-at-law employed to collect the debt.^ The mother of a minor daughter, as her guardian for nurture, lends the daughter's money to her second hus- band, and, notwithstanding the daughter's arrival at age, continues to negotiate with the borrower for its repayment. 1 Forney v. Benedict, 5 Pa. St. 225. 'Patton's Ex. v. Hassinger, 69 Pa. If the promi.se of the executor in- St. 311. But an admission to a third duces delay in suing, and if, when party by the debtor that he had the suit is subsequently brought, the promised the creditor to pay him, executor opposes the statute to the will be evidence of such promise, claim, he will become personally 'McKinney v. Snyder, 78 Pa. St. liable for the debt. Steel v. Steel, 12 497 ; Kyle v. Wells, 17 Pa. St. 286 Pa. St. 64; Forneys. Benedict, 5 Pa. Gillingham v. Gillingham, 17 Pa. St St. 225. 302 ; Anderson v. Allison, 1 Am.^ L, 'Patton's Adm. v. Craig's Adm., 7 Keg. 250; Johns v. Lantz, 63 Pa. S't S. & R. 116; Burr v. Burr, 26 Pa. St. 324; Wells v. Pyle, 1 Phila. 21; Ger- 284; Suteri;. Sheeler, 22 Pa. St. 308. hard v. Gerhard, 3 Cent. Eep. 601 ' Wesner v. Stein, 97 Pa. St. 322. Wetham's Estate, 6 Phila. 161; Em- *Bunn«. Drovin, 2Phila. 306. erson v. Miller, 27 Pa. St. 278 *Kyle V. Wells, 17 Pa. St. 286; Christy i;. Flemington, 10 Pa. St. 129 Coleman v. Fobes, 22 Pa. St. 156 : The admission was made to an agent, Emerson v. Miller, 27 Pa. St. 278; in Berghaus v. Calhoun, 2 W. 219 Wetham's Estate, 6 Phila. 161 ; Zach- Gleim v. Rise, 6 W. 44. ariaa D. Zacharias, 23 Pa. St. 452. ^Downing v. Lindsay, 2 Pa. St. 382; Kelly v. Valney, 5 CI. 300. 346 LAW OF LIMITATIONS. Acknowledgments ijaade to her in the course of these nego- tiations, were made to the daughter's agent.' A promise or admission to the executor or administrator of the creditor, will be as effectual as if made to the latter himself.^ One co-tenant contracted to convey to the other his undivided _ one-half in land, the latter agreeing to pay the debts Of a firm which they had composed in consideration thereof. They both went over these debts, determining which of them were due, and their amounts. The admission by the vendee to the vendor, implied in this transaction, was so far sufficient to preserve these debts from the statutory bar, as to support an ejectment by the vendor within six years afterwards, to compel the vendee to discharge the debts, though they were more than six years old when the ejectment was broj|ight.^ An acknowledgment to the sheriff" when he served the sum- mons was sufficient.* But the court to whom the petition for the benefit of the insolvent law, containing the statement ' Criswell V. Criswell, 56 Pa. St. 130. Bear, 5 W. 511 ; Allison v. Penning- ^ Jones ^. Moore, 5 Binn. 573; ton, 7 W. & S. 180. But it does not Johnson v. Humphreys, 14 S. & ,R. appear whether they were made 394. After the wife's death, her in the plaintiff's presence. — The debtor acknowledged the debt to principal on a note becoming em- ber husband, who shortly afterwards barrassed, appointed a meeting of took out letters of administration, his creditors at the office of a justice, and sued the debtor. Held, he was for the purpose of securing his cred- not a stranger as to the debt, but itors. The surety on the note, fear- owner of it as a part of his wife's , ing the payee would neglect to at- estate. Keely v, .Wright, 5 W. N. C. tend this meeting, himself attended 241. An admission to the appraisers it, and took from the principal a of the decedent's estate, made by judgment large enough to embrace the debtor, was treated as sufficient, this note, and other debts for which in Schmoyer v. Schmoyer, 17 Pa. St. he was liable. Though it seems the 520. creditor was not present at this meet- ' Biddle v. Moore, 3 Pa. St. 161. ing, nor any agent, it is said that the * Miles V. Moodie, 3. S. & K. 211. transaction "should have been sub- Admissions made at the trial before mitted to the jury under proper in- justices of the peace, have been structions," as an acknowledgment shown in the trial on appeal. of the debt. Wesnerv. Stein, 97 Pa. Allison V. James, 9 W. 380 ; Hay v. St. 322. Kramer, 2 W. & S. 137 ; Hogan v. LIMITATIONS TO PERSOJSTAL ACTIONS. 347 of the debt, is presented, is not an agent of the creditor, and, for this reason, among others, such statement will not toll the statute as to this debt.^ It is not enough that the acknowledg- ment is made to one who is the agent of the creditor. The agency must be known to the debtor at the time he makes the aciknowledgment or promise, and the debtor's knowledge must be affirmatively shown.^ One of two co-makers of a note will not effectively revive the note, as to himself, by acknowledging it to the other to be due, though the other ^ has been invited by the payee, without his knowledge, to call upon him to arrange concerning its payment."' But the taking of an indemnity by the surety from the principal maker of a note, was an acknowledgment of the debt by the surety, of which the holder of the note could avail himself,* as a bank's taking a bond from its depositor (wheji paying him his deposit, whereby the depositor undertook to refund in case the bank should be compelled to pay a check drawn on it by the depositor in favor of X., which, when presented by X., had been marked "good" by the bank), was such an ac- knowledgment of the debt' as would have maintained, for six years thereafter, the right of action of the holder of the check against the batik.' Action Must be Brought on the Original Debt. § 255. In the earlier cases in Pennsylvania, the doctrine was maintained that the acknowledgment or promise by which the statute of limitations was waived, did not revive the old debt, so as to preserve it as the legal basis of the action. The express or . implied new promise was the ' Christy v. Flenjington, 10 Pa. St. ' McKinney v. Snyder, 78 Pa. St. 129. An admission made to the 497. trustees, severally and separately, of ' Bott v. Stoner, 2 Penny. 154 ; Id., an encampment of the Order of Odd 12 W. N. C. 106. Fellows, whose duty it was to collect ' Wesner v. Stein, 97 Pa. St. 322. debts due the encampment, was ad- "Girard Bank v. Bank of Penn judged insuAcient because defective Township, 39 Pa. St. 92. in substance, in Senseman v. Hersh- man, 82 Pa. St. 83. 348 LAW OF LIMITATIONS. foundation of the action, the original undertaking and its obligation, in foro conscientice, simply furnishing the neces- sary consideration to support it.^ For this reason, it was said that a promise by an executor or administrator would not toll the statute, since, he being under no moral obliga- tion to pay the debt, the new promise would be destitute of consideration to sustain it. Even if it had a consideration; the promise must be binding on him individually, and not as executor or administrator, so that, were he residuary legatee, as well as executor, and were this circumstance a consideration for his promise to pay a barred debt, he would be bound by it personally and not representatively.^ Nor is this doctrine absent from the more recent cases. The old debt, it is said, in some of them, is gone. The new promise creates the liability which supports the action.^ From this principle the conclusion was deduced that the promise by one of two joint debtors, who was surety, cannot sustain an action against the principal; only the participant in the new promise is made liable by it.* So, for the same reason, the new promise must be made to the creditor or to his agent.* The statutory bar is not removed without a new promise, or its equivalent, because suit on the old contract is prohibited, and the debtor can only be liable, therefore, on the contract ^ Wistar v. Gray, 5 Binn. 573 ; Sea- the statute has barred the action on right V. Craighead, 1 P. & W. 135 Meade v. McDowell, 5 Binn. 195 Kline v. Guthart, 2 P. & W. 490 this original promise. Berghaus v. Calhoun, 6 W. 219. • Coleman v. Fobes, 22 Pa. St. 156. Fritz V. Thomas, 1 ^h. 66; Forney In Shreiner v. Cummins, 63 Pa. St. V. Benedict, 5 Pa. St. 225; McDowell 374, Agnew, J., says, " In a promise V. McCullough, 17 S. & R. 51 ; Levy v. to pay a debt barred by the statute, Cadet, 17 S. & R. 126 ; Jones v. Moore, the consideration is the moral obli- 5 Binn. 573. gation only, and the assumption ''Reynolds 1). Hamilton,? W. 420. wholly voluntary on part of the ' Harbold v. Kuntz, 16 Pa. St. 210. debtor. He may therefore make Theduty of payingthedebtisasuffi- terms;" i. e. he may "change the cient consideration for a promise, nature of his legal obligation by the express or implied, to pay it, but the new promise that he makes, promise, not barely the duty, is ^ Kyle w. Wells, 17 Pa. St. 286. necessary to support the action after LIMITATIONS TO Pi;jlSONAL ACTIONS, 349 expressly made by the new promise, or implied from an acknowledgment of continued indebtedness, the old debt being the consideration for the new engagement. The lia- bility which the law enforces arises out of the new contract.* While, however, nobody doubts that the creditor might count on the new promise, setting forth the old debt as its consideration, and while' logically he should do so, the usage is to declare on the old debt and give the new promise in evidence, in case the bar of the statute is pleaded.^ Pleading and Evidence as to Ne'w Promise. § 256. We have seen that the plaintiff may, as he invariably does, declare upon the original undertaking as the source of his legal duty. If the defendant wishes to avail himself of the statute of limitations, he pleads it. The plaintiff then replies assumpsit infra sex annos, actio accrevit infra sex annos, or guilty infra sex annos, or otherwise, according to the character of the case. It is not necessary by any rule of our practice, where the parties go to trial on these short pleas and replications, that there should be any special notice by the bill of particulars, or otherwise, of an inten- tion of the plaintiff to prove a new promise.^ It is not necessary that the new promise or acknowledgment, relied upon to take the debt out of the statute, should be proven before the original note or other contract, or that the offer ^Eeed v. Eeed, 46 Pa. St. 239. new promise, and which in all cases ''Levy V. Cadet, 17 S. & R. 126; should be the basis of the action." Eeed v. Eeed, 46 Pa. St. 239 ; Bolton Hoch's Appeal, 21 Pa. St. 280. It 1). King, 105 Pa. St. 78 ; Barwell v. had been held in Jones v. Moore, 5 Wirth, 61 Pa. St. 133 ; Wesner v. Binn. 573, that the action must be Stein, 97 Pa. St. 322; Herman v. on the new promise. Hence, if the Einker, 106 Pa. St. 121; Yaws. Kerr, new promise had been made to the 47 Pa. St. 333. " Much incongruity executor of the creditor, and not to of decision," says Knox, J., "would the creditor himself, the declaration, have been avoided, if our courts had it was said, must allege that it was constantly acted upon the principle made to the executor. If it alleged that the statute destroys the orig- a promise made to the creditor only, inal debt, leaving only a usual con- there could be no recovery, eideration upon which to found a ' Barwell ii.'Wirth, 61 Pa. St. 133. 350 LAW OF LIMITATIONS. to ptove this new promise should accompany the tender of proof of the original undertaking, and it would be error to reject the offer to establish the latter, unaccompanied by that to prove the new promise. The plaintiff must make a beginning with his proof. The first step is to offer the note. If he could not takethe first step, he could not get to the jury at all, although he might have abundant evidence to take the note out of the statute.' It has been the practice in this State, said Huston, J., to receive testimony of an indebted- ness more than six years old, and if nothing is subsequently- shown to take the case out of the statute, to direct the jury to disregard the evidence taken.^ It is possible, however, in some cases, to both establish the original debt and its ex- emption from the statutory bar, by proof of a promise or acknowledgment made within six years prior to the suit. Thus, when the plaintiff's bill for goods sold, or labor done, is shown the defendant, who admits the correctness of it, this admission may be used in the action brought within six years thereafter, as sole proof of the original indebtedness and as waiver of the statutory defense." And this admis- sion, whereby the original debt is proved, as well as its exemption from the limitary bar, may be proved by the defendant's recital to the witness of an interview between ' Herman v. Rinker, 106 Pa. St. of the note sued on was proven. 121; Boggsw. Bard, 2R. 102; Finney Then an offer to prove indorsements V. Cochran, 1 W. & S. 112. of payments, not accompanied by jee V. Magee, 10 W^ 172. offer to show they were made by the Huston, J.,' however, added that it defendant, was rejected. Then the would be, in many respects, better note itself was offered in evidence and more consistent with principle and rejected. to require the proof which is to de- 'Barwell v. Wirth, 61 Pa. St. 133 ; feat the statute, in the first instance, c/. Haydock v. Tracy, 3 W. & S. 507. and if it is decided by the court to The same promise was relied on, be insufficient, to stop all further both to toll the statute and to revive testimony. This suggestion of Hus- the debt as against a discharge in ion, J., was followed in Gilkyson v. bankruptcy, in Bolton v. King, 105 Larue, 6 W. & S. 213. In Lazarus v. Pa. St. 78. Fuller, 89 Pa. St. 331, the signature LIMITATIONS TO PERSONAL ACTIONS. 351 him and the plaintiff, in which he acknowledged and prom- ised to pay the debt.^ A fortiori, when there is independent evidence of the original existence of the debt, may an ad- mission of the debtor that he had formerly, but less than six years before the suit, ciouceded his liability for the debt, be shown as a proof of a waiver of the statute.^ The admis- sions or new promises of the defendant may be proven by the plaintiff, since the act of 15th April, 1869,^ "allowing parties in interest to be witnesses,"* and the defendant may, as a witness, deny or qualify the admissions or promises, as testified to by the plaintiff,^ or others. CHAPTEE IX. PARTIAL PAYMENTS. The Payment. § 257. A partial payment of a note or other debt, is a very emphatic recognition of its existence and obligation.® Hence, such payment, if made within six years before the bringing of the action — even when made less than six years from the maturity of the debt' — will exempt the action from the bar of 'Patton V. Hassinger, 69 Pa. St. 104 Pa. St. 349; Lawson •;;. McCart- 311. In Schmoyer v. Schmoyer, 17 ney, 104 Pa. St. 356. Pa. St. 520, the question whether a ^Lawson v. McCartney, 104 Pa. St. charge in decedent's book against 356 ; McKinney v. Snyder, 78 Pa. St. his son' was a debt or an advance- 497. ment, was resolved by the son's * Barclay's Appeal, 64 Pa. St. 69; admission to the appraisers of the From the partial payment a new estate that he had repaid a part of promise is implied. The former, it, the dates of the payment and of therefore, has no more virtue than the admission of it, being both less a new promise would have. Cole- than six years before the suit for the man v. Fobes, 22 Pa. St. 156. remainder was brought against him. T.Houser v. Irvine,. 3 W. & S. 345 'Hufft). Kichardson, 19Pa. St.388. Addams v. Seitzinger, 1 W. 243 'P. L. 30. Shaffer v. Shaffer, 41 Pa. St. 51 •McKinney v. Snyder, 78 Pa. St. Cremer's Estate, 5 W. & S. 831 497; Montgomery v. Cunningham, Zent's Ex. v. lieart, 8 Pa. St. 337. 352 LAW OP LIMITATIONS. the statutory limitation.^ The payment may be of the inter- est,* or of a portion of the principal of a debt.^ It may be in money,* or store orders,' or in a due-bill' or check,' drawn by the debtor, or by the debtor's crediting himself in his book with certain merchandise, against a previous charge of him- feelf with his creditor's claim, and striking a balance. This 4oue in six years before the action by the creditor, would preserve it from the limitary bar,' But charges in the debtor's book, against the widow of the creditor, after his death, would not have this significance.^ The payment may be. in kind, e. g. in hay, wood,^" shoes," or in a horse,^^ if these chattels are given to the creditor with the intention that they shall apply to his claim as partial satisfaction. As the payment has validity only as an acknowledgment of the debt, implying a 1 Clark V. Burn, 86 Pa. St. 502; Bush V. Stowell, 71 Pa. St. 208; Wes- ner v. Stein, 97 Pa. St. 322 ; Burr v. Burr, 26 Pa. St. 284; Addams v. Seitzinger, 1 W. & S. 243 ; Barclay's Appeal, 64 Pa. St. 69; Herman v'. Kinker, 106 Pa. St. 121; Smith v. Wesner, 1 Woodw. 182 ; Kempner v. Laney, 14 Phila. 646; Huff v. Eioh- ardson, 19 Pa. St. 388; Clark v. Maguire, 35 Pa. St. 259. The pay- ment must be within six years be- fore the action. ' Schmoyer v. Schmoyer, 17 Pa. St. 520; Kauff- man v. Fisher, 3 Gr. 302; Fray v. Holben, 11 W. N. C. 349. ' Forney v. Benedict, 5 Pa. St. 225 ; Kauffman v. Pislier, 3 Gr. 302 ; Frey ■V. Holben, 11 W. N. C. 349; Addams D. Seitzinger, 1 W. & S. 243 ; Klock v. Bressler, 2 Leg. Rec. Rep. 191. "Addams v. Seitzinger, 1 W. 248; Houser v. Irvine, 3 W. & S. 345. •Kunkel v. Kolb, 6 W. N. C. 48; Gerhard v. Gerhard, 3 Cent. Rep. €01 ; Wesner v. Stein, 97 Pa. St. 322. 'Stewart's Appeal, 105 Pa. St. 307. "Shaffer v. Shaffer, 41 Pa. St. 51. ' Bond's Estate, 44 Leg. Int. 186 ; Id., 3 Pa. C. C. Rep. 263. "Barclay's Appeal, 64 Pa. St. 69. Suit was brought on a note ; defend- ant offered as set-off a book account more than six years old. Evidence that when the note became due, plaintiff told the defendant to apply the note to the account (which was larger than the note), must be ad- mitted as showing partial pa,yment of the account. Birkey v. McMakin, 2 Leg. Gaz. 81. 'Barclay's Appeal, 64 Pa. St. 69. If, on several previous occasions, charges originally made against the widow were transferred to the ac- count with the administrator as credits on the\debt due the decedent, this would not justify the attribution of subsequent charges against the widow, not incorporated by the debtor into this account, to the claim of the decedent, as intended payments thereon. '"Stewart's Appeal, 105 Pa. St. 307. " De Haven's Estate, 40 Leg. Int. 171. " Huff i;. Richardson, 19 Pa. St. 388. LIMITATIONS TO PEESONAL ACTIONS. 353 promise to pay it, an offer tp pay the debt has the same virtue that an actual payment would have, so far as repelling the statutory bar is concerned/ After an account has ceased to be a mutual and running one by the dissolution of the firm comprising one of the parties, Or by the death of one of the parties, the other party can, of course, make payments on it, and such payments, if the payer is aware of the condition of the account, would be such acknowledgments of it as would exempt it from the bar of the statute arising from the lapse of time previously thereto.^ Payment by Whom. § 258. A payment by a trustee appointed for payment of debts will not exempt it from the limitation as to the debtor. Thus, a payment by the assignee in insolvency of a part of the debt, is not sufficient to take the debt from the operation of the statute as against a subsequent action therefor against the insolvent.^ A payment by the trustee for payment, out of the trust fund, will not preserve the collateral liability of ' the trustee for the same debt, from the statutory bar. Accord- ingly, when one liable as indorser on a bill of exchange was appointed trustee by several execution-creditors of the drawee and acceptor of the bill, to buy in the property of the latter at sheriff's sale and administer it, and, after paying expenses, to make a fro rata distribution among these creditors, among whom was the holder of the bill of exchange, partial payment by the trustee, from the trust fund, on the bill of exchange, ratably with the other execution debts, did not preserve the right of action against the indorser of the bill beyond six years from the time it accrued.* A.'s judgment being a lien on B.'s ^ * Farley v. Kustenbader, 3 Pa. St. tain as to character and anjount. 418. An oflEer of a horse in part Huff w. Richardson, 19 Pa. St. 388.- payment on account, not accepted ' Stewart's Appeal, 105 Pa. St. 307. by the creditor because it did not "Bunn «. Drovin, 2 Phiia. 306. suit him, was insufiBcient to toll the * Merchants' and Manufacturers! statute, because the debt was uncer- Bank of Pittsburgh d. Watson, 46 Pa. St. 310. oo4l law of limitations. land wMeh he sells to C, C. agrees to pay it, if A. shall give time. C.'s subsequent , payment of the costs on this judg- ment to the prothonotary, is not a partial payment of the judgment. The costs belong to the officers and not to A. The agreement was, in substance, to ^ell the judgment to C. But a sale of the judgment would not pass the right to receive the costs, nor would it make the purchaser liable to the plaintiff for them, if they had not been by the latter pre- viously paid to the officer. All that A. could have demanded from C. was payment of the debt and interest. When C. paid the costs, he paid no part of the sum he was bound to pay to A., and therefore d^d not toll the limitation as to A.^ If a notes is payable in installments, all 'of which, except the last, are barred when the action of assumpsit is brought, a partial payment, not enough to extinguish the first installment, but not specially appropriated to any installment, made after all have become due but before any has become barred by the limitation, will preserve for six years the right of action as to all the installments.^ Debt Identified. § 259. As,, when acknowledgments or express promises are depended on to toll the limitation, it must appear that the very debt in suit' was the subject of the acknowledgment or the promise, so the partial payment relied on for the same purpose must be referable to the debt in question. It must distinctly appear that the payment was intended to apply to the debt sought to be recovered in the action.* 'Strawn v. Hook, 25 Pa. St. 391. 'Bush v. Stowell, 71 Pa. St. 208. If there had been a special under- So said in the Common Pleas, standing that C. w^ to pay the costs, ' Burr v. Burr, 26 Pa. St. 284 ; Bar- it is said that perhaps A. could have clay's Appeal, 64 Pa. St. 69; Shaffer recovered them as trustee for the v. Shaffer, 41 Pa. St. 51 ; Bond's Es- oflacers, and, in that case, payment tate, 44 Leg. Int. 186; Id.,S Pa. C. C. of the costs to the prothonotary on Bep. 263. When a decedent's charge the footing of the agreement might in his book, against his son, is shown exempt the whole contract from the him, and he states that he has paid statutory bar. ' $1,200 on it, this will be evidence LIMITATIONS TO PEESONAL ACTIONS. 355 "When the creditor asked the de*btor'whether he could not let her " have a little interest on that note I hold of thine," and a small payment thereon was made, this was not sufficient identification of the note, though no evidence was given that there were other notes between the parties.^ The burden of showing that there was no other debt, is on the plaintiff".'^ A fortiori, when there is affirmative evidence of the existence of several debts, will the necessity of identifying that on which the payment is made with the one in suit, be the more urgent, A. had loaned to B., on three several occasions, $5, f 1, and .$356. Within six years before the actidn, a payment of .$5, another of $1, and a third of thirty cents were shown tO' have been made, but as there was no evidence of appropri- ation to any one of the three loans, the statute was not tolled as to the |356 which had been lent fourteen years before suit.^ It being shown that A. was indebted to B., not, only on a note, but for other small sums loaned from time to time,, the fact that A., a shoe-dealer, has let B. have shoes at sun- dry times without paying for them, intending them to be a credit on A.'^s indebtedness in general, and not on the note in particular, will not be such partial payment of the note as will exempt it from the Limitary bar iti six years after it& both to show that the charge was for Giving a due-bill " on settlement of a loan and not an advancement, and a note, as interest," does not iSentify also that the payment keeps alive the note till affirmative evidence is the debt as against the statute. submitted that there was no other Schmoyer v. Schmoyer, 17 Pa. St. note, and it is error to submit the 520. identity of the note in suit with the 'Burr'v. Burr, 26 Pa. St. 284. Davis one whose interest was thus paid,. V. Steiner, 14 Pa. St. 275, which con- without such evidence, siders the fact that no other debt is ' Kunkel v. Kolb, 6 W. N. C. 48. shown to have been in existence "It must be clearly proved," says- when the acknowledgment or par- Trunkey, J., " that the payment was tial payment was made, enough to made on account of the very debt ' identify the debt in suit as the one which is in dispute. The evidence so paid or acknowledged, is disap- ought to be so full and precise as to- proved by Suter v. Steeler, 22 Pa. St. distinctly show that to the claim in 308, and Burr v. Burr, gwpra. suit the party intended his payment 'Shaffer v. Shaffer, 41 Pa. St. 51. to apply." 356 LAW OF LIMITATIONS. maturity.^ A. having given B. $2,000 for the purpose of assisting B. to purchase real estate, but it not appearing dis- tinctly whether the purchase was made by B. for himself alone, or with the understanding that A. should have an interest in it to the extent of the |2,000, a payment of |50 to A., since it was entirely consistent with the theory that A. had an interest in the property, and was not B.'s creditor for the $2,000, could not be treated as an acknowledgment of an indebtedness for that sum, in an action brought by A. in assertion of the indebtedness, B. maintaining that A. was a part owner of the property and not a creditor.** Joint Debtors. § 260. The partial payment must be made by the debtor who is to be affected with it. It may, however, be made by his agent, thereto authorized. One of two or more co- principals on a joint ^ or a joint and several note, or other- wise jointly indebted, is not, ipso facto, the agent for the other, so as, by payments within* or beyond^ six years from the maturity of the note, to exempt it from the statutory bar as to the other ; still less is the principal in such a note, ipso facto, the agent of the surety for such a purpose.* The surety even is not, as such, the agent of the principal to make pay- ment within six years after the maturing of the note, and so prolong, as against the principal, the limitary term for six 'De Haven's Estate, 40 Leg. Int. it is, by an erroneous judgment of 171. the court, not allowed, and a judg- ' Gerhard v. Gerhard, 3 Cent. Rep. ment is recovered, which is subse- 601. quently paid, the other, in an action 'A new promise of one joint debtor for contribution, may show that the affects nobody but himself. Watts statute should have been a good de- V. Devor, 1 Gr. 267. fense to the first action, and so excuse * Bott V. Stoner, 2 Penny. 154; Id., itself from contribution. 12W.N. 0.106. » Clark v. Burn, 86 Pa. St. 502; 'Wheatfield Township v. Brush Lazarus v. Fuller, 89 Pa. St. 331; Valley Township, 25 Pa. St. 112. If, Wesner v. Stein, 97 Pa. St. 322; Ell- in an action against.one township for inger's Appeal, 44 Leg. Int. 135; .a debt as to which the other was lia- EUinger v. Fletcher, 5 Cent. Rep. ble to contribute; the defendant fails 715. to plead the statute, or, pleading it. LIMITATIONS TO PERSONAL ACTIONS. 357 years from the payment.^ A part payment by one of four makers (all principals) of a joint and several promissory note, payable in four annual installments, at a time when none of these installments was barred, but all of which, save the last, had accrued due more than six years before thes' bringing of the action, did not preserve any of the first three installments as against the makers who did not make- the payment."^ While the relation of partnership includes that of agency of each partner for the others, with respect to payments and acknowledgments of debts,^ this agency ceases with the dissolution of the firm, except in the case of the liquidating partner. The liquidating partner may, after dissolution, settle the debts of the firm, give a new note, make payments on it, and so preserve the debt as against the other partners as well as against himself;* but when no- ' Coleman v. Fobes, 22 Pa. St. 156. This case overrules Zent v. Heart, 8 Pa. St. 337, which had decided that a principal in a joint and several note having made partial payments, the statute was tolled thereby as to both makers. 'Bush V. Stowell, 71 Pa. St. 208. " Nor is it any longer an open ques- tion," says Sharswood, J., "that a payment on account or an acknowl- edgment by one of' two or more . joint debtors will not take the case out of the statute as to the others." 'Coleman v. Fobes, 22 Pa. St. 156. If A. and B. make a note, signed by their individual names, and A. makes partial payments on it, and the cred- itor alleges that they were in fact part- ners, that the note was a firm debt, and that the payments by A. were made during the continuance of the partnership, the judgment entered on warrant of attorney will be opened to investigate the truth of these allega- tions. Ellinger's Appeal, 44 Leg. Int. 135 ; Ellinger v. Fletcher, 5 Cent. Eep. 715. *Houser v. Irvine, 3 W. & S. 345; Eeppert v. Colvin, 48 Pa. St. 248; Wilson V. Waugh, 101 Pa. St. 233 r Kauffman v. Fisher, 3 Gr. 302. But after the debt is barred by time, even the liquidating partner cannot re- vive it, as to his late copartners, e, g. by confessing judgment in the name- of the firm. In a subsequent action against the other partners, this con- fession would not be enough to toll the statute. Kauffman v. Fisher, $ Gr. 302. There need not be an ex- press and specific appointment of one as the liquidating partner. His- authority may be inferred from act& done in liquidation, with the c6n- sent of the others. — As the power of one partner to bind another after dissolution is exceptional, the facts- which give rise to it must be made- to appear, if it is asserted to exist. Wilson V. Waugh, 101 Pa. St. 233. 568 LAW OF LIMITATIONS. partner has, after dissolution, authority to liquidate, e. g. when the firm dissolves by an assignment in trust of all its assets for the benefit of its creditors,' or by a sheriff's sale of all its property,*^ or when the account of the firm business has all been settled, and balances struck,^ a partial payment or an acknowledgment made by one, within six years after the debt matured, will not affect the others. Generally, a non-liquidating partner cannot, hy partial payment, or admission of a debt, or promise to pay it within six years from its maturity,* still less subsequently,* prolong, as to the others, the limitary term. A .payment made in the presence of one partner by another, on a debt of the dissolved firm, is some, but not conclusive, evidence that the former assented to it, and to the continuance of the liability.* So, when the agent of one of two co-makers of a promissory note had •called on the payee, in order to partially pay the note, but not finding him at home, had stopped at the house of the •other co-maker, who was sick, and left the money with his ', "wife, with direction to pay it to the payee, and the agent of the latter stopping at the house of the sick co-maker, the money was paid to him by the wife in the presence of the «ick husband, it was for the jury to say whether the payment was made with the assent and participation of the husband, and error for the court to instruct them that- they could not infer a payment by the husband, for the purpose of protract- ing, as to him, the limitary term six years beyond the date ■of this payment.' One co-debtor, therefore, can make a " Levy V. Cadet, 17 S. & R. 26. 'Searight v. Craighead, 1 P. & W. "Reppert v. Colvin, 48 Pa. St. 248. 135; Levy v. Cadet, 17 S. & E. 126. ' Searight v. Craighead, 1 P. & W. In each of these cases the aeknowl- 135. edgment or payment was made after * Farnum v. Eastwick, 2 Am. L. six years had run from the maturity TBeg. 572; Clark v. Burn, 86 Pa. St. of the debt. S02; Hogg V. Orgill, 34 Pa. St. 344; "Wilson v. Waugh, 101 Pa. St. 283. ■Coleman v. Fobes, 22 Pa. St. 156; 'Wesner «. Stein, 97 Pa. St. 322. Levy «. Cadet, 17 S. & R. 126 ; Wil- Though not made with the direction .son V. -Waugh, 101 Pa. St. 233. of the husband, if the payment was LIMITATIONS TO PERSONAL ACTIONS. 359 payment with money of the other, given to him for that purpose, and toll the statute as to both. Evidence of the Payment. * § 261. The creditor's own indorsement of partial payments on the note, if made before the statute has barred the debt, will be made against his apparent interest,.and be evidence in his favor, of such payment, whether the creditor is dead at the time of trial,* or still alive. '^ But there must be evidence, other than the date of the indorsement itself, that the indorsement was made before the lapse of six years from the maturity of the note.^ Proof that it is in the handwriting of the creditor, and that he died within six years after the note was payable, will be such evidence.* When the suit is on a book account, and credits allowed are depended on to exempt the claim from the statutory bar, they must be proven to have been made within six years before bringing suit. Hence, when a copy of the book account is filed, suggesting these tsredits, an affidavit of defense, suggesting the statute of limitations, will prevent judgment. The defendant is entitled to proof of the making, and of the time of the making of the pay- ments.* When there are two or more co-makers of the note, an indorsement of payment by the payee, not indicating by which of them the payment was made, will be insufficient to maintain the action despite the statutory limitation, as against either of the defendants.* If the indorsement is in the handwriting of one of two co-makers, this, with other evidence of the payment by him, may be sufficient to establish made without his doing anything ' Shaffer v. Shaffer, 41 Pa. St. 51 ; indicating that he did not partioi-. Cremer'a Estate, 5 W. & S. 331 ; Lash pate in it, it was for the jury to say v. Voneida, 16 W. N. C. 93. whether he assented to and partioi- 'Addams v. Seitzinger, 1 W. & S. pated in it. 243. ^Addams v. Seitzinger, . 1 W. & S. 'Guillou v. Perry, 1 W. N. C. 39 ; 243; Clark 'v. Burn, 86 Pa. St. 502; Kinsloe i). Baugh, 1 W. N. C. 147 ; Cremer's Estate, 5 W. & S. 381. Kowe v. Atwater, 1 W. N. C. 149. ' Shaffer v. Shaffer, 41 Pa. St. 51. « Clark v. Burn, 86 Pa. St. 502. 360 LAW OP LIMITATIONS. that he made the payment, and so toll the statute as to him.' When the evidence leaves it uncertain by which of two co- makers, principal and surety, the partial paynient was made, that payment will not countervail the statute as against the surety.^ On the other hand, when the evidence shows by which of several co-makers the partial payment was made, the statute will be tolled as to such co-maker.^ One of them being shown to have made a payment, and the other an acknowledgment, within six years before suit, recovery can be had against both.* GHAPTEE X. MEKCHANTS' ACCOUNTS. Merchants' Accounts. § 262. The act of 27th March, 1713, prescribes the period of six years for "all actions upon account and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants." ' Smith V. Wesner, 1 Woodw. 182. limitations, and, on arbitration, the * Clark V. B,urn, 86 Pa. St. 502; award is for him but against the Lazarus v. Fuller, 89 Pa. St. 331 ; other (who had made a partial pay- Wesner v. Stein, 97 Pa. St. 322; ment), on an appeal by the latter, Klock V. Brassier, 2 Leg. Kec. Eep. judgment may be entered against 191. him. Smith v. Wesner, supra. In 'Herman v. Binker, 106 Pa. St. an action against four joint makers 121 ; Smith v. Wesner, 1 Woodw. of a note payable in installments, 182. If there is a joint declaration against three of which the statutory against three co-makers, only one period has run, though one of the of whom has tolled the statute makers has waived the statute by as to himself, and objection is payment, there can be no recovery made to recovery against him be- against him for more than is recov- cause the declaration is joint, the ered against all, viz., the* last in- plaintiflf's offer to amend by declar- stallment. Possibly other separate ing against him alone, should be actions could be brought against him allowed. Herman v. Einker, mpra. to recover the installments barred as If two co-makers are sued and to his co-defendants. Bush v. Stow- jointly declared against, and one ell, 71 Pa. St. 208. of them defends by the statute of *Frey «. Holben, 11 W. N. 0. 849. LIMITATIONS TO PERSONAL ACTIONS. 361 This exception applies only to accounts respecting the trade of merchandise, between merchants and merchants. It is not an exemption attached to the merchant, merely as a personal privilege, but one that is conferred on the business as well as on the persons between whom that business is carried on. The account must concern the trade of mer- chandise; and this trade must be not an ordinary traffic between a merchant and any ordinary customer, but betweien merchant and merchant.' No definition of merchant, or of the trade of merchandise, has been attempted in the judicial , interpretations of this part of the act of limitation. Mutual Accounts. § 263. Though the immunity conceded in this exception in the act, to the trade of merchandise, has, as will presently be seen, been extended to a variety of cases- of mutual ac- counts, it has been sometimes intimated that this immunity does not rest upon this statutory exception, but upon the judicially invented exception in favor of debts respecting which there have been partial payments or acknowledg- ments.^ Sometimes, on the other hand, these cases are 'C. J. Marshall, quoted with ap- those of merchants, aflSrming of the proval by Lewis, J., in Marseilles v. former that there must be mutual Kenton, 17 Pa. St., 238, and by Trun- demands, but saying of the latter key, J., in Mattern i;. McDivitt, 113 that whether, if all the items were Pa. St. 402» In Hay v. Kramer, 2 on one side, they would be saved W. & S. 137, Sergeant, J., remarks : from the limitation, was a "vexed . " How far it would be within the question." Sharswood, J., in the saving clause, though the items are District Court also held that mutual all on one side, if they were mer- accounts were not merchants' ac- cbants' accounts, seems a vexed counts, though protected from the question." statute till the termination of the 'Thus, in Van Swearingenv. Harris, account. Lowber v. Smith, 7 Pa. St. 1 W & S. 356, mutual accounts, says 381. Qf. Ingram v. Sherard, 17 8. & Rogers, J., " take the case out of the R. 347, and Kennedy, J.'s, dissenting statute, and it is immaterial whether opinion in Thomson v.^ Hopper, 1 the parties are merchants or not, as W. & S. 467. Agnew, J., says in Mc- it goes on the ground of implied Kelvy's Appeal, 72 Pa. St. 409, that promise." Sergeant, J., in Hay v. the cases on mutual accounts " rest Kramer, 2 W- & S. 137, also distin- on the implied acknowledgment giiishes between such accounts and arising from the mutual charge and 362 LAW OF LIMITATIONS. spoken of as resting on the statute/ The latter is, perhaps, the opinion that will now prevail. Accordingly, in every case where an account involves mutual demands, each independ- ently suable by the party asserting it, and where the nature of these demands is such that they are provable by a book of original entry, the accounts will fall within the statutory immunity accorded to accounts concerning merchandise be- tween merchants.^ Hence, when defendant, a farmer and shoemaker, furnished hides, bark and grain to the plaintiff, a tanner, who furnished leather to the defendant, they were merchants within the exception.^ So were a blacksmith in a rural district, and his agricultural employer — ^probably a storekeeper — ^who had furnished him leather, herring, mack- eral and paint ; * a powder maker and vender and one who, getting powder from him, furnished him saltpetre and brim- stone.** One side of the mutual account might consist of charges by a grocer for goods bought of him ; * or by a vender of hay, wood and coal, for such articles ;' or by a farmer, for credit between the parties, and not 'Mattern v. McDivitt, 113 Pa. St. on the exception in regard to mer- 402. chants' accounts." 'Chambers v. Marks, 25 Pa. St. > In Mattern v. McDivitt, Trunkey, 296. J., seems to imply that the mutual *Van Swearingen v. Harris, 1 W. demands exempted in Pennsylvania & S. 356. from the statutory limitation, in- 'Lowber v. Smith, 7 Pa. St. 381. stances of which he cites in Van The case was, however, held to be Swearingen v. Harris, 1 W. & S. 356; not one of mutual account, because Adams v. Carroll, 85 Pa. St. 209, and the gunpowder was furnished and Chambers v. Marks, 25 Pa. St. 296, received, by agreement, as payment are exempted as constituting " mu- of the saltpetre and brimstone, so tual accounts between the parties that after receiving it, to an amount within the exception " in the statute, in value equal to these articles, the Such is apparently the opinion of party who furnished them would Sterrett, J., in Adams v. Carroll, 85 have had no demand. Pa. St. 209. In McClureo). McClure, * Clark v. Maguire's Adm., 35 Pa. 1 Gr. 222, all items of an account St. 259; Ingram v. Sherard, 17 S. & over six years old were held barred R. 347. because it was "not a case of mu- 'Stewart's Appeal, 105 Pa. St. 307. tual accounts between merchant and merchant." LIMITATIONS TO PERSONAL ACTIONS. 363 farm produce of different kinds ;^ or by a maker of hats, for hats;^ or it might consist of charges for labor rendered;^ or for material and labor in repairing a steamboat from time to time;* or for anything that is provable by book of original entry .^ But when the demand on one side is only a note, bond,® record, or services by an attorney-at-law in- conducting several suits for the other party, the account is not mutual and. within the protection of the statute.' So, if A.'s claim is for use and occupation against B., his co-tenant, who sets off a book account, all items of the latter more than six years old v are barred.^ When A.'s claim is on notes, and B.'s claim is for use and occupation, which he sets off against the notes, so much of this claim as is for occupation prior to six years of the pleading of the set-off is barred.* Each item of the claim on both sides is, in such case, subject to the operation of the 'Mattern v. McDivitt, 113 Pa., St. 402. ' Hay V. Kra,taer, 2 W. & S. 137. 'Mattern v. McDivitt, 113 Pa. St. 402. * Adams v. Carroll, 85 Pa. St. 209. Because one side was merely partial payments, the statute applied in this case. * Mattern v. McDivitt, 113 Pa. St. 402. Money loaned is not provable by book entries. In re Linn's Estate,' 2 Pears. 487 ; Schoyer v. Schoyer, 17 Pa. St. 520. « Mattern v. McDivitt, 113 Pa. St. 402 ; Clark 1). Maguire's Adm., 35 Pa. St. 259; Seitzinger v. Alspach, 3 Cent. Eep. 399. 'Mattern v. McDivitt, 113 Pa. St. 402. In Stewart's Appeal, 105 Pa. St. 307, the claim on one side was for' lawyers' services, but was de- feated because more than six years had run since the account between the parties closed. In Morgan v. Walton,' 4 Pa. St. 321, the account sued on was a physician's; there was no account on the other side; hence, the statute applied. In Hale V Ard, 48 Pa. St. 22, it was doubted whether fees for legal services could be proven by entries in the attorney's book. Literary labor is not a fit subject for a book entry; and how does professional advice by an at- torney differ? -McClure v. McClure, 1 Gr. 222. 'Seitzinger v. Alspach, 3 Cent. Rep. 399. In Baugher v. Conn, 1 Pa. C. C. Rep. 184, there were transactions between the parties running through six years, consisting of loans by each to the other, payment of taxes and dues to a building association, by the plaintiff for the defendant, and collection of rents by the latter of property held by him and plaintrff, as tenants in common. It was held that a bill in equity for an account lay ; that the account was mutual, and no item in it would be barred by the statute, since some items were within six years prior to the filing of the bill. 364 LAW OF LIMITATIONS. statute of limitations from the day an action for it might have been sustained. Necessity of Mutual Demands. § 264. "While, then, the existence of mutual demands, on which action might be reciprocally sustained, is not decisive that the mutual demands compose the kind of account whose several items are exempted from the operation of the statute from their respective origins, this kind of account, on the other hand, never exists unless there are such suable demands on both sides. If, therefore, there is simply a book account for merchandise, labor, &c., on one side, and payments on this account on the other, which simply extinguish it pro tanto^ or, if they exceed the account, give a right of action only for this "excess,^ the case is not one of "merchants' ac- counts," or of " mutual accounts," and the statute operates on each item from its accruing. The entry of a credit for a payment, in the book account of the merchant, as it does not give a right of action to the party who pays it, does not . create a mutual account, and so preserve the account of the opposite party from bar till six years from the date of pay- ment, or from the last item on the bopk account, when that is latest.^ Nor does it matter whether the payment is rnade in money or in kind. If the agreement is that A. shall furnish saltpetre and brimstone to B., a gunpowder maker, and that B. shall pay A. in gunpowder, and gunpowder is« furnished on this agreement, the price of the gunpowder, as soon g,s A. receives it, operates as an extinguishment joro tanto of A.'s claim against B., but furnishes no basis for a counter-claim by B. against A., unless it should exceed A.'s demand. Frop the moment ^uch excess happened, A.'s demand would be wholly extinct, and B. would have a 'Ingrami). Sherard, 17S. &R, 347; 137; Allison v. Pennington, 7 W. & Clark V. Maguire's Adm., 35 Pa. St. S. 180; Adams v. Carroll, 85 Pa. St. 259 ; Chambers v. Marks, 25 Pa. St. 209. 296; Van Swearingen v. Harris, 1 W. ' Lowber v. Smith, 7 Pa. St. 381. & S. 356 ; Hay v. Kramer, 2 W. & S. » Ingram v. Sherard, 17 S. & R. 347. LIMITATIONS TO PERSONAL ACTIONS. 365 demand for the. excess against whiph the statute of limita- tions would run immediately.^ As, when there are on one side payments only on the account of the pther party, the statute applies to every item of this account from its date, a fortiori is this the case when there are no payments or claim on the other side at all.^ Parties to Mutual Account. § 265. The mutual account must be between the parties to the action. In a suit by A. against B., a' counter-claim on book account of the firm of B. and C, cannot operate to preserve the various items in the book account of A. from the operation of the statute from their respective dates.^ An account between M. on the one side, and the firm of N. & O. on the other, is terminated with the dissolution of that firm, though N., continuing to do the same business, is still employed by M. In six years after the dissolution, the claim of the firm against M., who had reciprocal demands against it, would be barred by the statute, in the absence of payments distinctly applied to it, or acknowledgments such as would take any kind of a debt from the operation of the statute.* • Result of Mutuality. § 266. When, in the sense already iudicated, there are mutual accounts, reciprocal demands constituting proper subjects for book entries and provable thereby, the statute of limitations begins to run, it is true, against each item in either side of the reciprocal account from its date, but with 1 Lowber v. Smith, 7 Pa. St. 381. If , * Stewart's Appeal, 105 Pa. St. 307. there is a charge for hats against B., Commodities furnished to N. after on A.'s account, and a credit for the- dissolution, would not, unless it Bome of these hats returned, this is was so agreed, be credited on the equivalent to a payment pro tarda, claim of the firm ; and if so credited, and'does not make the account mu- would operate only as a payment tual. Hay v. Kramer, 2 W. & S. 137. operates jn reviving a debt, or ke^p- ' Morgan v. Walton, 4 Pa. St. 321. ing it alive for six years, viz., as an In re Litin's Estate, 2 Pears. 487. acknowledgment implying a prom- • Hay V. Kramer, 2 W. & S. 137.' ise to pay. 366 LAW OF Lxjjj.±xAJ.xui>o. each succeeding item on either side it takes a new point of beginning, and when either side of the account is put in suit, no item in it, on either side, is barred, unless the last item (on whichever side) is older than six years.^ Thus, plain^ tiff's charges running from 1830 to 1837, and defendant's from 1827 to 1835, no item on either side was barred in an action brought 28th April, 1838.^ So, the plaintiff's account running from 1809 to 1834, and the defendant's from 1804 to 1832, were all exempt from the statute, in an action brought in 1838.^ Again, the statute had no application to any items oh either side of an account running from 1828 to 1850, there being charges On both sides in each year, and the action commencing in 1852.* How long an interval, short of six years, can elapse between the successive items, whether on the same or on the different sides, without impair- ing the unity of the account, is not determined in Pennsyl- vania. There have been credits on both sides in each year, in some cases;® in others, wider intervals seem to have obtained.* Characteristics of Accounts. , § 267. It is doubtful whether the accounts, in order to enjoy the exemption of mutual accounts or accounts of merchants, must be in writing,' though they invariably have been in the adjudicated cases. It is certain that they do not need to be kept by both parties ; one of the parties may, at the wish of the other, keep the account for both, crediting himself or charg- ing the other with the goods, &c., delivered, and charging 'Seitzirigeri). Alspaoh,3 Cent. Eep. reciprocal account; hence, the stat- 399. ute barred all items more than six 'Thomson i). Hopper, 1 W. & S. years old when suit was brought. 467. ^Chambers v. Marks, 25 Pa. St. 'Van Swearingen v. Harris, 1 W. 296;Lowber v. Smith, 7 Pa. St. 381. &8. 356. ,^Vatv. Swearingen D. Harris, 1 W. ♦Chambers v. Marks, 25 Pa. St. &S. 356; Thomson v. Harris, 1 W. 296. In Ingram v. Sherard, 17 S. & & S. 467. R. 347, there were on one side items ' Chambers v. Marks, 25 Pa. St. from 1809 to 1819, but there was no 296. LIMITATIONS TO PERSONAL ACTIONS. 367 himself or crediting tlie other with goods, &c., received from him.^ In this case the suit will be for the balance due the plaintiff. When each keeps lys own account, he may also, in suing, admit certain credits, but since he may do this for the purpose of making the account seem mutual, and so pro- tecting it from the statute of limitations, or for the purpose of showing "payments and acknowledgments, it. is, of course, competent for the defendant, in his affidavit of defense, or otherwise, to deny that he, the defendant, is entitled to these credits, and so compel proof of them.^ Strict Merchants' Account. § 268. The account of a factor or agent of a merchant, acting for the latter, whether within the country^ or beyond seas,* is within the saving of the act of 27th March, 1713. Though the last item of his account — ^in which he charged himself with the moneys received for the goods of his princi- pal sold by him, and took credit for his commissions, expenses, remittances, &c. — ^was more thqji seventeen years old when he attempted to set it off in an action against him on a bond by his principal, he was entitled to make the set-off.^ When A. sent medicines to B., a storekeeper, to sell, B. to account for so much as he should sell, at prices designated in a sched- ule, and the difference between these prices and those for which they should be actually sold to be B.'s compensation, they were within the exception of merchant and factor. B. 'Chambers v. Marks, 25 Pa. St. ing the sufficiency of the affidavit 296. # of defense, a suggestion in it that ' Guillou V. Perry, 1 W. N. C. 39 ; the charges were all more than six Hull V. Moohey, 5 W. N. C. 511; years old before the bringing of the Newton v. Smith, 6 W. N. C. 56. The suit, will prevent judgment by de- entries of credit by the plaintiff faultJ Newton v. Smith ; Guillou v. must be shown to have been made Perry ; Hull v. Mooney, supra. before the statute had barred the ' Jayne d. Mickey, 55 Pa. St. 260. items on the debit side of the * Stiles v. Donaldson, 2 Y. 105; account against defendant, else Bevan v. Cullen, 7 Pa. St. 281 ; they will not be evidence. As the Thompson v. Fisher, 13 Pa. St. 310. entry of credits in the account filed ° Stiles v. Donaldson, 2 Y. 105. cannot be considered in determin- 368 LAW OF LIMITATIONS. never accounting nor returning the goods, an action brought ., by A. nine years after the medicines were sent was not barred. The limitation did not begin to run until B., the factor, had settled an account, or at least until a demjand for an account had been made.'^ Even merchants may deal with each other, not as such, but as individuals. Thus, if one becomes indebted to another on a bill of exchange, or a con- tract for rent of a house, or the hire of a carriage, or any other single transaction, this indebtedness cannot be con- sidered as founded on an account. An entry of it in the books of either would not change its nature and convert it from an insulated transaction between individuals into an account concerning the trade of merchandise between mer- chant and merchant. This must depend on the nature and character of the transaction, and not on the book in which either party may choose to enter a memorandum or state- ment of it.' Hence, if A., on 3.'s inducement, lends $1,000 to C, taking B.'s note for it, and C. deposits caps with B. to indemnify B. for his liability, B.'s liability to pay A. being 1 Jayne v. Mickey, 55 Pa. St. 260. ' Spring v. Gray's Ex., 6 Peters 151, In Norris' Appeal, 71 Pa.' St. 106, an quoted in Marseilles v. Kenton, 17 executor, twenty-four years a'*er the Pa. St. 238. The parties were mer- death of the testator, in answei ii a chants, but the plaintiff was also a citation, filed an account. To t , j ship-owner, and as such let a vessel suggestion that there was a presump- to defendant for conveyance of a tion that he had' settled an account cargo of the latter, on a charter- over twenty years before, and there- party. The plaintiff's claim was, fore that the moneys with which he therefore, on a special contract, and charged himself in his account as not within the exemption of the received since that time, should be limitation acts in favor of accounts considered as received by him as between merchants and merchants, banker and agent for the legatees, tliough-the freight to be paid was Paxson, J., in the Orphans' Court, , not an absolute sum, but a certain says "the statute of limitations in share of the net profits of the adven- such cases, does not commence to ture, and, in the action on the con- run until the dissolution of the re- tract, an examination into the sales lation of attorney and, client, or of the outward and inward cargo, agent and principal, where, as here, and all the expenses attendant oa there were continuous dealings with the enterprise, was necessary, the estate." LIMITATIONS TO PERSONAL ACTIONS. 369 absolute, and not conditional upon the suflSciency of the caps, when sold, to produce $1,000, the note is not within the exception in favor of merchants' accounts, and action on it will be barred in six years from its date. This is so, whether A. has a claim on the caps as collateral security for his debt or not.' Account Stated. § 269. So soon as an account is stated, the case ceases to be exempt- from the limitation, with respect to accounts between merchants and merchants, or their factors, and the statute begins to run from that time.^ 4-n account is stated not when it is made out by one of the parties and submitted to the other, but when it is accepted by the other. And it may be accepted, not merely expressly, but tacitly, by not dissenting in a reasonable time.* In case of fraud on the part of the party making out the account, e. g. if, being 'Marseilles v. Kenton, 17 Pa. St. 238. The note read, " I promise to pay Peter Marseilles $1,000 (for which' he has advanced on twenty- four dozen seal-skin caps, for E. Brown,, which is in my hands), and to be paid on or before the 9th of November, 1838. Levi Kenton.'' ^Bevan v. Cullen, 7 Pa. St. 281; Thotnpson v. Fisher, 13 Pa. St. 310. The representative of a merchant at a distant port, e. g. Canton, China, whether he be called derk, agent, Jador or attorney, if he receives goods to dispose of for his principal, has an account to settle, and is within the rule that, while, the statute of limitations does not run in his favor or against him until an account 8tated, it begins to run so soon as an account is stated. Thompson v. Fisher, gupra. "Bevan v. Cullen, 7 Pa. St. 281; Thompson v. Fisher, 13 Pa. St. 310. It is not necessary that the p^arties sign . the account to make it an account stated. Bevan v. Cullen, supra. When A. renders to B. an account, showing payments made for B. and B. returns no objection, this makes the account prima facie evidence that the payments so claimed were made. But when, six days after the account is rendered, A. enters into an independent contract to pay B. $6,000 by a certain date, there is no implication that there is an inten- tional application of the balance due on the account to A. by B., to the recently contracted debt. Hence, in an action by B. on the contract, more than six years after the ac- count was rendered by A., A. cannot set off the balance, nor treat it as having been applied as partial pay- ment to B.'s contract debt. Verrier V. Guillou, 97 Pa. St. 63. 370 ■ LAW OF LIMITATIONS. I factor in Mexico for the merchant in Pennsylvania, he includes in his credits sums alleged to have been paid by hirn to the Mexican government, as duties on the goods consigned to him, which sums are in excess of those actually , paid, or if he takes creidit for excessive commissions under circumstances under which his principal could not be aware of the excess, the latter would be entitled to a reasonable time after discovery of the -facts, in order to dissent from the account.' But when the factor rendered an account, em- bracing claims for duties paid,^ and for commissions,^ and showing a balance»due the principal, which in one case was transmitted to him and. received and acknowledged 13th May, 1834, without dissent,* and in the other, in April, 1827,° an ac- tion to recover, beyond the balance, alleged excessive charges for commissions and duties, iu the former case brought 29th June, 1840^ and in the latter (to recover an excess of com- missions),'- brought in 1845, was too late.® A factor who has received goods on consignment, is bound to pay over the proceeds and the merchandise not sold, on demand. An ''Bevan V. Cullen, 7 Pa. St. 281. party for the factor to render an ac- But, to take advantage of the fraud, count to, and his non-dissent will it must be specially replied by the make it an account stated. Id. plaintiff who seeks to undo the ac- When A. had made an advancement count by recovering from the factor for the goods sent abroad, and was the excess of credits for duties and entitled to the first net proceeds till commissions. If defendant pleads re-imbursed,and the residue belonged non assumpsit infra sex annos, a reply to B., it was said that A. was the of merchants' account will not ad- Ze^rdZ owner of the goods, and to him mit proof of the fraud for the pur- the factor was to account, and not pose of authorizing a tardy dissent to B., who simply had an equity, from the account, after it has been An account sent to A. and not dis- accepted. sented from, would become stated, ^Bevan v. Cullen, 7 Pa. St. 281. even as against B. Bevan v. Cullen, 'Bevan V. Cullen, 7 Pa. St. 281; 7 Pa. St. 281. Thompson v. Fisher, 13 Pa. St. 310. * Whether a partnership account, 'Bevan'w. Cullen, 7 Pa. St. 281. after dissolution, is an account be- '^ Thompson ii. Fisher, 13 Pa. St. tween merchant and merchant, not 310. When the principal has made decided; the pleadings did not prop- an assignment for the benefit of erly raise the question. McKelvy's creditors, the assignee is the proper Appeal, 72 Pa. St. 410. ~ LIMITATIONS TO PERSONAL ACTIONS. 371 action for an accounting does not lie till a demand be made, and from that time the statute runs.' Partnership Account. § 270. When a partnership is formed for a single trans- action, on the completion of this transaction the relation? terminates. If one of the partners receives the money for the work at its termination, the other has an immediate- right of action for his share, and the statute of limitations, begins then to run, whether as against an action of as- gumpsit, or of account-render, or against a bill in equity.^ Except as against a liquidating partner,^ the lapse of six: years from dissolution of a partnership will bar a bill in equity,* or an action for an account, though the dissolution take place by an assignment in trust for the benefit of cred- itors,® or otherwise, before the time limited in the articles- of copartnership for such expiration. Nor does the fact that one of the partners is, by the articles, charged with the- duty of attending to the commercial and financial branch of the business — that of manufacturing steel — constitute him,, on dissolution, ipso facto, the liquidating partner, so as to- expose him to a suit longer than six years.* Though the plaintiff" has, within six years before filing his bill for ait account,, paid debts of the firm, this will not entitle him to- a general account, more ' than six years since dissolution, having elapsed when the bill is filed, but he might have an, action for contribution.' Until the close of the partnership,. 'Hamilton v. Hamilton's Ex., 18' to compel an account having been. Pa. St. 20. ' taken iu the meantime. ' Hamilton v. Hamilton, 18 Pa. St. ' McKelvy's Appeal,,72 Pa. St. 409 p 20. In Wetham v. Pa. and N. Y. Wetham v. Pa. and N. Y. Canal andi Canal and Railroad Co., 9 Phila. 284, Eailroad Co., 9 Phila. 284. Agnew, J., says that Hamilton v. *Ihid. Shelmire's Appeal, 70 Pa.- Hamilton decides that the statute of St. 280. limitations runs by analogy against *M6Kelvy's Appeal, 72 Pa. St. 409:- a bill in equity for a partnership ac- '/d. count, in six years after dissolution, ''Ibid. One partner paying a firn* as against a partner who is not a debt after six years had run since- liquidating partner, no proceeding dissolution, being compelled to do 372 LAW OF LIMITATIONS. the statute of limitations does not run against a bill or action of account-render to settle a partnership business, however long the time over which this business has run. Hence, a bill in equity, filed in 1874, to settle the account of a part- nership for farming land, and for purchase and sale of lands, formed in 1853, was not barred.^ An acknowledgment or admission of liability to account would give a new start for the period of limitation. Thus, an agreement was made between the parties to submit the account to referees, and less than a year thereafter, an award was made of a certain sum of money to the plaintiflF. This being-discarded, another reference was made, the proceedings under which lasted three years, and resulted in an award to the plaintiff. The defend- ant repudiated it. A few months afterwards, the bill in equity was filed. It was held that since, during the references, defendant had expressly or impliedly declared his entire willingness to account, the running of the statute was sus- pended. After a party has been delayed for six years by references, -it would , be inequitable to allow his opponent to turn round and deny all liability for an account, or to main- lain that the bill for an account is barred.^ 80 by a judgment recovered in an ' land, the title to which was taken in action against him brought in time, the name of one of the partners, ■could recover contribution in as- still if, on sale of the land, the part- aumpsit. He would not be put to a ner in whom was the legal title bill for a general account, for after admitted a partnership, the partner- «ix years from the dissolution there ship as to the proceeds could be lis a presumption that the partner- enforced and the right to share .fihip accounts in general have been therein secured to the plaintiff by a settled in some way, till this pre- bill for an account. Though the sumption is overthrown by some sale took place more than six years evidence. Brown v. Agnew, 6 W. & before filing the bill, the defendant S- 235. could be compelled, to account for 1 Everhart's Appeal, 106 Pa.St. 349. its proceeds, if the bill was filed less Though a parol contract of partner- than six years after dissolution, ship for the purchase and sale of '' Shelmire's Appeal, 70 Pa. St. 280. land might not be enforceable as to MMIXATIONS TO PEKSONAL ACTIONS. . 373 CHAPTEE XI. CAUSES OF ACTION NOT SUBJECT TO LIMITATION. Statute Inapplicable. § 271. The language of the act of 27th March, 1713, limits its operation to certain enumerated actions. This notwithstanding, that act has been by analogy judicially extended to proceedings in equity in the Orphans' Court, in distributions of assigned estates in the Common Pleas, &c- There are, nevertheless, cases to which, by its own letter,, the limitary bar is restrained from applying. Thus, the- limitation as to actions of debt is confined to such actions "upon any lending or contract without specialty." Th& limitation does not,, therefore, extend to any contract . evi- denced by a specialty. By specialty is meant an instrument, under seal,^ e. g. a bond,'^ or the coupon originally attached to a bond, though itself unsealed and cut off from the bond for the purpose of demand of payment and action,^ or a note under seal,* or an order on the treasurer of the borough to pay money, signed by the president of the town council^ attested by the secretary and sealed with the borough seaL*^ A railroad company agreed, under seal, with the county, of Allegheny, that if the latter should subscribe for stock in it, paying for the stock in bonds of the county, it would pay 'Green and Coates Street Railway 'Penrose v. King, 1 Y. 344; Gar- Co. V. Moore, 64 Pa. St, 79 ; Patterson v. diner's Estate, 18 W. N. C. 148. Nichols, 6 W. 379; Gardiner's Estate, ' Helmbold v. D., H. and W. Rail- 18 W. N. C. 148; Ake's Appeal, 74 road Co., 14 W. N. C. 128; Wain- v. Pa. St. 116; Morris v. Hannick, 10 Huntingdon and'Broad Top Railroad Phila. 571 ; Pittsb. and Connellsville Co., 40 Leg. Int. 190. Railroad Co. y. County of Allegheny, * Keyes' Appeal, 65 Pa. St. 196. 68 Pa. St. 126. *Port Royal Borough v. Graham, 4W. N. C. 352. S74 LAW OF LIMITATIONS. "dividends equal to the interest accruing on: these bonds during the thirty years before whose expiration they were not to mature. The stock was subscribed, and tha certificates, issued therefor, though not under seal, recited the terms of -the agreement. The statute of limitations did not apply to an action by the county against the railroad company for failing to pay the stipulated dividends.^ A sealed contract was made , for the conveyance by A. of his undivided one- half of certain land to B. A.'s co-tenant, C, having taken more than his share of the timber already cut, an unsealed memorandum was written on the back of the contract, that B. was to have so much timber as was necessary to equalize liim with C, hauled by A., without expense, and thereafter his equal share of the timber cut with C. Subsequently, in another writing, under seal, A. bound himself to comply w;ith all the conditions of his agreement. It was held that though the unsealed indorsemen,t may have made the whole -agreement parol, the subsequent sealed recognition of the previous agreement restored to it the character of specialty. Hence, for timber cut by A. after the agreement, for which he had not accounted, B. was entitled not only to a set-off against the purchase-mouey due, on a bill to enforce conyey- ance, but also to a decree for any excess of the value of the titnber for which A. should account, beyond the unpaid purchase-money.^ Statute Inapplicable — Continued. § 272. The statute of limitations does not bar an action for rent, secured by a lease under seal for a term of years,' or a ground-rent deed,* whether the action be debt or cove- ^ Pittsb. and Connellsville Railroad ' Davis v. Shoemaker, 1 R. 135. •Co. V. County of Allegheny, 63 Pa. St. *Elkinton v. Newman, 20 Pa. St. 126. 281. Against an action against the ^Ake's Appeal,-74 Pa. St. 116. But equitable owner of the land, for lithe excess could not be recovered in arrears of rent more than six years A proceeding for specific perform- old, the statute is not a defense. ;ance of deceased vendor's contract, iin the Orphans' Court. LIMITATIONS TO PEESONAL ACTION'S. 375 nant,^ but for rent secured by a lease in parol the action is subject to the limitary bar.* A note with a' scrawl for a seal is a specialty in Pennsylvania. If, made in New York, where such a scrawl is not a seal, it is brought into this State to be sued on, it will be regarded as a specialty. Though the action on the instrument would be barred in New York, it will not be here.^ When there is a dispute as to the defend- ant's having affixed the seal to the note, the determination of the question will of course be necessary to the decision as to the applicability of the statute of limitations to the con- tract.* The obligee's consenting, for seven or eight years after the maturity of the bond, to receive the interest on it, does not estop him from asserting its exemption from the statute of limitations, though the executors of the obligor, several years before filing their account, had made distribution of the assets among the next of kin, they having paid thei-- interest on the bond to the time of this distribution, and the next of kin paying it afterwards. The administrator may be surcharged with the amount of the bond.^ The statute of limitations does not apply to actions on a debt of record ; e. g. to actions of debt on a judgment rendered by the United States District Court for th6 District of Mississippi,^ or by a justice of the peace in the State of New York,'' or by a court in the Island of Barbadoes.* Nor does it apply to a sdre 'Davis V. Shoemaker, 1 R. 135. enoe to the avoidance of the note To an action of covenant, e. g. for by unauthorized alteration, though the purchase-money of land by the more than six years had run since vendor (Eane v. Fisher, 2 W. 246), or the death of the debtor whose estate for damages for vendor's fail^ire to was undergoing distribution in the convey (Leinhart v. Forringer, 1 P. Orphans' Court. & W. 492), the statute does not "Gardiner's Estate, 18 W. N. C. apply. 148. * Davis V. Shoemaker, 1 R. 135; » Rogers «. Burns, 27 Pa. St. 525. Stover v. Cadwallader, 2 Penny. 117. ' Loveland v. Davidson, 3 01. 377. ' Watson V. Brewster, 1 Pa. St. 381. 'Richards v. Bickley, 13 S. & R. * Linn's Estate, 2 Pears. 487. In - ' 395. But when A., in purchasing this case the authenticity of the seal B.'s land, on which C.'s judgment was considered simply with refer- against B. is a lien, agrees with B. 376 LAW OF LIMITATIONS. facias on a judgment for the defendant, whicli carries costs. This judgment will support a scire facias issued more than six years after its rendition.^ When, in proceedings in par- tition, the widow's third is charged on land, the charge is a debt of record, and the statute of limitations bars neither an action of debt nor of assumpsit to recover the principal, though more than six years have run since the death of the widow.^ A sale in partition having been made by the administrator, who charged himself with one-third of the ftind, in 1811, a petition by the widow, in 1831, for a cita- tion to him to pay her the interest in arrears, was not barred.* An action of debt on. an award, though made under a parol submission, is not within the statute.* An appraisement, however, directed to be made by the charter of a passenger railway company to ascertain the price at which the company may, with the consent of the owner of and C, in part payment of the pur- chase-money, to pay the judgment, the action against A. on this promise ia subject to the statute of limita- tions. Strawn v. Hook, 25 Pa. St. 391. When a judgment for the prin- cipal, in ten annual installments, is confessed, but separate notes with- out judgment are given for the interest, the statute of limitations will run against the notes for inter- est, though not against the judgment for the principal. Moore v. Kiff, 78 Pa. St. 96. A note not under' seal with warrant of attorney to confess judgment is subject to the statute until the judgment ia actually en- tered. If more than six years elapse before the judgment is entered, the court may open it for the purpose of allowing tl>e defendant to plead the statute. Herman v. Einker, 106 Pa. St. 121 ; Sossong v. Rosar, 112 Pa. St. 197; Kempner v. Laney, 14 Phila. 646. Nay, the court should open the judgment. Ellinger's Appeal, 44 Leg. Int. 135 ; Ellinger v. Fletcher, 5 Cent. Eep. 715 ; Sickler y. Sickler, 2 Pa. C. C. Rep. 313; Chandler v. Bennett, 3 Pa. C. C. Rep. 155. 'Stewart v. Peterson, 63 Pa. St. 230. When a domestic judgment is used as a set-off against the distribu- tive share of the defendant therein, in the estate of tjie deceased plain- tiff, his father, the statute does not run against it. Drysdale's Appeal, 14 Pa. St. 531. ^ De Haven v. Bartholomew, 57 Pa. St. 126. "Dillebaugh's Estate, 4 W. 177; Morris v. Hannick, 10 Phila. 571. The decision was on the ground of trust. *Green and Coates Street Passenger Railway Co. v. Moore, 64 Pa. St. 79 ; Rank v. Hill, 2 W. & S. 56; Morris V. Hannick, 10 Phila. 571 ; Richards V. Bickley, 13 S. & R. 395. LIMITATIONS TO PERSONAL ACTIONS. 377 a line of omnibuses running over the contemplated route, take the stock of this individual, is not an award. It is a mere mode of determining the price at which,' by voluntary- consent of both, the purchase and sale may take place. The statute of limitations ran against an action for the price, from the day of the msiking of the appraisement, when the duty of paying began.' As to assessments on property-owners benefited by the opening of streets, under the act of 22d April, 1856, (P. L. 525,) the assessments made by viewers being reported to court and confirmed, the statute of limita- tions does not run.^ When the account of a committee of an habitual drunkard is settled in the Common Pleas, ascer- tairiing a balance, to be due the committee, and the account is confirmed, the committee may use this balance in set-off in an action for a debt due by him brought after restitution of his property, by the former habitual drunkard, or his admin- istrator, nine years after the confirmation of the account.* To a scire facias issued in 1852, on a transcript filed in the Common Pleas in 1832, of a decree of the Orphans' Court, ascertaining a balance (on settlement, in 1821, of the account of administrators) to be due the estate, the lapse of six years cannot be urged as a defense.* Statute Inapplicable — Continued. § 273. Actions on the case,^ or of debt,* against the exec- utor for legacies, are not within the operation of the statute of 27th March, 1713,^ though actions against the devisee, who has accepted the land devised, and thereby, under the 'Green and CoatesStreet Passenger ville v. Holliday, 1 W. 507; Etter v. Railway Co. v. Moore, 64 Pa. St. 79. Greenawalt, 98 Pa. St. 422 ; Morris v. ' Sewickley v. Watson, 26 Pittsb. L. Hannick, 10 Phila. 571. J. 109. 'Though six years elapse since ' Vincent v. Watson, 40 Pa. St. 306. the settlement of the executor's ac-- * Burd's Ex. v. McGregor^s Adm., 2 count, showing a balance due the Gr. 353. estate, the action for the legacy is *Doebler v. Suavely, 5 W. 225. not barred. Foulk v. Brown, 2 W. • Foulk V. Brown, 2 W. 209 ; Thomp- 209. son V. McGaw, 2 W. 161; Summer- 378 LAW OF LIMITATIONS. will, assumed the duty of paying a sum of money to the plaintiff, are subject thereto.^ An action on the case for a distributive share in an intestate decedent's estate was, when such shares were recoverable by action, exempt from the statute.^ The lapse of six years ■ from the making of an advancement, does not bar the setting of it off against the distributive share of the person advanced in the decedent's estate.^ After a judgment has been recovered against an executor or administrator for decedent's debt, and he com- mits a devastavit, in an action of debt charging him there- with, the statute of limitations does not apply/ " It may be well doubted whether, under our acts of Assembly, any incorporated company can set up the statute of limitations against a stockholder's dividends. It certainly cannot be done until after a demand and refusal, or notice to a share- holder that his right to dividends is denied."® The statute does not apply to municipal liens in Philadelphia, for curb- ing, paving, &c.;° nor to assessments on property fronting ^ Etter V. Greenawalt, 98 Pa. St. 422. A. died, bequeathing to his widow Though the statute of limitations the interest for life on all his estate, does not run in a proceeding in the Long before her death the heirs Orphans' Court to compel the execu- agreed that the share of one of tor to file an account, with a view to them, B., should be advanced to coerce the payment of a legacy, the him, he agreeing to pay the widow twenty years' presumption does, the interest on it. To protect the Bentley's Appeal, 99 Pa. St. 500. executor, B. gave him a note for the ^Patterson v. Nichol, 6 W. 379; amount advanced. On the death of . Logan D. Richardson, 1 Pa. St. 372; the widow and distribution of the Pennypacker v. Pennypacker, 2 01. estate, the fact that B.'s note to the 114. Distributive shares are now executor was more than six years exclusively recoverable in the Or- old did not preclude the setting up phans' Court. Commonwealth v. of the sum advanced to him against Snj'der, 62 Pa. St. 153. A petition his claim for a share in the estate, for a citation to an adminstrator to Pillipg's Appeal, 3 W. N. 0. 252. file an account aa a step towards * Williams v. Freeman, 7 W. & S. securing a distributive share, is not 359. subject to the statute of limitations. 'Phila., Wilm. and Balto. Railroad Criedland's Estate, 2 Phila. 379. Co. v. Cowell, 28 Pa. St. 329. ' Hughes' Appeal, 57 Pa. St. 179; ^Council v. Moyamensing, 2 Pa. Levering v. Rittenhouse, 4 Wh. 130. St. 224. LIMITATIONS TO PERSONAL ACTIONS. 379 on streets, for grading and paving, under the act of 16th May, 1857, (P. L. 641,) authorizing the councils of Pittsburgh to grade and pave streets.^ Both the action of dower unde nihil habet^ and a bill in equity^ for the assignment of dower and the recovery of past arrears, are exempt, as to the arrears, from the limitation of the act of 29th March, 1713. Arrears for more than six years may be recovered. Statute Inapplicable — Continued. § 274. Easements are not within the act of 27th March, 1713, but, as interests in land, are subject only to the bar of twenty-one years' practical denial. Thus, the right of the owner of a lower tract of land, that the surface of the higher tract shall not be so changed as to increase, injuriously, the quantity of water cast on the lower tract, is not barred by the lapse of six years from the time the alteration in the surface of the servient land -is made.* The title to the possession of l^nd is not barred by adverse possession for six years.^ If a railroad company enters on land and takes it for a road-bed, without a legal appropria- tion and assessment of damages, neither an ejectment to recover the possession,* nor a petition for the appointment of viewers to assess damages for the ' taking (the effect of which assessment, followed by payment, is to transfer the right for the future to the occupancy of the soil), will be barred in six years from the unlawful en try. ^ So, when the 'Magee v. Commonwealth, 46 Pa. and Chicago Bailroad Co., 66 Pa. St. St. 358. 404. ^Seaton v. Jamison, 7 W. 533. «/d. - Arrears -for nineteen years were ' McClinton v. Pittsb., Ft. Wayne here recovered. and Chicago Railroad Co., 66 Pa. St. 'Merrill's Appeal, 16 W. N. C. 491. 404; Delaware, Lacka. and Western * Stout V. Kindt, 24 Pa. St. 449. Railroad Co. v. Burson, 61 Pa. St. For each particular flooding, result- 369. But damages for the unlawful ant from the change of the surface taking and use of the land, prior to of the servient land, the action will the proceedings to transfer the right, bebarred in six years from its Ijiap- would, as in other cases, be barred pening. in six .years from their accruing, " McClinton v. Pittsb., Ft. Wayne whether these damages were sought 380 LAW OF LIMITATIONS. borough of West Chester, authorized by the act of 16th April, 1838, to furnish^ its inhabitants with water, in 1854 constructed works on upper riparian lands, and diminished the flow of the water of the stream through the lower land, a petition, filed 10th .December, 1866, by the owner of this lower land, for the assessment of damages for the permanent future-diminution of the water-supply, was not barred.^ The lapse of twenty-two years from the infliction of damage by the construction on and over the plaintiff's lands of a canal, before the petition for a venire for the assessment of damages was filed, did not bar the proceeding, the presumption of payment being rebutted.^ CHAPTER XII. TRUSTS. Ijimitation as to Trusts. § 275. That the statute of limitations does not apply to cases of trust and fraud, is familiar law. But the cases of trust, of which this is true, are such as are characterized by all of the following notes : (1) they are direct and con- tinuing ; (2) they are exclusively cognizable in equity ; (3) the question concerning them arises between the trustee and in the statutory proceeding, as, with not suggest whether six years would the consent of the parties, they bar recovery for any such past dam- might be, (McClinton v. Pittsb., Ft. ages. Cf. femarks on this case in Wayne and Chicago Eailroad Co., McClinton v. Pittsb., Ft. Wayne and gwpra,) orwere pursuedin a common- Chicago Railroad Co., 66 Pa. St. 404. law action for trespass, e.g. an eject- ^ Union Canal Co. v. Woodside, 11 ment in which mesne profits are Pa. St. 176. Land of A. was pccu- claimed. Borough of Harrisburg v. pied by a railroad bridge in 1836, Crangle, 3 W. & 8. 460. and continuously to 1848, when A. ^Hannum v. Borough of West filed a petition for the appointment Chester, 63 Pa. St. 475. Sharswood, of viewers, under the act of 2d April, J., intimates that the common law 1831, to estimate the damages. The remedy for past damages was merged petition was held barred, its func- in the statutory proceeding, but does tion, said Lowrie, J., being that of LIMITATIONS TO PERSONAL ACTIONS. 381 the cestui que trust} It is not enough that the trust should be direct. It must, in addition, fee a technical and continu- ing trust, solely cognizable in equity, and falling within the peculiar and exclusive jurisdiction of chancery.^ Hence, there are many cases of direct and express trusts to which, there being a full remedy at law either exclusive of,^ or concurrent with equity ,'the statute of limitations has application.* Thus, it applies to an action against an attorney-at-law for, moneys collected for the plaintiff b^ him,® to an assumpsit by A., after reaching twenfy-five years of age, against C, to whom !B. had, shortly after A.'s birth, assigned a judgment and other securities to hold in trust for' A.° Every deposit is a direct trust ; every person who receives money to be paid to another, or to be applied to a particular purpose, is a trustee. The cases of hirer and letter to hire, borrower and lender, pawner and pawnee, principal and agent, are all cases of express trust, yet they are not taken out of the operation of the statute of limitations, at law or ip chancery.'' A. puts the action of trespass at common Zacharias, 23 Pa. St. 452; Keller •«. law. As the latter would have been Rhoads, 39 Pa. St. 513; Downey v. barred, so would the petition. This Garard, 24 Pa. St. 52; Lyon v. Mar- case is discredited in Delaware, clay, 1 W. 271 ; Finney v. Cochran, Lacka. and Western Railroad Co. v. 1 W. & S. 112; Glenn v. Cuttle, 2Gr. Burson, 61 Pa. St. 369. 273 ; Hoakins v. Lindsay, 1 Del. Co. » York's Appeal, 17 W. N. 0. 33; Rep. 249; McEwen v. Girard, 2 R. Warner's Estate, 2 Wh' 295 ; Lyon «. 311; Campbell v. Boggs, 48 Pa. St. Marclay, 1 W. 271 ; Mellish's Estate, 524; Emaus Orphan-House v. Ken- 1 Pars. Eq. 482 ; McCandless' Estate, dig, 1 Pears. 34. 61 Pa, St. 9. ■ 5 Lyon v. Marclayi 1 W. 271 ; Glenn ^Zacharias v. Zacharias, 23 Pa. St. v. Cuttle, 2 Gr. 273. 452; Barton v. Dickens, 48 Pa. St. 'Lyon u Marclay, 1 W. 271. 518 ; Derrickson v. Cady, 7 Pa. St. 'App v. Driesbach, 2 R. 287 ; Fin- 27.; Glenn v. Cuttle^ 2 Gr. 273; App ney?). Cochran, 1 W.&S.112; Neely's V. Driesbach, 2 R. 287 ; Lyon v. Mar- Appeal, 85 Pa. St. 387 ; City Cavalry clay, 1 W. 271. v. Morris, 3 Leg. Gdz. 77.- A sale of' ' Sankey v. McElevey, 104 Pa. St. chattels with the understanding that 265 ; Barton v. Dickens, 48 Pa. St. the title is not to vest till the price 618., is paid, possession meantime to be *App V. Driesbach, 2 R. 287 ; Man- had by the vendee. The statute of V. Warner, 4 Wh. 454 ; Zacharias v. limitations runs against the vendor's 382 LAW OF LIMITATIONS. money in B.'s hands to take care of it for him and lend it out on interest. Some of it was lent to C, B.'s son, before 1827 ; some of it having been lent to D., D. paid it, after B.'s death, to B.'s executor, who, in 1832, paid it over to C. An assumpsit brought in 1851, by the executor of A. against C, was barred, because, though there was a direct trust, the money was recoverable in assumpsit, an action at law, and the right of action existed at any time after C. received the money .^ A. being surety for B. on B.'s bond as committee of a lunatic, and desiring to be released from the bond, be- cause B. is about to get possession of additional money of the lunatic, it is agreed that C shall get this money and keep it till A. gives order to pay it over to B. C. gets it, and pays it over to B., without A.'s order : B. misappropriates it. Though, in a certain sense, C. was a trustee of the money for A., yet, as the trust was not exclusively enforce- able in equity, but could be enforced in assumpsit, the stat- ute of limitations was applicable.^ If the maker of a note replevin to recover possession within country had a right to demand the six years from the time the vendee money till the administrator was ap- made default in paying the pur- pointed. As to the first ground, chase-money. Barton v. Dickens, this case is overruled by Zachariaa v. 48 Pa. St. 518. Zacharias, supra. Huston, J., says of 'Zacharias v. Zacharias, 23 Pa. St. Johnston v. Humphreys, '"No doubt 452. In Johnston v. Humphreys, 14 that decision is correct, but whoever 8. & R. 394, money accruing to A. reads that case will see that it was after his death (by the rescission of taken out of the statute by more a contract for the purchase of land, than one of the facts proved." Man made by the vendor after A.'s death, i). Warner, 4 Wh. 454. Woodward, whereby A.'s estate became entitled J., says that in common-law actions to a return of the purchase-money the reasoning of this case has not paid), was received by B. on • an been followed. Fleming v. Culbert, undertaking to transmit it to A.'s 46Pa. St. 498; cf. Harper's Estate, 1 next of kin in Ireland. B. retained Brewst. 471. the money. Some years afterwards, ' Keller ■«. Rhoads, 39 Pa. St. 513. an administrator to A's estate was The action, however, was not barred raised up, and suit for the money because the right of action had not brought two years thereafter. The begun till C. improperly paid the statute was held not to apply (1) be- money over, less than six years be- cause the case was one of direct fore A.'s suit. , trust; (2) because nobody in the LIMITATIONS TO PERSONAL ACTIONS. 383 assigns to his accommodation indorser or surety, bonds or judgments payable to himself, as collateral security, the assignee is, with respect to any surplus collected on the bond or judgment, beyond the debt, a trustee, but the trust being enforceable at law, in assumpsit, is subject to the oper- ation of the statute of limitations, which will run from the time the money is collected in excess of the debt for which the assignee is liable.^ Limitations as to Trusts — Continued. § 276. The sheriff is, with respect to the defendant in the execution, a trustee for any surplus moneys realized from the sale in execution beyond the debt, but being suable at law, he is protected by the statute in six years from the time he ought to have paid over the excess to the defendant.* Though an attorney-at-law, to collect a note, may be con- sidered a trustee, with respect. to the collection, the trust is not such as is exempted from the statutory limitation.^ The receipt by one of two attorneys, who have co-operated in a case, of the whole of the fee earned therein, under an agree- . ment that each is to have one-half of it, does not make such a trust as exempts from the statute the action of assumpsit by one of them to recover his share of the fee from the other.* A. having contracted to sell land to B., but being indebted on judgments on which his title is g,bout to be sold, procures C to buy in the land at the sheriff's sale, to receive from B. the purchase-money and make conveyance, and to pay to A. any excess of purchase-money over his outlay. A.'s action for this excess against C. is within the statute.^ If the sole tenant of the legal title to land, affected as to an undivided half by a resulting trust for another, sells the * Finney D. Cochran, 1 W. & S. 112 ; fact that he had been attorney to Bickel's Appeal, 86 Pa. St. 204. collect it from the maker, did not ^Alexander v. Leckey, 9 Pa. St. deprive him (if the benefit of the 120. ' statute of limitations. • 'Alexanderw. Westmoreland Bank, * Webster v. Newbold, 41 Pa. St. 1 Pa. St. 395. The attorney in this 482.' case was indorser of the note. The ' Davis v. Steiner, 14 Pa. St. 275. 384 LAW OF LIMITATIONS. land, the statute will probably run against an action by the cestui que trust to recover his share, but only from the .receipt of notice of the sale.^ Implied trusts are within the statute of limitations.^ Thus, if a debtor devises his land to B., whom he makes executor, and couples with the devise an authority to the executor to sell enough land to pay his debts, though chancery in England would compel B.'to sell land to pay the debts, and would, in order to assume jurisdiction, treat him as a trustee, it would do so on the ground of an implied trust only. Such a trust would not prevent the statute of limitations from running against debts of the testator in an action for their recovery.* Constructive Trusts. § 277. Constructive trusts are within the statute,* e. g. the trust which affects a director in a corporation with respect to its personalty sold by him, and bought by him for himself;^ or with respect to the excess of price at which a director, having purchased land for the corporation, but taken the title to himself, sells it to the corporation;* or the trust which affects an attornfey-at-law, who, at the sheriff's sale on the execution issued by him, purchases the bank stock of the defendant, in his own name, for less than the debt ;^ or the trust which affects the pledgee, who, at his own sale of the pledge, has ' Fox V. Cash, 11 Pa. St. 207. But sell lands to pay debts does not raise when A., having contracted to sell a trust which suspends the running land, died, bequeathing to B. and C, of the statute, was not decided in in equal shares, all. her personalty, Rush v. Fales, 1 Phila. 463. and subsequently to her death the ^Spering's Appeal, 71 Pa. St. 11. title being conveyed, B. received the But when an executor invests the purchase-money, it w^s decided that trust funds in stocks, the statute of the statute of limitations did not limitations does not prevent the ce»- run against C.'s action to recover his tui que trust insisting on his account- share. Durdon i). Gaskill, 2 Y. 268. ing for the stocks, when, many years ' Walker v. Walker, 16 S. & R. 379 Mellish's Estate, 1 Pars. Eq. 482 Musselman v. Eshleman, 10 Pa. St, after their purchase, he settles his account. Norris' Appeal, 71 Pa. St. 106. 394. 'Ashhurst'S Appeal, 60 Pa. St. 290. 'Agnew V. Fetterman, 4 Pa. St. 56. " Evans' Appeal, 81 Pa. St. 278. Whether a direction to executors to ' Downey v. Garard, 24 Pa. St. 52. LIMITATIONS TO PERSONAL ACTIONS. 385 become the purchaser without actual fraud/ The rule is settled that the statute is applicable only to express trusts or those which are mere creations of courts of equity, with some exceptions of implied trusts in favor of, infants and perhaps other cases of legal incapacity.^ It does not apply to constructive trusts resulting from partnerships, agencies and the like;^ and even in the case of express trusts, the- statute is inapplicable only to claims and litigation between the cestui que trust and the trustee, regarding the trust property.* Trusts for Creditors. § 278. Trusts of various kinds may affect certain property in favor of creditors, and, as to this property, exempt their debts from the operation of the statute. Thus, a testator may create a trust of all or some of his real estate, for the payment of debts, and, as to such lands, the debts would not, subsequently to the inception of the trust, lose their right to be paid.* Debts barred at the testator's death, unless he expressly ordained the contrary, would not be rehabilitated so as to share in the trust, but the debts against which the statute had not then completely run, would no longer be subject to it.* Yet this doctrine, though formerly extended 'Morrell v. Trotter, 12 W. N. C. th'fe property; the plaintiflF was non- 143, suited, more than six years having " Webster's Ex. v. Newbold, i41 Pa. elapsed since the alleged conversion. St. 482. Trump v. Lane, 1 W. N. C. 101. ' Pattei:son v. Nichol, 6 W. 379. In * York's Appeal, 17 W. N. C. 33 ; , anactionbyA.againstH. hedeclared Kush ii. Fales, 1 Phila. 463; Lyon v. that.havinga judgment against G. & Marclay, 1 W. 271; Johnston v. Co., in which H. was a special part^ Humphreys, 14 S. & K. 394; Cul- ner, it was agreed that H. should bert v. Fleming, 5 Leg. & Ins. Eep. take the property of the firm in 19. trust to pay the debts, but that, in- ^Oliver's Appeal, 101 Pa. St. 299; stead of so doing, H. had taken the Alexander!). Murray, 8 W. 504; Eush. property and converted it to his own v. Fales, 1 Phila. 463. use. At the trial there was no evi- *Agnew v. Fetterman, 4 Pa. St. 56 ; dence of a trust other than that H. Reed v'. Marshall, 90 Pa. St. 345. had, as liquidating partner, taken 386 LAW OF LIMITATIONS. to the trust which attaches to the personal property of a decedent in the hands of his executor or administrator, is no longer so applied, for debts not barred at his death may be barred by the time which runs subsequently to his death, added to that which preceded it, not only as against actions at common law against the executor or administrator, but also as against the personal fund for distribution in the Orphans'' Court,' A debt not barred when a voluntary assignment in trust for the benefit of creditors,^ or an assignment in insolvency,* is *ihade, would no longer be subject to the operation of the statute as to the~ assigned property. A debt secured by a pledge or lien may be barred, as to a personal action directly upon it, and not barred in rem.* The creditor may retain the chattel in his possession until he is paid, because though the direct remedy upon the debt is barred, the debt itself is not extinct. But where there is simply a right in the creditor to be subrogated tO' a surety's indemnity (chattels in the possession of the surety), or to a, right growing out of a contract for a lien, the barring of the debt destroys all remedy of subrogation.* 1 York's Appeal, 17 W. N. C. 17, Appeal, 43 Pa. St. 23, "it may be 33. In Bush v. Fales, 1 Phila, 463, that if a thing he pledged to secure it was said, with respect to testa- the payment of a debt, the pledgor mentary trusts, that, as to debts may recover it from the pledgee older than six years, the estate at after the debt has been barred by the large would not be responsible, even statute of limitations, or presumed if the property put within the trust ~ to be paid from lapse of time." Cf. T^ould be. Hence, in an action Barnholt v. Ulrich, 11 W. N. C. 51, against the executor, the statute where, since a debt for which the might be a bar when it would not legal title was retained as security be in a proceeding against him as was barred, the tenant of the legal a testamentary trustee. title was compelled to convey it 'Mitcheltree 1). Veach, 31 Pa. St. without reimbursement. 455; Finkbone's Appeal, 86 Pa. St. 'Marseilles v. Kenton, 17 Pa. St. 368; Reed v. Marshall, 90 Pa. St. ' 238. A note drawn by B. and indorsed 345. for his accommodation by A., was » Power V. Hollman, 2 W. 218 ; discounted by the bank in which B. Bunn V. Drovin, 2 Phila. 306. was a shareholder. A. paid the note *Mitcheltree v. Veach, 31 Pa. St. more than six years after it became 465. Yet, Strong, J., said in Moss' due, under the constraint of an exe- LIMITATIONS TO PERSONAL ACTIONS. 387 The lien of a bank or otter corporation on the capital stock therein of its debtor is not lost by such lapse of time as would preclude a recovery of the debt by a personal action. The lien can be asserted against the debtor stockholder or one to whom' his stock has been sold contractually or in execution.' A mortgage of land remains valid, notwith- standing the statutory bar of an action on the note which it was given to secure, the mortgage being a legal title and the mortgagor being compelled to resort to equity to redeem.^ The lien of an attorney upon papers or other property of his client continues, notwithstanding his claim is barred by the statute.* The converse doctrine that the existence of a pawn or pledge for a debt does not prevent the application of the statute to a direct proceeding for the debt, is already implied,* e. g. where caps were pledged for a debt;^ or where, at the vendee's direction, A. paid the vendor the residual purchase-money and received the deed to the yendee to retain as security for the' repayment of the advance.^ If one who is indebted on acceptances and promissory notes, gives as collateral security a judgment-bond on which judg- ment is entered, the fact that the notes or acceptances become subsequently barred will not preclude the enforcement of the judgment, whether it be a lien on real estate or not.^ cution on a judgment recovered 3 Pittsb. 41 ; Acheson v. Shank; 2 against him. Since his action against Leg. Gaz. 361. ■the maker was barred by limitations, ' Morgan v. Camden and Atlantic the indorser could notindirectly re- Eailroad Co., 18 W. N. C. 128. coverthemoney paid, by compelling ^Jlarseilles v. Kenton; 17 Pa. St. , the bank to transfer to him the 238; Slaymaker v. Wilson, 1 P. & dividends declared on the stock, and W. 216 ; Mellish's Estate, 1 Pars. Eq. retained by it pending its proceed- 482. iiigs against A., and not yet paid * Marseilles v. Kenton, 17 Pa. St. over to the maker. Farmers' Bank 238. V. Gilson, 6 Pa. St. 51. « Slaymaker v. Wilson, IP. & W. ' Geyer v. Western Insurance Go., 216. The deed's being retained twen- 3 Pittsb. 41. ty- three years, did not preserve the 'Marseilles v. Kenton, 17 Pa. St. debt so long from the statutory bar. 238 ; Geyer v. Western Insurance Co., 'Acheson v. Shenk, 2 Leg. Gaz. 361. 388 LAW OF LIMITATIONS. Technical Trusts. . § 279. It is clear that claims of a cestui que trust growipg out of special trusts are not necessarily subject to the bar of the statute within six years from the time such claims accrue. For an act of negligence, by whi(5h a guardian suffers the ward's estate to be lost, committed ten or fifteen years before the ward's reaching majority, the guardian could be held accountable after the termination of his trust. But as to whether the statute will run from the termination of the right of the guardian to retain the property by the arrival of an event known to the cestui que trust as well as to the trustee, e. g. the arrival of the ward at majority, the dicta seem conflicting. " The right of action of a ward," says Agnew, J., "against his .former guardian, is barred after six years from his arrival at age." ' The case cited in support of this position seems to teach merely that any money paid to one who had been guardian, after the termination of his trust by the minor's arrival at age, or by her marriage, would be received by him not as guardian, but to be in- stantly paid ovgr, and that as he could be sued in a court of law, any proceeding to recover the money would be barred in six years.'' When the object of a citation to In Alexander v. Leckey, 9 Pa. St. minor children to receive payment 120, Lowrie, J., expressed the opinion of a judgment due the estate, the that if six years had barred an ac- lapse of six years from his receipt tion by a defendant in an execution of it will not bar his liability to ac- against the sheriff in assumpsit to count as guardian, though it would recoveranexcessof moneys made on bar the action of the administrator «xecution beyond the debt, he could against him. Briggs' Appeal, 5 W. not be admitted to sue on the bond 91. or recognizance, and assign as a -''Bull v. Towson, 4 W. & S. 557. breach the non-payment of this Ashman, J., so understands this case, excess. in Walker's Estate, 41 Leg. Int. 214, ' Barton v. Dickens, 48 Pa. St. 518. and says that the dictum in Barton «. This is quoted with seeming approval Dickens is the result of a misappre- in Sankeyy. McElevey, 104 Pa. St. hension of its meaning. He says, 265. When the administrator of a also, that the statute of limitations decedent's estate, not needing the does not run even when the guar- money for the payment of debts, dian has settled an account, and the .allows the guardian of the decedent's balance in his hands has been as- LIMITATIONS TO PERSONAL ACTIONS. 389 a guardian to filfe an account is not to compel him to pay over moneys of the ward actually received by him, but to surcharge him for alleged losses to the estate arising out of his negligence, the lapse of six years after the majority of the ward before praying for the citation, will be a har} By the death of the guardian the guardianship ends, and tho balance in his hands, ascertained by a decree of the Orphans'" Court,^ could be collected from his personal estate at any period short of that which constitutes a presumption of pay- ment.' A guardian settles an account, and pays to the wards their shares of the balance ascertained to be in his-^ hands. He subsequently became purchaser of the wards'" land at a sheriff's sale on a judgment against the adminis- trator of their father, and he divided the excess of the price above the execution debt among the wards and obtained certained, because the debt is not founded on contract and is not named in the statute. — A debtor to an orphan-house paid his debt of $300 to A., a former trustee, but who had been dismissed from the trust. A. dying, his executor settled an ac- count, in which he retained $300 to meet the claim of the orphan-house, if it should make any. It was held that, as the money was paid to A. after he- had ceased to be trustee, the statute of limitations would run against an action against him to re- cover it back. When the executor retained the money, no distribu- tee of A.'s estate objecting the stat- ute of limitations against the reten- tion, the orphan-house acquired a right of action against him which was therefore barred ia six years thereafter. Emaus Orphan-House V. Kendig, 1 Pears. 84. 'Bones' Appeal, 27 Pa. St. 492. "In substance," said Lowrie, J., "this is an action for negligence said to have arisen more than eigh- teen years ago, and the complainant allowed more than eighteen years to- elapse after he arrived at age before- instituting this proceeding to charge- his former guardian with it. Thougb this case is not in the form of ai common-law proceeding, yet it is- governed by the same principles as- if it were, and the statute of limita- tions protects the guardlian by pro- hibiting this tardy presentation of the complaint." ' It was ascertained in this case ii> five years after the guardian's death, 'Oliver's Appeal, 101 Pa. St. 299. It is not said whether this is because of the decree, or of the trust rela- tion. In Eckert's Appeal, 6 W. N. C. 21, a petition to cite a guardian, over thirty years after his guardian- ship ceased, to file an account for the purpose of charging him with a- sum of money alleged to have been received by him nine years before- the trust closed, was refused on ac- count of the presumption of settle- ment from lapse of time. 390 LAW OF LIMITATIONS. receipts from them, they then being of full age. Thirteen and seventeen years afterwards, he settles accounts. It was then too late to assail the, settlement previously made of the proceeds of the sale of the land for the purpose of sur- charging the guardian with a greater price for the land, no fraud being shown. The wards were barred by the statute of limitations.^ The statute of limitations is not a bar to a citation to an administrator or executor to file an account,'* nor, they having filed and settled one, showing a balance due the estate, is it a bar to a citation more than six years after the account was settled, to pay over to the distributees.' Nor is it a bar to a citation by a creditor to an assignee for the benefit of creditors, to file an account.* Denial and Dissolution of the Trust. § 280. It may be that the statute of limitations would protect a trustee in any case against claims growing out of the trust, and not secured by deed, or covenant under seal, when six years have run after the relationship of trustee and cestui'que trust has been dissolved, and the latter has acquired a right to sue the former at law.^ When the trustee denies openly, and to the knowledge of the cestui que trust, who is sui juris, the right of the latter to money, &c., it may be 'Chorpenning's Appeal, 32 Pa. St. same reason the statute does not 315. apply. Patterson v. Nichol, 6 W. ^ Criedland's Estate, 2 Phila. 379. 379. Yet, in App v. Driesbach, 2 R. ' Dillfebaugh's Estate, 4 W. 177. 287, Huston, J., said that when an In this case partition had been made executor or adaiinistrator "has filed of land, and the administrators who and settled his account, if there is a made sale, took bonds from the pur- balance in his hands, perhaps he chaser for the principal of the ceases to be a trustee, and becomes widow's third. The purchaser be- a debtor for that balance from the came insolvent. The administrators time of the settlement. The settle- were compelled on citation, by the ment may be made a judgment by Orphans' Court, to pay arrears of filirig it in the office of the pro- interest to the widow for fourteen thonotary of the Common Pleas." years. "The statute of limitations *Mellish's Estate, 1 Pars. Eq. 482. is out of the question in the case of ' Patterson v. Nichol, 6 W. 379. a trust." Per curiam. In actions, This was an action against an ad- also, for distributive shares, for the ministrator for a distributive share. • LIMITATIONS TO PERSONAL ACTIONS. 391 that the statute of limitations applies.^ When the holder of the legal title, who, as to an undivided half, is affected by a resulting trust for another, sells the land, the statute of limitations is not a bar to an action by the latter for his share of the purchase-money, merely because six years have run since the sale; he is not bound to know the precise time of the sale. It is the trustee's duty to give notice.^ In the case of a loan of a chattel for an indeterminate time, the possession by the borrower is not to be presumed adverse till notice. Perhaps, from the time of notice of the fact that he denies the right of the lender, the statute would commence to run. But when the loan is for a specific time only, beyond the expiration of which the borrower's posses- sion is unlawful and adverse, the limitary period would begin to run as soon as that time had elapsed.* As to a debt due by the executor to the decedent, if, in settling his account, he states that it had been satisfied with the decedent in his lifetime, and so expressly refuses to charge himself with it, and the account is confirmed by the Orphans' Court, and distribution made in conformity therewith, the lapse of six years from the time of confirma'tion will bar an action in assumpsit by a distributee to recover his share of the debt alleged to be due by the executor to the estate.* CHAPTEE XIII. LIMITATION IN EQUITY. Equity. § 281. The language of the act of 27th March, 1713, confines it to definite classes of actions at common law-^to ' Walker v. Walker, 16 S. & E. 379"; till payment of the purchase-money Lyon V. Marclay, 1 W. 271 ; Johnston (which is to be at a certain date), V. Humphreys, 14 S. & R. 394. will hie presumed to hold adversely * Fox V. Cash, 11 Pa St. 207. to the vendor from that date. The ' Barton v. Dickens, 48 Pa. St. 518. statute will then begin to run. For a similar reason, a vendee -of a *App v. Driesbach, 2 R. 287. chattel in whom title is not to vest 392 LAW OF LIMITATIONS. actions of trespass quare clausum f regit, of detinue, trover, replevin, actions of account, actions of debt not grounded on specialty, &c. The statute does not enumerate proceed- ings in equity ,'^ but such proceedings, with respect to many subject-matters, are within its spirit and meaning ; and though it is often said that equity acts merely by analogy to the statute, in applying the statutory limitation, this is a mistake; courts of equity act in obedience to the statute, because the true intent and spirit of the statute require that the rule should be uniform.^ Subjects to vrhich Limitation Extends. § 282. The statute has been applied in equitable proceed- ings, with. respect to the following subjects: Bills to settle partnerships, the limitary period running from the dissolu- tion of the firm f bills to compel a bailee to surrender maps, plans,* or a general order issued by Gen. George Washing- ton,^ or other chattels, to their owner ; bills to settle nour ^Hannum v. Borough of West 280; McKelvy's Appeal, 72 Pa. St. Chester, 63 Pa. St. 475. 409; Hamilton v. Hamilton, 18 Pa. 'Hannum v. Borough of West St. 20; cf. Iredell'!). Klemm, 3 Pa. Chester, 63 Pa. St. 476; Todd's. Ap- C. C. Kep. 137. peal, 24 Pa. St. 429; Merrill's Ap- *Neely's Appeal, 85 Pa. St. 387. peal, 16 W. N. C. 491; Barnholt i;. Decree- had been rendered in 1849 Ulrich, 11 W. N. C. 51 ; Bank of U. against B. for the surrender of the S. V. Biddle, 2 Pars. 31; Fricke v. maps. It was not enforced. In 1874 Magee, 10 W. N. C. 50; Sossong v. another bill was filed against other Rosar, 112 Pa. St. 197 ; Neely's Ap- parties to whose possession the maps peal, 85 Pa. St. 387 ; Forster v. Cum- had come, recounting the formerpro- berland Valley Railroad Co., 23 Pa. ceedings and decree. It was held too St. 371; Kutz's Appeal, 40 Pa. St. late, as it might well have been apart 90 ; Montgomery's Estate, 3 Brewst. from any statute of limitations. It 306; Ashhurst's Appeal, 60 Pa. St. was said, however, that the statute of 290 ; Evans' Appeal, 81 Pa. St. 278 ; limitations was a bar to the bill. Wallace v. Duffleld, 2 S. & R. 521; 'City Cavalry v. Morris, 3 Leg. Brewster v. Brewster, 3 Phila. 355 ; Qaz. 77. The six years run from the Thompson v. Bank of Gettysburg, 3 bailee's denial of the bailor's right, Gr. 114; Roberts' Appeal, 4 W. N. C. communicated to the latter, or from 417. a formal renunciation of claipi by "Everh art's Appeal, 106 Pa. St. the latter. 349; Shelmire's Appeal, 70 Pa. St. LIMITATIONS TO PEESONAL ACTIONS. 393 partnership accounts;^ bills against directors of a corpor- ation (who, having sold its personalty, had themselves become purchasers, and so made themselves trustees), to enforce the constructive trust ;^ bills to compel directors to indemnify the corporation for losses caused by their con- tracts made ultra vires ;^ bills to compel directors of a com- pany, who, buying lands intended for it, and taking the title in their own name, subsequently convey it to the company at a larger price, to re-imburse the company the excess;* bills to compel a vendor to convey land, on ven- dee's paying the purchase-money still due by the vendor, to his grantor, as to an action for which against the vendor by his grantor, the statute would be a bar f bills for discovery in aid of a suit at law ; * a bill to compel a mortgagee, purchasing at sheriff's sale under the mortgage (urider an agreement that a settlement should subsequently take place, and, if the mort- gagor should- be found not indebted, to reconvey the land to him), to reconvey the premises to the mortgagor;^ a bill for remuneration by a negro held by fraud, as in slavery", for 'Adams' Appeal, 113 Pa. St.' 449 ; covery of the excess beyond the Baugher v. Conn, 1 Pa. C. C. Rep. price, if more than six years have 184. • run since it should have been ao- 'Aehhurst's Appeal, 60 Pa. St. 290; counted for. Akes' Appeal, 74 Pa. Watts' Appeal, 78 Pa. St. 370; Evans' St. 116. This was a petition by the Appeal, 81 Pa. St. 278. vendee in the Orphans' Court for ' Watts' Appeal, 78 Pa. St. 370. specific execution of the deceased * Evans' Appeal, 81 Pa. St. 278. vendor's contract. 'Keyes' Appeal, 65 Pa. St. 196. 'Brewster v. Brewster, 3 Phila. So, if the contract under seal is for 355 ; Trustees v. Grubb, 5 Phila. 41. a certain price, and subsequently If the law would prevent recovery it is stipulated, not under seal, that for matters more than six years old, the timber' cut by the vendor shall equity will dismiss the bill for a dis- be a credit on the price, and the covery as to matters more than six bill asks for a conveyance because years old. Id. But when facts are the timber pays the price, and also shown which exempt matters more for a decree for the excess of the than six years old from the statute timber over the price, the statute of at law, the bill for discovery, as to limitations will bar the use by the them, may be sustained. Trustees v. vendee of the value of the timber, Grubb, supra. as payment on the price, or the re- ' Bandel v. Ely, 3 Brewst. 270. t I t I I 394 LAW OF LIMITATIONS. many years after his legal emancipation;^ a bill by surety after payment of the debt, to compel re-imbursement by the principal;^ a bill by one co-tenant to compel an account of ore taken by a co-tenant f a bill by a contractor to build a portion of a railroad", against a new corporation that has pur- chased the road, to enforce his lien under the resolution of 21st January, 1843 ;* a bill to compel the assignee for collat- eral security of a judgment to pay to the assignor the excess of the money realized on it beyond the debt;^ a bill to compel a corporation to annul a. forfeiture of stock and recognize the plaintiff's right as owner of it ; " a bill to make directors liable for debts of a corporation (in excess of so much of the capi- tal' stock as had been paid in), under the act of 18th July, 1863, (P. L. 1864, p. 1106) ;' creditors' bills to compel share- holders in an insolvent corporation to pay in so much of the unpaid stock as is necessary to satisfy the debts;* a bill to compel the holder of a legal title (alleging a right to retain it, to secure repayment of advances made by him) to convey it to the equitable owner ;' a bill to redeem a pledge after its sale, at which, however, the pledge.e, without actual fraud, had become the purchaser ; '" a bill by the assignee in trust for 'Ferris v. Henderson, 12 Pa. St. transfer stock, the answer was that 49. The statute, however, would not the stock was held as a lien for a debt run till discovery of the fraud. of the vendor. Against such lien ^ Wesley Church v. Moore,' 10 Pa. the statute does not run. Geyer «. St. 273. But as six years had not Western Insurance Co., 3 Pittsb. 41. run from the time of payment till ' Roberts' Appeal, 4 W. N. C. 417. the filing of the bill, the bill was not "Bell's Appeal, 18 W. N. C. 551 ; barred. Cornell's Appeal, 5 Cent. Rep. 181 ; 'Alden's Appeal, 93 Pa. St. 182. Mack's Appeal, 5 Cent. Rep. 186. *Shamokin Valley and Pottsville 'Barnholt v.Ulrich, 11 W. N. C.51. Railroad Co. v. Maione, 85 Pa. St. 25. As the action of the holder of the The bill was exempted from the ' legal title for the advances would be limitation by act of 25th April, 1850. barred, so equity would treat the P. L. 570. claim, when set up as a defense to ° Bickel's Appeal, 86 Pa. St. 204. the bill for a conveyance, as barred. •Whetham v. Pa. and N. Y. Canal "Morrell «.' Trotter, 12 W. N. C. and Railroad Co., 9 Phila. 417. In a 143. bill to compel the corporation to LIMITATIONS TO PERSONAL ACTIONS. 395 the benefit of creditors of an incorporated insurance cpm- pany, to charge directors with, losses occasioned by their gross negligence ;^ bill by X., to whom a married woman, purchaser of land bound by X.'s judgment, had, in consideration of his releasing his judgment, given a judgment-bond for the same ■debt, to enforce against the land the payment of the bond, which, as such, was void in law;^ a bill by an executor, under a genuine will, to recover assets from a previous executrix (acting under a forged will), claimed by the latter as having lieen given to her by the testator in his lifetime ;^ a bill for indemnification by a terre-tenant of land which he had bought relying on an entry of satisfaction of a mortgage made vrithout authority of the mortgagee, by mistake of the defend- ant;* and a bill for subrogation to a bond or judgment^^ Equity — Continued. § 283. When a. proceeding at law is allowable, as well as one in equity, for the same cause of action, if the statute of limita- tions would not bar the suit at law, neither will it l^ar the bill in equity.* Thus, as a married woman, owing to the double ■disability of coverture and of being the wife of the defendant, •could not sue her husband for moneys lent to him, so long as the married relation continued, and therefore the limitation of the statute would not operate, so, were a suit in equity permissible against him, equity would not apply the statute.^ 'Spering's Appeal, 71 Pa. St. 11; than six years since the 'executrix Spering v. Smith, 6 Phila. 524. The had taken the assets, was not a bar statute was, held a bar as to directors because of the inability of the exec- who had ceased to be such more than utor, during the time she was acting •flix years before the bill was filed, under letters testamentary'in pursu- whether by analogy to the act of ance of the forged will, to sue her. 27th March, 1713, , or by the provi- * Brown v. Binney, 17 W. N. C. «ions of the act of 28th March, 1867. 401 ; 'Binney 's Appeal, 19 W> N. C. P. L. 48. 385. . 'Todd's Appeal, 24 Pa. St. 429. * Rittenhouse w. Levering, 6 W. & S. The statute of limitations barred ido. the bill in six years from the ma- ' Kutz's Appeal, 40 Pa. St. 90 ; Mer- Jturity of the bond. "" rilUs Appeal, 16 W. N. C. 491. ■ » Marsden's Appeal, 102 Pa. St. 199.' ' Kutz's Appeal, 40 Pa. St. 90. This , JBut, in this case, the lapse of more was a distribution in the Common 396 LAW or LIMITATIONS. So, as the statute of limitations does not extend to actions of dower unde nihil habet, with respect to the recovery of arrears of dower accrued before the institution of the action, so that in such action arrears for all the years preceding the action back to the death of the husband can be recovered,^ if a bill in equity is employed in lieu of the action unde nihil habet, to assign dower for the future and to recover dower for the past, the recovery for the past will not b& confined to the arrears of the last six years before filing the bill.^ Conversely, when the statute of limitations would be applied in an action at law, it will be applied in an equitable proceeding for the recovery of redress for the same cause.* As equity applies the statute by analogy only, there may be cases where even six years would be too long a delay in pursuing remedies, and eg[uity would refuse to give assist- ance, e. g. in the attempt to enforce constructive trusts as to personalty, arising from the trustee or quasi-ivnstee purchas- ing for himself the property sold by him as such trustee, or arising from the trustee's buying property for the cestui que trust, but in his own name, and selling it to the cestui que trust at an advance. The general rule in such cases is that the cestui que trust must assert his option to claim the prop- erty in specie (rather than the price paid for it by the trus- tee at his own sale),^ or to compel the trustee to re-im- burse him the excess of the price charged over that paid, within six years from the time when the trust is alleged to have originated,^ but there may be cases where even six Pleas of the proceeds of the assigned where it will apply the statute when estate of the firm of A. & B., to which the law refuses to do so." A.'s wife had loaned money twelve ' Bank of United States v. Biddle, years before the assignment. A.'s 2 Pars. 31; Todd's Appeal, 24 Pa. St. wife was entitled to participate in 429; Spering's Appeal, 71 Pa. St. 11; the assets. Barnholt v. Ulrich, 11 W. N. 0. 51; ' Seaton v. Jamison, 7 W. 533. Neely's Appeal, 85 Pa. St. 387 ; Cur- ' Merrill's Appeal, 16 W. N. C. 491. cier's Appeal, 28 Pa. St. 261 ; Bickel's "Equity," says Paxson, J., "some- Appeal, 86 Pa. St. 204. times applies the statute by analogy * Ashhurst's Appeal, 60 Pa. St. 290. with the law, but I know of no case * Evans' Appeal, 81 Pa. St. 278. LIMITATIONS TO PEESONAL ACTIONS. 397 years cannot be allowed, as when a party having a right to set aside a transaction, or treat it as a trust, stands by and sees another dealing with it in a manner inconsistent with any trust, and makes no objection, or when the right of third persons may have intervened, or when the' property is of a peculiar kind, and the alleged trustee, in ignorance of any intention to hold him to an account, relying upon his ownership, enters upon a hazardous business or incurs large responsibilities/ At least this is true when the alleged con- structive trust does not grow out of actual or intended fraud. It has often been said that equity obeys the statute of limita- tions, and it has been held that laches for a much shorter period than six years, aided by other circumstances, will bar a right.^ Pleading. § 284. When the bill in equity shows on its face the facts -which subject it to the bar of the statute of limitations, it ' may be demurred to on that ground.^ When the cause of complaint is shown to have arisen more than six years before the filing of the bill, it should state the facts of concealment or fraud, or of any other nature, which are alleged to evade the limitary bar.* If the bill does not, on its fa,ce, show the application of the statutory bar, the limitation maybe preaded,^ 'Equity' will sometimes dismiss a Hayes' Appeal, 113 Pa. St. 380 bill, aside from the statute of limita- Spering's Appeal, 71 Pa. St. 11 tions, because of lapse of time; it Spering v. Smith, 6 Phila. 524 will not entertain stale demands. Montgomery's Estate, 3 Brewst. 306 This was a debt of a railroad com- , Ferris v. Henderson, 12 Pa. St. 49 pany to a contractor for grading, Gandolfo v. Hood, 1 Pears. 269. An bl-idging and masonry, as to which amendment to the bill, showing on the statute does not run. But, be- its face the facts which bar the re- cause twenty-five years had run covery, is demurrable. Bandel v. since the debt was contracted, before Ely, 3 Brewst. 270. the bill was' filed, it was dismissed * Gandolfo i). Hood, 1 Pears. 269. on demurrer of defendant. Hayes' ^ Ferris v. Henderson, 12 Pa. St.. Appeal, 113 Pa. St. 380. 49; Hayes' Appeal, 113 Pa. St. 380 ; 'Ashhurst's Appeal, 60 Pa. St.,290; Gandolfo v. Hood, 1 Pears. 269 ; Sper- Evans' Appeal, 81 Pa. St. 278. ing's Appeal, 71 Pa. St. 11 • Eandel 'Wilhelm'sAppeal,79Pa.St. 120; d. Ely, 3 Brewst. 270. 398 LAW OF LIMITATIONS. or set up in the answer.^ If there be neither demurrer, nor plea, nor answer of the statute of limitations, it will be too late to raise it on the argument of the exceptions to the report of the master.'^ As, at law, amendments may be allowed, after six years from the accruing of the action, in suits brought before the expiration of the six years, if the cause of action is not changed or enlarged, so may they be allowed to bills in equity.^ But in corporation bills, the statutory period is computed, as against plaintiffs acceding to the bill subse- quently to its filing, down to the day of their accession.* Perhaps, in case a bill abates by the death of the defendant, the lapse of six years thereafter, before calling in the admin- istrator or executor, will bar the bill. A bill was filed for an account of ore taken from an ore-bank in excess of the defendant's right. The answer was filed the same year. Four years afterwards, the defendant died, but his executor was not made a party to the bill till more than six years afterwards. It was held that if the executor had set up the statute by plea or answer when he was first brought in, his case, with respect to a defense under the statute, would have been stronger, but having answered the amended bill six years after being brought in, not suggesting, however, the limitation as a defense, and having taken no steps towards objecting to the revival of the suit, it was too late, seven years after his answer was filed, to make this objection in the Supreme Court.^ 1 Hayes' Appeal, 113 Pa. St. 380 ; ' Wilhelm'e Appeal, 79 Pa. St. 120. Spering's Appeal, 71 Pa. St. 11 ; « Evans' Appeal, 81 Pa. St. 278. Everhart'a Appeal, 106 Pa. St. 349. 'Alden's Appeal, 93 Pa. St. 182. ' Baugher v. Conn, 1 Pa..C. C. Kep. ]84. .LIMITATIONS TO PEKSONAL ACTIONS. 399 CHAPTEK XIV. ACTIOlfS. A.ctions — Kinds of. § 285. The act of 27th March, 1713, prescribes the six years' limitation in all g,ctions of trespass quare clausum /reffit,^ detinue, trover,^ replevin,^ actions of account (other than such as are on accounts which concern, the trade of merchandise between merchant and merchant, their factors or servants), actions upon the case,* debt grounded on unsealed contracts of lending, Dexter V. Billings, 17 W. N. C. 20. 454; Horter v. Wilson, 17 W. N. C. The statute applies in trespass for 562; Gilkyson v. Larue, 6 W. & S. mesne profits. Peaceable v. White- 213; Houser v. Irvine, 3 W. &S. 345; hill, 2 Y. 279; McClinton v. Pittsb., Burr v. Burr, 26 Pa. St. 284. The Ft. Wayne and Chicago Eailroad statute applies to an unsealed prom- Co., 66 Pa. St. 404. issory note given for the purchase- 'Hersefleld v. Cost, Add. 152; money of land (Keyes' Appeal, 65 Prentiss v. Hannay, 4 Wh. 506; Pa. St. 196), or to a note payable in Hutchinson v. Merchants' and, Me- comm6dities, which, on default of chanics' Bank of Wheeling, 41 Pa. tender of the commodities, becomes St. 42. payable in money. Moore v. Kiff, 'Barton v. Dickens, 48 Pa. St. 518. 78 Pa. St. 96; Church v. Feterow, 2 * Keller v. Ehoads, 39 Pa. St. 513; P. & W. 301. Finney v. Cochran, 1 W. & S. 112. 'Laforge v. Jayne, 9 Pa. St. 410. » Shitler v. Bremer, 23 Pa. St. 413 ; " Brown v. Bush, 45 Pa. St. 61. Slaymaker v. Wilson, 1 P. & W. 216; " Merchants' and Manufacturers' Berghaus v. Calhoun, 6 W. 219. Bank of Pittsburgh v. Watson, 46 'Davis V. Shoemaker, 1 K. 135; Pa. St. 310. Stover V. Cadwallader, 2 Penny. 117. " Harris v. Christian, 10 Pa. St. 233. 'Eobb V. Harlan, 7 Pa. St. 292. This is so, though the fees are pre- ' Wright V. Hart's Adm., 44 Pa. St. scribed by statute. C/. Green and 400 LAW OF LIMITATIONS. and for a witness' fees against a party/ or, in a criminal case, against the county;'^ assumpsit against an attorn ey-at-law for negligence with respect to collecting a claim,^ or reviv- ing a judgment,* or for money collected by him;° assumpsit for turning ovet money of a lunatic to his committee, in violation of a contract to hold it subject to the order of the plaintiff, the committee's official surety;^ or for money coIt lected by a surety on a collateral security assigned to him, in excess of the debt;' or for work and labor performed;* as- sumpsit to recover from the sheriff the excess of the proceeds of the execution sale above the debt and costs;** or to recover from the recorder of deeds indemnification for a false certifi- cate of search ; ^° assumpsit by the sheriff against a purchaser of land, for the purchase-money;" for rents collected by the defendant for the plaintiff;'^ to recover back money paid for land by the vendee on a rescission of the contract ;^^ or dam- ages for the vendor's breach of the contract in conveying- to another;" for defects in the construction of a mill;^° for use and occupation of land;^* assumpsit by one attorney against another for one-half the fees collected by the latter;" by one administrator, who had paid out moneys in excess of his re- ceipts, against the co-administrator, who had the assets of the •estate ;^* by a tax collector against the person assessed ;" and •Coates Street Passenger Railway Co. " McCulloch v. Norris, 5 Pa. St. D.Moore, 64 Pa. St. 79. 285. ' Farley v. Kustenbader, 3 Pa. St. "^ Harbold v. Kuntz, 16 Pa. St. 210. 418. " Leinhart v. Forringer. 1 P. & W. ^ Zeidler v. Luzerne County, 2 Leg. 492. Eec. Rep. 174. "Thurston v. Franklin College, 16 'Rhinesv. Evans, 66Pa. St. 192. Pa. St. 154. . .*Derrickson v. Cady, 7 Pa. St. 27. "Rankin v. Woodworth, 3 P. & W. » Cam pbell v. Boggs, 48 Pa. St. 524. 48. « Keller v. Rhoads, 39 Pa. St. 513. i« Kenwood v. Cheeseman, 3 S. & R. 'Finney v. Cochran, 1 W. & S. 112. 500; Gleira v. Rise, 6 W. 44. 'Hazlebaker v. Reeves, 12 to,. St. "Webster v. Newbold, 41 Pa. St. 264 ; Suter v. Sheeler, 22 Pa. St. 308 ; 482. Harbold v. Kuntz, 16 Pa. St. 210. , ^'Man v. Warner, 4 Wh. 454. 'Alexander v. Leckey, 9 Pa. St. 120. " Wickersham v. Russell, 51 Pa. St. "Owen V. Western Savings Fund, 71. ■97 Pa. St. 47. LIMITlATIOIirS TO PEESONAL ACTIONS. 401 (tssiimpsit for the recovery from a bank of the value of bonds deposited with it for safe-keeping but embezzled by it.^ Gravamen of Action. § 286. The statute is applicable to actions on the case, for flooding back water in a stream so as to injure the water-power of the upper riparian owner ;'^ for the assignor of a judg- ' ment's fraudulently entering satisfaction of it on the docket;' for malicious prosecution;* for failure of the assignee of a judgment, as collateral security, to keep it revived;^ fot the negligence of a railroad company, resulting in injury to a passenger or other person. The statute applies to actions of debt on implied contracts, e. g'. that implied in the devisee's' accepting the devise, when the will couples with it ^.di^ty to pay a legacy;' or the contract to collect and pay over money, implied when a collection agent receives a claim left with him for collection ; ' or the contract implied in a city passenger railway entering on a route, under its charter which directs that, before doing so, it shall, at the option of the owner of an omnibus line over tlje same route, purchase his stoqk at a price to be fixed by appraisers.' The six years' limitation, however, is applied in other actions than those enumerated in the statute. The statute is regarded as furnishing a gen- eral rule for cases that are analogous, in subject-matter, to those expressed in it.^ Perhaps, from the circumstance that the act 'prescribes that the six years shall be reckoned from 'Hughes V. First National Bank of 'Nathans v. Bingham, 1 M. 164; Waynesburg, 17 W. N. C. 178. When Shook v. McChesney, 4 Y. 507. the assumpsit is to enforce a debt of ^Hanna v. Holton, 78 Pa. St. 334. '^record,e.g^. the payment of the prin- ^Etter v. Greenawalt, 98 Pa. St. cipal of a widow's third, charged on 422. The statute applies to debt by the land in partition proceedings, the legatee against the devisee, the statute does not apply. De ' Wickersham v. Lee, No. 2, 83 Pa. Haven v. Bartholomew, 57 Pa. St. St. 422. 126. 'Green and Coates Street Passenger 'Brown v. Bush, 45 Pa. St. 61. Railway Co. v. Moore, 64 Pa. St. 79. 'Mitchell 1). Bufflngton, 10 W. N. 'Porster v. Cumberland Valley C. 361. Eailroad Co., 23 Pa. St. 371. 2a 402 LAW OP LIMITATIONS. / the cause of action or suit, and not after, has resulted the construction, which has been uniformly received, that it is not the form, but the cause, of action which is to be consid- ered. It may be stated as a general rule, that wherever the cause of action would be subject to the bar if prosecuted under any of these forms, then the statute is applicable.' Hence, as in trespass for mesne, profits, so when they are demanded in ejectment, the statute bars recovery for a longer period than six years prior to the institution of the suit.^ It applies to set-off in the Common Pleas ;* or in the Orphans' Court;* to foreign attachment;* to a petition for the assessment of 'damages by the original making, or widening, or changing of the grade of roads and streets ; ® to the attempt to surcharge a guardian, for negligence or other cause, in the Orphans' Court;' to a claim of a creditor of the ward's estate, on the settlement of the guardian's account ; ' to claims of cred- itors against the personal assets of a decedent, distributed in that court;' to claims against the assets of an estate assigned in trust for the benefit of creditors and undergoing distribu- tion in the Common Pleas ;^° to credits asked by an habitual 'Hannum v. Borough of West 'Forster v. Cumberland Valley, Chester, 63 Pa. St. 475 ; De Haven v. Railroad Co., 23 Pa. St. 371. Bartholomew, 57 Pa. St. 126 ; Wick- * Drysdale's Appeal, 14 Pa. St. 581 ; ersham v. Lee, No. 2, 83 Pa. St. 422. Reed v. Marshall, 90 Pa. St. 345 ; A judgment debtor of A., having Milne's Appeal, 99 Pa. St. 483. fraudulently conveyed his land to B., ^Strawn v. Hook, 25 Pa. St. 391; who, in turn, conveys it to an inno- Beck v. Beck, 25 Pa. St. 124. cent purchaser, receiving the pur- ^ In re Grape Street, 103 Pa. St. chase-money, the statiite of limita- 121 ; Borough of Easton v. Walters, tions may be set up by B^., when made" 18 W. N. C. 117; Id., 2 Cent. Rep. garnishee by A. in aij, attachment 589; In re Ridge Avenue, 99 Pa. St. execution, with respect to the money. 469. Dicken v. Hays, 5 Cent;. Rep. 517. ' Bone's Appeal, 27 Pa. St. 492 ; »Lynch«. Cox, 23 Pa:^St. 265; Mc- Chorpenning's Appeal, 32 Pa. St. Clinton v. Pittsb., Ft. Wayne and 315. Chicago Railroad Co., 66 Pa. St. 404; "Furney's Appeal, 12 W. N. C. 82. Hannum v. Borough of West Ches- 'York's Appeal, 17 W. N. C. 17. ter, 63 Pa. St. 475; Forster v. Cum- '"Kutz's Appeal, 40 Pa. St. 90. berland Valley Railroad Co., 23 Pa. St. 371. LIMITATIONS TO PEKSONAL ACTIONS. 403 drunkard's committee for payment of debts more than six years old ; ^ to a petition for the appointment of viewers lio assess damages for the occupation 6£ land of the petitioner, for a railroad, already begun more than six years before the petition is presented;^ to bills in equity;^ to cases stated;* to amicable actions.^ The statute is applied to debts which come into consideration in Collateral proceedings. Thus, in a bill in equity to compel one of two grantees of land to execute his contract to convey his undivided half to the other, on the latter's releasing him from all liability on a note given to the grantor for the purchase-money, the bar of the statute to this note will be treated as a release of liability upon it.* So, in such a bill, the statute would pre- vent the use of a counter-claim against the vendor, as part payment of the purchase-money, payment of which is a precondition to the decree for a conveyance.' The statute applies to the comparatively formless proceedings before justices of the peace, e. g. on the implied undertaking of the county to pay a constable his fees for arresting vagrants and disorderly 'persons.* Other Than Six Years. § 287. The limitation of two years is prescribed by the act of 27th March, 1713, for actions of trespass, of assault, , menace, battery,, wounding and imprisonment. The limita- tion of one year is enacted in the same statute for all actions upon the case for words, whether written or spoken,^ i. L for slander'" or libel." The limitation of one year is prescribed ^Hannum's Appeal, 9 Pa. St. 471. 'Ake's Appeal, 74 Pa. St. 116, im- ^Forster v., Cumberland Valley plies this. Railroad Co., 23 Pa. St. 371. "County of Lancaster v. Brinthall, ' Hayes' Appeal, 113 Pa. St. 380 ; 29 Pa. St. 38. Adams' Appeal, 113 Pa. St. 449. ' Section ^35, Act 25th April, 1850, ' *Township of Rush v. Schuylkill P. L. 575; 2 Bright. Purd. p 1067, County, 100 Pa. St. 356. pi. 19. ' McCoon V. Galbraith, 29 Pa. St. 293. >» Smith v. Smith, 45 Pa. St. 403. This was an amicable assumpsit. " Bailey v. Reed, 14 Phila. 167 ; "Keyes' Appeal, 65 Pa. St. 196. Peterman v. Mullen, 13 W. N. C. 13. 404 LAW OP LIMITATIONS. for actions given by the act of 26th April, 1855,' to the sur- viving husband, wife, children or parents of one who has been killed by the actionable conduct of another, to recover damages therefor.'' Set-off. § 288. The fact that the defendant has claims against the plaintiff does not, ipso fq^to, extinguish the plaintiff's claim pro tanto. The statute of defalcations does not, per se, apply the demands of one party against that of the other, so as to produce either payment, satisfaction or extinguishment of them. It is a right givepi to the defendant by the statute, when he is sued, which he may claim the benefit of or not, at his election.^ Opposing the .set-off to the plaintiff's claim is in the nature of a cross-action,* which, as such, is subject to the operation of the statute of limitations,* even when the claim of the plaintiff sued on is of a class not subject to the statute, e. g. a bond" or a sealed note.'' As to the set-off the statute does not cease to run with the bringing of the prin- cipal action. The cross-action is not considered as brought for the set-off until the plea of set-off is entered,* or, if only the plea of payment is put in, until notice is given of the ' P. L. 309. St. 340 ; Vincent v. Watson, 40 Pa. 'Kaahner v. Lehigh Valley Rail- St. 306 ; Verrier v. Guillou, 97 Pa. St. road Co., 41 Leg. Int. 346. 63 ; Mayfarth's Appeal, 1 Cent. Rep. ' Hinkley i;. Walters, 8 W. 260. 348; Shoenbefger v. Adams, 4 W. * Muirhead v. Kirkpatrick, 5 W. 430 ; Levering v. Rittenhouse, 4 Wh. & S. 506 ; Gallagher v. Thomas, 2 130 ; Jacks v. Moore, 1 Y. 391 ; Magee Brewst. 531. - v. Magee, 10 W. 172 ; Blackstone v. ^Porster v. Cumberland Valley Burton,4 Phila. 15; Seybertu. Hicka, Railroad Co., 23 Pa. St. 371; Gonder 1 Luz. Leg. Reg. 45 ; Raynerv.Styer, V. Estabrook, 33 Pa. St. 374; McOlure 1 W. N. C. 281 ; Crist «. Brindle, 2 P. V. McClure, 1 Gr. 222 ; Bank of Get- & W. 251. tysburgi). Thompson, 3Gr.ll4; Reed "Crist v. Brindle, 2 P. & W. 251; V. Marshall, 90 Pa. St. 315 ; Wiaecar- Stiles v. Donaldson, 2 Dall. 264; Id., ver V. Kincaid, 83 Pa. St. 100; Gil- 2 Y. 105. more v. Reed, 76 Pa. St. 462; Shreiner ' Hinkley v. Walters, 8 W. 260. V. Cummins, 63 Pa. St. 374; Taylor "McClure v. McClure, 1 Gr. 222; 1). Gould, 57 Pa. St. 152; Hinkley d. Seitzinger v. Alspach, 3 Cent. Rep. Walters, 8 W. 260 ; King v. Coulter, 399 ; Gilmore v. Reed, 76 Pa. St. 462; 2 Gr. 77 ; Palmer v. Gillespie, 95 Pa. Wisecarver v. Kincaid, 83 Pa. St. 100. LIMITATIONS TO JPEESONAL ACTIONS. 405 intention, under that plea, to set off.^ Hence, if, when the plea of set-off is entered, or when, under the plea of pay- ment, notice to the plaintiff of the intention to set off certain matters is given, six years have run against the claim set , off, it will be barred. A fortiori will it be l?arred if six years old when the plaintiff institutes his action.^ A claim for use and occupation, set off against the plaintiff's claim, can cover, only the six years which precede the filing of the; plea.^ "^hen claims of creditors are presented in the . Orphans' Court, and counter-claims are set off against them, the same principle applies as when the action is one, at com- mon law. If, when the demand is set off, it is more than six years old, it will be barred.* So, when a, creditor claims from the assigned estate of the debtor, matters of set-off against his demand, then more than six years old, will not be allowed.^ 'Gilmore v. Reed, 76 Pa. St. 462 ; Hinkley v. Walters, 8 W. 260. 'Hinkley v. Walters, 8 W. 260. ' Seitzinger v. Alspach, 3 Cent. Rep. 399. In Stephens v. Monongahela, National Bank, 88 Pa. St. 157, it was held proper to limit the set-oflf of interest paid to the bank (the rate having been usurious) to six years prior to the trial. The pleadings do not appear. 'Mayfarth's Appeal, 1 Cent. Rep. 398. But, in Thompson's Appeal, 42 Pa. St. 345, (c/. Lang's Estate, 16 Pa. L. J. 9,) it was decided that a debt due the testator by the legatee, and ' not barred when the testator died, might be set off against the claim for the legacy in the distribution pro- ceedings in the Orphans' Court, though at that time it was more than six years old. English preced- ents are relied upon in this case, ■Which hold that even if the debt of the legatee to the testator is barred at the death of the latter, it will be set off against the legacy. Among them is Courtenay v. Williams, S Hare 539. This case, however, it is said by Sterrett, J., "is not in accord with the current of decisions under our statute of limitations." Hence, debts barred when the testator died; cannot be set off against his legacy to the debtor, in an action therefor in the Common Pleas. Reed v. Mar- shall, 90 Pa. St. 345. Nor against a distributive share of the intestate's estate, in the Orphans' Court. Milne's Appeal, 99 Pa.. St. 483; James v. Milne, 3 Penny. 394 ; Drys- . dale's Appeal, 14 Pa. St. 531. Debts due the decedent more than six years when the distribution of the estate is made, cannot be set .off against the share of the distributee. Bellerjean's Estate, 43 Leg. Int. 194. 'Montgomery's Appeal, 92 Pa. St. 202. 406 LAW OF LIMITATIONS. Set-Off— Continued. § 239. Thougli merely reciprocal demands are severally- subject to the operation of the statute of limitations, there may be, by agreement, an application of one to the other, by way of payment. In that case the smaller claim is satis- fied, and the larger claim pro tanlo extinguished, and in an action brought for the larger claim, this appropriation may be shown, though at the time the plea of payment, under which it is shown, was put in, it would, as a mere set-off, have been barred.^ If, in making a pew contract, whereby a debt accrues from A. to B., it is agreed that a former debt from B. to A., not exactly ascertained as yet, shall be ascer- tained and applied to the new debt, the difference of the two only to be payable, this would be an appropriation of .the old debt, though barred, to the new, and would revive it, not only for the purpose of canceling the new debt, but also for the recovery of its excess beyond the new debt.^ A real estate agent advances his own money for repairs, as he had a right to do, from the nature of his employment. He sub- sequently collects the rents for six years. In an action against him for the rent, he may treat the first rent collected, after making his advances, as appropriated to the repayment of them, though they had been made more than six years before suit, and so become liable only for the excess of the rent collected over his advances.^ A. obtains discounts from a bank in which he is also a depositor, or with which he 'Gilmore v.^Reed, 76 Pa. St. 462. whole account being more than six 'Shreiner v. Cummins, 63 Pa. St. years old when the action begins), it 374. would have been unavailing. Birkey ' Blackstone i;. Burton, 4 Phila. 15. v. McMakin, 2 Leg. Gaz. 81. The _ By agreement between the parties, principal of the debt was secured when A.'s note against B. becomes by a judgment and the interest by due, B. may credit it as partial pay- notes. Partial payments by the ment on an older account against debtor, not specially appropriated, A. Of course, in a subsequent ac- will be applied. to the notes for in- tion on the note, that part of the terest, if, when they are made, these account which was applied to the notes are not barred, Moore v. Kiflf, note can be taken advantage of as 78 Fa. St. 96. payment, though, as set-off (the LIMITATIONS TO PERSONAL ACTIONS. 407 deposits, as collateral security, notes of third persons due him (the bstnk collecting them but not crediting their pro- ceeds to his account). In an action by the bank on the discounted notes, A. may set off the proceeds of his notes collected by the bank, though more than six years have elapsed since' their collection, and he may recover by cer- tificate the excess of the amounts collected beyond the dis- counted note sued on.^ CHAPTEE XV. PARTIES, PEOCEDUKE, ETC. Parties. § 290. The statute of 27th March, 1713, does not apply to actions for the recovery of .moneys due to the Common- wealth.^ It does apply to actions by the United States for money due it,* and to actions by subordinate portions of the State, *e. g. counties,* townships.^ Corporations^ as well as 'Humphrey v. County National Court of the United States for the Bank of Clearfield, 18 W. N. C. 401. Eastern District of Pennsylvania. The action was on the last of a * Glover v. Wilson^ 6 Pa. St. 290; aeries of renewals of the original Corlynghan?', School Djstrict v. Co- note, to secure which the collateral lumbia County, 3 Luz. Leg. Keg. 19; notes had been indorsed to the bank. Evans v. Erie County, 66 Pa. St. 222 ; The proceeds of the collateral notes Cunningham v. Allegheny County, 1 were treated as money on deposit Pittsb. 267. If the action should be in the bank, against which the stat- brought by the county commission- ute does not commence to run till ers for a gross sum, as to a part of demand. ' which they are mere trustees for the ' Statutes of limitations do not State, e. g. for State and county taxes apply to the State unless it is ex- which the collector has failed to pressly named. Glover v. Wilson, collect' or pay over, a plea of the 6Pa.Sfc.290; McKeehan«. Common- statute of limitations generally, not wealth, 3 Pa. St. 151 ; Commonwealth distinguishing between the taxes due V. Baldwin, 1, W. 54 ; Ramsey's Ap- to the county and those due to the peal, 4 W. 71 ; Commonwealth v. State, will be invalid against both. Johnson, 6 Pa. St. 136; Penna. Canal It should limit itself to the county V. Harris, 101 Pa. St. 80 ; Troutman taxes. Glover v. Wilson, 6 Pa. St. «. May, 33 Pa. St. 455. 290. ' United States «. Jay Cooke & Co., ^Township of Eush % Schuylkill 9 Phila. 468. This, was in the District County, 100 Pa. St. 356. 408 LAW OF LIMITATIONS. natural persons, are protected by the statute, e. g. a railroad company as to damages occasioned by it to land of t contiguous owner,^ a county, as to costs,^ or as to school taxes,^ or road taxes* on unseated lands, collected by the county, and claimed by the school district or township. Who May Plead. § 291. Besides the debtor himself, any person on whom his property devolves, subject to the payment of his debts, may, in a proper case, urge the statute as a defense against the assertion of the right of the creditor to participate in the property. Thus, the debtor dying, his executor* or adminis- trator* may plead the statute in an action brought against him, or brought against the debtor prior to his death.'' The administrator may plead the statute, notwithstanding that the widow and heirs are joined with him in the action, for the purpose of preserving the lien of the debt as to the real estate.* Of two or more administrators, one may plead the 'Forater v. Cumberland Valley Eailroad Co., 23 Pa. St. 371. ' Zeidler p. Luzerne Qounty, 1 Kulp 448. 'Conyngham School District v. Columbia County, 3 Luz. Leg. Reg. 19. * Township of Rush d. Schuylkill County, 100 Pa. St. 356. ' Man V. Warner, 4 VVh. 454 ; Smith V. Porter, 1 Binn. 209; York's Ap- peal, 17 W. N. C. 33; Harbold v. Kuntz, 16 Pa. St. 210. 'Reed v. Marshall, 90 Pa. St. 845 ; Gemberling v. Myer, 2 Y. 341 ; Jones V. Moore, 5 Binn. 573; Bailey v. Bailey, 14 S. & R. 195; McCandless' Estate, 61 Pa. St. 9 ; Scull v. Wallace, "15 S. & R. 231 ; Burr v. Burr, 26 Pa. St. 284; Calmpbell «. Fleming, 63 Pa. St. 242; Fritz v. Thomas, 1 Wh. 66; Magee v, Magee, 10 W. 172. 'Morrison's Adm. v. MuUin, 34 Pa. St. 12. It is said by Paxson, J., that, "in an action at law, legatees or the next of kin may plead the statute, although the administrator should refuse to do so." York's Ap- peal, 17 W. N. C. 17. * Campbell v. Fleming, 63 Pa. St. 242. It was said by Agnew, J., that in an action against the adminis- trator, with notice to the widow and heirs, there could not be a judgment recovered against them to bind the real estate when the personal estate would be relieved by the plea of the statute from the debt, which was not barred when the debtor died. Yet, in McClintock's Appeal, 3 East. Rep. 416, a debt four years old when the debtor died, and presented to the ad- ministratrix for payment when eight years old, was, in the Orphans' Court, entitled to payment from the pro- ceeds of land sold for payment of debts, because the death of the debtor gave the debt a lien for five years. LIMITATIONS TO PERSONAL ACTIONS. 40& statute, though the other has acknowledged the debt and refuses to plead it.^ The executor or administrator may plead the statute in the Common Pleas, though he may have so promised to pay the debt that the statute could not avail him, were he the debtor himself.'* So, if one. of two executors, who is also the residuary legatee, promises to pay the debt, and dies, the survivor, in an action against him, may validly plead the statute.^ Though the executor or administrator is not bound to plead the statute,* when he is sat- isfied that the debt is unpaid,® hfe is under a moral obligation to do so in all cases where he is not perfectly satisfied of the justice of the claim.* When the estate of a decedent is being distributed in the Orphans' Court, creditors (in case the fund is insufiBcient to pay creditors in full),'' the next of kin,* legatees,' the widow,'" and the executor or administrator,^' may oppose the statute to the claim of a creditor. The legatee may object to paying a debt due the executor, barred in the lifetime of the debtor.'^ If the administrator has in 1 Scull V. Wallace, 15 S. & R. 231. Cf. remarks on .this case in Man v. Warner, 4 Wh. 454. If the plea of the statute is made and issue joined, it is error to receive evidence from one of the administrators that he did not intend to plead it. If the attorney has entered the plea with- out authority, a motion. should have been made to strike off the plea. Scull V. Wallace, 15 S. & R. 231. 'Reynolds v. Hamilton, 7 W. 420. *Id. ♦Fritz V. Thomas, 1 Wh. 66 ; Steel V. Steel, 12 Pa. St. 64; Ritter'a Ap- peal, 23 Pa. St. 95; Smith's Estate, 1 Ash. 352; Emaus Orphan-House V. Kendig, 1 Pears. 34. •Smith V. Porter, 1 Binn. 209. 'Marseilles v. Kenton, 17 Pa. St. 238. 'Curcier's Appeal, 28 Pa. St. 261 ; Kittera's Estate; 17 Pa. St. 416 ; Rit- ter's Appeal, 23 Pa. St. 95; Campbell t). Fleming, 63 Pa. St. 242 ; McClin- tock's Appeal, 29 Pa. St. 360 ; War- ner's, Estate, 2 Wh. 295. 'Bewley's Estate,- 12 Phila. 56; McClintock's Appeal, 29 Pa. St, 360. 'Hoch's Appeal, 21 Pa. St. 280, •"McClintock's Appeal, 29 Pa. St. 360. "York's Appeal, 17 W. N. C. 33; Andress' Appeal, 99 Pa. St. 421 ; Mc- Clintock's Appeal, 29 Pa. St. 360; Barclay's Appeal, 64 Pa. St. 69. "Hoch's Appeal, 21 Pa. St. 280; Bewley's Estate, 12 Phila. 56. Dis- tributees may oppose the statute, in, the Orphans' Court (Drysdale's Ap- peal, 14 Pa. St. 531), though the execu- tor refuses to do so. Hoc^i's Appeal, 21 Pa. St. 280. Perhaps, as the execu- tor or administrator cannot sue him- self, if a creditor of the decedent becomes his executor or adminis- 410 LAW OF LIMITATIONS. good faith paid debts whicH were barred, without notice by the legatees not to pay, he will not be surcharged. They must inform him that they desire him to take advantage of the statute.' Distributees may appeal to the Supreme X^ourt from the allowance by the Orphans' Court of a debt due by the decedent, but barred by limitation.^ The ward may oppose the statute to an allowance in the Orphans' Court of a claim for attorney's fees, by one who had been employed by the guardian with respect to the ward's property.^ The committee of an habitual arunkard is bound to refuse to pay a debt of the latter, which is barred at the time of his appointment. If he pays it, he will be surcharged on the settlement of his account, on the termination of the trust.* An assignee for the benefit of creditors would be bound to decline payment of debts barred at the time of the assign- ment, and in cases of distribution in the Common Pleas, doubtless the creditors and the assignor would be entitled to object to claims that they were barred.^ One who collaterally assumes to pay the debt of another, cannot object that that debt is barred as against the original debtor.* A., co-tenant and partner with B., sells his interest in the land and the firm to B., who assumes, as part of the consideration, to pay trator, the debt, if not barred at the '■" McCandless' -Estate, 61 Pa. St. 9. death of the debtor, would thence- When the distributee is indebted to forth be exempted from the opera- the decedent, and the executor seeks tion of the statute. Hence, on set- to set off this debt against his share, tling his account ten years after the he, or liis attaching creditor, may debtor's death, the executor would plead the statute of limitations to be allowed his claim. Wallington's the debt, and so recover the share . Estate, 7 W. N. C. 488. undiminished. Milne's Appeal,^ 99 'Bitter's Appeal, 23 Pa. St. 95; Pa. St. 483. Emaua Orphan-House v. Kendig, 1 'Purney's Appeal, 12 W. N. C. 82. Pears. 34. In an attempt to sur- 'Hannum's Appeal, 9 Pa. St. 471. chargetheexecutorwithhiBOwndebt ^To the distribution in the Com- to the decedent, due more than six mon Pleas the assignee would have years before the death of the latter, no right to appeal, as not being a he may protect" himself by the party aggrieved. Mellon's Appeal, statute. Bell's Estate, 25 Pa. St. 92. 32 Pa. St. 121. 'Hesser v. Steiner, 5 W. & S. 476. LIMITATIONS TO PERSONAL ACTIONS. 411 the enumerated debts of the firm. B.'a interest in the land is subsequently sold by the sheriff to C. In an ejectment by A. against C, to compel payment of the debts, it was held that C. could not object that the statute of limitations had run against some of these debts at the time the action was brought." One who has guaranteed another against certain •claims is entitled to the use of the statute of limitations against them. If, in an action upon them, the pa;"ty guaran- teed fails to oppose the statute, he loses his right of action against the guarantor.^ But the debtor is not, as against other creditors, obliged to evade an honest debt by means of the statute of limitations. He may confess a judgment for a debt that is more than six years old, and this judgment will be a valid lien as against other judgments subsequently recovered.^ Pleading. § 292. The benefit of the statute of limitations may be waived, and if the defendant omits to plead it in a common- law action, he will: be deemed to waive it. The statute is a bar only when it is pleaded.* It is the modern practice to plead the statute.^ When the date of the assumption is that ' Biddle v. Moore, 3 Pa. St. 161. of usurious interest, must be pleaded . "Case V. Gush man, 3 VV. & S. 544. Heath v. Page, 48 Pa. St. 130. A partner had assigned tiis interest in ^Richards v. Bickley, 13 S. & R. thefirm to X., paying X. $2-50 to guar- 395., Where an amicable aotiori is antee him against the firm debts, entered, and the parties go to trial Sued for a debt, but failing to set without declaration or plea, the up the statute, judgment was recov- defendant may orally s^t up the ■ered 'against him, which he paid. • statute of limitations. The absence He could not compel X. to indem- of a plea in such • a case is not a mify him. ~ waiver of the statute. Mosgrove v. 'Sergey's- Appeal, 60 Pa. St. 408. Golden, 101 Pa. St. 605. When the * Jones V. Moore, 5 Binn. 573; defendant in replevin avows a dis- Boggs V. Bard, 2 R. 102; Brown v. tress for rent in arrear, and the Bush, 45 Pa. St. 61 ; McDowell v. plaintiff pleads a set-off, which McCullough, 17 S. & R. 51 ; Com- arose more than six years before monwealth v. Ruffner, 28 Pa. St. 239 ; the distress was made, the defendant Suter V. Sheeler, 22 Pa. St. 308. The must reply the statute ; he' cannot «ix months' limitation of the act of take advantage of it by^ demurrer to 28th May, 1858, to the recovery back the plea. Reeves v. Pritchard, 10 W. N. C. 523. 412 LAW OF I;IMITATIONS, at which the right of action accrued, non assumpsit infra sex annos would be the proper plea; but when the cause of action arises subsequently to the assumption, the proper form of plea would be actio non accrevit infra sex annos} Thus, when the action is on a guaranty of the sufficiency of a mortgage to pay the debt, the right of action beginning only with the later suing out of the mortgage,'' or when the action is on a guaranty of payment of the price of goods to be afterwards purchased," the latter is the proper plea. The plea of non assumpsit infra sex annos would be demurrable.* In an action of debt to recover rent reserved in a lease, the plea was actio non accrevit infra sex annos!" Sometimes both pleas have been used ; e. g. in assumpsit for goods sold;' in assumpsit on a promissory note payable after its date,'', and on a post-dated check ; ° in an assumpsit for owelty due on a parol partition of land,® for a physicia,n's bill,^" and for dam- ages for vendor's breach of a parol contract to convey land." In actions of ^ tort, e. g. in trover, the plea " not guilty infra sex annos " has been used.^^ In making claims upon debts in a distribution of an estate assigned for the benefit of 'Overton D.Tracy, 14 S. &K. 311; ^Girard Bank v. Bank of Penn Meade v. McDowell, 5 Binn. 195. Township, 39 Pa. St. 92. 'Overton v. Tracy, 14 S. & R. 311. 'Walter v. Walter, 1 Wh. 152. » Meade v. McDowell, 5 Binn. 195. >» Harris v. Dennis, 1 S. & E. 236. * Meade v. McDowell, 5 Binn. 195. "Thurston v. Franklin College, 1& In an assumpsit against a collection Pa. St. 154. agent for moneys collected, the ac plea. Schmoyer under a plea of nil debet, the defense v. Schmoyer, 17 Pa. St. .'520. •of the statute was admitted in Prey ' Magaw v. Clark, 6 W. 528. V. Holben, 11 W. N. C. 349. After ^ Thurston v. Fisher, 9 S. & R. 288; the evidence was all put in at the ' c/. Nathans v. Bingham, 1 M. 164. trial and the witnesses gone, defend- 'King v. Baxter, 7 Phila 186. ant asked leave to add the plea non * Bailey v. Reed, 14 Phila. 167; ■ciasumpsit infra sex annos. It was Peterman v. Mullen, 13 W. N. C. 13. refused, but, as the defendant's ad- ' King v. Baxter, 7 Phila. 186. mission of the debt within six years "Magaw v. Clark, 6 W. 528; King was, in this case, the evidence of the v. Baxter, 7 Phila. 186 ; Thurston v. originalexistenceof the debt, as well Fisher, 9 S. & R. 288; Nathans v. as of its renewal, and the verdict Bingham, J. M. 164. necessarily found the admission to 'Peterman v. Mullen, 13 W. N. C. , have been made, and so the refusal 13; Bailey v. Reed, 14 Phila. 167. ■did no harm, the Supreme Court LIMITATIONS TO PEKSONAL ACTIONS. 417 (Statute of limitations does not bar it.^ When the defendant pleads set-off, to which the plaintiff replies the statute of limitations, the defendant may irejoin causes which, in his -opinion, exempt the case from the statute; e. g. that the plaintiff (who, as to the set-off, was defendant) was not within the State of Pennsylvania at the time the set-off accrued or since, and the plaintiff, denying the sufficiency of this rejoinder, may demur.^ Affidavit of Defense. § 295. When the plaintiff files a copy of his note, which shows on its face that it matured more than six years before the suit was brought, the defendant may prevent judgment by default for want of an affidavit of defense by simply filing a suggestion, without affidavit, of that fact;^ but where no suggestion is made, and no affidavit filedj the defendant will be considered as waiving his right to set up the limitation as against a part of the book account sued on, on its face more than six years old.* An affidavit suggesting that the debt is barred, will be sufficient, if it is so on its face, but, when the note sued on contains a promise to, pay in nine months after date, adding, " payable at the time of receiving my commis- sions as executor of the estate of W. B.," the sufficiency of the affidavit, alleging more than six years since the note became payable, will depend on -whether the note is payable absolutely in nine months, or only when the commissions are received, and, if the latter, whether the commissions were received more than six years before the action was brought. As the copy filed did pot state whether or when 'Eeed v. Marshall, 90 Pa. St. 345. ^G-onder v. Estabrook, 33 Pa. St. The action was against an executor 374. for a legacy. The executor pleaded 'Horter v. Wilson, 17 W. N. C, two notes made by the plaintiff to 562. So, when the claim is over the decedent, payable more than six twenty years old, and therefore pre- years before his death. The plain- sumed to be paid; a suggestion of tiff replied the statute, and, on de- that fact Js sufficient. Lash v. Vp- murrer thereto,, judgment was en- neida, 16 W. N. C. 93. tered for him. * Wilson v. Hayes, 18 Pa. St. 354. 2b 418 ^ LAW OF LIMITATIONS, the commissions had been received, a rule for. judgment for want of a sufficient affidavit of defense was discharged/ If the affidavit alleges that the statute has barred the claim declared on, but the cause of action is -not subject to the limitation, judgment will be given by default.* A copy of the promissory note being filed, with a statement of credits upon it, some of which were within six years prior to the inception of the suit, an affidavit alleging the statutory bar, and denying the pay- ments, will prevent judgment.^ So will one alleging the stat- ute, but not denying the payments.* The plaintiff filing a copy of book entries, which contains charges all more than six years old, and also items of credit within six years, and claiming the balance, an affidavit denying the purchase of the goods within six years, and alleging that nothing had accrued to the plain- tiff within six years, was sufficient to prevent judgment.^ Function of Jury. § 296. There are, perhaps, two cases in which the court need not, as far as the statute of limitations is concerned, submit any question to the jury. The first is when the defendant admits the making of an acknowledgment or promise, which the court may interpret, and in interpreting which, adjudges to contain the necessary ingredients. In this case the jury can be properly directed to return a ver- dict for the plaintiff.® The second case is when the plain- tiff's evidence of the acknowledgments or promise, being assurded to be true, these acknowledgments or that promise lack some of the essentials for the tolling of the statute. The court must, under these circumstances, direct a non-suit to be entered,' or give a peremptory instruction to the jury 'Bowers v. Bowers', 18 W. N. C. Sohaecterlein «. Knabe, 14 W. N. C. 80. 404. 'Helmbold v. D., H. andlV. Rail- ^Guillou v. Perry, 1 W. K C. 39. road, 14 W. N. C. 128. » Cf. Lawson v. McCartney, 104 Pa. •Murphy V. Holmes, 10 W. N. C. St. 356. 260. ' genseman v. Hershman, 82 Pa. St. *Rowe V. Atwater, 1 W. N. C. 149 ; 83 ; Morgan v. Tener, 83 Pa. St. 305; Kinsloe v. Baugh, 1 W. N. 0. 147 ; Kensington Bank v. Patton, 14 Pa. LIMITATIONS TO PERSONAL ACTIONS. 419' « to find for the defendant,^ or, on the defendant's demurrer to the evidence, enter judgment for him,^ or, on a point reserved, enter judgment for the defendant non obstante veredicto? The insuflBciency of the plaintiff's evidence may consist in the uncertainty with which the conduct or the words of the defendant are testified to, or in the lack of that conduct or those words, though clearly proven, of certain essential characteristics: as, when the promise was to pay an unascertained part of the, debt;* or an undefined bal- ance f or "what I owe;"' when it was to give the creditor all the satisfaction he could wish ;'' or, after the statute had! barred the debt, not to plead it;* when it was to settle;' or when a partial payment being relied on, as acknowledgment of the debt, the debt on which it was made was imperfectly identified;^" when the acknowledgment of a debt was so> qualified that it did not import a. promise to pay ;" when it was left doubtful whether the money tendered by the debtor was as partial payment or in compromise of the debt ; ^^ when St. 479 ; Dobson v. Quaritrell, 1 Phila. Pattou' v. Craig, 7 S. & R. 116, it was- 204 ; Lazarus v. Fuller, 89 Pa. St. said that a certain letter of the de- 331. fendant (referring to an unsuccess- ' Marseilles v. Kenton, 17 Pa. St. ful search for plaintiff's account,. 238; Gleim D. Rise, 6 W. 44 ; Church stating that he would have his own V. Feterow, 2 P. & W. 301 ; Allison account against the plaintiff made V. Pennington, 7 W. & S. 180. out, and requesting a new account' "Davis u. Steiner, 14 Pa. St. 275. from him, and promising to write ^ Shaffers. Shaffer, 41 Pa. St. 51; again and inform the plaintiff wheft Burr V. Burr, 22 Pa. St. 284 ; Barwell he will return to the city to put a V. Wirth, 61 Pa, St. 133. • close to this affair), should be siib- *Senseman«. Hershman, 82Pa. St. mitted to the jury as authorizing 88. them to presume a new promise in * Miller v. Basehore, 83 Pa. St. 356 ; six years, unless they were satisfied Weaver v. Weaver, 54 Pa. St. 152. it had no reference to the affairs on ^Morgan v. Walton-, 4 Pa. St. 321 ; which the action was founded, but it Emerson v. Miller, 27 Pa. St. 278. ought not to have been taken from, ' Berghaus 1). Calhoun, 6 W. 219. the jury entirely. 'Gilkysoa-y. Larue, 6 W. &S. 213. "Church v. Feterow, 2 P. & W. 'McClelland v. West, 59 Pa. St. 301. 487. ' ■" Farley v. Kustenbader, 3 Pa. St. "Burr V. Burr, 26 Pa. St. 284. In 418. 420 LAW OF LIMITATIONS, the defendant simply waived the statute to allow of a settle- ment ,by reference within a designated time, which was not made ;^ or when the promise was vague, as to amount, and conditioned on a contingency that did not happen.^ The words of the debtor, as proven, may be ambiguous in meaning, in one possible sense being sufficient, and in another possible sense insufficient, to toll the statute, e. g. they may import either the recognition of a debt, on aC'* count of money loaned to the defendant to assist him to J)urchase a house, or the recognition of an interest of the plaintiff in the house, to the extent of the money advanced. In case of ambiguity of meaning, the rule is general, that the acknowledgment ought not to be submitted to the jury.' So, while there is no doubt as to what words the defendant used, and as to the meaning of those words, if there is room to doubt whether he intended therti to awaken an expecta- tion not expressed in them, but the intention to awaken which is essential to their sufficiency to toll the statute, they should not be submitted to the jury. Thus, if A.'s action is against B. for not re-assigning to A. a judgment on the pay- ment of the debt to secure which it had been assigned, and the words proven to have been used by B. to take the action from the statutory bar, import merely that the judgment belongs to A., and not that he will re-assign it (though they were in response to a request for a re-assignment, and were accompanied by a promise to go to the prothonotary's office, which would have been useless except to assign the judg- ment) — in short, if the expressions be equivocal and inde- terminate in respect to the act of re-assigning, leading to no certain conclusion, but at best to probable inferences, which may affect different minds in different ways, they ought not to go to the jury as evidence of a new promise.* 'Marseilles v. Kenton, 17 Pa. St. 'Gerhard d. Gerhard, 3 Cent. Rep. 238. 601. 'Webster «. Newbold, 41 Pa. St. * Wambold d. Hoover, 16 W. N. C. • 482. 327. LIMITATIONS TO PERSONAL ACTIONS. 421 Function .of Jury — Continued. § 297. ■When, however, there is no doubt of the meaning of the several parts of the language of the defendant, con- sidered independently of the others, but when, considered in conjunction, there may be doubt as to whether the promise intended was absolute or conditional, the court cannot decide this question, but must submit it to the jury, the promise, if absolute, being sufficient, but if conditional, under the circumstances insufficient, to waive the statute. Thus, A.'s agent called on B., the debtor, and asked for the payment of the debt. B. said he was sorry he could not pay ; that he could not give A. money ; that he had a friend who would give him money to pay the debt, but as this friend was absent he would pay A. as well as he had paid a certain other debt; that he would pay, not only principal and lawful interest, but something extra. Whether, this was an absolute or a conditional promise was, it was said, a question of fact. The defendant referred to the source 'whence- he expected to obtain the funds. This was fol- lowed by a promise in terms absolute. The court could not say that there was any condition annexed to the prom- ise.^ When there is alleged an unqualified and unequivocal 'Barwell v. Wirth, 61 Pa. St. 133. peremptory that there was nothing^ In Church v Feterow, 2 P. & W. 301, to take the case out of the statute, it was said that when the expression In Brown v. Campbell, 1 S. & R. 176,., or conduct of the defendant was a letter of the defepdant was put in ambiguous or equivocal in making evidence, in which he denied that the acknowledgment, it was for the he was ever responsible to the plain- jury to determine whether they tiflf, but referred to a third person aS' amount to an admission of a debt liable, and from whom he offered subsisting at the time. In Scull v. to assist the plaintiff to recover, Wallace, 15 S. & R. 231, it was said Said Tilghman, C. J., " If the expres- that, bad there been anything con- sions of the letter had been doubtful,, tradictory or doubtful in the evidence or if it had been necessary to refer as to the admissions, it would have to something extrinsic in order to> been proper to leave it to the jury, understand it, it would have been but the meaning being so plain that proper for the jury to consider it was impossible to misunderstand whether a promise might not be it, the charge ought to have been presumed ; but, seeing nothing in it 422 LAW OF LIMITATIONS. acknowledgment of a subristing debt, the promise to pay it must be presumed, and the court must instruct the jury that it is their duty to infer it, if they find the acknowledgment to have been made.^ In case there is dispute as to what the language or the conduct of the defendant was, which, by the plain tiflf, is alleged to toll the statute, and if only on the assumption of the plaintiff's version, it would be sufficient to toll the statute, the jury must determine what it in fact was. It would be error for the court to direist the jury, unconditionally, to return a verdict for the plaintiff. The credibility of the witnesses is for them.^ Waiver of Statute. § 298. By omitting to plead the statute of limitations, the <3efendant, as we Lave seen, waives the benefit of it. He may waive this benefit in other ways. Thus, when the , parties, in less than six years from the maturity of the debt, prepared an agreement for an amicable action, dated January, 1853, but, for some reason, the paper was not filed until 5th December, 1853, by which time more than six years had run since the right of action accrued, it was said that "this action ought to be treated as commenced to hut a denial of the plaintiff's claim, the jury may not refuse to regard, it appears to me that there is no Levy v. Cadet, 17 S. & R. 126. ground for a presumption." The * Montgomeryy. Cunningham, 104 letter should not have been submit- Pa. St. 349; Lawson v. McCartney, ted to the jury as evidence of a 104 Pa. St. 356. Perhaps when the jpromise. In Miles v. Moodle, 3 S. Smith V. Nevin, 31 Pa. St. 238; 138; Bentley's Appeal, 99 Pa. St. Van Loon v. Smith, 103 Pa. St. 238 ; 500 ; Summerville v. Holliday, 1 W. Power V. Hollman, 2 W. 218. 507 ; Cope v. Humphreys, 14 S. & R. 'Biddle v. Girard National Bank, 15. 109 Pa. St. 349; Bentley's Estate, 9 'Biddle v. Girard National Bank, Phila. 344; Peters' Appeal, 106 Pa. 109 Pa. St. 349. St. 340; Hubley's Appeal, 19 Pa. St. PKESUMPTION OF PAYMENT. 431 CHAPTER II. SUBJECTS OF THE PRESTTMPTION. Subjects to 'Which Rule Applies. § 302. The rule that presumes debts ^ paid in twenty years extends to debts of all descriptions not barred by the statute of limitations.^ It applies to single bills ;* to admin-- istrators' bonds;* to bonds conditioned absolutely to pay a sum of money to the obligee;^ to a bond by the executor and another, conditioned to pay a legacy,* or other money due independently of the bond ; to covenants under seal for the payment of money,'' or for the doing of some other act. 'As to a bond in a penal sum con- ditioned for the conveyance by the principal obligor in one year of cer- tain land to X., the presumption is that the conveyance was made and the obligation thus extinguished, in -twenty years from the stipulated time for the conveyance. Shontz v. Brown, 27 Pa. St. 123. ^Cope V. Hum,phreys, 14 S. & E. 15 ; Thompson v. McGraw, 2 W. 161 ; Foulk V. Brown, 2 W. 209 ; Lash v. Voneida, 16 W. N. C 93 ; Cfiedland's Estate, 2 Phila. 379 ; Bentley's Es- tate, 8 W. N. C. 455; Pryqr v. Wood, 31Pa. St. 142; McQuesney v. Hiester, 33 Pa. St. 435. ''Boyd's Appeal, 83 Pa. St. 89; McDowell V. McCuUough, 17 S. & R. 51; Sellers v. Hollman, 20 Pa. St. 321; Kline v. Kline, 20 Pa. St. 503; Eiliert v. Geistwite, 1 Pittsb. 153. 'Diemer v. Sechrist, 1 P. & W. 419. ^Delanyr. Robinson^ 2 Wh. 503; Eby V. Eby, 5 Pa. St. 435 ; Boltz v. BuUman, 1 Y. 584 ; Dehart v. Gard, Add. 344; Clapier v. Maupay, 2 M. 137; Penrose v. King, 1 Y. 344; Boyd V. Grant, 13 S. & R. 124 ; Hen- derson V. Lewis, 9 S. & R. 379; Kline V. Kline, 20 Pa. St. 503 ; Lash v. Von Neida, 109 Pa. St. 207; Griffith's Estate, 14 W. N. C. 486 ; Hughes v. Hughes, 54 Pa. St. 240; Summer- ville V. Holliday, 1 W. 507 ; Delany V. Robinson, 2 Wh. 503; Shontz v. Brown, 27 Pa. St. 123 ; Diehl v. Ihrie, 3 Wh. 143 ; Cremer's Estate, 5 W. & S. 331; Tilghman 4). E'isher, 9 W. 441; Foulk v. Brown, 2 W. 209; Norris' Appeal, ^1 Pa. St. 106 ; Pryor V. Wood, 31 Pa. St. 142 ; Cope v. Humphreys, 14 S. & R. 15 ; Ingraham V. Cox, 1 Pars. Eq. 70 ; Wilkinson's Estate, 1 Pars. Eq. 170; Stout v. Levan, 3 Pa. St. 235; McCarty v. Gordon, 4 Wh. 321. .'McCuUough V. Montgomery, 7 S. & R. 17. 'Kane v. Fisher, 2 W. 246; Mor- rison V. Funk, 23 Pa. St. 421. 432 LAW OF LIMITATIONS. from the failure to do which a right to recover money springs out of the covenant.^ From the lapse of twenty years, are presumed to be paid foreign judgments, e. g. one rendered in the Island of Barbadoes,^ or in the District Court of the United States for the District of Mississippi,^ and domestic judgments, whether by justices of the peace* or by higher courts of record," and not only judgments in personam, but judgments in foreign attachment." The- same presumption operates with respect to mortgages ;''. to annual arrears of ground-rent,* and of a widow's dower;* to the principal of the widow's dower;" to owelty in amicable partition by deed,^^ or parol,^^ or in partition effected through the Orphans' 'Stewart v. West, 14 Pa. St. 336. "Eichards v. Bickley, 13 S. & R. S95. 'Rogers V- Burns, 27 Pa. St. 525. * Diamond v. Trtbias, 12 Pa. St. 312. "Van Loon v. Smith, 103 Pa. St. 238 ; Smith v. Nevin, 31 Pa. St. 238 ; James v. Jarrett, 17 Pa. St. 370 ; Wills V. Gibson, 7 Pa. St. 1-54 ; Foulk V. Brown, 2 W. 209 ; Lesley v. Nones, 7 S. & R. 410; Cope v. Humphreys, 14 S. & R. 15 ; Ingraham v. Cox, 1 Pars. Eq. 70 ; Taylor v. Megargee, 2 Pa. St. 225 ; Moore v. Smith, 81 Pa. St. 182; Diehl v. Ihrie, 3 Wh. 143; Pryor D. Wood, 31 Pa. St. 142; Broomall v. Laird, 1 Del Co,. Rep. 161 ; Davis v. McHenry, 11 W. N. C. S04. *Biddle i). Girard National Bank; 109 Pa. St. 349. 'Green v. Fricker, 7 W. & S. 171 ; Michenerv. Michener, 17 W. N. C. 266 ; Levers v. Van Busk irk, 7 W. & ■S. 70; Id., 4 Pa. St, 3ii9; McCrud- den's Estate, 12 Phila. 69 ; Simpson V. Broomall, 1 Del. Co. Rep. 229 Richards v. Bickley, 13 S. & R. 395 Cope V. Humphreys, 14 S. & R. 15 ■City of Philadelphia v. Comber, 15 W. N. C. 502; Van Loon v. Smith, 103 Pa. St. 238; Peters' Appeal, 106 Pa. St. 341; Hess v. Frankenfield, 106 Pa. St. 440 ; Foulk v. Brown, 2 W. 209; Summerville «. Holliday, 1 W. 507; Smith v. Nevin, 31 Pa.-St. 238 ; Wilkinson's Estate, 1 Pars. Eq. 170. *St. Mary's Church v. Miles, 1 Wh. 229 ; McQiiesney v. Hiester, 33 Pa. St. 435 ; Korn v. Browne, 64 Pa. St. 55. The lapse of twenty years, while it makes a presumption of payment of the arrears of rent, does not make a presumption of the extinguish- ment of the ground-rent itself as an estate in the land. The ground-rent is subject to the twenty-one years' presumption of the seventh section of the act of 27th April, 1855. P. L. 369; 1 Bright. Purd. p. 862, pi. 18; McQiiesney v. Hiester, 33 Pa. St. 435; Korn v. Browne, supra; Kurr V. Brobst, 2 Woodw. 187. 'Dillebaugh's Estate, 4 W. 177. "Unangst v. Kraemer, 8 W. & S. 391. "Darlington's Appropriation, 13 Pa. St. 430. "Higgs V. Stimmel, 3 P. & W. 115. PRESUMPTION OF PAYMENT. 433 Court ;^ to taxes for other than State purposes assessed on unseated land.^ If one employed by A. to discover vacant land, to procure a warrant, locate it, and survey the land (A. paying the State the purchase-money), takes out a patent in his own name, and .so acquires a lien for the com- peiisation to which he is entitled, this compensation will be presumed paid and the lien extinguished in favor of A. or those claiming by grant from him, as against the patentee, after twenty years of possession or other exercise of domin- ion of the land by A.^ Subjects— ^Continued. § 303. The twenty years' presumption applies to accounts between merchant and merchant;* to the general warranty in deeds conveying land ; ° to the debts for whose payment an assignment in trust for the benefit of creditors,® or an assignment in insolvency is made;' and to the liability of the assignee to account to the assignor with respect to the assigned property, he denying the holding of any property, to be accounted for,^ or he admitting he holds such property but setting up the right of creditors to it.^ It is immaterial whether the assignee does,'" or does not, accept the trust." Damages for the taking or injuring of land, under the ' Beale V. Kirk, 84 Pa. St. 4l5 ; An- tate, 54 Pa. St. 465 ; Forster v. For- keny v. Penrose, 18 Pa. St. 190; ster, 1 Pears. 275; Mellish's Estate, Peters' Appeal, 106 Pa. St. 340; 1 Pars. Eq. 482; Ingraham v. Cox, Galbraith v. Galbraith, 6 W. 112; 1 Pars. Eq. 70, Briggs' Appeal, 93 Pa. St. 485 ; Hess 'Power v. Hollman, 2 W. 218; V. Frankenfield, 106 fa. St. 440; Sailor v. Hertzog, 4 Wh. 259 ; Lamb Pryor v. Wood, 31 Pa. St. 142. " v. Fries, 2 Pa. St. 83. ''Woodburn v. Farmers' and Me- * Forster -u. Forster, 1 Pears. 275. chanics' Bank, 5 W. & S. 447 ; Mc- " 'Potter's Estate, 54 Pa. St. 465. Laughlin V. Kain, 45 Pa. St. 113. "Power v. Hollman, 2 W: 2;i8; ' Brock V. Savage, 31 Pa. St. 410. Sailor v. Hertzog, 4 Wh. 259 ; Adlum *Foulk V. Brown, 2 W. 209. v. Yard, 1 R. 163. * Stewart v. West, 14 Pa. St. 836. " Lamb v. Fries, 2 Pa. St. 83 ; Power «Adlum v: Yard, 1 R. 163 ; Webb v. Hollman, 2 W. 218 ; Sailor d. Hert- u Dean, 21 Pa. St. 29; Drysdale's zog, 4 Wh. 259. Appeal, 14 Pa. St. 531 ; Potter's Es- 2c 434 LAW OF LIMITATIONS. power of eminent domain ;^ a promissory note not under seal, but exempted from the operation of the statute of limitations by peculiar circumstances;^ a claim against a corporation made a lien by the resolution of 21st January, 1843, (P. L. 367,) and which is excepted from the statute of limitations under the seventh section of the act of 25th April, 1850,^ by the fact that the corporation has made an assignment or suffered a judicial sale of its property before the statutory period of limitation has expired ; * the liability of a guardian to his ward after the termination of the trust by his death,® or by the attainment of majority of the ward ; ® or, if the ward be a/eme, by her marriage ;' the liability of the land of a decedent to be sold for his debts, on an application by the administrator,' or the liability of an executor or admin- istrator,' or of his assignee for the benefit of creditors,^" to file a first account or a second account," at the instance of creditors, legatees and next of kin : all are subject to the presumption. The presumption of payment applies to the acknowledgment of receipt of payment in a deed. Thus, if the mortgagee as- signs the mortgage, the assignment acknowledging receipt of the consideration, and more than twenty years afterwards (the terre-tenant of the land having purchased the mortgage from the assignee), X., claiming that the mortgage had been held in trust for him, sues a scire facias upon it, the payment of a val- uable consideration for the mortgage by the assignee will be presumed so as to defeat the undisclosed equity of X.^^ A divi- dend awarded to a creditor of the decedent, on the settlement of the executor's account, is, in twenty years thereafter, pre- sumed paid.^^ 'Union Canal Co. v. Woodside, 11 = Taylor's Estate, 11 W. N. C. 192. Pa. St. 176. » Ingraham's Estate, 1 Pars. Eq. 70 ; 2 Bailey D.Vehmeier, 7 W. N. C. 195. Bentley's Estate, 9 Phila. 344. ' P. L. 570 ; 2 Bright. Purd. p. 1067, " Ingraham's Estate, 1 Pars. Eq. 70. pi. 24. "Wilkinson's Estate, 1 Pars. Eq. * Hayea' Appeal, 18 W. N. C. 322. 170. "Oliver's Appeal, 101 Pa. St. 299. '^ Pryor v. Wood, 31 Pa. St. 142. 'Walker's Estate, 41 Leg. Int. 214. "Thompson's Estate, 1 Luz. Leg. ' Eckert's Appeal, 6 W. N. C. 21. lleg. Eep. 235. So, when a balance for PRESUMPTION OF PAYMENT, 435 CHAPTER III. PROCEEDINGS. Proceedings. § 304. Tlie presumption applies to the debt, without respect to the form of security which represents it, and consequently without respect to the proceeding which the form of security requires or suggests. It may be invoked, therefore, both at law and in equity,^ in the Common Pleas, the Orphans' Court, and every other tribunal, regular or special.^ It avails in scire facias on recognizances,* on mortgages,* on transcripts to the Common Pleas of balances distribution is ascertained to b.e in the administrator's hands, on a set- tlement of his account, it will, in twenty years, be presumed to have been distributed. Hubley's Appeal, 19 Pa. St. 138. There is no presump- tion that the purchase-money of land or chattels has been paid for the pur- pose of sujiporting a decree for a specific performance of the contract , of sale against the vendor. A., own- ing shares in a land company, organ-^ ized fcir the sale of land, contracted to sell his shares to B., but retained the title to them till the purchase- money was paid. Seventy years after- wards, the proceeds of sales of this land made by the trustees were in court for distribution. In a contest between B. and one to whom A. had assigned the purchase-money due by B., and his lien on the shares as' security thetefor, for the payment of certain of A.'s creditors, that portion of the proceeds which ratably be- longed to these shares was payable to A.'s assignee and not to B. or B.'s administrator. There was no pre- sumption that A. had been paid, and that, therefore, B. was entitled to the proceeds of the shares. North Ameri- can Land Co.'s Appeal, 83 Pa. St. 493 ; Jd.,-60 Pa. St. 247 ; Moss' Appeal, 43 Pa. St. 23. 'Hayes' Appeal, 113 Pa. St. 380; Henderson v. Lewis, 9 S. & E. 379. ^ Union Canal Co. v. Woodside, 11 fa. St. 176. 'Beale v. Kirk, 84 Pa. St. 415; Ankeny v. Penrose, 18 Pa. St. 190. * Smith J). Nevin, 31 Pa. St. 238; Michener v. Michener, 17 tV. N. 0. 266 ; City of Phila. v. Comber, 15 W. N. C. 502. In a scire facias on a mortgage for purchase-money of land, the presumption may be em- ployed by the plaintiff against an earlier mortgage which the defend- ant sets up as a defense. Green v. Fricker, 7 W. & S. 171. 436 LAW OF LIMITATIONS. of administration accounts/ on judgments in personam,^ or on judgments recovered in foreign attachmejit, the scire facias being employed to bring in the garnishee/ on a justice's judgment, transcripted, after great length of time, for pur- pose of execution against land, into the Common Pleas.* It is effectual in actions of debt on foreign judgments," or to recover from the terre-tenant the principal of a widow's dower,^ or to recover from the executor a legacy,' in debt on an administrator's bond for the recovery of a distributive share,* or on a bond given by a tenant^ in common for owelty of partition, in the Orphans' Court,^ or on a single bill,"" or to recover from a bank a deposit of money ,^^ or on a . penal bond conditioned for the payment, absolutely, of a sum of money ,^^ or for the payment of a legacy by the executor,^^ or on articles of agreement for sale of land for the recovery of the purchase-money,^* or on a recognizance in the Orphans' Court for owelty in partition.'* Proceedings — Continued. § 305. The presumption of payment, or accord and satis- faction, is available in the action of covenant: e. g. on a general warranty after eviction ; '^ on articles of agreement, • Cotnmon wealth «. Snyder, 62 Pa. 'Foulk v. Brown, 2 W. 209; St. 153. Thompsons. McGaw, 2 W. 161. 'Diehl'w. Ihrie, 3 Wh. 143;,James ^Diemer v. Sechrist, 1 P. & W. D. Jarrett, 17 Pa. St. 870; Hess v. 419. Frankenfield, 106 Pa. St. 440 ; Wills 'Stout v. Levan, 3 Pa. St. 235 ; Mc- ■V. Gibson, 7 Pa. St. 154 ; Cope v. Carty v. Gordon, 4 Wh. 321. Humphreys, 14 S. & R. 15 ; Van '" Sellers «. Hollman, 20 Pa. St. 321. Loon V. Smith, 103 Pa. St. 238; " Ashtoq .d. Phila. National Bank, Moore v. Smith, «1 Pa. St. 182; 2 Oh. Co. Rep. 479. Murphy v. Phila. Trust Co., 103 Pa. "Delaney v. Robinson, 2 Wh. 503; St. 379. , Eby v. Eby, 5 Pa. St. 435 ; Boltz v. 'Biddie v. Girard National Bank, Bullman, 1 Y. 684; Dehart v. Gard, 109 Pa. St. 349. Add. 344; Clapier v. Maupay, 2 M. 'Diamond v. Tobias, 12 Pa. St. 312. 137. "Richards v. Biokley, 13 S. & R. "McCullough v. Montgomery, 7 8. ' 395; Rogers v. Burns, 27 Pa. St. 525. & R. 17. "Unangst v. Kraemer, 6 W. & S. "Reed v. Reed, 46 Pa. St. 239. ■891. "Galbraith 1). Galbraith, 6 W. 112. "Stewart ?;. West, 14 Pa. St. 336. , PRESUMPTION OF PAYMENT. 437 by the vendor, for the recovery of the purchase-money of land ; ' on ground-rent deeds, for the recovery of arrears of rent.^ In foreign attachment in debt on a bond ^ or other cause of action;* in ejectment sur mortgage;^ or by the vendor on his legal title, to compel payment of the purchase- money ;^ or to recover owelty originating in an amicable parol partition;' or between contesting claimants to unseated land,, one of whom derives title by a treasurer's sale for taxes^ made more than twenty years after they had been assessed ; ^ or between the person who paid the purchase-money to the State, and the person who, at his instance, discovered the- vacant land, applied for the warrant, located it, surveyed the land, and subsequently took out a patent for it ; ' or between one who claims title by grant from an assignor for the bene- fit of creditors, and one claiming hostilely to the assignor's, title ;^'' the presumption of payment of the debt directly or incidentally decisive of the right, may be invoked. It is- applicable 'm^ assumpsit against an administi-ator fpr a dis- tributive share." Besides the common-law actions, it has been appealed to successfully in a great variety of other 'Kane v. Fisher, 2 W. 246. Di8- "Woodburn v. Farmers' and Me- charge of an incumbrance on th§ chanics' Bank, 5 W. & S. 447 ; Mc- land will be presumed if it is twenty Laughlin v. Kain, 45 Pa. St. 113. years old, in an action by the vendee 'Brock v. Savage, 31 Pa. St. 410. to rescind the contract and recover When the purchaser on a judgment back the purchase-money because recovered on a bond which was thirty of the existence of the incumbi^ance. years old when a voluntary convey- AUen 1). Sawyer, 2 P. & W. 325. ance of the land was made by the obli- ' McQuesney v. Heiater, 33 Pa. St. gor, seeks in ejectment to annul the' 435; St. Mary's Church v. Miles, 1 conveyance, as in fraud of creditors, Wh. 239; Wells v. Gibson, 7 Pa. St. the voluntary grantee may avail him- 154; Korn v. Browne, 64 Pa. St. 65. self of the presumption that the bond ' Kline w. Kline, 20 Pa. St. 503. was paid, to validate his title. Postensi *Adlum V. Yard, 1 R. 163; Biddle v. Postens, i3 W. & S. 127. V. Girard National Bank, 109 Pa. St. '"Sailor v. Hertzog, 4 Wh. 259 p 349. Power D. Hollman, 2 W. 218; Webb- 'Levers v. Van Buskirk, 7 W. & 8. v. Dean, 21 Pa. St. 29 ; Lamb v. Fries,, 70; Id., 4 Pa. St. 309. 2 Pa. St. 83. 'Morrisons. Funk, 23 Pa. St. 421. "Logan v. Richardson, 1 Pa. St. ' Higgs V. Stimmel, 3 P. & W. 115. 372. 438 LAW OF LIMITATIONS. proceedings, e. g. a petition for a venire under a special' act of Assembly for assessment of damages occasioned by the construction of a canal, under the eminent domain ;^ a set- off, in an action on a book account, of an ancient bond;^ a bill in equity to enforce a lien against a corporation under the resolution of 21st January, 1843, (P. L. 367,) for work done to its railroad ; ' a petition under a rule of court for leave to enter judgment on a bond with warrant of attorney, more than twenty years old;* an application by fi terre- tenant, to open the judgment on a mortgage against the mortgagor alone, on account of the lapse of time before the scire facias was sued out/ Proceedings — Continued. § 306. In distribution proceedings in the Orphans' Court, the deduction from a distributee's share, of a bond due the decedent by him and more than twenty years old, may be successfully resisted ; * as may the payment of an old debt ' Union Canal Co. v. Woodside, 11 credits for such payments were inr Pa. St. 176. • dorsad on tlie bond by the obligee ' Rickert 1), Geiatwite, 1 Pittsb. 153. before the lapse of time had made ^ Hayes' Appeal, 113 Pa. St. 380. a presumption of payment. If to a Unless the bill shows on its face petition defective in these respects, circumstances tending to repel the an answer averring, generally, that presumption of payment when the the bond has been paid is put in, it- cause of action appears to have would be proper to allow a supple- arisen more than twenty years be- mental affidavit more specifically fore it was filed, it will be dismissed averring payment. If such supple- on demurrer. mental affidavit is allowed, on condi- *Lash V. Von Neida, 16 W. N. C. tion that it be filed before the entry 93. No judgment by warrant of at- of judgment, it will be error to enter torney or otherwise can be entered judgment on the second following upon a bond after the presumption day without notice to the defendant's of payment has attached, until that counsel, who prepares a complete presumption has been in some way affidavit and brings it into court to rebutted. When the petition of the file it, three days after the entry of obligee alleges payments, it should judgment, without knowledge that be supported by the affidavit of a • the judgment has been entered, person having knowledge that they 'Miohener v. Michener, 17 W. N. were made, should state they were C. 266. made by the obligor, or that the " Cremer's Estate, 5 W. & S. 33. PRESUMPTION OF PAYMENT. 439 claimed by a creditor;^ or of a legacy which the decedent, as executor of the devisor, ought to have paid;^ or of a balance due by the decedent as guardian to his ward." So, when the proceeds of land sold in the Orphans' Court in partition are distributed, the presumption of payment will be enforced against a lien for owelty in a former partition, due more than twenty years;* as, in a distribution in the Common Pleas of the proceeds of a sheriff's sale of land it will be en- forced, against owelty charged thereon in a former amicable partition;® or against owelty secured by a recognizance in the Orphans' Court.^ The presumption that arrears of dower more than twenty years old, have been paid by the administrator, who had sold the land of decedent in partition and filed an account charging himself with the proceeds, will be applied in an application by the widow for a citation to him to pay them to her.' For lapse of more than twenty years since a legacy should have been paid, the legatee's petition for a cita- tion to the executor to file an account, with a view to constrain- ing him to pay the legacy, will be refused;* as will a citation at •Cooke's Appeal, 8 Pa. St. 508 ; 10 W. N. G 224. A. died in 1812, his Peters' Appeal, 106 Pa. St. 340 ; will directing his executor to invest Griffith's Estate, 14 W. N. 0. 486; moneys and pay the annual income Thompson's Estate, 1 Luz. Leg. Reg." from them to B. fot life, and after B.'s 285. death to pay the moneys to others. ' Bentley's Appeal, 99 Pa. St. 500. The annual income was paid to, B. The decedent dying in 1811, be- till 1850. In 1864 the executor queathing a legacy on the death of died, never having filed an account, A., which took place in 1845, the B. surviving him. In 1866 an ad- claim of the legatee in a distribu- ministrator d. b. n. was appointed, tion of the testator's estate, which who forthwith asked the Orphans' took place in 1852, was not barred. Court for a citation to the executor Strghm's Appeal, 23 Pa. St. 351. of A.'s executor to file an account 'Oliver's Appeal, 101 Pa. St. 299. of the latter's administration of A.'s '.Briggs' Appeal, 93 Pa. St. 485. estate, for the purpose of compelling * Darlington's Appropriation, 13 the payment of the life legacies. But Pa. St. 430. the citation was denied, inasmuch •Ankeny v. Penrose, 18 Pa. St. 190. as the presumption was that the 'Dillebaugh's Estate, 4 W. 177. estate of A. had been settled other- ' Bentley's Appeal, 99 Pa. St. 500; wise than through an account in Bentley's Estate, 8 W. N. C. 455 ; Id., court, and that the executor had set 440 ' I/AW OF LIMITATIONS. the instance of the next of kin, to the administrator, to file an aceount more than twenty years after he had become liable to file one ; ' or to file a second account more than twenty years after the filing and settling of the first.^ Though for assets received by the administrator since he filed his first account, which was intended to be final, and the balance of which was immediately distributable, a second account may be commanded, it cannot be made to embrace the balance of the first account, if more than twenty years have ihtervened, without proof that the former balance has not been paid to the persons entitled.^ Proceedings — Continued. , § 307. The presumption of payment will, prima facie, prevent a citation by the Orphans' Court to a guardian to file an account more than twenty years after the termination of the tutelage.* The Common Pleas will not, at the instance of a creditor, compel an assignee for the benefit of creditors, to file an account after more than twenty years from the apart and invested assets for the pay- time is not made to the citation, and ment of the legacies. Such invest- an account is filed, claiming credit ments ceased to be a portion of the for payments made to the next of general estate, and became a special kin or legatees, these credits will be, trust fund. Hence, though the ad- prima facie, sustained by the pre- miiiistrator of A. d. b. n. might be sumption of payment. Wilkinson's entitled to exercise control over this Estate, supra; Norris' Appeal, 71 Pa. trust fund, he was not entitled to a St. 106. general account of the administra- " Hubley's Appeal, 19 Pa. St. 138. tion of A.'s estate. Seihert's Appeal, As the distributees could not enforce 2 W. N. C. 53 ; Leibert v. McKnight, the payment of the balance by an 32 Leg. Int. 291. action after more than twenty years ' Okeson's Appeal,2 Gr. 303,- Cried- had fled since the settlement of the land's Estate, 2 Phila. 379 ; Ingraham first account, n,either could they ac- V. Cox, 1 Pars. Eq. 70. complish the same result by includ- ' Wilkinson's Estate, 1 Pars. Eq. ing it in the second account, and 170. A. dying in 1796, his executor procuring a new decree for the pay- settled an account in '1801, which ment of the balance on this ac- was corrected and the balance ascer- count. tained by the Orphans' Court in *Eckert's Appeal, 6 W. N. 0. 21. 1802. To a citation in 1826, the lapse The trust had terminated more than Of time was,pnjria /adie, an answer, thirty years before the proceeding. So, if the objection from lapse of PRESUMPTION OP PAYMENT. 441 time the debt might have been paid out of the assigned estate,^ nor will it, on the application of the assignor, compel , the assignee or his exequtor or administrator, to file an account;, when the lapse of time has made the presumption that a settle^ ment has been niadfe with the assignor for any surplus.^ But when the assignee admits the possession of assets which had, more than twenty years before, been decreed to certain cred- itors as dividends but never called for by them, the presump- tion, is that they have been otherwise satisfied, and therefore , the assignor is entitled to a decree on- his petition, that the assigilee pay these assets over to him or to his personal rep- resentative.^ An administrator's application to the Orphans' Court for an order to sell decedent's land for the payment of debts, will be refused after twenty years from the death of the intestate, in the absence of proof that unpaid debts still remain.* The presumption will be given effect under a rule from the Common Pleas to strike off a judgment, entered against one of three defendants, who had been brought in by an alias summons over twenty years after judgment had been entered against the other two who, only, had been served with the original writ.^ In an attachment execution the garnishee may invoke the presumption, when twenty years elapse after the issue of the attachment without anything done under it.^ The presumption of payment of a debt frona the lapse of twenty years since the debt was payable, will be applied. to the determination of the eompe- ' Mellish's Estate, 1 Pars. Eq. 482; In 1837 dividends to creditors were Ingraham v. Cox, X Pars. Eq. 70. declared, some of which continued Nor will it compel the executor of in the hands of the assignee till 1867, the assignee to file an account at when the personal representative of that interval. the assignor successfully petitioned 'Forster v. Forster, 1 Pears. 275.' the court for a decree that the^ be. Thirty years had here elapsed after paid over to her. the assignment when the citation to 'Taylor's Estate, 11 W. N. C. 192. file an account was asked. "Bailey v. Vehmeier, 7 W. N. C. ' Potter's Estate, 54 Pa. St. 465. 195. The assignment was made in 1811. * Shilling v. Beidler, 2 Woodw. 160. 442 LAW OP LIMITATIONS. tency of a witness. Thus, a legatee whose bequest is charged on the land which is the subject of the ejectment will, when tendered by the party claiming under the will more than twenty years after the legacy was payable, be assumed to have been paid the legacy.' CHAPTEE IV. COMPUTATION OF TIME. Time -with Which the Twrenty Years Begin. § 308. As the time when a debt is payable is not always coincident with its creation, nor with the contract out of which it springs, and as there is no presumption that a debt is paid before, by the terms of the obligation assumed, it becomes t^e debtor's duty to pay it, the period of twenty years commences, not with the date of the bond, covenant or other contract, nor with the date of the service rendered in pursuance of it, out of which the duty to pay arises, but with the time the money first becomes demandable.^ Thus, an administrator's bond is not suable from its date, but only from that of the breach of it, and only when the duty of paying over to the distributees has accrued, can they make a demand on the administrator for their shares of the estate. Then first begins the presumptive period.^ When a legacy ^ Levers v. Van Buskirk, 4 "Pa,. St. aumptively dead. McCrudden's Ea- 309. A sale of decedent's land had tate, 12 Phila. 69. been made in the Orphans' Court. 'Diemer «. Sechrist, 1 P. & W. 419; A mortgage more than twenty years Ankeny v. Penrose, 18 Pa. St. 190; old was then discovered to have ex- Hughes v. Hughes, 54 Pa. St. 240 ; isted on the land. On an application' Commonwealth v. Snyder, 62 Pa. St. for a resale, because the purchaser 153 ; Strohm's Appeal, 23 Pa. St. was unwilling to take the risk of the 351; Backestoss v. Commonwealth, mortgage, or because it had depressed 8 W. 286; McCarthy v. Gordon, 4 the price obtained, a resale was Wh. 321. ordered, but the court expressed the 'Diemer v. Sechrist, 1 P. & W. opinion that the mortgage was pre- 419. There is no presumption in favor PRESUMPTION OF PAYMENT. 443 is payable, by the terms of the will, at the death of a pa:;- ticular person,^ or on the legatee's reaching a certain age,'* or two years ^ or one year* after the testator's death, or when, from the absence of any express direction in the will, the legacy is intended by the law to be payable one year after the taking out of letters testamentary,* the presumption that it has been paid will become complete only in twenty years after these several events. The principal of a widow's assignment, may be overcome by 309. the admission of the assignor that 'Id. he has no claim against the assignee, *Id. Unless it certainly appears- implied in the fact that six years that the admissions refer to some after making the assignment, in other debt, the court will submit it. taking the benefit of the insolvent to the jury to determine, law, and seven years afterwards, in » Peters' Appeal, 106 Pa. St. 340. PRESUMPTION , OF PAYMENT. 461 cult its rebuttal.* It is not too much to say that after thirty- years it ought not to be overcome by anything but clear proof of non-payment. Admissions of indebtedness to " the Penstamacher heirs," not identifying the character of the •claim or the amount, will, after that length of time, be inad- equate to support a demand for a debt alleged to be due the •deceased wife of the debtor, whose children, by a former husband, were probably intended by " the Fenstamacher heirs." ^ After a period of time, not exactly defined, longer than twenty years,, the presximption of payment, which at twenty years is rebuttable, will become irrebuttable and con- clusive. For the time must come, in every human transac- tion, when .litigation shall end; otherwise there would be neither peace in this world for the living nor safety for the estates of the dead.^ Rebuttal of the Presumption by Former Demand. § 319. The presumption of payment from the length of time that has elapsed between the accruing due of the debt and the action in which it is set, up to defeat a recovery, may be overcome by many kinds of facts which tend to repel the hypothesis of quiescence by the creditor, and therefore over- throw the inference that he believed or knew his debt had been paid, to which this quiespence would give color. It has been said that a demand upon the debtor for payment, without suit, would repel the presumption that, prior to that demand, the debt had been paid, and require another period 'of twenty years after such demand, to constitute such a pre- sumption.* But it is probable that the demand to which this virtue is attributed, is simply the means of eliciting from -'Peters' Appeal, 106 Pa. St. 340; account was refused. There wa^, Bentley's Estate, 9 Phila. 344. however, no positive evidence that ' Peters' Appeal, 106 Pa. St. 340. the estate had not been settled. '-Bentley's Estate, 9 Phila. 844. *Tilghman v. Fisher, 9 W. 441; Hence, after thirty-six years from Levers w. Van Buskirk, 7 W. & S..70; the time the executor should have McCulloygh v. Montgomery, 7 S. & filed an account, the petition for a R. 17; Foulk «». Brown, 2 W. 209. 'Citation upon his executor to file an 462 LAW OF LIMITATIONS. the debtor an admission of the continued existence of the debt, either tacit (from a failure to assert its payment under circumstances which challenge to such assertion),^ or express.^ At all events, when the demand for payment provokes from the debtor ah allegation that the note has been paid, and has been subsequently obtained surreptitiously from him, and that it shall not be paid again, so long, as it can be helped, together with a request that suit be brought at onc^, if the intention is tq insist on its being paid again, and a further delay of eleven years ensues before an action is brought, the presumption will not he overcome, and the court »must so declare.^ Rebuttal from Former Suit. § 320. Demand for the payment of the debt may have been made by means of a former suit, which was either not prosecuted to judgment, or, from some defect of adaptedness, did not realize the debt, though carried forward to judgment. It is said that a writ sued out against the party liable, though he be not arrested or served, or an imperfect writ, if the party were arrested or served, would repel the presumption from time that had elapsed prior thereto;* though where an ad- ministrator settled, in 1821, an account intended t6 be final, and the court by its decree ascertained thp balance as payable to distributees, an attempt in 1848, when a second account was filed, to compel the accountant to charge himself with the balance in the first account, in order that a new decree might 'When the creditor requests the ^Sellers v. Holman, 20 Pa. St. 321. debtoi for payment, not to deny is *Poulk d. Brown, 2 W. 209; Levers to admit, and such admission will v. Van Buskirk, 7 W. & S. 70. In make the commencement of a new James v. Jarrett, 17 Pa. St. 370, presumptive terra. Bentley's Ap- Black, C. J., denied " that the mere peal, 99 Pa. St. 500. In McDowell v. . impetration of an original writ (I McCullough, 17 S. & R. 51, the court do not speak of a scire facias), witb- told the jury that an acknowledg- out service on the defendant," is the ment as well as a demand was nee- institution of a legal proceeding, essary to postpone the running of such as would rebut the presump- the presumption. tion. 'Stout V. Levan, 3 Pa. St. 235. PRESUMPTION OF PAYMENT, 463 be made for its payment, was defeated, the court holding that the presumption that that balance had been paid was com- plete, although citations for the filing of a second account had issued, but failed of service, in 1839, 1840 and 1841/ Essential steps in the former legal proceeding, relied on to repel the presumption .of payment set up in the later, must, of course, have taken place within twenty years before the later suit is begun,^ and the earlier suit must have been begun before any presumption of payment from lapse of time had accrued.^ The earlier legal proceeding must have been instituted in goad faith, with the sincere object of recovering the debt claimed, and not for the purpose of repelling the presumption.* Hence, when, on a judgment re- covered 9th April, 1827, a scire facias, with notice to terre- tenants, was sued out 27th February, 1832,' and returned nihil habet as to the defendant and made known as to the terre-tenants, and judgment by default for want of appear- ance was entered against both, and on 9th November, 1849, the judgment was transferred to another county and a scire facias was issued upon the transferred judgment, the issue of the scire facias in 1832, though the judgment against the 'Hubley's Appeal, 19 Pa. Stl 138. arbitrators was a judgment in*bar, , 'Leversi).VapBuskirk,7W.&S.70. the mortgage , being in fact overdue 'James v. Jarrett, 17 Pa. St. 370. when the scire facias on it was If a final judgment on matters in brought. Hence, there could be no bar, and not in abatemeut, has been new scire /acio« upon it. "If it could entered in the former ^uit, this will, be shown,'' said the court, " that the except in ejectment, preclude any suit was prematurely brought, there subsequent suit' for the same would be some reason for the fear of cause of action. Thus, on a mort- the defendant that it would not bar gage payable in 1808 a scire facias a subsequent suit." It does not ap- was sued out in 1822. There was' a pear whether the pendency of the reference to arbitrators in 1827, who scire facias on the first mortgage, had reported " no cause ol action, as we the final judgment not precluded a consider the action to have been new action, would have rebutted the prematurely brought." From this presumption of paymfent in the later report there was no appeal. In a action. Green v. Fricker, 7 W. & S. scire facias brought in 1840 on a 171. later mortgage for purchase money, * James v. Jarrett, 17 Pa. St. 370. it was said that the decision of the 464 LAW OF LIMITATIONS. •defendant on one return of nihiL habet might be erroneous, was sufficient to repel the presumption of payment in the scire facias of 1849.^ Rebuttal from Former Suit — Continued. § 321. The payment of a legacy was guaranteed by A., who was about to marry the executrix of the testator's will, by a penal bond, dated 14th October, 1779. In an action on this bond by the legatee, brought after 1806,^ it was shown that in 1798 she had sued the executrix, as such, a,nd her husband (the obligor in the bond) for the legacy, but that the action had abated by the subsequent marriage ■ of the legatee ; that in 18iD6 another suit had been brought against them in the same capacity, and a scire facias had been sued out after the death of A., to bring in his executor. It did, not appear that anything further had been done in this suit. These suits prevented the rise of a presumption — available in the suit on the bond — of payment from the lapse of twenty years since the legacy became payable, and the obligation assumed in the bond became mature, because all the actions were for the recovery of the legacy, though they were different in character, and brought against A. in the earlier suits as husband of the executrix, and in the latef as obligor in the penal bond.^ Perhaps the issue of a.fi. 'James v. Jarrett, 17 Pa. St. 370. reported that, as there were eject- The court charged the jury that the mepts pending on hostile titles presumption from lapse of time did against the land devised, no deter- not arise. mination of the devisee's liability ^Vide remarks of Kennedy, J., on could be equitably reached till they this case, in Summervillev. Holliday, , were ended. One of these ejectments 1 W. 507. against the devisee for a portion of ' McCullough V. Montgomery, 7 S. the land devised, was brought in & R. 17. The court should charge 1802, in the Circuit Court; was re- the jury that no presumption in moved to the Common Pleas in 1809, such case arose. — Ah action for. a was tried in 1810, the verdict being legacy payable in 1798 was brought for the defendant, and in 1811 the in 1800 against the devisee alone, on writ of error was struck off, because whose land the legacy was charged it had issued irregularly. Another by the will. This suit was referred ejectment by the same plaintiff had in 1804, and in 1805 the referees been brought in 1792, against other PKESUMPTIOIir OP PAYMENT. 465 fa. on a judgment, returned nulla bona, would postpone the completion of the presumption of payment as against an ^ alias fi. fa., for twenty years thereafter.^ In an ejectment in 1841, against terre-tenants for a portion of land covered by a mortgage executed 6th April, 1810, the presumption of payment was overcome by showing that in 1821 ah amicable ejectment had been begun against the mortgagor (who had over ten years before aliened the premises against which the ejectment of 1841 was brought), for other, por- tions of the land embraced in the mortgage, that a reference was made, an award of $1,426.90 as due the plaintiff ren- dered in 1824, a judgment entered thereon, and that this judgment was revived by scire facias in 1829 and in 1835. These proceedings, said Sergeant, J., show a claim on the mortgage, persisted in, though in a mixed and imperfect parties than the devisee, and under the judgment recovered, the sheriff dispossessed the devisee of a portion , of the land devised to him. He brought an ejectment to recover this part in 1803, which was removed to the Circuit Court in the same year; in 1809 brought back to the Common Pleas, tried, in 1814, with verdict for the devisee, the plaintiff. The judg- ment was reversed in 1816 ; an abortive trial had in 1821 ; removal %o the Circuit Court in 1826 ; reference to arbitrators in 1828. These suits were compromised in 1831, by con- veyance by the devisee of about one-sixth of the land. In 1832 the suit fpr the legacy was brought to trial, and judgment was given for the defendant because the executor had not been joined with the devisee. To the next term, a new action was brought against both the adminis- trator de bonis non and the devisee, which was tried and brought to the Supreme Court in 1833. The court declined to instruct the jury that the presumption of payment from lapse of thirty-four years since the legacy became payable, was repelled by the previous action, the action of the referees in it, and the ejectments, but left it to the jury to say whether all these circumstances satisfied them that there had been no pay- ment of the legacy, and whether the presumption was not rebutted. They decided that it ' was not rebutted ; and the instruction of the court was approved in the Supreme Court, Boss, J., remarking that the question whether the court could properly in- struct the jury that the presumption had been rebutted by previous suits, was not raised in McCullough d. , Montgomery, 7 S. & E. 17, and that the dictum, of Tilghman, C. J., was without authority. Summerville v. Holliday, 1 W. 507. 'Davis V. McHenry, 11 W. N. C. 304. 2e 466 LAW OF LIMITATIONS. way, such as the plaintiff could not reap the benefit of, though he may have had the right. It is no objection that the earlier suit was against the mortgagor alone, who had already aliened the part of the premises which was the sub- ject of the second ejectment.' Rebuttal from Former Suit — Continued. § 322. A. having sold land to B., the purchase-money payable in installments, of which the last fell due 1st AprU, 1809, an amicable action in covenant for such installments then due as had not been paid, was begun in 1808. This action still pending, on the 28th January, 1829, a new declaration was filed, embracing the last installment of the purchase-iiaoney, which was not due when the action was brought. On the 23d July, 1830, a verdict for the plaintiff for so much as was due at the institution of the suit was rendered, and judgment was entered upon it, A new action was then begun in 1830 for the last installment, which fell due more than twenty years before. It was said that though the demand by the amended declaration was not made in the former action in such a way as to render it effectual, it was sufiident, the amendment being filed less than twenty years after the installment became due, to prevent the presumptiqn of payment. Even had no claim for the last installment ^Levers v. Van Buskirk, 7 W. & In the ejectment against C, a pur- S. 70. The proceedings under the chaser of a part of the land, G. was earlier suit, it was said, ought to go not bound to show payment of the to the jury as evidence to repel the entire mortgage, but only of the presumption of payment and to purchase-money due on his contract show a claim and demand of the with B. The lapse of more than money on the mortgag-e. — In a twentyyears since his purchase from second trial of this case. (Levers v. B., would probably make a presump- Van-Buskirk, 4 Pa. St. 309), there tion of the payment of th^money due was evidence that when A. sold the on this contract to A., and the eject- land to B., who executed the mort- ment for the mortgage debt against gage for the purchase-money, it was other portions of the land, would agreed that when B. sold any parts probably not be enough to rebut the of it, A. would, on receiving the presumption as to 0. The mort- purchase-money thereon, release gage debt was really severed by the them from the lien of the mortgage, arrangement between A. and B. PEESUMPTION OF PAYMENT. 467 been made, the pemdency af tlie former action for prior installments due on the same contract, payment of which was resisted because of alleged defect of title, would have repelled -the presumption of payment of the later installs ments, so long as that suit was undetermined.^ While there is such privity between a mortgagor and the terre-tenant of the premises, that an action for the debt against the mort- gagor, instituted after the alienation to the terre-tenant, will rebut the presumption of payment in a subsequent proceed- ing on the mortgage against the terre-tenant^ this privity does not 6xist as to a personal action or claim in the Orphans' Court for the debt against the terre-tenant, proceeding on the assumption that, in purchasing the land from the mortgagor, he personally undertook to pay the debt, though the terre- tenant was made a party to the proceeding on the mortgage. The terre-tenant's personal liability is distinct from that of the mortgagor. To the action on the mortgage, the terr^-ten- ant could not make the same defense that he could to an attempt to enforce his alleged personal assumption of the debt.^ ' Kane v. Fisher, 2 W. 246. In this repel the presumption of payment case there was a peremptory instruo- in the action, if it was made less tion to the jury to find for the plain- than twenty years after the legacy tifif. became payable, though the action 'Levers v. Van Buskirk, 7 S. & K. was brought more than twenty years 70. thereafter. Foulk v. Brown, 2 W. 'Cooke's Appeal, 8 Pa. St. 508. 209. So, if, after the citation, the The application by the residuary executor files his account, and the legatee to the Orphans' Court for a legatee seeks to* compel him, by de- citation to compel the executor to cree of the Orphans' Court, to pay settle an account, is the institution the legacy, the period of presump- of a first step to recover the legacy, tion is counted only down to the If it is followed in a reasonable application for a citation. Bentley's time by an action of debt against Appeal, 99 Pa. St. 500. the executor for the legacy, it will 468 LAW OF LIMITATIONS. CHAPTEK VI. ACKNOWLEDGMENTS OP DEBT. Admissions. § 323. Any convincing evidence that, at a particular time since the maturing of the debt, it was still unpaid, would make a new beginning for the presumptive term. The pay- ment would not be inferred from mere lapse of time until twenty years had run since the time at which the debt was thus shown to be yet subsisting. .An acknowledgment by the debtor that he had not paid the debt would, as satisfa;c- tory evidence that the debt was, in fact, not paid, have this virtue. It would constitute an epoch for the commencement of a new period pf twenty years.^ This acknowledgment might be inade before,^ or after,^ twenty years have elapsed since the debt matured. It must, however, have been made less than twenty years before the beginning of the suit in which it is proven for the purpose of rebutting the presump- tion of payment,* its virtue extending only over that, period.® An acknowledgment made pending the suit would be as efficacious as one made before it was brought.^ The admis- 'Cope V. Humphreys, 14 S. & E. Admissions by an executor that he 15 ; McDowell v. McCullough, 17 S.^ has not accounted to the legatees, if & R. 51. made more than twenty years before ^Reed v. Reed, 46 Pa. St. 237 ; D«j- the citation to him to file an account, laney v. Robinson, 2 Wh. 503; Mc- will be ineflfectual to repel the pre- Lean v. Findley, 2 P. & W. 97 ; Eby sumption of aatisfaotion. Bentley's V. Eby, 5 Pa. St. 435. Estate, 9 Phila. 344. 'McDowell v. McCullough, 17^ S.& ^Tilghman v. Fisher, 9 W. 441; R. 51; Eby v. Eby, 6 Pa. St. 435; Boyd v. Grant, 13 S. & R. 124. ' Morrison v. Punk, 23 Pa. St. 421; « Boyd d. Grant, 13 S. & R. 124; St. Postens V. Postens, 3 W. & S. 127. Mary's Church v. Miles, 1 Wh. 229 ; * James v. Jarrett, 17 Pa. St. 370; McQuesney v. Hiester, 33 Pa. St. Commonwealth v. Snyder, 62 Pa. St. 435. 153 ; Tilghmaa v. Fisher, 9 W. 441. PEESUMPTION OP PAYMENT. 469 sion that the debt is unpaid,^ or that the executor has not accounted to the legatees,^ . may be made by letter or other writing, addressed to the creditor or legatee. It may be made orally to the creditor, in the presence of a third person, who, at their direction, reduces the admission to writing, as evidence for future use, and who proves in court the circum- stances under which he made the memorandum.^ It may be made in the pleadings or oral contention, at the trial of the action, as when, in an action for arrears of ground-rent, the defendant first contends that because no rent has 'been paid for twenty years, the ground-rent itself is extinct.* Oral admissions that the debt is unpaid, will also repel the pre- sumption.^ The alleged confession of the debt must not be wholly vague and unmeaning. Thus, amicable partition of land having been made between four children, of whom the share of one was less valuable than that of the others, owelty was charged severally upon the others. A statement by one of them, a long time afterwards, that "there was soinething lying against the land, that some day or other he would be brought into the mud about it," could not repel the presump- tion that his share of the owelty had been paid. It was too unmeaning to be applied to the owelty.^ Admissions — Continued. § 324. The debtor's admission, that he is indebted to "the, Fenstamacher heirs," accompanied by the statement that he does not know how much he owes them, could not be applied to a debt growing out of an alleged loan by his deceased wife, who, before her marriage to him, had been the wife of a Fenstamacher, especially when the original existence of the debt was dubious, resting mainly on his admissions, and ' Tilghman v. Fisher, 9 W. 441. * Morrison v. Funk, 23 ' Pa. St. 421 ; 'Norris' Appeal, 71 Pa. St. 106. Higgs v. Stimmel, 3 P. & W. 115 ; 'Ehy V. Eby, 5 Pa. St. 435. Boltz v. BuUman, 1 Y. 584. * St. Mary's Church v. Miles, 1 Wh. ' Higgs v. Stimmel, 3 P. & W. 115 ; 229; McQuesney v. Hiester, 33 Pa. c/. Bentley;s Estate, 9 Phila. 344. St. 435. ' 470 LAW OF LIMITATIONS. these admissions had been variant.^ Pending a suit on a bond against the executor of the surety, the plaintiff excused his proceeding against him by remarking that the estate of the principal, M., was insolvent. The executor replied, " There was property enough of M.'s, and if judgment went against him, he would be able to show property of M.'s estate." He did not thus acknowledge a subsisting debt, but rather showed that he insisted upon the plea of payment, which was in, and was determined to stand a trial.^ It is not necessary ,^ however, that the amount of the debt should be specified in the admission, nor that its nature should be indicated, if the existence, when the admission is made, of no other debts than the one sued for, is shown. Thus, a letter from the defendant, acknowledging an indebtedness, without stating whether it was on a bond or other specific security, and promising that, out of the first money that came to hand, he would pay it, was "pretty strong evidence" to repel the pre- sumption of payment of a bond, as no other debt was shown ' Peters' Appeal, 106 Pa. St. 340. sale, are left out and excluded," and ^ Boyd V. Grant, 13 S. & K. 124. stated a balance due B., which A. a The court left it to the jury to say few days after, in writing, promised whether the presumption was re- to pay. Twelve years after B.'s butted. The jury decided it was not. death, A., in 1865, asked for a cita- The Supreme Court says that if tion to B.'s executor to settle an there was any error, it was in the account of the assignee's estate. court'snotieHing'thejury that the pre- The presumption that B. had set- sumption was not rebutted.;— A. hav- tied with A. on account of the as- , ing made an assignment June 13th, signment, was not barred by the 1835, to B., for the benefit of credi- apparent implication, in the paper tors, and on November 8th, 1848, of 1851, that he had not, in view of purchased a store from B., in 1851 a the fact that in 1841 A. had taken writing was executed between them, the benefit of the insolvent law, and which stated that they had settled in 1842 of the bankrupt law, and on ' all matters between them from the neither occasion had returned any first to the second of these dates, claim against B. among his assets. It added that "all matters of ac- but had scheduled B. among his count embraced in the deed of as- creditors. Forster v. Forster, 1 Fears, signment, and all matters of account 275. existing between us after the bill of PKESUMPTI02S^ OF PAYMENT. 471 to have existed between the parties at that time.^ A fortiori will an ^acknowledgment be sufficient which identifies the debt as for purchase-money of land bought from executors under a testamentary power and admits that it has not been paid, but insists that certain money borrowed by the execu- tors from the debtor should be credited upon the purchase- money.^ An admission by the obligor in a bond, when he was asked to pay it, that he was willing to pay what was due on it, but that he had paid £10 to the second husband of the widow of the obligee, who had improperly taken possession of the bond on his death, and had refused to allow his ex- ecutors to collect it, would^ have rebutted the presumption of payment, had sufficient time run to make such presumption.^ Admissions — Continued. § 325. Express admission that the debt is unpaid is hardly necessary. If, when asked about it, the debtor does not deny that it is still due, but uses language such as, if he were aware he had paid it, he would not be likely to use, this, in , connection with proof of his insolvency and long absence, may overturn the presumption of payment, though " it was certainly as slight as it could be to operate as an acknowl- edgment at all."* While it does not seem to be necessary that the admission should be made to the plaintiff or his agent,® it must be made by the debtor or his agent. Though several persons became severally liable for the payment of money to another out of the same transaction, an admission by one of them that his debt is unpaid, could not affect the others. Thus, four co-tenants making ami- cable partition, wherein owelty is charged on the several 'Tilghman v. Fisher, 9 W. 441; of. title for the property unless his bro- Unangst v. Kraemer, 8 W. & S. 391. thers and sisters would consent." ' Morrison v. Funk, 23 Pa. St. 421. ' Boltz v. Bullman, 1 Y. 584. On another occasion the debtor * Budd v. Conard, 2 Phila. 176. stated to one who was negotiating 'Morrison v. Funk, 23 Pa. St. 421 ; for the purchase of the land that Beed v. Seed, 46 Pa. St. 239 ; Bent- "he would see the heirs and let him ley's Appeal, 99 Pa. St. 600. know ; that he could hot make a good 472 LAW OF LIMITATIONS. shares of three in 'behalf of the fourth, no admission by one of the three, of a liability with respect to his land, could be used to repel the presumption of payment as to the others, though the three were made co-defendants in one action of ejectment to compel the payment of the owelty, and no objection was made to- the misjoinder.^ Admissions — Continued. § 326. When , a demand is made by the creditor,^ his agent,^ or his executor* or administrator, upon the debtor, the failure of the latter to deny that the debt is due, though he speaks a;bout it, and though the circumstances would make a denial probable, if the debt was in fact paid, would be practically an admission that the debt is due and attended with the consequences of such an admission.' But a declar- ation by an executor to a stranger, with respect to a legacy to X., that he would not pay it ; that X. was rich enough without it, would not be a sufficiently direct admission that the legacy had not been paid, to repel the presumption of payment from lapse of time.^ When, however, along with the purpose not to pay the debt, the fact that it has not been paid is asserted by the debtor to the creditor, or even to a stranger, the pre- sumption will be rebutted. The refusal to pay does not im- pair the evidentiary value of the concession that the debt has not been paid.' Thus, the creditor demanding a partial pay- ment on account of the debt, the debtor, not denying the debt, said, "I won't give it to you ; you don't need it." On another occasion, the sister of the creditor and debtor asking the latter whether he was going to pay the former, the latter said he was not going to pay him, because his father had left him more than the speaker. On a third occasion, when 'Higgs V. Stimmel, 3 P. & W. 115. 'Bentley's Appeal, 99 Pa. St. 500; 'Stout V. Levan, 3 Pa. St. 235 ; Reed Eeed v. Reed, 46 Pa. St. 239. V. Reed, 46 Pa. St. 239. » Bentley 's Appeal, 99 Pa. St. 500. ' Unangst v. Kraemer, 8 W. & S. ' Bentley's Appeal, 99 Pa. St. 500 ; 391 ; Stout V. Levan, 3 Pa. St. 235. Reed v. Reed, 46 Pa. St. 239. *Delaney v. Reed, 2 Wh. 503. PRESXJMPTION OF PAYMENT. 473 asked by a nephew if he had paid the plaintiff, he said he had not, and did not intend to pay him. The court prop- - erly directed the jury that the presumpti6h of payment Was overcome.' In a scire facias issued in 1874, on a recogni- zance given in the Orphans' Court 3d December, 1839, the recognizol", under a rule to show cause why judgment for want of an appearance should not be opened, deposed that he, in 1840, paid the recognizance to the then clerk of the Orphans' Court. He added that he had seen the recognizee a number of times since, had stayed all night with him and traveled the next day in company with him, thirty miles; had seen him repeatedly after that, and that. he had never alluded to any debt due by the recognizor. It was held that . though the defendant's allegation that he had paid the money to the clerk, standing alone, might rebut the presumption of payment to the recognizee, yet the other evidence justified the inference that the clerk had discharged his duty by paying over the money to the recognizee, and the presump- tion of payment was not repelled.^ The facts concerning the admissions of the defendant being established, whether they are sufficient to rebut the presumption of paynient is for the court and not for the jury.^ The court may instruct the jury tlat if these facts are true, the presumption is over- come, and without other evidence of payment, the verdict must be for the plaintiff;* or it may direct them that the presumption is not overcome, as when the admission that the debt was paid to another than the creditor, for him, is accompanied by facts that strongly justify reliance on the presumption that the person to whom the money was paid^ 'Keed v. Keed, 46 Pa. St. 239. , = Beale t). Kirk, 84 Pa. St. 415. Barely from a negotiation by a terre- 'Id. tenant to procure the entry of satis- *Reed v. Reed, 46 Pa. St. 239; faction on the record of the mortgage, Stout v. Levan, 3 Pa. St. 235; De- it must not be inferred that he admits lany w.'Robinson, 2 Wh. 503. that the debt is unpaid. Michener V. Michener, 17 W. N. C. 266. 474 LAW OF LIMITATIONS. has discharged his duty by paying it over to the creditor.^ When the proceeding is not at common law, e. g. when it is a petition by a legatee to the Orphans' Court for a citation to the executor to file an account, as a means of compelling payment of the legacy, of course the court must decide whether the presumption is or is not rebutted by proven acknowledgments.^ When the character of the act alleged to be an acknowledgment is ambiguous, e. g. when it is an offer of an administrator to pay the next of kin $20, which the latter refused, and it does not distinctly appear whether it was not offered as a mere gratuity, the court will leave to the jury to determine whether it was an ac- knowledgment that anything was owing out of the estate by the administrator, and whether it was made less than twenty years before the action against the administrator for a distributive share.^ Admission by Filing Account. § 327. The mere settlement of an account in the register's office by an administrator* or executor,® within twenty years before an action against the latter for a legacy,® or before an action on the bond of the former to recover a distributive share of the estate,^ or before a scire facias is sued out on a transcript to the Common Pleas of the balance admitted in the account to be due,* is not an admission that the balance remains in the hands of the accountant at the time he settles his account, for where the estate is notoriously solvent it is an undoubted ^Beale v. Kirk, 84 Pa. St. 415. the administrator as a gratuity, and ' Bentley's Appeal, 99 Pa. St. 500. denied the plaintiff's right, but sub- Separate admissions by two of three mitted the question to the jury. joint obligors that the debt is un- 'McLean v. Finley, 2 P. & W. 97 ; paid, were tacitly assumed to i be Commonwealth v. Snyder, 62 Pa. St. sufficient to repel the presumption 153 ; Okeson's Appeal, 2 Gr. 303. of payment as against all three, in * Poulk v. Brown, 8 W. 209. Stout V. Levan, 3 Pa. St. 235. ^Id. " Commonwealth v. Snyder, 62 Pa. ' McLean v. Finley, 2 P. & W. 97. St. 163. The court expressed the ' Commonwealth v. Snyder, 62 Pa. opinion that the $20 was offered by St. 153. PKESXJMPTION OF PAYMENT. 475 practice for the accountant to make payments on account to the next of kin or legatees, the latter for the most part being paid off before settlement of the account, which exhibits only the general balance. Previous payments to the dis- tributees do not properly belong to it.^ A fortiori is this the case when the accountant adds to his account the state- ment that he has paid out to the heirs all the fund and holds their receipts.^ Nor, does the fact that the account, though filed with the register, was never carried to the Orphans' Court to be confirmed, alter the rule. If there were any difference between the case where the account has been con- firmed* and where it has not been,* the latter would less support the' hypothesis that the account was an admission that the balance was still unpaid, at its filing, than the former, for it is not easy to explain the failure to perfect the account by invoking the action of the Orphans' Court upon it, unless there had been private satisfaction of the parties.^ Though the principle that the filing of an account is not an admission, ipso facto, that the balance shown therein to be due the estate in fact remains in the accountant's hands undistributed, was adopted when, under^ the law, dis- tributees and legatees were compelled to resort to actions at CQmmon law, it is still valid, now that by statute exclusive jurisdiction has been vested in the Qrphans' Court, in regard to the distribution of estates of decedents. As funds are realized by the administratorp, the distributees may imme- diately, and from time to time, proceed to compel their distri- bution. The settlement of an administration account show- ^ McLean v. Finley, 2 P. & W. 97. not inquire whether the legacy had The executor may have paid all the been paid. Foulk v. Brown, 2 W. bequests and yet be compellable to 209. settle an account. That is a duty ^ Commonwealth v; Snyder^ 62 Pa. imposed by law which any one pos- St. 153. aessing the character of legatee, or ' Commonwealth v. Snyder, 62 Pa. p>rty in interest, has a right to en- St. 153 ; Foulk v. Brown, 2 W. 209. force. The court,, on application for * McLean v. Finley, 2 P. & W. 97. a citation to file an account, would ^Id. 476 LAW OF LIMITATIONS, ing a balance is, therefore, no more now than formerly an admission that the amount is actually in the hands of the accountants and has not been paid over.^ Piling Account — Continued. § 328. As to a residuary legacy payable in 1803, payment was presumed in an action of debt against the executor, br9ught in 1829, though he had settled an account showing" a balance of the estate, and it had been confirmed in 1828.^ In debt on the administration bond, brought in 1823, to recover a distributive share of the estate of A., who died in 1797, the presumption of payment of the share was not overcome by the fact that in 1805 the administrator had filed an account in the register's office, exhibiting a balance due the estate.^ The decedent dying before 30th June, 1830, an account of the personalty was filed on that day by his administrator. The next year he sold the real estate under an order of the Orphans' Court, and in 1846 filed a final account, charging himself with, its proceeds. The account being confirmed the same year, on 1st June, 1866 a certificate of the balance was filed in the Common Pleas, and a scire facias upon it sued out by the distributee the same year. The presumption of payment to the distributee, which was complete as to the proceeds of the realty in twenty years from the administrator's receipt of its proceeds, was not repelled by the filing of the account.* The account, however, may, on its face, show that some of the items re- ceived by the accountant have been received within, and therefore could not have been paid over by him before, twenty years preceding the action. If that is the case, the ' Commonwealtii v. Snyder, 62 Pa. properly a part of the administra- St. 153. tion account, it cannot be ignored, "Foulk V. Brown, 2 W. 209. when the. attempt is made to con- ' McLean v. Finley, 2 P. & W. 97. vert the filing of an account show- * Commonwealth v. Snyder, 62 Pa. ing a balance due the estate, into an St. 153. The account contained a admission that it was undistributed statement that the money had been when the Account was filed. distributed. Though this is not PRESUMPTION OF PAYMENT. 477 presumption that they have been paid oyer to the residuary legatee will not exist.^ Filing Account^Oontinued. § 329. As, in collateral proceedings to enforce the rights •of persons entitled to distribution, the presumption of satis- faction is available to the accountant or those who are liable for his official conduct, so is it in a direct proceeding of the Orphans' Conrt in the settlement of his account. Thus, while the lapse of more than twenty years since the admin- istrator became liable to account, would be a prima facie defense to the petition for a citation to him to fife an account,^ the administrator or executor may waiv6 this defense and file an account.^ If the account does not show matter that tends to repel the presumption, and especially if it distinctly states that the debts 'being all paid the bal- ance was paid over to the legatees, it will be incumbent on the- legatees to prove that it has not been so paid to them.* But the account may, by its contents, rebut the presumption of former settlement with the legatees, or 6f a former ac- count. Thus, A. dying in 1842, B., as executor, entered on his duties. In 1866, in response to a citation, he filed an account. He charged himself with the inventory and not with a balance ascertained by any former account. This was an admission that he had not settled any former account. ' Foulk V. Brown, 2 W. 209. But count, when a citation was asked for the fact that some of the items with the filing of a second, which the accountant charges him- 'Norris' Appeal, 71 Pa. St. 106; self are dateless, will not legitimate Wilkinson's Estate, 1 Pars. Eq. 170. the inference that they were received * Wilkinson's Estate, 1 Pars. Eq. 170. by him within twenty years before Such a statement was made in the the' action was brought. account in Commonwealth v. Sny- ' Ingraham v. Cox, 1 Pars, Eq. 70 ; der, 62 Pa. St. 153, where, when it Wilkinsori's Estate, 1 Pars. Eq. 170. was filed, the presumption had not In the former of these, at least forty- run, but when the payment of the .seven years had run since the com- balance was sought to be compelled mencement of the trust. In the by scire facias on the transcript, the latter, twenty-five years had run presumption had become complete jsince th« settlement of the first ac- and was available. 478 LAW OP LIMITATIONS. The account covered the whole period of the trust. This, also, was a negation of any former account. The account was not merely an administration, but was also a distribu- tion account commencing in 1843, and containing a large number of payments on account to distributees down to 1866. This rebutted any presumption of payments not claimed to have been made. There was no break or inter- ruption in the account from which the presumption of pay- ment might reasonably be supposed to begin. When there is a blank of more than- twenty years between the receipt of assets by the accountant, and the filing of the account, without intermediate action, a fair presumption of payment might be drawn ; but where there is a series of receipts and payments without any interval at all, even if twenty years or more have gone by since the first came in, the presump- tion will not run in favor of payments, credit for which is . omitted, and of which there is no evidence.^ CHAPTEK VII. PARTIAL PAYMENTS. 2 Partial Payments. § 330. The debtor makes a solemn and practical admis- sion of the existence of the debt, when he makes a partial payment upon it. Such payment, whether of the interest or of the principal,^ annuls the effect of any efflux of time 'Norris' Appeal, 71 Pa. St. 106; liday, 1 W. 507; Gulden v. Faber, 2 Brown's Estate, 8 Phila. 197. Leg. Gaz. 139 ; McCullough v. Mont- ' McDowell V. McCullough, 17 S. gomery, 7 S. & R. 17; Broomall v. & R. 51 ; McLean v. Findley, 2 P. & Laird, 1 Del. Co. Rep. 161 ; Simpson W. 97; Kitchen v.. Deardorfif, 2 Pa. v. Broomall, 1 Del. Co. Rep. 229. St. 481 ; Backestoss v. Common- ' Darlington's Appropriation, 13 wealth, 8 W. 286 ; Cremer's Estate, Pa. St. 430 ; Tilghman v. Fisher, 9 5 W. & S. 331 ; Lash v. Von Neida, W. 441 ; Kitchen v. Deardorflf, 2 Pa. 16 W. N. 0. 93 ; Summerville v. Hoi- St. 481 ; Summerville v. HoUiday, 1 PRESUMPTION OF PAYMENT. 479 prior to it, and preserves the debt from the presumption of payment for the twenty years succeeding it.^ When the terre-tenant of land, on which a widow's dower is charged, pays, after her death, the share of a son of one of the heirs, he repels the presumption that the principal of the' dower has been paid, though he ought regularly to have paid it to the administrator who made the sale and took the securities, and who at length sues for the recovery of the principal.^ The payment may be shown to have been made, not only by competent witnesses to it,^ but by indorsements by the obligeiB or other creditor upon the instrument, made before the presumption that the debt is paid has become complete, and when, therefore, it is against the creditor's interest.* Thus, indorsements of payment, in 1824 and in 1840, on a bond which became due in 1821, were evidence of the pay- ments in an action instituted in 1844.^ But it must be satisfactorily shown otherwise thau by the indorsements themselves, that they were made before the presumption of payment had become complete.^ Proof that they are in the handwriting of the obligee, and that he died less than twenty years after the debt matured, would be sufficient.'^ The payment of a part of the debt is a recognition, not of the part paid only, but of the whole, and rebuts the pre- W. 507; Boyd v. Grant, 13 S. & R. Lash v. Von Neida, 16 W. N. C. 93; 124 ; McCullbugh v. Montgomery, 7 Kline v. Kline, 20 Pa. St. 503 ; Tilgh- S. & E. 17 ; Stout V. Levan, 3 Pa. St. man v. Fisher, 9 W. 441. 235; Unangst i). Kraemer, 8 W. & S. * Kitchen v. Deardorff, 2 .Pa. St. 391; Emlen -y. Middleton, 5 Leg. & 481. Ins. Eep. 4. - "Lash v. Von Neida, 16 W. N. 0. ' By paying a check of its deposi- 93 ; Cremer's Estate, 5 W. & S. 331. tor, the bank probably admits the Of course the indorsement, if made existence of the deposit. A«hton v. in the handwriting of the defendant, Phila. National Bank, 2 Ch. Co. and stating the payment to have Kep. 479. ' been made at a time which was be- ^ Unangst v. Kraemer, 8 W. & S. fore the' presumption had run, 391. would be evidence. Boltz v. BuU- 'Id. ' man, 1 Y. 584. * Cremer's Estate, 5 W. & S. 331 ; 'Cremer's Estate, 5 W. & S. 331. 480 LAW OF LIMITATIONS. sumption of payment as to all.^ It is not necessary that the payment should indubitably appear to have been made on the debt in suit, if there is no other debt shown to have existed, and there is evidence of an admission by the defend- ant which naturally imports that the payment was made on this debt. Thus, the administrator who sold la;nd subject to dower, asks the terre-tenant when he will pay the principal now become due. He asks the administrator, who, as an heir, is. also entitled in his own right to a share of it, how large a share is coming to him. The reply is made that, as administrator, the whole must be paid to him. The terre- tenant then says that he has paid N., another heir, his share, and taken a release from him. From these facts the jury might, and perhaps ought to, infer that the payment was on account of the principal of the dower.^ CHAPTEK VIII. KEBUTTALS OF PEESUMPTION. Agreements to Postpone. § 331. Any agreements or arrangements between the parties looking to a time of payment or of suit, posterior to that originally stipulated, will postpone the beginning of the presumptive period until the arrival of the time thus indicated. Thus, if, on a bond conditioned for payment of a sum of money 16th April, 1796, there is a dateless indorse- ment by the obligor, promising to pay the amount to the assignee of the obligee on 1st June, 1830, the • debt would not be presumed paid in 1838, when the sheriff's sale, for the purpose of procuring payment, took place on a judgment * Kitchen v, DeardorfF, 2 Pa. St. 'Unangst v. Kraemer, 8 W. & 8. 481. 391. PRESUMPTION OF PAYMENT. 481 recovered ia 1832 on the bond.^ On a recognizance in par- tition, given 25th February, 1817, a scire facias was issued 26th December, 1832, on which, on 11th September, 1839, non-suits were entered, in pursuance of an agreement between the counsel of the respective parties, made the same day, that in the event of a suit being instituted within one year, the lapse of twenty-one years from the date of the recognizance should not be pleaded or taken advantage of as presumptive evidence of payment, and that the agree- ment should be void, unless such suit should be brought within one year. This agreement was an admission by the counsel for the defendant that the debt was not paid, and a second scire facias, brought within a year after the non-suit of the first, was exempt from any presumption of satisfaction.'' The time for future payment agreed on need not be precisely determined. It may be made to depend on the ascertainment, by collateral proceedings, of a liability of the defendant for the plaintiff or other person. Thus, the obligor being liable as surety to the United States on the bond of the collector of the port of Philadelphia, and the amount which, as such, he might have to pay remaining uncertain for many years, the obligee, the wife of the collector, agreed, though without con- sideration, that in case the property the conveyance of which was the consideration for her bond, should be taken in execu- ' Postens V. Postens, 3 W. & S, the obligor can, as against this prior 127. Though it was not affirmatively voluntary grantee, acknowledge the shown that the indorsement had debt, and so deprive the latter of the been made before the obligor made benefit of the presumption of pay- a voluntary conveyance of his land ment. to his son, at the time of which con- 'Ankeny v. Penrose, 18 Pa> St. veyance the presumption had be- 190. This agreement, and the action come complete, if it had not 'been upon it, preserved the lien of the made before, this indorsement re- recognizance as against creditors butted the presumption as agaihst who obtained judgments a few days the voluntary grantee, and a sale on before the judgment in the second a judgment for the debt recovered suit on the recognizance was ren- after the conveyance, would super- dered. aede the title of the volunteer, i. e. , 2p 482 ^ LAW OF LIMITATIONS. tion by the United States, on account of the obligor's liability for the debt due by the collector, she would not enforce pay- ment of the bond, and, after her death, the executor, for some time, acted upon her agreement. As tending to explain the delay, this agreement would, so long as the abstinence from suit was traceable to its influence, prevent the inception of the presumptive period, when, subsequently, the agreement being repudiated as gratuitous, an action was instituted upon the bond.^ It is for the court to instruct the jury that the pre- sumption is not operative, when a promise to pay at some future time,^ or an implied promise to pay what part of the debt shall be in excess of a collateral liability of the debtor, whose magnitude is not yet ascertained, is proven.^ A for- tiori must it decide, in proceedings without a jury, that an agreement that the presumption shall not operate, if an action is brought within a certain time, is effectual to prevent the presumption.* Conditional Promise. § 332. The acknowledgment that rebuts the presumption of payment, may be made by means of a conditional prom- ise. Thus, a promise to the plaintiff's, agent more than twenty years after the single bill became payable, to pay it as soon as money came into the defendant's hands, if the plaintiff would allow a credit of $50, was such an acknowl- edgment as exempted the single bill from the operation of the presumption of payment, though the condition insisted on by the debtor was not accepted by the creditor. But if, in acknowledging the residue of the single bill, he insists that a definite part of it has been paid, and there is no other evidence that this part has not been paid, there can be a recovery for the residue only.° 'Delany «. Kobinson, 2 Wh. 503. R. 51. It is for the court to instruct 'Postens V. Postens, 3 W. & S. 127. the jury that the promise, if made, 'Delany v. Robinson, 2 Wh. 503. relieves the debt of the presumption •Ankenyi). Penrose, 18 Pa. St. 190. of payment, except as to the part ' McDowell V. McCuUough, 17 S. & alleged paid. PRESUMPTION OF PAYMENT. 483 The Debtor's Inability to Pay. § 333. Besides direct evidence that the debt is not paid, furnished by admissions or partial payments by the debtor, or demand by means of suit of the creditor, the presumption of payment may be rebutted by showing a sufficient motive for the creditor's inaction, besides his consciousness that the debt has been paid, or by showing the incapacity of the debtor for niaking the payment. Hence, when the debtor's poverty, so extreme as to be incompatible with his paying the debt, and beginning shortly after the debt was contracted, and continuing for twenty-five years down to the debtor's death, is shown, the presumption that he paid it will not obtain in a proceeding to recover it, three years after his death, in a distribution by the Orphans' Court of his estate, * which consisted of a legacy collected by the administrator from the estate of the devisor.^ But neither the poverty nor the insolvency of the debtor is sufficient to rebut the presumption, unless it be such as to have created an a,biding inability to pay the debt at any time or times within the period. A man may be poor or insolvent and yet' contrive to pay a debt in twenty years.^ Hence, when before a judgment was recovered, in 1814, the defendant had been discharged in insolvency, and had been in great poverty afterwards, dying so poor that his funeral expenses had to be paid by others, but the proof was that he was not all along entirely destitute, it was error for the court to instruct the jury that his continued poverty was sufficient to rebut the presumption.^ It was shown that, in 1820, the debtor, 'Griffith's Estate, 14 W. N. C. 486. pay is mentioned as a circumstance Here, within a few months of making tending to overcome the presump- the bond, the obligor failed in busi- tion, in Cope v. Humphreys, 14 S. & ness; thence, till his death, contin- R. 15 ; Tilghman v. Fisher, 9 W. 441 ; ued extremely poor, depending for a Summerville v. Holliday, 1 W. 507; home on his mother and sister, and 'Taylor v. Megargee, 2 Pa. St. 225; for clothes on a neighbor; creditors Kline v. Kline, 20 Pa. St. 503. obtained judgments and issued exe- 'Taylor v. Megargee, 2 Pa. St. 225; cations, but could realize nothing. — GriflBth's Estate, 14 W. N. 0. 486, The inability of the defendant to , 484 LAW OP LIMITATIONS. whose bond became payable in 1819, took the benefit of the insolvent law; that five or six years afterwards, he was "not worth much ; " that twenty years after that he returned from Ohio, whither he had removed, for a short visit, and that during this visit he borrowed $16, and said " he was short of money." This insolvency, did not rebut the presumption that, in 1847, when the action was brought, the bond had been paid, since an absolute inability to pay was not shown.^ Obtaining a,n insolvent discharge after ^ or before^ the matur- ing of the debt, does not overcome the presumption of pay- ment in twenty years from such discharge (when it happens after the debt matures), or from the maturing of the debt (which happens after the discharge). Several assignments for the benefit of creditors by a bank (brought in as garnishee by scire facias in a. foreign attachment), pending the attach- ■ Kline v. Kline, 20 Pa,. St. 503. The court properly instructed the jury that the presumption was not rebutted. 'Sailor v. Hertzog, 4 Wh. 259; Power V. Hollman, 2 W. 218 ; Webb V. Dean; 21 Pa. St. 29; Kline v. Kline, 20 Pa.,St. 503 ; Diehl v. Ihrie, 3 Wh. 143. 'Taylor v. Megargee, 2 Pa. St. 225. The discharge was before the judg- ment, but whether before the debt became payable does not appear. In Beale v. Kirk, 84 Pa. St. 415, in scire facias on a recognizance in the Orphans' Coilrt, given thirty-four years before suit, Paxson, J., said: '' During all that time J. B. [the recognizor], for aught that appears, was solvent. Had he been insolvent it would have been a strong circum- stance to rebut the presumption." In Diehl v. Ihrie, 3 Wh. 143, a judg- ment was entered in 1812, and six years afterwards the defendant was discharged as an insolvent, and died three months afterwards, in posses- sion of a lot, which his heirs con- tinued to occupx till 1837 and after- wards. Up to his death he was a poor, man, having no visible prop- erty except the lot and some articles of household furniture. In 1835 scire facias on the judgment was sued out against the defendant's heirs. The court below, on a case stated show- ing these facts, decided that the dfibt was not paid. This was reversed, because, though it might have been the duty of the court, had there been a trial by jury, to tell them that the circumstances were suffi- cient to repel the presumption, it was still for them, or for the case stated, to find the fact that the debt was not paid. In Budd v. Conard, 2 Phila. 175, insolvency and absence, in connection with a somewhat dubious admission that the debt had not been paid, were sufficient to support a verdict that the debt was not paid. PRESUMPTION OF PAYMENT. 485 ment, and several other periods of embai'ra,ssnaent, all more than twenty years before the final stages in the attachment proceeding, will not explain the inaction during that inter- vening period, so as to repel the presumption of payment by the bank. Indeed, as the attaching creditor may be paid from some other fund than that which is attached, it is doubt- ful whether the inability of the garnishee to pay during a por- tion of the twenty years of inaction, would repel the presump- tion of payment by the defendant from some other source.* The burden is on the plaintiff of showing that greater promptness and exigence in suing, or in carrying forward a suit begun, to judgment, could not have realized the debt.^ Plaintiff's Ignorance. § 334. The plaintiff's ignorance, for a portion of the period of twenty years, of his rights, e. g. that a legacy had been bequeathed him, or that the defendant had collected money to his use, as it would explain his inaction so long as it con- tinued, would probably postpone the commencement of the presumptive period till, it was superseded by knowledge.* Perhaps if the garnishee in foreign attachment deceived the plaintiff as to his having property of the defendant, and so induced remission in the pursuit of the attachment, for a period exceeding twenty years, the presumption of payment would not be made when finally the issue 'on the garnishee's plea of nulla bona was tried. But merely pleading niilla bona is not a suppressio veri, though in fact the garnishee has, and by the verdict is found to have, effects of the de- fendant. Such a plea does not necessarily negative the custody of the fund. It is the only plea by which the gar-' nishee could protect its interests, in case there were conflict- ing claimants to the property.* 'Biddle v. Girard National Bank, McGaw, 2 W. 161 ; Bentley's Estate, 109 Pa. St. 349. 8 W. N.'C. 455. ''Id. *Biddle v. Girard National Bank, »Durdoni).Ga8kill,2Y.268; Foulk 109 Pa. St. 349. The property gar- V. Brown, 2 W. 209 ; Levers v. Van nisheed was bank stock. Buskirk, 7 W. & S. 70 ; Thompson v. 486 lyAW OP MMITATIONS. Other Circumstances. § 335. Besides the circumstances already mentioned, sev- eral others have been considered as contributing to over- throw the presumption of payment. As physical or moral obstacles to suit would explain the failure to resort to it, the pendency of a war between the United States and the country in which the plaintiff resided would except from the presumptive time the interval traversed by' the war. Thus, the Revolutionary war explained a part of the delay of a British plaintiff in bringing action in the courts of Pennsylvania.^ Perhaps the residence of the defendant in a foreign country at and after the time the debt matures, or beginning with some later period, would except the time of such residence from the computation of the twenty years.'^ ,But the removal of the debtor to some sister State of the Union seven years after the cause of action accrued, and his residence there for twenty years more, would not rebut the presumption of payment in a foreign attachment then sued out in this State.^ And, though the defendant in a foreign attachment is an alien, and resident in a foreign country, the garnishee, a resident of Pennsylvania, will not, on that account, be deprived of the privilege of the presumption which infers that the plaintiff's debt has been paid by the defendant out of some other than the attached fund, when 'Durdon v. Gaskill, 2 Y.268. The v. Brown, 2 W. 209; Levers v. Van right of action accrued in 1761. As Buskirk, 7 W. & S. 70 ; Cope v. Hum- to the effect of the Revolutionary phreys, 14 S. & R. 15 ; Summerville war on actions between residents of v. Holliday, 1 W. 507. different States, vide Dehart v. Gard, ' Kline 5. Kline, 20 Pa. St. 503 ; cf. Add. 344. War, as making a disability Dehart v. Gard, Add. 344, where, the to sue, is mentioned as repelling the bond having been made in New Jer- presumption, in Foulk v. Brown, 2 sey, where both parties resided, the W. 209; Levers v. Van Buskirk, 7 obligor shortly afterwards removed W. & S. 70. to Pennsylvania. This was men- " Bentley's Appeal, 99 Pa. St. 500 ; tioned as a rebutting circumstance, Kline v. Kline, 20 Pa. St. 603. Ab- as was also the Revolutionary war. sence of the plaintiff from the coun- The period of twenty years before try is mentioned as a circumstance suit did not elapse, however, repelling the presumption, in Foulk PEESTJMPTION OF PAYMENT. 487 a period of twenty years' inaction lias intervened since the institution of the attachment/ Certain ^relations between the parties, it is said, may rebut the presumption that the debt has been paid, by explaining the omission to sue other- wise than by the plaintiff's knowledge that his debt has been paid.^ That the mortgagee is in possession of the premises, reaping the rents and profits, rebuts, as against the mortgage, the presumption that the debt has been paid from mere lapse of time, except to the extent to which these rents and profits, wh«n credited on it, extinguish it.^ The reten- tion of a bond by the obligee is a ci;rcumstance to be con- sidered, in a suit against one who has become lia]ble for the debt since its inception. Thus, land being sold by the administrator under an order of the Orphans' Court, to A., he gave a bond to secure the payment of the principal of the widow's dower at her death. A. aliened to B., who indemnified A. by a similar bond, which A. assigned to the administrator in lieu of his own bond. B. then conveyed the land to C. less than a year after the administrator's sale. More than, twenty years after the widow's death, an action was brought by the administrator against C. for this sum. The retention by him of the bond of B. to A., which he would probably have been asked to surrender had the money been paid, was evidence to rebut the presumption.* Other Circumstances — Continued. § 336. Obstructions to suit may account for delay in bringing it. Thus, the obligee in a bond dying five years after the bond became payable, his widow possessed herself' of it against the consent of at least one of the two executors, and did not deliver it up for eight years {i. e. in 1778), the suit being brought fourteen years afterwards (but the period between 1st January, 1776, and 21st June, 1784, not being ' Biddle v. Girard National Bank, ' Cope v. Humphreys, 14 S. & K. 15. 109 Pa. St. 349. *Unangst v. Kraem^r, 8 W. & S. 'Cope V.Humphreys, 14 S.&R. 15; 391. Summerville ■». Holliday, 1 W. 50. 488 liAW OF LIMITATIONS. countable in virtue of the act of 12tli March, 1783). This was a circumstance in conjunction with. ah acknowledgment of an unascertained balanbe due on the bond, made just before suit was brought, sufficient to repel the presumption, had the length of time been sufficient.^ But when a recog^ nizance is given in partition in the Orphans' Court, in gen- eral terms, to. the widow and heirs, the shares of each not being ascertained, the fe,ct that there is a dispute whether one of the heirs has not been advanced to the amount of his share, and the shares of the others are not correspondingly- increased, is no obstacle to a suit by one of the latter on the recognizance for his share, for the question of advancement can be determined in such suit.^ The existence of counter- claims of the debtor agg,inst the creditor will not, ipso facto, repel the presumption of payment or justify the inference of reciprocal neutralization. Thus, the fact that A. has a book account against B., beginning several years before he becomes indebted to B. on a bond, and continuing with new credits during the existence of this indebtedness until less than six years before suit, when the bond has been due twenty-two years, will not, without other evidence, justify the jury in find- ing that A.'s claims against B. were applied as payments on the bond, or were recognitions of it adequate to preclude the growth of the presumption of payment of it in twenty years.* Other Circumstances — Continued. ' § 337. The rule that when time has begun to run it suffers no interruption from the occurrence of circumstances that would otherwise prevent its application, does not, it is said, apply to. the case of the presumption from the lapse of twenty years.* Though not distinctly decided, it is likely that if, after the right of action has begun, the plain- tiff should become non. compos mentis, or the right should devolve on an infant, or absolute and notorious financial ' Boltz V. Bullman, 1 Y. 584. cf. King v. Coulter, 2 Gr. 77 ; Smith 'Galbraith v. Galbraith, 6 W. 112. v. Nevin, 31 Pa. St. 238. • Kikert v. Geistwite, 1 Pittsb. 153 ; * Foulk v. Brown, 2 W. 209. PRESUMPTION OF PAYMENT. 489" incapacity of the defendant should supervene, the time covered by these disabilities would not be counted in the twenty years, whose lapse constitutes presumption that the debt has been paid. The act of 12th March, 1783,^ sus- pended all statutes of limitations between 1st January, 1776, and 21st June, 1784. The provision of this act was ex- tended by the courts to the twenty years' presumption. Hence, as between the maturity of a bond payable 1st Jan- uary, 1769, and the bringing of the action in 1794, less than twenty years had elapsied, the eight years, five months and twenty-one days of the excepted period being excluded from the computation, there was no presumption that the bond had been paid.^ The death of the creditor, subse- quently to the origin of his cause of action, neither makes a new commencement for the presumptive period, as against the executor or administrator, nor excludes from the compu- tation the time that elapses between his death and the grant of letters testamentary or of administration.^ Burden of Proof. § 338. From the mere interval of twenty years between the falling due of the debt and the bringing of the action the payment will be presumed. The circumstances to repel this presumption must be brought to the knowledge of the trying tribunal. The burden of proving them is on him who wishes to take advantage of them, the plaintiff,* unless the defendant himself furnishes them.^ '2 Dall. L. 91. *Biddle v. Girard National Bank, ' Penrose v. King, 1 Y. 844 ; Boltz 109 Pa. St. 349 ; McLaughlin v. Kain, V. Bullman, 1 Y. 584; c/. Dehart v. 45 Pa. St. 113. Gard, Add. 344. ^McQuesney v. Hiester, 33 Pa. St. ' Bentley's Appeal, 99 Pa. St. 500 ; 485. Hess V. Frankenfield, 106 Pa. St. 440 ; Boyd V. Grant, 13 8. & R. 124. 490 I/AW OP LIMITATIONS. CHAPTEK IX. PARTIES AFFECTED BY PRESUMPTION. Against Whom the Presumption Runs. § 339. The maxim nullum tempvs occurrit regi protects the Commonwealth from the presumption of payment from the lapse of twenty years. Hence, perhaps, as to State taxes assessed on unseated lands, there would be' no presumption that they were paid when a treasurer's sale therefor took place more than twenty years after they should have been paid.^ This immunity, however, does not extend to sub- ordinate divisions of the State. Hence, county taxes would be presumed paid twenty years after they were assessed and due, and a treasurer's sale of unseated lafld therefor then taking place would be, prima facie, void.'^ The presump- tion runs against the creditor himself, unless he is under certain personal disabilities recognized by the law, such as being a feme covert^ or a minor.* But when there is a guardian of a minor, who, according to law, is made a party to a partition in the Orphans' Court, in which owelty is adjudged to his ward, the presumption that this owelty, secured by recognizance, has been paid in twenty years from the time stipulated for its payment, will arise because the duty of suing for it is upon the guardian.* The devolution ' Woodburn v. Farmers' and Me- B.'s administrator, in 1856, asked for chanics' Bank, 5 W. & S. 447. a citation upon A.'e administrator to ^Id. file an account. The plea of the 'Galbraith v. Galbraith, 6 W. 112. statute of limitations was overruled. *Galbraith V. Galbraith, 6 W. 112; Though the court referred to the McCrudden's Estate, 12 Phila. 69; twenty years' presumption it was Durdon ■». Gaskill, 2 Y. 268. In not applied. Was it because the Criedland's Estate, 2 Phila. 379, A. minority of B. precluded it ? died in 1823. His son B. attained ' Galbraith «. Galbraith, 6 W. 112. majority in 1843 and died in 1849. PRESUMPTION OF PAYMENT. 491 of tlie right of action by death, upon an executor or admin- istrator, does not arrest the running of the presumptive term ; it will be complete at the same time it would have been so had the original creditor continued in life.^ A legatee dying two years after the legacy became payable to her, no admin- istration was taken out till twenty-three^ years afterwards. This did not arrest the completion of the presumption, when the letters being finally taken out by her husband, who could have taken them out at any prior time, he brought an action of debt to recover the legacy a few years after becom- ing administrator.^ So, the creditor dying in 1855, and the debtor, her husband, in 1881, the presumption ran against a claim made in 1883 upon his estate in the Orphans' Court, by her administrator, though letters of administration were issued only a few months before, and subsequently to the death of the debtor.^ Devolution of the subject-matter bf the action by act of the party, e. g. by an assignment of a bond,* or mortgage,^ will not interrupt the period by whose lapse a presumption of payment is formed. Who May Take Advantage. § 340. In the majority of cases, the benefit of the presump- tion of payment is claimed by the debtor himself, or, he dying, by his personal representative, in a direct proceeding to enforce the debt. It is^urged to prevent a recovery, or to prevent a revival of a judgment already recovered,® or to prevent the execution of that judgment by fieri facias' or 'Peters' Appeal, 106 Pa, St. 340; vent the running of the presumption. Tilghman v. Fisher, 9 W. 441 ; Foulk Smith v. Nevin, 31 Pa. St. 238. ■ i>. Brown, 2 W. 209; Hughes v. » Peters' Appeal, 106 Pa. St. 340; Hughes, 54 Pa. St. 240 ; Boyd v. cf. Hess v. Frankenfield, 106 Pa. St. ■Grant, 13 S. & R. 124 ; Hess v. 440. Prankenfield, 106 Pa. St. 440. 'Eby v. Eby, 5 Pa. St. 435. » Foulk V. Brown, 2 W. 209. That 'Miohener v. Michener, 17 W. N, the creditor was dead when the C. 266. right of action accrued, and that no 'Van Loon v. Smith, 103 Pa. St. administrator was appointed for 238. almost twenty years, does not pre- ' Davis v. McHenry, 11 W. N. C. 804. . 492 LAW OF LIMITATIONS. attachment-execution/ Other persons, however, may invoke it. Thus, the purchaser of land covered by a mortgage,, may, in ejectment,^ or in scire facias^ upon the mortgage, avail himself , of it. So may the devisee of land charged with a legacy, as well as the executor ; * the terre-tenant pf land burdened with a widow's third,^ or with a perpetual ground-rent,* in actions to enforce the payment of these charges. In a scire facias to revive a judgment, the alienee of the land on which it is a lien, as well as the defendant, may rely on the lapse of time as prima facie proof of pay- ment,' as the purchaser of a railroad may, on a bill in equity to enforce the lien of a debt, under the resolution of 21st Jan- uary, 1843. P. L. 367.' Creditors having later liens on the same land may set up the presumption as against an earlier judgment,' or recognizance,^" or owelty charged by deed in an amicable partition." The grantee of the person who paid the purchase-money to the Commonwealth may oppose the pre- sumption of payment to the lien which he who discovered the vacant land and surveyed it under the warrant, acquired for these services, and sought to enforce by obtaining a patent from the State.^^ The garnishee in a foreign attachment may insist on the inference from over twenty years of inaction in the attachment proceedings, that the plaintiff has been paid from some other than the attached fund." 1 Shilling t). Beidler, 2 Wood w. 160. 'Van Loon v. Smith, 103 Pa. St. "Levers v. Van Buskirk, 7 W. & 238; Wills v. Gibson, 7 Pa. St. 154. S. 70; Id., 4 Pa. St. 309. ^ Hayes' Appeal, 113 Pa. St. 380. 'Michener v. Michener, 17 W. N. 'Van Loon v. Smith, 103 Pa. St. C. 266. 238. *Summerville v. Holliday, 1 W. "Ankeny v. Penrose, 18 Pa. St. 507. 190. 'UnangstB. Kraemer, 8W. &S. 39; "Darlington's Appropriation, 13 Allen V. Sawyer, 2* P. & W. 325. Pa. St. 430. 'Wills V. Gibson, 7 Pa. St. 154; " Brock v. Savage, 31 Pa. St. 410. McQuesney v. Hiester, 33 Pa. St. " Biddle v. Girard Kational Bank, 435. 109 Pa. St. 349. PRESUMPTION OF PAYMENT. 493 "Who May Take Advantage — Continued. § 341. When an assignment under the insolvent law/ or a -voluntary assignment for the benefit of creditors,'^ takes place, not the assignee only, as, against the assignor directly,^ or against the creditors,* but the assignor, as against the assignee,* or any grantee to whom the assignor has, since'the assignment, aliened the land embraced in it, as against strangers, may maintain that the debts are presumed to be paid.^ This alienation may have occurred before the presumption bad become complete, that the assignor's debts were paid,'' as well as afterwards. The alienation may be by means of a sheriff's sale, after twenty years since the assignment, on a judgment recovered against the assignor within the twenty years,' Or by means of such a sale within the twenty years.' The alienee may, both as plaintiff'^° and as defendant in an ejectment, begun after "or before ^^ the twenty years have perfected the presump- ' Sailor v. Hertzog, 4 Wh. 259; Lamb v. Fries,»2 Pa. St. 83 ; Power IV. Hollman, 2 W. 218; Koss v. Mc- Junkin, 14 S. & E. 364; Feather's Appeal, 1 P. & W. 3^2. " Webb V. Dean, 21 Pa. St. 29 ; Pot- ter's Estate, 54 Pa. St. 465 ; Adlum V. Yard, 1 R. 163 ; Forster v. Forster, 1 Pears. 275 ; Drysdale's Appeal, 14 Pa. St. 531. ^ Forster v. Forster, 1 Pears. 275. *Ingraham v. Cox, 1 Pars. Eq. 70; Mellish's Estate, 1 Pars. Eq. 482. = Eoss V. McJunkin, 14 S. & R. 364; Potter's Estate, 54 Pa. St. 465. After the lapse of fourteen years, the as- .signor in insolvency might, prima facie, recover possession of his land from the assignee. Commonwealth V. Lelar, 13 Pa. St. 22. « Drysdale's Appeal, 14 Pa. St. Ssi. The attaching creditor of the as- signor may insist that the fund at- tached has revested in the assignor, by the lapse of more than twenty years. Adlum v. Yard, 1 E. 163. 'Webb V. Dean, 21 Pa. St. 29; Sailor v. Hertzog, 4 Wh. 259; Poiver V. Hollman, 2 W. 218; Drysdale's Appeal, 14 Pa. St. 531. «Lamb v. Fries, 2 Pa. St. 83. » Webb V. Dean^ 21 Pa. St. 29. '"Power V. Hollman, 2 W. 218; Sailor v. Hertzog, 4 Wh. 259 ; Web- ster V. Dean, 21 Pa. St. 29 ; Lamb i). Fries, 2 Pa. St. 83. "Power V. Hollman, 2 W. 218; Webb V. Dean, 21 Pa. St. 29 ; Lamb V. Fries, 2 Pa. St. 83. "Sailor V. Hertzog, 4 Wh. 259. In Lamb v. Pries, 2 Pa. St. 83, the in- splvent assignment was made in 1821. In 1837 another was made under the laws of New Jersey. In 1838 a judgment was recovered against the' assignor, on which a sheriff's sale took place. The sher- iff's vendee's ejectment was pend- ing in the Supreme Court in 1845. Though at this last date, 'the debts existing in 1821 were presumed paid, those existing in 1837 were not. 494 LAW OF LIMITATIONS. tion, avail himself at the trial of the lapse of this interval. Persons collaterally liable for a debt may take advantage of the presumption that it is paid, e. g. the surety in a bond given to secure owelty in partition in the Orphans' Court^ (or on a bond for- an ordinary debt,^ or on a penal bond to secure the payment, by the executor, of a legacy),^ or the garnishee in a foreign attachment,* or an attachment-execution.^ The volun- tary grantee of land may rely on the presumption that the debts existing when the conveyance to him was made, are paid.* The vendor of land, against whom the vendee, seeking to rescind, brings an action of covenant to recover back the purchase-money, because a title clear of incumbrance has not been tendered him, may defeat the recovery by showing that the incumbrance, a recognizance, has, at the time of trial, been payable more than twenty years.^ A treasurer's sale of unseated land, for taxes, which had been assessed more than twenty years before the sale, may be defeated by the grantee of the original owner, in an ejectment to which the treasurer's vendee or his grantee is a party.* The Hence, the plaintiff's title would not conveyance in one year by A. of cer- support an ejectment against any- tain land to C. Fourteen years after body. the time stipulated for this convej- 'McCarty v. Gordon, 4 Wh. 321. ance, the surety made a voluntary But if the surety is compelled, by conveyance of his land, and the an action brought before the twenty validity of this deed was questioned years have elapsed, to pay the debt thirty years after the time stipulated after they have elapsed, he may in the bond for the conveyance, as enforce re-imbursement against the fraudulent towards the obligee. The land of the principal charged with voluntary grantee could protect his the debt (owelty), notwithstanding. title by the presumption that the ' Penrose v. King, 1 Y. 344. obligation of the bond was extinct ' McCullough 1). Montgomery, 7 S. by a conveyance according to its & E. 17. terms. Shontz v. Brown, 27 Pa. St. * Biddle ■v. Girard National Bank, 123. 109 Pa. St. 349 ; Kline v. Kline, 20 'Allen v. Sawyer, 2 P. & W. 325 ; Pa. St. 503. . c/. Green v. Flicker, 7 W. & S. 171. " Shilling V. Beidler, 2 Woodw. 160. ^ Woodburn v. Farmers' and Me- ' Postens V. Postens, 3 W. & S. 127. chanics' Bank, 5 W. & S. 447 ; Mc- A., with B., his surety, entered into Laughlin v. Kain, 45 Pa. St. 113. a penal bond conditioned for the PRESUMPTION OF PAYMENT. 495 assignee of a mortgage, tKe assignment reciting the receipt of a valuable consideration, may rely on this acknowledg- ment, after twenty years, as prima facie evidence' that he is a holder for value of the mortgage, for the purpose of defeat- ing an action on the mortgage against him, after he has become the owner of the premises mortgaged, by onei who claimed the mortgage under ^ secret equity,^ The compe- tency of a witness (objected to because the legacy given to him is made a charge on the land by the will, which devises it to the defenda,nt in the ejectment, by whom he is tendered), may be vindicated by showing that, by the lapse of more than twenty years since the bequest should have been paid, it is presumed to have been paid.^ Against Whom Presumption Rebuttable. § 342. The debtor may, conscious that the debt is not paid, refrain from taking advantage of the presumption of pay- ment arising from the expiration of twenty years. So, he may, by admissions, preserve the debt as against others who have become collaterally interested in it. Thus,- acknowl- edgments by a vendee' of land, that he owes the purchase- money, made before a judgment is recovered against him by X., a third person, may be used to rebut the presumption that the purchase-money has been paid, in an ejectment by the vendor against the grantee of X., who purchased at the sheriff's sale under his judgment.^ An agreement by the recognizor not to avail himself of the presumption,- if a suit should not be brought till a certain time, will, the suit being brought and judgment recovered; maintain the priority of the lien of the recognizance to that of later judgments.* In like manner, actions of the creditor against the debtor alone, may repel the presumption as to another who, or whose property, becomes liable for the debt. An ejectment by a 'Pryor v. Wood, 31 Pa. St. 142. But admissions by the vendee after ' Levers v. Van Buskirk, 4 Pa. St. X.'s recovery of the judgmeiit would 809. not be admissible. 'Morrison v. I'unk, 23 Pa. St. 421. 'Ankeny v. Penrose, 18 Pa. St. 90. 496 LAW OF LIMITATIONS. mortgagee against the mortgagor, for a portion of the mort- gaged premises, may be shown to repel the presumption in a later ejectment for the remainder of the premises which had been aliened prior to the first ejectment.' A j udgment against a terre-tenant, in revival of an earlier judgment, there having been no actual or constructive service of the scire facias on the defendant, rebuts the presumption of payment in a sub- sequent scire facias issued on the exemplified judgment in another county and served on the defendant alone.'* The gar- nishee in a foreign attachment could repel the presumption that the debts for which an assignment for the benefit of credi- tors had been made by the defendant, had been paid, and so, successfully denying the title of the latter to the debt, defeat a recovery.' The proof of payment of interest on a bond by the principal obligor, will repel the presumption as to the surety in an action against him on the bond.* And the principal in such a bond may, as against the surety;® or the owner of land charged by deed with owelty in amicable par- tition, may, as against later lien creditors, in a proceeding to distribute the proceeds of a sheriff's sale of the land, be offered as a witness to prove that he has not paid the debt.® ' Levers v. Van Buskirk, 7 W. & 8. him for want of appearance, which. 70 ; Id., 4 Pa. St. 309. Partial pay- he never disturbed, ment by the mortgagor repels the 'Adlum v. Yard, 1 E. 163 ; cf. Bid- presumption of payment as against die v. Girard National Bank, 109 Pa. ;the terre-tenant. Emlen v. Middle- St. 349. ton, 5 Leg. & Ins.'Eep. 4. *Guldin v. Faber, 2 Leg. Gaz. 139. = James v. Jarrett, 17 Pa. St. 370. ^ Id. There was one return of nihil as to " Darlington's Appropriation, 13 the defendant in the first scire facias, Pa. St. 430. ibut judgment was entered against PRESUMPTION OF PAYMENT. 497 CHAPTEE X. PRESUMPTION IN LESS THAN TWENTY YEARS. Xiess than Twenty Years. § 343. The presumption of law that a debt has been paid ■does not arise from laps& of time, until -the fiill period of twenty years has expired.^ A single da,y less will be inade- quate to make it;* a fortiori will three days less,' one month,* two months,^ five months," six months,^ ten months,' one year,® eighteen months,^" nineteen months,'^ twenty-one months,^* two years and three months,^' three years," four years," four years and seven months," twelve or thirteen years" less. A jury cannot be permitted, still less required, to infer payment from the mere age of the debt, when it is less than twenty years." There may be circumstances, how- «Hess V. Frankenfield, 106 Pa. St. 440. 'Foulk V. Brown, 2 W. 209; Mc- Carty v. Gordon, 4 Wh. 321 ; Lesley V. Nones, 7 S. & R. 410 ; Brubaker v. Taylor, 76 Pa. St. 83 ; Briggs' Ap- peal, 93 Pa. St. 485. '"Boltzu. Bullman, 1 Y. 584. " Postens V. Postens, 3 W. & S. 127. " Henderson v. Lewis, 9 S. & R. 379. " Clapier v. Maupay, 2 M. 137. "Adlum V. Yard, 1 R. 163. ■'Moore v. Smith, 81 Pa. St. 182. "Penrose v. King, 1 Y. 344; King V. Coulter, 2 Gr. 77. "Lee V. Newell, 107 Pa. St. 283. 1' Murphy v. Phila. Trust Co., 103 Pa. St. 379 ; Diamond v. Tobias, 12 Pa. St. 312 ; Henderson v. Lewis, 9 S. & R. 379 ; Foulk v. Brown, 2 W. 209 ; McCarty v. Gordon, 4 Wh. 821 ; Boltz V. Bullman, 1 Y. 584. 'Diamond v. Tobias, 12 Pa. St. 512 ; Murphy v. Phila. Trust Co., 103 Pa. St. 379; McCarty v. Gordon, 4 Wh. 321 ; Lesley v. Nones, 7 S. & R. 410 ; Henderson v. Lewis, 9 S. & B. 379; Hughes v. Hughes, 54 Pa. St. 240-; Moore v. Smith, 81 Pa. St. 182 ; Rogers v. Burns, 27 Pa. St. 525; Brubaker v. Taylor, 76 Pa. St. 83 ; Adlum V. Yard, 1 R. 163 ; Bbltz v. Bullman, 1 Y. 584 ; Shilling v. Beid- ier, 2 Woodw. 160 ; Dehart v. Gard, Add. 344. ' Clapier v. Maupay, 2 M. 137. 'Tilghman v. Fisher, 9 W. 441 ; ■Commonwealth v. Snyder, 62 Pa. St. 153. * Shilling V. Beidler, 2 Woodw. 160. "Kane v. Fisher, 2 W. 246. 'Smith V. Nevin, 31 Pa. St. 238. 'Hughes V. Hughes, 54 Pa. St. 240. 2g 498 LAW OF I/IMITATIONS. ever, which, in conjunction with the time that hag elapsed^ should be submitted to the jury, that they may determine whether the debt has, in fact, been paid/ The trying court must judge of the sufficiency of these circumstances to be submitted, subject to a reversal by the Supreme Court if it improperly decides them insufficient!^ Nor is it necessary that they should, in fact, persuade the court itself that the debt has been paid. They should be submitted, if, in the opinion of the court, they reasonably tend to convince a jury.* When^ conjoined with the lapse of time, they are, in the judgment of the trying or the appellate court, insufficient to convince reasonable men, they must not be submitted.* The court deciding that the circumstances, including the lapse of time, are worthy of being submitted to the jury, the weight to be given to them is for that tribunal to determine.^ When the trial of the fact of payment takes place without a jury, the court must determine the sufficiency of the circum- stances to support its own finding that the debt has been paid, as, e. g., when a distribution is made in the Orphans' Court of the proceeds of a sale of land in partition, and the ques- tion arises whether liens on it have been discharged.* Less than Tvtrenty Years — Continued. § 344. As to the payment of the debts for which a volun- tary assignment in trust, or by an insolverit, has been made, it seems to be maintained that the court, even in a trial by »Webb V. Dean, 21 Pa. St. 29; ' Hess «. Frankenfield, 106 Pa. St. Diamond v. Tobias, 12 Pa. St. 312 ; 440 ; King v. Coulter, 2 Gr. 77. Allen V. Sawyer, 2 P. & W. 325; Hess » King v. Coulter, 2 Gr. 77. V. Frankenfield, 106 Pa. St. 440; * King u. Coulter, 2 Gr. 77 ; Hess r. Henderson v. Lewis, 9 S. & R. 879 ; Frankenfield, 106 Pa. St. 440 ; Mur- Tilghman D.Fisher, 9 W. 441; Eogers phy v. Phila. Trust Co., 103 Pa. St. V. Burns, 27 Pa. St. 525 ; Peters' Ap- 379. But in Diamond v. Tobias, 12 peal, 106 Pa. St. 340; Moore i). Smith, Pa. St. 312, it was said that where 81 Pa. St. 182; Hughes v. Hughes, there are any circumstances, it is 54 Pa. St. 240; Brubaker v. Taylor, safe to leave them to the jury. 76 Pa. St. 88 ; King v. Coulter, 2 Gr. » Lee v. Newell, 107 Pa. St. 283. 77; Clapier v. Maupay, 2 M. 137; 'Briggs' Appeal, 93 Pa. St. 486; Boltz V. Bullman, 1 Y. 584. McCrudden's Estate, 12 Phila. 69. PEESUMPTION OF PAYMENT. 499 jury, may declare, as matter of law, that the debts of the assignor are presumed paid, even when less than twenty years have elapsed. Thus, ithe assignment being made 24th June, 1817, the assignor, 12th August, 1817, conveyed the land embraced in it to X., who brought ejectment in 1831 against a person claiming under a hostile title. The court's instruction to the jury, the trial taking place 11th December, 1836, that, as the assignees had never done anything under the trust, the debts must be presumed paid, was approved by the Supreme Court.' So, an assignment being made in January, 1822, the assignees not qualifying, it was said by the Supreme Court in 1850, that in 1839, when a new assignee had been appointed by the court (at the instance of a co-tenant with the assignor, of land embraced in the assignment, for the purpose of effecting partition of it), the assignor, had he been out of possession, might have recovered long before this new appointment.^ The strength of the. ' Sailor v. Hertzog, 4 Wh. 259. 'Commonwealth v. Lelar, 13 Pa. St. 22. A judgment had been recovered before the assignment, against the as- signor, was thereafter several times revived, but only against the assignor, and finally, in 1846, a sheriff's sale on it took place to the plaintiff in the judgment. The assignee ap- pointed in 1839 sold the land to X. before the sheriff's sale. Subse- quently, a judgment for arrears of ground-rent was recovered, and the laud was again sold. The balance of the proceeds, after paying the arrears, was paid, not to the pur- chaser in 1846 under the judgment, but to X. The former sued the sheriff for a misappropriation. It was decided that the lien of the judgment was maintained by the revivals, though the assignee was not made a party to them, and that the assignee appointed in 1839 took no title, and could convey none. In Eoss V. McJunkin, 14 S. & E. 364, two warrants to two brothers, B. and C, had been surveyed together, the division line not being run. The title of B. became vested in A., who, in 1800, made an assignment in in- solvency. In 1814, A., despite the assignment, brought an ejectment for his land against strangers, and in 1821 obtained a verdict and judg- ment and took possession there- under of a definite portion of the undivided tract. In a subsequent ejectment by C.,- the other of the warrantees, against strangers, for the residue of this tract, the ejectment and what was done under it were admissible as evidence of the elec- tion of A., acquiesced in by C, for the purpose of making out C.'s title to the part he was suing for. It was said that, even if the validity of A.'s title as against his assignees had 500 LAW OF LIMITATIONS. circumstances that are needed to supplement that of lapse of time, will vary inversely to the length of this time.* When the time approximates to twenty years, very slight circumstances will be sufficient, in conjunction with it, to support the finding that the debt is paid.^ When but seven or eight years have elapsed, the time alone is slight evidence, and would need correspondingly stronger corroboration.^ Circumstances Making Presumption. § 345. Among the circumstances^ to be considered, in con- nection with thfe lapse of time, as tending to prove payment, is the possession by the debtor of the means of paying, at and after the debt became due.* The total inaction of the assignee in insolvency,^ or in trust for the benefit of creditors," for a period of fourteen' or sixteen years,* or of nineteen and one-half years,^ is a fact that is not easily reconcilable ' with the continued existe'nce of the debts, unless the creditors have consented to a resumption of dominion by the assignor. The transcript of a justice of the peace was, nineteen years and five months after the rendition of his judgment, filed ; ' a scire facias to revive it was issued, but no execution was shown, by the justice's certificate or otherwise, to have ever been in question in the first eject- Hughes v. Hughes, 54 ,Pa. St. 240; ment, there w^s no decisive objec- Murphy v. Phila.- Trust Co., 103 Pa. tion to it. There was a resulting St. &79 ; Tilghman v. Fisher, 9 W. trust to him, on payment of the 441 ; Moore v. Smith, 81 Pa. St. 182 ; debts, and as fourteen years had Briggs' Appeal, 93 Pa. St. 485. «lapsed since the assignment, when ''Briggs' Appeal, 93 Pa. St. 485; the suit was commenced, and there Hughes v. Hughes, 54 Pa. St. 240; may have been evidence that the Tilghman v. Fisher, 9 W. 441. sooner barred by this section taking immediate effect, shall not be thereby barred before two years from the date hereof" JIffect of Probate Prior to 1856. . § 350. The admission to' or exclusion from* probate of a 'P. L. 144; 2 Bright. Purd.p.l476, 435; Cochran v. Young, 104 Pa. St. pi. 18. ' 833 ; Holliday v. Ward, 19 Pa. St. 'P. L. 532; 1 Bright. Purd. p. 509, 485. It was conclusive when the pi. 12. register admitted or refused to admit ' Hess V. Hess, 5 W. 187 ; Wilson to probate, or when, on caveat, a Reg- u Gaston, 92 Pa. St. 207 ; Coates v. ister's Court was convened, which Hughes, 3 Binn. 498 ; Broe v. Boyle, decided for or against the admission 108 Pa. St. 76 ; Hegarty's Appeal, 75 to probate. Lewis v. Pratt, 2 Wh. 81 ; Pa. St. 503 ; Logan v. Watt, 5 S. & Spang! er v. Rambler. 4 S. & R. 192. E. 212 ; Rowland v. Evans, 6 Pa. St. • * Asay v. Hoover, 5 Pa. St. 21. 508 LAW OF LIMITATIONS. will by a register, is a judicial act, and, as to the dispositions of personalty therein contained, is conclusive unless it be reversed on appeal to the Orphans' Court, taken within three years,^ or on appeal from the Orphans' Court to the Supreme Court, taken in one year from the time of .final' decree or sentence.^ But prior to the act of 22d April, 1856, as to dispositions of realty contained in a will,' its admission* t6 or rejection* from probate by the register,' or on appeal by the Register's (now Orphans') Court,* or on appeal therefrom by the Supreme Court,'' was not conclusive. Its validity as a disposition of the land affected by it might be collaterally brought in question by ejectment;* in a feigned ■ Section 31, Act 15th March, 1832, supra. The decision of the Kegister's (now Orphans') Court on the appeal is conclusive, unless in turn reversed on appeal to the Supreme Court. Shermer's Appeal, 44 Pa. St. 396. ^ Section 42, Act 15th March, 1832 ; Shermer's Appeal, 44 Pa. St. 396. Inasmuch as bequests to religious or charitable uses are valid under the act of 26th April, 1855, only when the will is attested by two 'Credible and disinterested witnesses, and is executed at least one calendar month before the testator's decease, the admission of the will to probate, when it contains other provisions, ■will not be even prima fade evidence that it was thus attested. Hannah Hupfeld's Estate, 5 Phila. 219. ' Smith V. Bonsall, 5 R. 80; Barker V. M. Ferran, 26 Pa. St. 211 ; Shields' Appeal, 20 Pa. St. 291; Lovett v. Mathews, 24 Pa. St. 330; Fenn v. Eead, 1 Y. 87 ; Coates v. Hughes, 3 Binn. 498; Logan v. Watt, 5 S. & R. 212; Rowland v. Evans, 6 Pa. St. 435 ; Holliday v. Ward, 19 Pa. St. 486; Kenyon v, Stewart, 44 Pa. St. 179. * Smith V. Bonsall, 5 R. 80; Spang- ler V. Rambler, 4 S. & B. 193 ; Asay V. Hoover, 5 Pa. St. 21; Lewis v. Pratt, 2 Wh. 81. ' Smith V. Bonsall, 5 E. 80 ; Coates- V. Hughes, 3 Binn. 498; Logan v. Watt, 5 S. & R. 212; Lovett «, Mathews, 24 Pa. St. 330; Rowland V. Evans, 6 Pa. St. 435. "Asay V. Hoover, 5 Pa. St. 21; Smith V. Bonsall, 5 R. 80; Fenn v. Read, 1 Y. 87; Logan v. Watt, 5 S. & R. 212. A judgment against the- validity of a will in an ejectment brought by an heir against the devi- see, is so far inconclusive against- the will, which has not been pre- sented for probate, that in a petitiott in the Orphans' Court for a partition of land of decedent between the- heir and the widow 'claiming as- devisee of the whole, the court will' dismiss the petition on the exhibi- tion Of the will, though the judgment- in ejectment against its validity is- also exhibited. Spangler v. Ramb- ler, 4 S. & R. 192. 'Lewis V. Pratt, 2 Wh. 81. 'Spangler v. Rambler, 4 S. & R. 192; Smith v. Bonsall, 5 R. 80; Fenn. MISCELLANEOUS LIMITATIONS. ' ' 509 issue to determine whether the proceeds of a sheriff's sale, after the decedent's death, on a mortgage executed by him in his lifetime, are, after satisfying the mortgage, to be paid to the heirs or the devisee;^ and in partition proceedings in the Orphans' Court, instituted by one alleging that the will is void.^ Effect of Probate Since Act of 22d April, 1856. § 351% The seventh section of the act of 22d April, 1856, has introduced an important change into the law with respect to the effect of the probate of wills, in so far as concerns their dispositions of real estate. It makes the decree of the regis- ter as conclusive, as regards land, as it has always been as regards personalty, unless it shall be overthrown in a direct proceeding,^ and it allows five years in which to appeal from this decree, and no longer. The decree of the register can li,enceforth, even as respects the dispositions by the will, of land, be controverted only by "caveat and action at law, duly prosecuted." By caveat is meant the initiatory process cr notice preceding a contest before the register, and by action at law an issue triable in the Common Pleas, directed by the Orphans' Court, after an appeal thereto from the decree of the register.* The decree of the register is conclu- V. Read, 1 Y. 87 ; Coates v. Hughes, with the partition. Cf. Spangler v. 3 Binn. 498 ; Logan v. Watt, 5 S. & Rambler, 4 S. & R. 192. R. 212; Sharp v. Petit, 4 Y. 413; ' Cochran ti. Young, 104 Pa.' St. 333 ; Rowland v. Evans, 6 Pa. St. 435. McCort's Appeal, 98 Pa. St. 33 ; Frey lAsay V. Hoover, 5 Pa. St. 21. v. Klebe, 13 Phila. 99. 'Lewis V. Pratt, 2 Wh. 81. If the * Wilson v. Gaston, 92 Pa. St. 207 ; defendant shows that the land was McCort's Appeal, 98 Pa. St. 33. But devised to him in severalty, and the a caveat and objection to admitting petitioner shows that the will has the will to probate is not necessary been rejected as invalid by the Regis- to an appeal to the Orphans' Court, ter's Court, and, on appeal, by the McCort's Appeal, supra. • By caveat. Supreme Court, the Orphans' Court Briggs, J., understood the first should award a feigned issue to de- step towards obtaining an issue de- termine the validity of the will, or vi^avit vel non, hy one denying the should order the petitioner to bring validity of the will, against one claim- . an ejectment and try the validity of ing under it, but who was not in poe- the will therein, before proceeding session. When the latter was in pos- 510 LAW OF LIMITATIONS. sive in all collateral proceedings, e. g. in an ejectment brought less than two years after the probate of the will, by an heir, against the devisee of the decedent.^ The contestant is re- stricted to the proceeding before the register and an issue devisavit vel non, directed by the Orphans' Court.^ The time within which the appeal from the decree of the register may be taken is, under the act of 22d April, 1856, five years. Hence, the register having admitted a will to probate, with- out caveat and objection by any one, an appeal to the Orphans' Court thirteen days less than five years after hi& decree, was early enough.^ But after the lapse of five years from the probate without appeal, the decree of the register is conclusive on all persons, whether infants, femes covert^ persons non compotes mentis, or not.* session, ejectment was the proper remedy by the one who denied the will. Stewart v. Austin, 9 Phila. 141. ' Wilson 1). Gaston, 92 Pa. St. 207 ; Cochran v. Young, 104 Pa.^ St. 333 ; Broe V. Boyle, 108 Pa. St. 76. In the former case, from the act of the register admitting the will to pro- bate, an appeal was taken to the Orphans' Court, which refused the prayer for an issue and dismissed the appeal, and whose dismissal was affirmed by the Supreme Court. The appellant then began the eject- ment. In Stewart v. Austin, 9 Phila. 141, Briggs, J., held that if the devi- see under an unprobated will brought ejectment within five years, against one claiming under another probated will, and recovered, as he could under the act of 1856, the probate would not be conclusive against him in a second ejectment brought by the defendant in the former ejectment, though then the five years had elapsed. — After five years from the probate without appeal, the title of the devisee will be unassailable in an action between her and her vendee for damages for incapacity to convey a good title. Broe V. Boyle, 108 Pa. St. 76. Ken- yon V. Stewart, 44 Pa. St. 179, decid- ing that ejectment is the proper mode to contest a decree of the reg- ister, is erroneous. 'Cochran v. Young, 104 Pa. St. 333. 'McCort's Appeal, 98 Pa. St. 33; Cochran v. Young, 104 Pa. St. 333. 'Cochran v.' Young, 104 Pa. St. 333 ; Warfield v. Fox, 53 Pa. St. 382;. Broe V. Boyle, 108 Pa. St. 76 ; Fol- mar's Appeal, 68 Pa. St. 482; He- garty's Appeal, 75 Pa. St. 503. The- act of 1st April, 1874, (P. L. 50,) de- clares that from and after its date no appeal from the Register's Court shall be avoided or reversed unless the appeal be brought within two- years. In McCort's Appeal, 98 Pa. St. 33, where the probate occurred. 26th November, 1875, and the appeal to the Orphans' Court was taken 13th.. November, 1880, and the appeal from the Orphans' Court was heard in the Supreme Court in 1881, the latter- MISCELLANEOTJS LIMITATIONS. 511 Parties and Subjects. § 352. The decree of the register, with regard to the pro- bate of a will, is conclusive in five' years, if not appealed from, as against "those interested to controvert it." They need not be named in the proceedings, which are in rem as well as in personam} A decree admitting a will to probate is, after the proper time, conclusive on one who claims through a later codicil, not proven till after five years from the pro- bate of the will.^ Purchasers, after the decree, of the land from the devisee, if the register's decree is against the will,, or from the heir, if that decree is favorable to the will, will be barred, as would their vendors, in five years from the probate.' The decree is conclusive as to the lega,l execution of the will,* e. g. that the will was signed at the end thereof,* or that, being signed by another than the testator, it was so signed at his express direction.® It is also conclusive as to- the testamentary capacity of the testator,' as to the exercise of fraud, duress or undue influence upon him,* and as to the non-revocation of the will, by the subsequent marriage of the testatrix, however clearly this marriage may be proven." It is not conclusive, however, as to the testator's title to the property devised, nor his possession of testamentary power over it. Hence, if, within one calendar month after writing a will, in which he devises land to religious uses, he dies, the title of the devisee may be contested at any distance of time after the probate, and by any appropriate method." court said that "under the act of ^Folmar's Appeal, 68 Pa. St. 482. 1856, though it might be different did ' McCort's Appeal, 98 Pa. St. 33 ;: the act of 1874 apply to this case,- the Hegarty's Appeal, 75 Pa. St. 503. appeal of the appellant " was in time. ' Hegarty's Appeal, 75 Pa. St. 503. ' Cochran v. Young, 104 Pa. St. 333. ' Broe v. Boyle, 108 Pa. St. 76 ; c/. 'Jd. Hegarty's Appeal, 75 Pa. St. 503. ' McCort's Appeal, 98 Pa. St. 33. " Hegarty's Appeal, 75 Pa. St. 503 ; *Broe 1). Boyle, 108 Pa. St. 76; Broe «. Boyle, 108 Pa. St. 76. Wills- Warfield v. Fox, 53 Pa. St. 382; probated before the passage of the Hegarty's Appeal, 75 Pa. St. 503. act of 22d April, 1856, are subject to- ' Prey v. Klebe, 13 Phila. 99. its proviso. Thus, probate must be- -512 LAW OF LIMITATIONS, CHAPTEE II. ACTION ON ADDITIONAL BONDS OF EXECUTOES AND ADMINISTEATOES. Act 4th April, 1797. § 353. The first section of the act of 4th April, 1797,^ -authorizes the Orphans' Court, on the application of any legatee, creditor or person interested in the real or personal ■estate of a decedent,, or of any surety on his administration bond, stating cause to believe that the executor or adminis- trator is wasting and mismanaging the estate, to order such executor or administrator to give such bonds, with sureties, as they may deem necessary. The second section of this act directs " that in all cases where a return of nulla bona shall have been made by the sheriff of the proper county, to an execution agaiilst any such executor or administrator, their sureties shall, on notice thereof, unless they can show goods or chattels, lands or tenements, in some other county, which may be seized and taken in execution by a testatum fieri facias to satisfy the same, be liable to pay the amount of the debt, and costs therein, in actions brought against .them on the said bonds, and such further proof or evidence in support thereof as by law would have entitled the suitor or suitors to recover his, her or their demand of the said executors or administratoi-s de bonis propriis ,\ provided, such suits shall be instituted against the sureties within seven years after the date of the respective bonds, and the whole amount of the sums of money to be recovered thereupon shall not exceed the penalties of the said bonds respectively." This act, and ■controverted in two years after that 179; Warfield v. Fox, 53 Pa. St. 382; date. Kenyon v. Stewart, 44 Pa. St. Folmar's Appeal, 68 Pa. St. 482. , ' 3 Sm. 296. MISCELLANEOUS LIMITATIONS. t513 the limitation of seven years therein, refer to actions, not, on the original administration bonds, but on the bonds •which, according to the first section, the Orphans' Court requires the executor or administrator to give. Actions on the original administration bond are subject to no statutory limitation.^ • CHAPTEK III. ACTIONS ON OFFICIAL BONDS. Act 4th April, 1798. § 354. Except where particular classes of bonds are sub- jected to peculiar limitations, they are all subject to the pro- visions of the fourth section of the act of 4th April, 1798,^ which declares that "it shall not be lawful for any person or persons whomsoever to commence and maintain any suit or suits on any bonds or recognizances, which shall hereafter be given and entered into by any person or persons, as sureties for any public ofiicer, from and after the expira- tion of the term of seven years, to be computed from the time at which the cause of action shall have accrued ; and if any such suit or suits shall be commenced contrary to the intent and meaning of this act, the defendant or defendants, respectively, shall and may plead the general issue, and give this act and the special matter in evidence ; and if the plain- tifi" or plaintiffs be non-suit, or if a verdict or judgment pass against him or them respectively, the defendant or ■defendants shall respectively recover double costs." ' Commonwealth v. Patterson, 8 property in his hands. With refer- W. 515; Miltenberger v. Common- ence to this decision, Baird, P. J., wealth, 14 Pa. St. 71. Common- said, in McLean v. Findley, 2 P. & wealth V. Bryan, 8 S. & R. 128, had W. 97, that the seven years' limita- ■decided that the limitation applied tion related " to the remedy of credi- only in cases in which nulla bona tors against the sureties of adminis- bad been returned to an execution trators." against the executor or adminis- ' 3 Sm. 832. trator with respect to the deced.ent's 2h 514 LAW OF LIMITATIOIfS. Parties Affected. § 355. This limitation does not affect the Commonwealth. Hence^ on a prothonotary's bond for fees collected by him for the State,^ or on the bond of a collector of State and county taxes, for taxes due the State,^ whether the action is in the name of the Commonwealth,^ or of its officers,* the action is not barred by the sev.en years' limitation. A county is subject to the limitation ; but when the commis- sioners of a county sue on a tax collector's bond, for the recovery .of the amount of taxes collected by him, both State and county, and do not distinguish in their declara- tion between them, and' the defendants do not, by proper pleading, compel them to set out how much is due the State and how much the county, so as to enable the former to- plead the statute efiectively against the claim for county taxes, the plea of the statute will be unavailing against any portion of the claina.^ The seven years' limitation applies- to actions by individuals against the sureties of prothono- 'McKeehan v. Commonwealth, 3 run. Commonwealth v. Severn, S- Pa. St. 151. The ninth section, act W. N. C. 303 ; Clement v. Common- 6thApriI,1830,requiringabondfrom wealth, 87 Leg. Int. 446. the prothonotary, register, &c., for * Glover v. Wilson, 6 Pa. St. 290, the faithful paying over of taxes on If the county pays over the tax to writs, to the State, does not adopt the State before collection, and then the five years' limitation of the -act sues the collector's sureties, perhaps of 28th March, 1803, with regard to the statute would run against it. If, sheriffs' and coroners' bonds. Actions however, the suit is for a general on this bond are without limitation, balance, which is composed of $64.8^ as against the Commonwealth. Com- State taxes and 11.50 of militia fines, monwealth v. Johnson, 6 Pa. St. 136. which are also State taxes, and the '' Glover' v. Wilson, 6 Pa. St. 290 ; county has paid the former but not vide Stiles v. Reynolds, 5 Luz. Leg., the latter, then, as the amount pro- Reg. 195. i ceeded for and defended against is- 'McKeehan v. Commonwealth, 3 a gross amount, part of which be- Pa. St. 151. , longs to the Commonwealth, th& * Glover v. Wilson, 6 Pa. St. 290; whole claim is exempt from the Stiles V. Reynolds, 5 Luz. Leg. Reg. operation of the statute of limita- 195. If the Commonwealth is a tions. Stiles v. Reynolds, 5 Luz. mere nominal plaintiff, having no Leg. Reg. 195. beneficial interest, the statute would MISCELLANEOUS LIMITATIONS. 515 taries; for their official misfeasance.^ An amendment, after the seven years have run, by which an action on the pro- thonotary's bond, brought early enough, in the name of the person aggrieved, is changed to one in the name of the Com- monwealth to his use, is permissible.^ CHAPTEK IV. constables' bonds. Act 4th April, 1798. § 356. The fourth section of the act of 4th April, 1798,^ required all suits on official bonds against sureties, to be brought within seven years after the cause of action accrued. This was the only limitation which affected the official bonds of constables under the act of 20th March, 1810. The pro- vision in that act, that these bonds should be held in trust for such persons as may sustain injury from the constables in their official capacity, and " for the like purposes and uses as sheriffs' bonds are usually given," did not make the five years' limitation applicable to suits on sheriffs' bonds, oper- ative with regard to constables' bonds.* Notwithstanding the same provision in the one hundred and twelfth section of the act of 15th April, 1834,° with regard to constables' bonds, and notwithstanding the slight change in the form of the constable's bond introduced by that act, the limitation of 'Clement v. Commonwealth, 95 admitted that he had made no set- Pa. St. 107. In Scott V. Strawh, 35 tlement within seven years. The Leg. Int. 396, in a suit by a school grounds of decision do not appear, district on the ofllcial bond of the "Clement v. Commonwealth, 95 collector of bounty taxes, the act of Pa. St. 107. 1798 was set up as a defense, but did '3 Sm. 382. not prevail. He had ceased to col- . *Owings v. Commonwealth, 8 S. & lect tax more than seven years R. 530. before suit, except in one instance, ' P. L. 556 ; 1 Bright. Purd. p. 316, which was seven or eight months pi. 8. after the next previous one. He 516 LAW OF LIMITATIONS. the fourth section of the act of 29th March, 1824/ is still operative.^ Though the second section of the act of 18th March, 1864,^ enacts, in regard to the city of Philadelphia, " that in lieu of the term of years for which constables of the various wards, boroughs and townships of the said city are now elected, they shall hereafter be elected for the term of five years from and after the expiration of the var- ious terms to which they have been elected," it does not repeal the limitation as to suretie?, of three years from the date of the obligation/ Though an action against the con- stable is begun before a justice immediately after his breach of duty, and the judgment recovered being appealed, is reversed by the Common Pleas, and on error to the Su- preme Court, a venire facias de novo is awarded, and a judg- ment then recovered against the constable, immediately after which the action on the bond is begun, it will be too late, if three years have already expired since the date of the bond.^ Special bonds required from constables, with regard to par- ticular duties, by particular acts of Assembly, are not within the three years' limitation of the act of 29th March, 1824, but within the seven years' limitation of the act of 4th April, 1798. Thu^, a constable's bond, undei; the act of 3d April, 1851,^ which requires the treasurer of Venango bounty to issue his warrant to the constable for the collection of over- due taxes, State and county, and the constable to give a special bond for the due performance of this duty, is subject to the seven years' limitation only/ ^ 8 Sm. 302 ; 1 Bright. Purd. p. 316, years after the date of such obliga- pl. 9. tion." ' Commonwealth v. Eose's Ex.. 83 » P. L. 60. Pa. St. 199; Alcorn v. Common- 'Commonwealth v. White's Ex., wealth, 66' Pa. St. 172. That section 2 W. N. C. 321. declares, "suits against the sureties ^Commonwealth v. Eose's Ex., 83 mentioned in the third section of Pa. St. 199. this act, shall not be sustained unless ° P. L. 317. the same be instituted within three 'Alcorn v. Commonwealth, 66 Pa. St. 172. MISCELLANEOUS LIMITATIQIfS. 617 CHAPTER V. ON SHEEIFFS' AND CORONEES' BONDS AND EECOGNIZANCES. Act 28th March, 1803. § 357. The fourtjti section of tlie act of 28th March, 1803/ which authorizes suits on the bonds and recognizances of sheriffs and coroners, adds, "Provided always, that such suit or suits ^.gainst such sureties, their heirs, executors or admin- istrators, shall not be sustained by any court of this Common-^ wealth, unless the same shall be instituted within five years after the date of such obligation or recognizance." The five years begin to run from the date of the bond or recognizance, and not from the subsequent day of its approval by the governor, and of his issue of the commission.^ If one person causes a scire facias on the recognizance, or an action of debt, in the name of the Commonwealth, on the bond, to be " brought within five years of its date, another person, having another claim, may, after the five years, on petition to the court, be allowed to intervene for the recovery of his demand, and may recover it. The suggestion of an additional party is not the commencement of a new or different action, but a mere participation in an action previously begun.^ There '4Sm.48; 2 Bright. Purd. p. 1533, was decided that one party having pi. 15. This act still subsists, not sued on the sheriff's bond within being superseded by the act of 15th five years of its date, and recovered April, 1834. Commonwealth v. judgment for the penalty, a seire Eainey, 4 W. & S. 186. faaias by another, after the five years, ^Wilson V. 'Commonwealth, 7 W. was barred. Each suggestion or & S. 181. This case implies that a scire facias, it was said, is a new bond being dated 25th October, 1833, suit. So, in Bank of Pennsylvania the action was in time if begun 25th v. Potius, 10 W. 148, where an action October, 1838. was brought by a creditor of X. ' Commonwealth v. Springer, 13 against the sheriff for failing to exe- W. N. C. 305. Yet, in Common- cute a fieri facias, and, pending thi» wealth V. Eainey, 4 W. & S. 186, it action, the sureties of X. paid a part 518 LAW OF LIMITATIONS, is no such relation between the sheriff's bond and his re- cognizance, though his sureties are the same in both, that an action on the one, within the five years, will make it possible to sue.on the other beSyond that time, so as to recover against the sureties.^ If the action is begun in five years, mere delay in prosecuting it to final judgment constitutes no bar to a recovery.^ QHAPTEK VI. ACTIONS AGAINST CONSTABLES AND JUSTICES. Act 21st March, 1772. § 368. The seventh section of the act of 21st March, 1772,^ provides "that no action shall be brought against any justice of the peace, for anything done in the execution of his of&ce, or against any constable or other officer, or person or persons acting as aforesaid, unless commenced .within six months after the act committed." A justice of the peace can set up this limitation as a defense, though he has not specially pleaded it.* It may be that when the act of the justice is, at the time of its commission, unknown to the plaintiff, e. g. when he has entered a judgment against the latter maliciously, without jurisdiction of his person, the six months' limitation would not run till knowledge of the act. It would certainly commence to run as soon as he acquired that knowledge.^ If the act of the justice com- plained of is his neglect to. certify the recognizance of bail, of the debt, it was held that only the ' Smith v. Miller, 13 S. & E. 339 ; residue of the debt could be recov- cf. Shaeflfer v. Jack, 14 S. & R. 426. ered. The part paid by the sureties '' Beale v. Copomonwealth, 7 W. could not be irecovered, by substitut- 183. ing them, jpro /arato, for the plaintiff, '1 Sm. 365; 1 Bright. Purd. p. after the five years had elapsed, be.' 323, pi. 39. cause they could not then bring an * Prather v. Connelly, 9 S. & K. action that would not be barred. 14. Cf. Lynch v. Wolverton, 16 S. & R. 'Killion v. Davis, 1 Phila. 215. ,868. MISCELLANEOUS LIMITATIONS. 519 -with his transcript, on an appeal from his judgment, where- for 'the appeal is quashed, the mere fact that the tender of bail was made to the justice more than six months hefore the institution of the suit against him, is not conclusive that the neglect complained of did not occur within the six months. Hence, evidence of the tender, as it may be an inducement to proof of the subsequent peglect, ought not, for that reason, to be excluded.^ The six months' limitation as to constables applies only to suits against them for such acts as they commit bona, fide in the execution of process; for involuntary trespasses. It has no application to an action, by the mother of a bastard, for permitting an escape of a person arrested on her complaint for fornication and bastardy.^ CHAPTER VII. LIMITATION IN BETTING. Act 17th February, 1820. § 359. The fourth section of the act of 17th February, 1820,^ declares that "it shall and may be lawful for any person who shall lose money, goods or chattels, or any other valuable thing, on the racing, running, pacing or trot- ting of horses, mares or geldings, and. shall pay or deliver the same, or any. part thereof, to the winner or other person, for his use, or in his behalf, to recover the same or the value thereof from such winner, with costs, by action of debt or on the case, in any court of record having cognizance thereof; provided- always, that such suit shall have been instituted within two calendar months after such losing and payment and delivery as aforesaid." Act 22d April, 179.4. § 360. The ninth section of the act of 22d April, 1794,* 'Prather v. Connelly, 9 S. & R. '7 Sm. L. 244; 1 Bright. Purd. p. 14. ♦ 871, pi. 4. » Lantz V. Lutz, 8 Pa. St. 405. * 3 Sm. 181 ; 1 Bright. Purd. p. 838, pi. 9. 520 LAW OF LIMITATIONS. enacts " that if any person or persons shall lose any money, or other thing of value, at or upon any game of address, or of hazard or other play, and shall pay or deliver the same or any part thereof, the person or persons so losing and paying or delivering the same shall have a right, within ten days then next or thereafter, to sue for and recover the money or goods so lost and paid, or delivered, or any part thereof, from the respective winner or winners thereof, with costs of suit, by action of debt or case, for the value of the money or thing so lost." Act 2d July, 1839. § 361. By the one hundred and eighteenth section of the act of 2d July, 1839,^ "it shall be the duty of the several constituted authorities having care and charge of the poor in the respective counties, districts and townships of this Commonwealth, knowing or being informed, under oath, of any person or persons having made any bet or wager of any land, goods, money or thing of value, on the result of any election within this Commonwealth, or deposited the same in the hands of any person within their respective counties, districts or townships, to bring suit in the name of the Com- monwealth of Pennsylvania for the use of the poor of such county, district or township, against such depositee or stake- holder, where said bet is deposited in the hands of a third person ; or against the party winning said bet, when the same is not so deposited, for the recovery of the amount so bet ; * * * provided^ said suit is brought within two years from the time of making such bet." This proviso is both a condition and a limitation. The property in the thing bet remains in the better, unless within the tWo years the poor- officers institute the action, and after the two years he may recover it from the winner or the stakeholder.'' ip. L. 544; 1 Bright. Purd. p. 670; years have expired to authorize a pl''143. recovery by the better. Parser v. ''Forscht V. Green, 53 Pa. St. 138. Morrison, 26 Pittsb. L. J. 85. The record must show that the two MISCELLANEOUS LIMITATIONS. 521 CHAPTER VIII. ACTIONS FOR FORFEITUKES. Act aeth March, 1785. § 362. The sixth section of the act of 26th March, 1786,^ enacts that " all actions, suits, bills, indictments or informa- tions which shall be brought for any forfeiture upon any- penal act of Assembly, made or to be made, whereby the forfeiture is or shall be limited to the Commonwealth only,, shall hereafter be brought within two years after the offense was committed, and at no time afterwards ; and all actions, suits, bills or informations which shall be brought for any forfeiture, upon any penal act of Assembly, made or to be made, the benefit and suit whereof is or shall be by the said act limited to the Commonwealth and to any person or per- sons that shall prosecute in that behalf, shall be brought by any person or persons that , may lawfully sue for the same, within one year next after the offense was committed ; and in default of such pursuit, then the same shall bes brought for the Commonwealth, any time within one year after that year ended ; and if any action, suit, bill, indictment or information shall be brought after the time so limited, the same shall be void, and where a shorter time is limited by any act of As- sembly, the prosecution shall be within that time." This act applied to actions qui tarn founded on the forfeiture of the moliey lent, when Usurious interest was paid on it, under the act of 2d March, 1723, now repealed. The excessive interest being paid semi-annually, the action could be brought in one year after the last payment of the interest and principal.'* Act 12th April. 1828. § 368. The act of 12th April, 1828," forbids any person. 1 2 Sm. 300 ; 2 Bright. Purd. p. 1069, » 10 Sm. 159; 1 Bright. Purd. p. 170, pi. 33. pi. 78. 'Lamb v. Lindley, 4 W. & S. 449. •522 LAW OF LIMITATIONS. or corporation issuing notes for less than f 6, but preserves the liability of such person therefor to the holder of such note, together with interest at thfe rate of twenty per cent, per annum from the issue of the nptes.-^ Neithdr the one year nor the two years' limitation of the act of 26th March, 1785, applies to the recovery of this twenty per cent, interest. It can be recovered so long as the principal of the notes can be.^ The forty-seventh section of the Banking act of 16th ^pril, 1850,^ obliged all banks of the State east of the Alle- gheny^ mountains, to keep their notes at par in the city of Philadelphia, and those west of the mountains to keep their notes at par in Pittsburg, under the penalty of forfeiting to the State at the rate of two mills per annum for every dollar of the average amount of the circulation of such bank for "the preceding year. This forfeiture was subject to the two years' limitation of the act of 26th March, 1785.* So much ■of the sixth section of the act of 26th March, 1785, as re- lates to the recovery of fines and forfeitures shall be and is hereby extended, to all fines and forfeitures and amercements TV^hich, by any law of this Commonwealth, is directed to be p,aid, to the treasurers or county commissioners of the respec- 'This act forbids as well muni- rate of interest than six per cent., ■cipal as other corporations from or any penalty or forfeiture under issuing such notes. McCormick v. any of the provisions of the act Allegheny City, 7 Leg. Int. 150; of 12th April, 1828. Hence, a Allegheny City v. McOlurkan, 14 holder of prohibited notes for less Pa. St. 81. than $5, who sues two years after ^Allegheny City v. McClurkan, 14 their issue, could recover six per Pa. St, 81. So, the provisions in the cent, interest for the former year, :act of 30th March, 1821, giving in- and twenty per cent, interest for the ■creased interest in case of certain latter year, and for the time between protested bills, were not subject to the institution of the suit and the the limitation of the act of 26th rendition of the judgment. McCor- March, 1785. The thirteenth section mick v. Allegheny City, 7 Leg. Int. of the act of 21st April, 1841, (P. L. 150. 249;) extended the limitations of the ' P. L. 477. act of 26th March, 1785, " to all and *Harrisburg Bank v. Common- every suit brought or that may wealth, 26 Pa. St. 451. be brought to recover . a greater MISCELLANEOtrS LIMITATIONS. 623 tive counties, for the use of the counties respectively,^ and to all fines ahd forfeitures payable either in whole or in part to the use of the respective counties.^ CHAPTEE IX. LIMITATION FOE. BKINGIN& SECOND EJECTMENT. Act 14th December, 1863. § 364. The act of 14th December, 1863,' is as follows : Section I. In all legal actions of ejectment, wherein there has been or shall be one verdict and final judgment, or verdict and judgment against verdict and judgment between the same parties, and the party or parties, his or their heirs -or assigns, remaining in possession of the premises, the title to which is or may be in controversy, shall be desirous of ;S6ttling the same, it shall be lawful for such party or parties «o in possession to enter a rule upon the adverse party claim- ing title to such premises, requiring him or them to com- mence his or their second or third action of ejectment, as the case may be, within two years* thereafter, or show cause why the same cannot be so brought, which rule shall be ■entered of record in' the case last tried between the parties, ^and shall be served and returned by the sherifi" as writs of ;Summons are served and returned. Section II. § 365. Section II. Whenever the party or parties upon whom such rule shall have been served, shall fail to appear and show cause why such action should not be brought, within two years after such service, it shall be the duty of the court to enter judgment, and make the rule absolute ■ 'Section 55, Act 16th July, 1842, 'P. L. of 1864, p. 1123. P. L. 389 ; 2 Bright. Purd. p. 1069, * Amended to six months. Act 21st 3)1. 86.' May, 1881, P. L. 24; 1 Bright. Purd. ''Section 1, Act 24th February, p. 689, pi. 16. 1845, P. L. 61 ; 2 Bright. Purd. p. 1069, pi. 36. 524 LAW OF LIMITATIONS, against the party so failing ; which judgment shall be final and conclusive between the parties, their heirs and assigns, in the same manner as a second or third verdict and judg- ment between the same parties would be if regularly ren- dered upon trial.^ Under this act, only the successful party in the earlier- ejectment may obtain the rule upon the unsuccessful one to institute the ejectment. If the plaintiff in an ejectment,, after recovering final judgment, refrains from issuing a habere facias possessionem, the defendant, remaining in pos- session, is not entitled to the rule. He cannot force thfr plaintiff to take th& burden of another ejectment.* CHAPTEK X. distkibtjtee's claims to intestate's peesonalty. Act 8th April, 1833. § 366. The nineteenth section of the act of 8th April,, 1833,^ enacts that " all such of the intestate's relations and persons concerned, who shalF not lay legal claim to their respective shares within seven years after the decease of the- intestate, shall be debarred from the same forever ; provided^ that if any such relation or person shall, at the time of the decease of the intestate, be within the age of twenty-one- years, or a married woman, he or she shall be entitled to> receive and recover the same, if he or she shall lay legal ' Amended by Act 21st May, 1881. L. 143. The proviso of the earlier " Wynkoop v. Hoffner, 10 W. N. act gave seven years to persons non C. 173. See, also, Act of 3d April, compotes mentis, or in prison, or be- 1872, Section 1 , P. L. 33 ; 1 Bright, yond the limits of the United Purd. p. 641, pi. 26. States, after they recovered sanity, 'P. L. 319; 1 Bright. Purd. p. 934, enlargement, or return to some one pi. 38. This act, except the proviso, of the States. Cf. Pennepacker v. is a copy of the eighteenth sectiba Pennepacker, 2 CI. 114 ; Man v, of the act of 19th April, 1794. 3 Sm. Warner, 4 Wh. 455. MISCELLANEOUS LIMITATIONS. 525 claim thereto, within seven years after coming to full age or ■disco verture." "To What Limitation Applies. § 367. This limitation has no reference to real estate of a ■decedent.^ It cannot be set up, therefore, by one heir, defendant in ejectment brought by another, to recover an undivided interest in the ancestor's land.^ Its object is to protect administrators in the event of a bona fide distribution of the personal chattels and choses in action of the decedent without notice of outstanding claims.* But the excess of the proceeds of a sheriff's sale of the decedent's land, on a mortgage which he had executed, the sale taking place after his death, is not his personal chattels nor choses in action. An action by a next of kin against the administrator to recover his share of this excess, which the administrator had distributed to another mistakenly believed by him to be next of kin, is not subject to this limitation.* The lapse of more than seven years from the decedent's death is no defense to an action by a next of kin against an administrator, who, being the only other next of kin, has filed an account, and simply retained the balance for himself.^ A fortiori is it no defense when the administrator is, a stranger, and simply fails to pay the money oveu to the distributee.® The administrator, an illegitimate son of the mother of the decedent, and supposing himself to be solely entitled to the 'Blackmore v. Gregg, 2 W. & S. tained by a decree of the court, 182; Carter v. Trueman, 7 Pa. St. validly authorize the court to review 315 ; Logan v. Richardson, 1 Pa. St.- its decision for the purpose of let- 372. ting other distributees in on the ^Blackmore v. Gregg, 2 W. & S. fund. Bagg's Appeal, 43 Pa. St. 512. 182. * Carter v. Trueman, 7 Pa. -St. 315. ' Cartej- v. Trueman, 7 Pa. St. 815 ; * Logan v. Eichardson, 1 Pa. St. Logan V. Richardson, 1 Pa. St. 372; 372. Burd's Ex. v. McGregor's Adm., 2 «Burd's Ex. v. McGregor's Adm., Or. 353. The legislature cannot, 2 Gr. 353. In this case the proceed- more than seven years after the ing was a scire facias on a transcript payment by the administrator of of the balance of the account, the funds to. the distributee as ascer- 526 LAW OF LIMITAXIONS. estate of the latter, files an account showing a balance in his hands, and an auditpr appointed to distribute it, awards this balance to him, and eighteen years elapsing before the auditor's report is filed, X., before its confirmatio,n, petitions- •for a further audit, claiming to be next of kin, and denying- the administrator's legitimacy. As the money remains in the custody of the administrator, the seven years' limitation has. no relevancy.^ The limitation is operative to protect an administrator who has distributed the fund, whether he has ever filed an account or not. Hence, if to a citation (at th& prayer of a next of kiii to the administrator) to file an account, he pleads the lapse of seven years since the dece- dent's death to the date of the petition, the petition will be= dismissed if the petitioner, instead of replying that the fund has not been distributed, simply demurs.^ The limitation, bars lineal descendants of the decedent as well as collateral next of kin.^ It does not bar creditors of the decedent.- Hehce, if A., administrator of B., dying without having paid the balance in his hands to B.'s next of kin, or any one else, the transcript of this account is filed in the prothono- tary's office, and so becomes a lien on his land (as which lien it is, however, released), before his death, a scire faciasy sued out eighteen years after A.'s death, against his admin- istrators, by B.'s next of kin, to recover their shares, will not be barred by the seven years' limitation, though these admin- istrators may have distributed the whole estate. As B.'s- ^ Glasz's Estate, 17 W. N. C. 349. the defendant. Pennepaoker v. Pen- ' Chandler v,. Lamborne, 2 CI. 124. nepacker, 2 CI. 114. Perhaps a pro- So, if in an action against an admin- tracted litigation between the admin- istrator for a share of the balance istrator and parties in interest, or- shown by his account to be in his creditors, preventing a final- settle- hands for distribution, he pleads the ment of the account in seven years, seven years' limitation, and theplain- would make an exception to the- tiff simply demurs instead of reply- seven years' limit. Id. ing that the fund remains undistrib- ' Pennepacker v. Pennepacker, 2; uted, judgment will be rendered for CI. 114, MISCELLANEOirS LIMITATIONS. 527 next of kin, they are not barred, because A. bas not distributed, and as to A.'s administrators, tbey are not next of kin, but A.'s creditors.^ CHAPTEE XI. LIABILITY FOR FALSE SEARCHES IN PHILADELPHIA. Act 13th April, 1872. § 368. The act of 13th April, 1872,'' enacts "that the re- corder of deeds, prothonotaries, clerks pf the courts, and all other ofi&cers in the city of Philadelphia, whose duty or custom it is or hereafter may be, to make and certify, or who may hereafter make and certify searches for judgments,, mortgages or other liens upon real estate in the said city, and the sureties of such officers, shall be liable and responsi- ble for all loss or damage which may happen by reason of any false or erroneous certifica,te of search, made or given by the said officers or either or any of them, for a period of five years from the time of giving said certificate of search, not only to the person or persons to, for or upon whose order the said certificate of search is made or given, but also to any person or persons claiming title through, from or under such person or persons, or who may suffer loss by reason of the ' making or giving of any such false or erroneous certificate of search ; and the official bonds of all such officers and their sureties shall hereafter be so drawn by the city solici- .tor of the city of Philadelphia as to secure such liability ;, provided, that this act shall not take effect as to each of said officers until the end of the present term of each of the said officers." Under this act the recorder of deeds or other officeir, sued for a false certificate, by the person to whom it. •Burd's Ex. v. McGregor's Adm., "P.L.IUO; 2 Bright. Purd. p. 1380,. 2 Gr. 353. pi. 81. 528 LAW OF I/IMITATIONS. ■was given, may, in addition to pleading the general issue, specially plead tliat the "cause of action did iiot accrue •within five years " before the commencement of the action. Should the plaintiff demurs judgment will be rendered for the defendant, for the five years' limitation applies as well to an action brought by the person who procured the issue of the certificate of search as to his grantee.^ CHAPTEK XII. UNLAWFiri INTEREST. Act 28th May, 1858. § 369. The second section of the act of 28th May, 1858,^ ■enacts that when a rate of interest for the loan or use of money exceeding that established by law, shall have been reserved or contracted for, the borrower or debtor may retain and deduct the excess from the amount of the debt ; and " in all cases where any borrower or debtor shall here- tofore or hereafter have voluntarily paid the whole debt or sum loaned, together with interest exceeding the lawful rate, no action to recover back any such excess shall be sustained in any court of this Commonwealth, unless the same shall Jiave been commenced within six months from and after the time of such payment." This limitation of six months applies not merely to assumpsit^ or other action, but to any proceeding instituted for the recovery of the excessive interest. Thus, it applies to an execution-attachment by a creditor of the person who has paid the excessive interest, wherein the person to whom it has been paid is garnishee.* 'Ashton V. Walton, 10 W. N. C. of Phila., 5 W. K C. 363; Heath v. 452. . Page, 48Pa. St. 180; Edmundsonv. ' P. L. 622 ; 1 Bright. Purd. p. 927, Wragg. 104 Pa. St. 500. P^- 2. * Good V. Grant, 2 Leg. Chron. Eep. •Meloneyi). Third National Bank 175. The interest being paid July, MISCELLANEOUS LIMITATIONS. 529 Nor is the limitation evaded by describing the cause of action as other than excessive interest paid, if it be in fact such. Thus, if the action is against a building association to re- cover certain payments made by the plaintiflf to it in excess of the amount in which, deducting the premiums .originally charged and the interest paid thereon, he was actually indebted, it must be brought in six months after the pay- ment.^ If a mortgage is made for more ihan the sum advanced by the mortgagee, and after some time it is satis- fied in consideration of a new mortgage on another piece of land for the amount of the first mortgage, increased by the accumulated interest, this satisfaction of the first mortgage is not payment of it. When, later, the second mortgage is satisfied by a conveyance of real estate whose value is esti- mated by the parties equal to the amount of this mortgage and interest, the date ,of this conveyance, not the date of the preliminary agreement to convey, is to be regarded as that of the usurious payment, and the action to recover th,e excess so paid beyond lawful interest, will be early enough brought any time within six months thereafter.'^ The six months within which the action must be brought, termi- nate with the close of that day of the sixth month foUow- 1870, an attachment-execution, gar- limitation has"no application in the nisheeing the person to whom it was case of national banks, as it had paid, issued in February, 1872, was been assumed to have in Meloney too late. V. Third National Bank of Phila., 5 ' Maule V. Building Association, 5 W. N. C. 863, but was ruled not to ' Phila. 421. Interest in excess of the have ,in Lucas v. Government Na- lawful rate, paid to a national bank, tional Bank, 78 Pa. St. 228. Barnett cannot be set off by it against its v. National Bank) 8 Otto 598, and claim in the last of a series of notes. First National Bank of Clarion v. Barnett v. National Bank, 8 Otto 555. Gruber, 91 Pa. St. 877, supersede Nor can it be recovered by action Overholt v. National Bank of Mt. except by vway of penalty within two Pleasant, 82 Pa. St. 490 ; Stephens v. years, as prescribed by the act of Monongahela National Bank, 88 Pa. Congress of June 3d, 1864. First St. 157 ; Cake v. First National Bank National Bank of Clarion v. Gruber, of Lebanon, 86 Pa. St. 303. 91 Pa. St. 377. Hence, the six months' ' Heath v. Page, 48 Pa. St.^lSO. 2i 530 LAW OP LIMITATIONS. ing the montli of payment, whose number is the same as that on which this payment was made. Thus, payment being made 13th May, the six months would terminate with the end of the 13th day of the following November. But when the last day is Sunday, an additional day is allowed, and the suit could be brought on Monday, 14th November, to recover usury paid on 13th May.^ The six months' limitation must be pleaded, otherwise it will not avail as a defense.^ CHAPTEK XIII. sheriff's, tkeasubee's and commissioneks' sale of land. Act 11th June, 1879. § 370. The act of 11th June, 1879," is as follows : Section I. In all cases where real estate has been, pr shall hereafter be sold by the sherijff, treasurer or commissioners of any county of this Commonwealth, and any person or per- sons, other than the defendant or defendants, as whose property the same may have been sold, shall claim that the title to the said premises sold is vested in him, her or them-, and shall be in possession of the said premises by occupancy, lease, coverture or otherwise, and the said party or parties in possession of the said premises, the title to which is or may be in controversy, shall be desirous of settling the same, it shall be lawful for such party or parties claiming title to said premises, to present his, her or their petition to the Court of Common Pleas of the county wherever such premises are situated, or to a law judge thereof, in vacation, setting forth that the petitioner or petitioners claim title to the premises in controversy ; whereupon a rule shall be granted upon the purchaser or purchasers at such sheriffs, treasurer's or com- missioners' sale, or on any person holding said sheriff's, treas- ' Edmundson v. Wragg, 104 Pa. St. ' P. L. 127 ; 1 Bright. Purd. p. 641, 500. pi. 27. » Heath v. Page, 48 Pa. St. 130. MISCELLANEOUS LIMITATIONS. 531 iirer's or commissioners' title, under sucli purchaser or pur- chasers, to bring his, her or their action of ejectment, within ninety days from the service of such rule upon them, or show cause why the same cannot be so brought; which rule may be made returnable to any term or return-day of such court, and be served and returned as writs of summons are; served and returned, and shall be entered of record in the appearance docket of said court, and duly indexed therein, and also in the ejectment index of said court; provided, that when the purchaser or purchasers, or parties holding under them, shall reside without the county wherein the premises sold are situate, and their residence can be ascertained by the party or parties petitioning for said rule, such rule ^may be served by the sheriff or any constable within the county wherein the said purchaser or purchasers, or those holding the said title under them, may reside; and when the residence of the said purchaser or purchasers, or those holding said title under them, shall reside without the Commonwealth, or his or their residence cannot be ascertained by the petitioner or petitioners (affidavit of which fact of non-residence shall be duly filed of record), then said rule shall be served by publication of the substance of said rule in a weekly news- paper, published withiu the county wherein the sai'd prem- ises are situate, for four weeks prior to the return-day of said rule, which service so made by publication shall have the same effect as if personally served and so returned by the sheriff. Section II. § 371. Section II. Whenever the purchaser or purchasers: at such sheriff's, treasurer's or commissioners' sale, or the holder or holders of said sheriff's, treasurer's or commis-: sioners' title under such purchaser or purchasers, ^hall have been served, shall fail to appear and show cause why sufeK action cannot be brought within ninety days after suck service, it shall be the duty of the court to enter judgment 532 LAW OF LIMITATIONS. against the parties served, and make the rule absolute, which judgment shall be final and conclusive between the parties, their heirs and assigns ; and thereafter no action of eject- ment for the recovery thereof shall be brought by the said purchaser or purchasers at such sheriff's, treasurer's or com- missioners' sale, or any person Or persons claiming or hold- ing such sheriff's, treasurer's or commissioners' title under such purchaser or purchasers. Procedure. § 372. The rule under this g,ct should be returnable on a day certain, not less than ninety days from the service thereof,^ and should command the defendant to show cause why he should not bring his ejectment within ninety days'' or the longer time, after the service thereof, accorded by the rule for the return-day.^ It should be accompanied with a notice that on failure to bring the action or to show good cause why he could not, at the return-day, his right to bring •such an action will be forever barred.* If service of the rule cannot be made before its return-day, an alias rule must issue; the court may not extend the time.' The rule must be heard and made absolute before the respondent can be ■debarred of his action. If, before the returii-day,. an answer is filed, showing cause, and depositions are ordered to be taken, and before the depositions are filed, but after the ninety days have elapsed, an ejectment is brought by the respondent, the court properly discharges the rule ; for when the ejectment is brought before the decision on the rule, the purpose of the rule is substantially realized.^ ]S'ay, even when, the respondent failing to file an answer ^IJOve^;. Economy Building Aasn., 10 W. N. C. 257; Herron v. Fetter- 10 W. N. 0. 257. A rule returnable man, 14 W. N. C. 480. .less than ninety days after the ser- ' *Love v. Economy Building Assn., vice will be dismissed. 10 W. N. C. 257. ' Dewees v. Letohford, 10 W. N. C. ' Id. >61. « Dewees v. Le'tchford, 10 W. N. 0. ' Love V. Economy Building Assn., 61 ; Herron v. Fetterman, 14 W. N. C. 481. MISCELLANEOTJS LIMITATIONS. 533 before the return-day, the petitioner, after the return-day,, moves the court to make the rule absolute, but, on the re- quest of the respondent, increases the time for filing the answer, and, the answer filed, the hearing is fixed for a certairt day, on which day the answer is permitted to be amended immediately, and by the amended answer it appears that the respondent, since the petition was filed, but before its; return-day, had sold the land to X., who had brought his: ejectment a few days before the answer was filed, the court wffl discharge the rule, because the making of it absolute; could not retroact on the already-begun ejectment. An ejectment begun before the rule is made absolute, however long after the return-day of the rule, and however remiss the respondent may have been in the proceedings under the rule, will not be affected by making the rule absolute.^ CHAPTEE XIV. CONTRACTUAI; LIMITATION. Contractual Iiimitation. § 373. It is competent for parties to stipulate, in making contracts with each other, that any action which one of them may have occasion to bring against the other, with respect to- these contracts, shall be brought within a certain time, though the statutes of limitations applicable to the same subject- matter allow a longer time.^ Natural persons ^ and corpora- tions * may limit themselvqs in this way, and natural persons; ' Herron v. Fetterman, 14 W. N. C. America, 37 Leg. Int. 475 ; Schroeder 481. V. Keystone Ins. Co., 2 Phila. 286. 'North Western Ins. Co. v. Phoenix " Waynesboro Mutual Fire Ins. Co. Oil and Candle Co., 31 Pa, St. 448; v. Conover, 98 Pa. St. 384; Universal Waite V. Spring Garden Ins. Co., 1 Fire Ins. Co. v. Stewart, 3 Penny. W. N. C. 155; Waynesboro Mutual 536; Farmers' Mutual Fire Ins. Co. Fire Ins. Co. v. Conover, 98 Pa. St. v. Barr, 94 Pa. St; 345. ~ 384; Warner v. Ins. Go. of North * North Western Ins. Co. i). Phoenix Oil and Candle- Co., 31 Pa. St. 448. 534 LAW OF LIMITATIONS. and corporations ^ may protect themselves, by sucli limita- tions, against actions beyond the prescribed time. Thus, in cases in which, under the law of the State, the period of limitation would be six years, the parties may agree that it shall be one year,'^ or six months,^ or any other term. , The form in which the agreement is made is immaterial. In insurance policies it appears often as a condition to the effect that no suit against the company shall be sustained unless commenced in the specified time, but such lapsp of time shall be deemed conclusive evidence against the validity*of such claim.* But the mere fact that a by-law of a mutual accident insurance company ordained that in case any suit be brought after the expiration of six months next a:fter the accident shall have occurred, the lapse of time shall be con- clusive against the validity of the claim, did not make this limitation binding on one who subsequently took out a policy in the company, which promised an indemnity for accident, in consideration that the assured pay " weekly and ■death assessments, according to the charter and by-laws," but contained no reference to the by-law in question, because the policy, and not the previously-enacted by-laws, consti- tutes the agreement between the parties.® If a receipt for ' North Western Ins. Co. v. Phoenix Co. v. Barr, 94 Pa. St. 345 ; Schroeder Oil and Candle Co., 31 Pa. St. 448; v. Keystone Ins. Co., 2 Phila..286. Waynesboro Mutual Fire Ins. Co. v. * Waynesboro Mutual Fire Ins. Co. Conover, 98 Pa. St. 384 ; Universal v. Conover, 98 Pa. St. 384 ; Universal Fire Ins. Co. v. Stewart, 3 Penny. Fire Ins. Co. v. Stewart, 3 Penny. ■536; Fa.rmers' Mutual Fire Ins. Co. 536; Waite 0. Spring Garden Ins. «. Barr, 94 Pa. St. 345. ^ Co., 1 W. N. C. 155; Schroeder «. ' Waite V. Spring Garden Ins. Co. Keystone Ins. Co., 2 Phila. 286 ; 1 W. N. C.'l55. Farmers' Mutual Fire Ins. Co. v. ' Universal Fire Ins. Co. v. Stewart, Barr, 94 Pa. St. 345. 3 Penny. 636; i^orth Western Ins. * Mutual Accident and Life Assn. , Co. V. Phoenix Oil and Candle Co., of Penna. v. Kayser, 14 W. N. C. 86. SI Pa. St. 448; Waynesboro Mutual Since forfeitures are not favored, it Fire Ins. Co. v. Conover, 98 Pa. St. is not enough that the policy con- 384; Mutual Accident and Life ^ains on it a by-law that mem- Assn. of Penna. v. Kays)er, 14 W. bers "shall give notice of loss in N. C. 86; Farmers' Mutual Life Ins. twenty-four hours," unless it stipu- MISCELI.ANEOTJS LIMITATIONS. , 535 the premium is given to the applicant in advance of the ■execution of the policy, which is shortly afterwards made and delivered to the applicant, and retained by him, the stipulation in the policy, that action must be brought within six months of the happiening of the loss, will be binding, though no such stipulation appears in the receipt, and though, the receipt indicating as the commencement of the insurance 31st May, 1870, the policy, which designates 3d May, 1870, as the commencement must be, pro tanio, reformed by it. The mistake as to date does not make the receipt, and not the policy, evidence of the other terms of the contract.^ Waiver of Stipulation and Estoppel. § 374. As the limitation for bringing actions against the debtor is for his own benefit, he may waive it, and thus preclude himself from subsequently defeating a recovery because of the omission to sue within the specified time.'* Nor will a provision in the policy of an insurance company that "no agent is empowered to waive any of the conditions" therein, "without special authority in writing from the com- pany," apply to a waiver by its president.^ Hence, if the president, immediately after the fire, asks the insured nol to sue, and credits the company with the premium on a new policy which he contracts to issue to the assured, promising to pay the balance of the loss, and the latter on that account delays suit beyond the contractual period, the company will be estopped from insisting on the delay as a ground for defeating the action.* But the policy stipulating that no alleged waiver of any of its terms shall be binding, unless latea that failure to give such notice Live Stock Ins. Assn. v. Evans, 102 will forfeit the policy. A provision Pa. St. 281. in the policy that "suits at law may ^ Farmers' Mutual Fire Ins. Go. v. be prosecuted * * * if payment Barr, 94 Pa. St. 345. is withheld more than sixty days ' Universal Fire Ins. Co. v. Stewart, after " notice of the loss, has no 3 Penny. 536. «ffect, for it simply permits what ' Id. the law permits. Coventry Mutual * Id. ; Sohroeder v. Keystone Ins. Co., 2 Phila. 286. 636 LAW OF LIMITATIONS. such waiver "be express and manifested in writing under the signature of the president and secretary." of the com- pany, the promise of the general agent to the assured imme- diately after the loss, that if he will give time, the company,, then embarrassed, but a good one^ will .pay, whereby delay in suing is induced, will not waive the limitation in the policy/ A mistake in a three years' policy, whereby it designates as the. time when the risk commenced, the 3d May, 1870, instead of the 31st May, 1870, would not dis- pense with the observance of- the provision to sue in six months after the loss, which happened 19th May, 1873, and therefore during the life of the policy, if the true time of the commencement of the risk is considered, but after its lapse, if the date on the policy prevails.'' Attachment-exe- cutions issued within the term of limitation, for a part of the sum due by the company, and pending till after the term expires, will not excuse delay to sue fqr the residue beyond the term;^ nor would the improper denial of all liability by the company, on the ground that the risk had elapsed when the fire occurred.* ' Waynesboro Mutual Fire Ins. Co. ° Id. ; Schroeder v. Keystone Ins. V. Conover, 98 Pa. St. i384. Even Co., 2 Phila. 286. apart from the prohibition of waiver * Id. When the alleged waiver in the policy, the language of the has occurred after the lapse of the general agent, which imported his period of limitation, and conse- opinion as to the capacity of the quently not influenced the conduct company, and its intention to pay, of the assured, it should be mani- would not make a waiver, for the fested by other than loose and am- assured had no right to rely on it. biguous language. 2 Phila. 286. ' Farmers' Mutual Fire Ins. Co. v. Barr, 94 Pa. St. 345. MISCELLANEOUS LIMITATIONS. 537 CHAPTEE XV. ERRORS AND APPEALS. Act 1st April, 1874. § 375. No fine or common recovery, nor any judgment in any real, personal or mixed action, nor any appeal from the Register's Court, shall be avoided or reversed for any defect or error therein, unless the writ of error be commenced,-or the appeal be brought and prosecuted with effect, or the certio- rari tak.en, as the case may be, within two years after such fines levied, common recovery suffered, judgment signed or entered of record, or decree be pronounced ; provided, nev- ertheless, that if any person who is or shall be entitled to any such writ of error or appeal, or othqr writ aforesaid, shall, at the time such title accrued, be within the age of twenty-one years, covert, non compos mentis, in prison, or out of the limits of the United States of America, that then such .per- son, his or her heirs, executors or administrators (notwith- standing the said two years be expired), shall and may bring his, her or their writ of error, appeal or other writ aforesaid, for the reversing of such fine, recovery or judgment, so as the same be done within two years after his or her full age, discoverture, coming to sound mind, enlai-gement out of prison, or return into some one of the United States of America, or the organized Territories thereof, but not after- wards or otherwise.^ Decisions. § 876. The writ of error musty under this act, be actually issued within two years from .the entry of the judgment, 'Section 1, Act 1st April, 1874, P. the judgment in the court below, L. 50; 1 Bright. Purd. p. 702. A/e«iie rendered against her while covert. covert may, during coverture, stte out Fenn v. Early, 113 Pa. St. 264. a writ of error at any distance after .538 LAW OP LIMITATIONS. It is not enough that the prcBoipe for the writ be dated and mailed to the prothonotary of the Supreme Court within that term, if the writ actually issues after its expiration.^ The fact that the plaintiff in error, defendant below, had not been legally served with the summons, will not entitle him to more than two years for the suing out of a writ of ^e^ror, if he becomes aware of the entry of the judgment against him in the inferior court in ample time to sue out the writ before the lapse of the two years.^ Act 13th April, 1791. § 377. Prior to the act of 1st April, 1874, the limitation of time for writs of error and appeals (including certiorari)^ ' Bair v. Black, 10 W. N. C. 156. Judgment 24th November, 1877. The prxeipe for writ of error was mailed 24lh November, 1879, and was sent on 25th November, 1879, by the prothonotary of the Supreme Court, to the court below, where- it was re- ceived and filed 26th November. As the Writ was issued 25th November, it was too late. The date of the jprxcipe does not control. — When a writ of error or certiorari is sued out after the limitary term, it will be quashed. Bair v. Black, 10 W. N. C. 156; Penna. Central Ins. Co. v. <3aus, 91 Pa. St. 103 ; Young's Peti- tion, 9 Pa. St. 215; In re Road in Salem Township, 103 Pa. St. 250; Weil 1). Frauenthal, 103 Pa. St. 317. But in Camp v. Welles, 11 Pa. St. ■206, it was said the proper course was not to quash the writ, but to disregard the assignments of error, and aflSrm the judgment. 'Penna. Central Ins. Co. v. Gaus, •91 Pa. St. 103. Judgment being entered 13th August, 1878, and on the same day a fieri facias issued, a rule to stay the execution was dis- charged. The defendant then filed a. bill in equity to restrain the plain- tiff from 'enforcing the payment of the judgment, which was dismissed. On 18th October, 1882, defendant moved to quash the fieri facias, but the motion was refused, whereupon a writ of error and a certiorari were sued out.' They were both quashed, as too late, more than two years having run even before the motion in the court below to quash the fieri facias. Weil v. Frauenthal, 103 Pa. St. 317. In the act of 1st April, 1874, the word "judgment" was in- tended to embrace not only judg- ments strictly so called, but also definitive decrees and orders in the nature of judgments. An order of the Quarter Sessions vacating and relaying a road. Is withjn the opera- tion of ' it. In re Road in Salem Township, 103 Pa. St. 250. The fact that proceedings have been pending in the court below during the two years allowed for the writ of error, does not extend the time within which the writ must issue. Gillespie V. Campbell, 1 Atl. Rep. 665 ; 1 Cent. Rep. 558. ' Young's Petition, 9 Pa. St. 215. In this case it was held that a cerliorari to the Common Fleas, to send up pro- MISCELLANEOUS LIMITATIONS. 539 "was regulated by the twentieth section of, the act of 13th * April, 1791/ and was seven years, and notwithstanding the first section of the act of 1st April, 1874, prescribing two years, the seven years' limitation remained applicable to all judgments, decrees and recoveries previous to its passage." Hence, on error to a judgment on a ^cire facias to revive a judgment, more than seven years old when the writ of error issues, no inquiry into its regularity lyas permissible.^ The sheriff's return of service being conclusive that the original writ was served on the defendant, he was bound to watch the progress of the suit. Hence, if judgment by default for want of a plea is entered against him, he Will, in seven years thereafter, be precluded from suing out a writ of error, though he did not, in fact, become aware that the judgment had been entered till less than seven years before the writ of error was stipd out.* Act 1,4th June, 1836. § 378. The thirty-sixth section of the act of 14th June, 1836,^ enacts that "any person aggrieved by a definitive decree or judgment of any Court of Common Pleas in any case relating to assignees or trustees as aforesaid, may appeal from the same to the Supreme Court in the proper district ; provided, such appeal be entered within one year after such decree or judgment in cases relating to assignees or trustees for the benefit of creditors as aforesaid, and within three years of other cases of trust." The one year's limitation -applies to appeals by the assignee for the benefit of creditors from the decree of the Common Pleas, finding in his hands a certain balance, and distributing it.* Though one appeal, -ceedings on a petition to prove a extend it. Morgan v. Lackawanna -contract for the conveyance of land and Bloomsburg Railroad Co., 2 Luz. against the vendor's executor, must Leg. Obs. 194 ; Hoag v. Allegheny, 21 ■be sued out in seven years. Pittsb. L. J. 46. ' 3 Sm. 34. * Camp v. Welles, 11 Pa. St. 206. . " Section 2, Act Ist April, 1874. ' P. L. 628 ; 2 Bright. Purd. p. 1653, ' Compher v. Anawalt, 2 W. 490. • pi. 86. When the time for appeal is fixed by 'Roddy's Appeal, 39 Leg. Int. 149. :statute, the court has no power to 5^40 LAW bF LIMITATIONS. begun in time, is nonprossed, this does not permit a second appeal after the expiration of the year/ Act 29th March, 1832. § 379. The fifty-ninth section ef the act of 29th March,. 1832,^ enacts that "any person aggrieved by a definitive- sentence or decree of the Orphans' Court, may appeal from the same to the Supreme Court ; provided, that * * *^ no appeal shall be allowed unless the same be entered and security given within three years after the final decree of the Orphans' Court." The day on which the decree is entered is not counted ; hence, the appeal is in time if taken on the same day of the same month as that on which the decree was entered, but in the third succeeding year. The decree entered 8th October, 1887, the appeal would not be too late if taken 8th October, 1890.* Act 15th Mareb, 1832. § 380. The forty-second section of the act of 15th March, 1832,* directs that "any party aggrieved by the final sentence or decree of any Register's Court, or his legal representatives, in any case where the sum mentioned in such sentence or decree, or the sum or matter in controversy, shall exceed $150 in value, may appeal therefrom to the Supreme Court ;: * * * provided always, that such appeal be made within the term of one year from the titae of pronouncing such final sentence or decree." Appeal from Award of Arbitrators. § 381. The twenty-seventh section of the act of 16th June, 1836,° provides that " either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time the rule of reference was entered, under the following rules, regulations and restrictions : (1) The party appellant, his agent or attorney, shall make oath or affirma- ' Roddy's Appeal, 39 Leg. Int. 149. * P. L. 144 ; 2 Bright. Purd. p. 1477, ' P. L. 213 ; 2 Bright. Purd. p. 1286, pi. 21. Pl. 62. ' P. L. 723 ; 1 Bright. Purd. p. 109, ' Ege's Appeal, 2 W. 283. pi. 83. MISCELLANEOUS LIMITATIONS. 541 tion that it is not for the purpose of delay such appeal is •entered, but because he firmly believes injustice has been done. (2) Such party, his agent or attorney, shall pay all the costs that may have accrued in such suit or action. (3) The party, his agent or attorney, shall enter into the recogn- izance hereinafter mentioned. (4) Such appeal shall be -entered, and the costs paid, and recognizance filed, within twenty days after the day of the entry of the award of the arbitrators on the docket." The twenty days begin to run, not from the time the award is left with the prothonotary at his house, after office hours, but from the time he files it, and enters it on his docket.^ The day on wMch the award is entered is not counted; the appeal is early enough if taken on the twentieth following day. Thus, the award entered 2d August, the appeal on the 22d August,^ or thp award entered 18th October, the appeal on 7th November, is early enough;^ but the award being filed 9th July, an appeal on the 30th July was too late.* Though, possibly, the appellant may not compel the prothonotary to enter an appeal up to midnight of the twentieth day, yet, if the former calls at the office of the latter about half-past five o'clock in the evening of the 7th November, but finding it closed, searches him untir eight, when he requests him to receive and ent6r his appeal, it will be the prothonotary's duty to do so, especially if he has previously told the appellant that the appeal could be entered on the evening of that day, and has not unfrequently trans- ' Sims V. Hampton, 1 S. & E. 411. Harker v. Addis, 4 Pa. St. 515 ; Afms ' Sims V. Hampton, 1 S. & R. 411 ; v. Leaman, 4 CI. 84. Frantz v. Kaser, 3 S. & R. 395 ; Mayes ' Clark v. Wallace, 3 P. & W. 441 ; -v. Jaooby, 8 S. & R. 526; In re Gos- Smaltz v. Lake, 2 Phila. 245. When, , wiler's Estate, 3 P. & W. 200 ; Barber in leap-year, the arbitrators' report V. Chandler, 17 Pa. St. 48 ; Harker v. was filed 26th February, the time for Addis,4Pa. St. 515; Arms «. Leaman, the appeal expired on the 17th 4 CI. 84. If the last of the twenty March, unless that day was Sunday, days is Sunday, the appellant may in which case it expired on the 18th take the appeal on the next day. March. Harker v. Addis, 4 Pa. St. Sims V. Hampton, 1 8. & E. 411; 515. * Mayes i>. Jacoby, 8 S. & R. 526. 542 LAW OF LIMITATIONS.' acted business in his office after night. The Common Pleas, on an early application to it, should order him to enter th& appeal nunc pro tunc} A-wrard of Arbitrators — Continued. § 382. The fact that the appeal was taken too late, may be taken advantage of by a motion to quash,^ or to strike oflf,^ in the Commoh Pleas,^ but if the party entitled to move to quash, neglects to do so, pleads, joins in issue, enters rule for trial, and only after three years, at the trial, moves to quash because the appeal was taken a day too late, he will be considered as having waived his right to object.* Appeals in Distribution Proceedings. § 383. The eighty-ninth section of the act of 16th June,. 1836,* enacts that "any person aggrieved by the decree of the- coilrt, in any case of distribution made without the interven- tion of a jury, may, at any time within twenty days there- after, appeal from the same to the Supreme Court." If the twenty days expire before the appeal is taken, it will be quashed.^ The twenty days begin to run from the entry of the decree, though entered in vacation, notice, whether in parol or writing, of the entering of the decree, being given to the counsel of the party.' When the last of the twenty days is 'Clark V. Wallace, 3 P. & W. 441. award of arbitrators filed, as a judg- °Mayes,v. Jacoby, 8 S. & R. 526. ment in the prothonotary's office, 'Sinaltzv.Lake,2Phila. 245; Arms may issue, within the twenty days V. Leaman, 4 CI. 84. allowed for appeal, if it is not deliv- * Mayes v. Jacoby, 8 S. & R. 526. ered to the prothonotary till after When an appieal is demanded in that time. Frantz v. Kaser, 3 S. &• time, but improperly declined by E. 395. That the Supreme Court the prothonotary, the court will, may issue writs of error to awards after, the lapse of the twenty days, of arbitrators, vide Ebersoll v. Krug,. direct if to be entered nunc pro tunc. 3 Binn. 528. Fritz V. Evans, 13 S. & E. 9. And if T. L. 777; 1 Bright. Purd. p. 764,. the bail be excepted to after the ex- pi. 121. piration of the twenty days, and new ' Driebilbe's Appeal, 38 Leg. Int. bail is ofiered, as soon as the appel- 386; Dawson's Appeal, 15 Pa. St.. lant is aware of the exception to his 480. bail his appeal is not lost. Davis v. ' Dawson's Appeal, 15 Pa. St. 480.- Black, 12 S. & E. 327. A writ of The decree being entered 21st De- error from the Supreme Court to the cember, 1849, au appeal entered 12th» MISCELLANEOUS LIMITATIONS. 543 Sunday, the day following is added for the suing out of an appeal. Thus, the decree of distribution being entered on the 12th April, an appeal entered on the 3d of May follow- ing, the 2d May being Sunday, is in time.^ Bill of RevieAW in Orphans' Court. ' § 384. The first section of the act of 13th October, 1840,^ directs that "the judges of the Orphans' Court of the Com- monwealth of Pennsylvania, within five years after the final decree, confirming the originalor supplementary account of any executor, administrator or guardian, which has or may be hereafter passed as aforesaid, upon petition of review being presented by such executor, administrator or guar- dian, or their legal representatives, or by any person inter- ested therein, alleging errors in such account, which errors shall be specifically set forth in said petition of review, and said petition and errors being verified by oath or affirmation, said Orphans' Court shall grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as equity and justice may require, by reference to auditors or otherwise, with like right of appeal to the Supreme Court as in other cases, except that the appeal shall be taken under the provisions- of this acf within one year after the decree made on the petition of review ; provided, that this act shall not extend to any cause when the balance found due shall have been actually pai4 and discharged by any executor, administrator or guardian." The bill of review is in the nature of a writ of error;' of a new suit founded on substantial error of law appearing on the record, or on aewly-discovered evidenqe.*^ January, 1850, was on the twenty- »P. Lv 1; 1 Bright. Purd. p. 552, second day, and therefore too late. pi. 218. Id. The court below may correct 'George's Appeal, 12 Pa. St. 260 ;. its own decree at the next term of Dennison v. Goehring, 6 Pa. St. 402. vthe court, even after the twenty days * Yeager's Appeal, 34 Pa. St. 173 - have run, without appeal. Beek's Smith's Estate, 5 W. N. C. 495 ; Kid- Appeal, 15 Pa. St. 406. die's Estate, 19 Pa. St. 431 ; Bishop's- Un re Goswiler's Estate, 3 P. & W. Appeal, 26 Pa. St. 470. 200. 544 JjJlW op limitations. The object of this act was to make the bill of review a matter of right, and to prescribe a limitation of time for the exercise of it.^ After the expiration of the five years, the decree of the court on an account of the executor, administrator,^ or guardian,^ x;annot be re-opened, whether directly by a peti- tion in the nature of a bill of review,* or indirectly by requiring the accountant to settle another account in re- spect to matters adjudicated in the former one,® The mere omission by the accountant to charge himself with money received by him, and for which he was liable, cannot be corrected on petition for review after the lapse of five years,' but when the guardian fraudulently omits to charge himself with certain amounts received by him, and conceals his recpipt of them from the ward, the five years do not begin to run till the discovery of the fraud.'' The act of 13th October, 1840, does not apply when the balance in the accountant's hands has been fixed and distribution made solely upon the agreement of the parties.* Decrees in the Orphans' Court other than those upon the accounts of ex- ecutors, administrators and guardians, are not within the operation of the five years' limitation of the act of 13th October, 1840. Perhaps it would be wise to judicially adopt the same limitation by analogy.' 'Kinter's Appeal, 62 Pa. St. 318; trator, it is not competent for the Khoads' Appeal, 39 Pa. St. 186 ; legislature to direct the re-opening Lindsay's Estate, 9 W. N. 0. 468. of the decree, on a petition for re- ' Weiting n- Nissley, 6 Pa. St. 141. yiew. Baggs' Appeal, 43 Pa. St, 512. 'Kuhn's Appeal, 87 Pa. St. 100. ' * Lindsay's Estate, 9 W. N. C. 463. * Conner v. Burd, 1 Leg. Chron. 17 ; , ' Littleton's Appeal, 93 Pa. St. 177 ; Kuhn's Appeal, 87 Pa. St. 100. George's Appeal, 12 Pa. St. 262. 'Weiting v. Nissley, 6 Pa. St. 141. The seven years' limitation for Writs * Weiting v. Nissley, 6 Pa. St. 141 ; of error under the act of 13th April, Kuhn's Appeal, 87 Pa. St. 100. 1791, was applied in Lindsay's Esta,te, ' Kuhn's Appeal, 87 Pa. St. 100. 9 W. N. C. 463, and was said to be a After seven years elapse, subsequent binding analogy, in Baggs' Appeal, to a decree making distribution of 43 Pa. St. 512. moneys in the hands of an adminis- MISCELLANEOUS LIMITATIONS. 645 CHAPTEE XVI. JUDGMENTS OF JUSTICES. Certiorari to Justice of Peace. § 385. In the twenty-first section of the act of 20th March, 1810/ it is enacted " that no judgment shall be set aside in pursuance of a writ of certiorari unless the same i8 issued within twenty days after judgment was rendered, and served within five days thereafter ; and no execution shall be set aside in pursuance of the writ aforesaid, unless the said writ is issued and served within twenty days after the exe- cution issued." If the judgment was rendered without appearance by the defendant, and without legal service of the summons, this twenty days' limitation does not apply.*^ The want of legal service may be shown from the omission of the record to state a service,^ or from its stating a service which does not conform to the requirements of the law.* It may perhaps be shown by aflSidavit, though the recprd shows a legal service.^ Where there was no legal service, the ' 5 Sm. 172 ; 1 Bright. Purd. p. 708, v. Downey, 1 Bright. Dig. 135 ; Tryon pi. 31. V. Keller, Id.; Leis v. Yost, 1 Woodw. ■ ' Lacock V. White, 19 Pa. St. 495 ; 15 ; 0. and P. R. R. Co. v. Brittain, 1 Henninger v. Woodring, 2 Penny. Pittsb. 271. 205. 'Lacock v. White, 19 Pa. St. 495; ' Service must appear affirmatively Creveling v. Kindig, 8 Luz. Leg. Reg. in the record. Smith -u, Noone, 1 Leg. Rep. 217 ; Van Why i). Burgunder, 3 Bee. Rep. 165 ; Yeich v. Peterson, 2 Luz. Leg. Reg. Rep. 202; Sh^ll v. Mc- Foster 269 ; McOale v. Gulp, 8 Phila. Connell, 1 Pears. 27. But in Leis v. 636 ; Hawthorn «. Filler, 1 Leg. Reo. Yost, 1 Woodw. 15, and in Beyerly v. Rep. 48; Starch «. Snyder, 1 Leg. Bee. Hunger, 1 Woodw. 354, Woodward, Rep. 172; Trimbath v. Patterson, 2 P. J., held that the record could not Foster 244. be contradicted by parol. A judg- *Brookfield v. Hill, 1 Phila. 439; ment by a justice in one county can- Fritz V. Fisher, 5 Cl. 350 ; Stedman not be transcripted to a justice in V. Bradford, 3 Phila. 258 ; Ofiferman another county in which the defend- 2k 546 LAW OF LIMITATIONS. twenty days will begin to run as soon as, but not before,, the defendant is apprised of tbe fact that a judgment has been rendered against him.-^ If the summons from the justice does not inform the defendant where he has to appear, it is fatally defective,^ and the twenty days' limitation does not apply .^ The record of the justice, as to the time ant neither is nor resides, for the purpose of execution. If, on a judg- ment so transcripted, an attachment- execution issues and judgment is rendered against the garnishee, an Ohio corporation, served by service on its agents, the garnishee may cer- tiora/ri the judgment everl after the' twenty days, when it hadi no knowl- edge of the judgment till less than twenty days before suing out that writ. Nay, it is never too late to question the jurisdiction of the jus- tice when third parties will not be injured by the delay. Mihnig v. King, 8 W. N. C. 342. 'Brookfield v. Hill, 1 Phila. 439; Stedman v. Bradford, 3 Phila. 258 ; Ofiferman v. Downey, 1 Bright. Dig. 135 ; Paine v. Godshall, 39 Leg. Int. 12 ; Hillside Coal Co. v. Featherman, 10 Lu z. Leg. Reg. 64 ; Wasser r. Brown , 10 Luz. Leg. Eeg. Ill ; Heft v. Ham- mill, 1 Phila. 394; Kelly v. March, 15 W. N. C. 30 ; Kaier v. MoGee, 2 Leg. Eec. Eep. 19 ;' Harrison v. Wil- kipson, 1 Luz. Leg. Reg. 89 ; Scheaf- fer V. Smith, 2 Leg. Chron. 52; Mul- ligan V. Riley, 1 Luz. Leg. Reg. Rep^ 79. In Smith v. Noone, 1 Leg. Eec. Rep. 165, it was decided that when the record showed a defective ser- vice, certiorari could issue more than twenty, days after defendant learned of the judgment. — The time of the defendant's learning of the existence of the judgment must be made to appear by afGidavit. Brookfleld v. Hill, 1 Phila. 439 ; Campbell v. Penn District, 1 Brighli. Dig. 135. In Dailey V. Bartholomew, 1 Ash. 135, it was decided that when the defendant became aware of the existence of the judgment soon enough to sue out the o&rtiorari within twenty day» from its rendition, he could not sue it out beyond the twenty days. In Jones V. Delaware &c. Canal Co., 31 Leg. Int. 173, it was held that if, within the twenty days, the defend- ant entered bail for an appeal, he waived any defect in the service of the summons as stated in the docket, and, failing to enter his appeal, a certiorari six months after the term succeeding the taking of the appeal was too late. Cf. French v. Penna. &c. E. R. Co., 1 Leg. Chron. 66. When, two days after learning of the- judgment, the defendant, who' had not been served with process, asks- for a rule to open it, which, as an improper remedy, is refused, and shortly afterwards sues out a cer- tiorari, this writ will be valid, though when it issues, more than twenty days have elapsed since the discovery of the existence of the judgment. Stedman v. Bradford, 3 Phila. 258. ' Murdy v. McCutcheon, 95 Pa. St. 435. "Anthracite Savings Bank v. Boyd, 3 Luz. Leg. Eeg. Rep. 151 ; Paine v. Godshall, 1 Luz. Leg. Reg. 3 ; Mulli- gan V. Riley, 1 Luz. Leg. Reg. Rep. 79. MISCELLAJTEOXIS LIMITATIONS. 547 he entered the judgment, may be impeached for fraud, and it may be shown by affidavit that the judgment was hot actually entered till within twenty days prior to the suing put of the certiorari} Contrary to the justice's record, the defendant may show that he was present at the hearing, which, the plaintiff not appearing, was continued indefi- nitely ; that he was subsequently told by the justice tha^t a judgment had been entered against him ; but when he after- wards asked for a transcript, the justice declined to give it> saying that the plaintiff had withdrawn the suit ; and that he heard no more of the matter till an execution was issued, whereupon he immediately sued out the certiorari. The writ, in such case, is in time.^ When the justice of the peace has no jurisdiction over the subject-matter, the twenty days' limitation does not apply .^ But .ev6ry irregularity or defect in the proceedings for which the judgment would be reversed, were the certiorari sued out in time, will, of course, not be a jurisdictional defect.* When oneof the defendants is a married woman> and the record does not show that the debt was of the class for which a married woman is liable, the judgment is reversible at any time on certiorari.^ If, in ' Shell V. MoConnell, 1 Pears. 27. Luz. Leg. Eeg. 72. A variance be- 'Van Why v. Bur^under, 3 Luz Leg. Reg. Eep. 202. 'Graver v. Pehr, 89 Pa. SJ;. 460 Shupp V. Orts, 10 Luz. Leg. Reg. 44 Adams V. Hill, 29 Leg. Int. 126 Creveling v. Kindig, 14 Luz. Leg, Reg. 11; Yocum v. Torbert, 2 Leg, tween the name of the plaiintiflf, a> corporation, as given in the writ and as given in the docket of the justice, will not be such jurisdic- tional defect as prolongs the twenty, days for certiorari. But when there is a variance between the name in Chron. 57; Stabler v. Wingert, 2 the docket and that in the execution. Leg. Rec. Rep. 226; Hillside Coal the latter will be quashed on cej'fe'orari and Iron Co. v. Featherman, 10 Luz. to it, sued out in twenty days after Leg. Reg. 64. its issue. Peters v. Susquehanna' * Shupp V. Orts, 10 Luz. Leg. Reg. Firelns. Co., 3 Luz. Leg. Reg. Rep. 44; Garrahan v. Norton, 10 Luz. Leg. 456. Reg. 322; Kaier v. McGee, 2 Leg. ^Ingham v. Sickler, 2 Luz. Leg. Rec. Rep. 19 ; Steely v. Neiswander, Reg. 105 ; Edwards v. Carr, 3 Luz. 1 Leg. Rec. Rep. 65 ; Tully v. Wil- Leg. Reg. Rep. 192 ; O'Malley v. liamson, 14 Luz. Leg. Reg. 318 ; Dempsey, 3 Leg. Gaz. 225 ; Starch v. Lehigh V. R. R. Co. v. Murphy, 11 Snyder, 1 Leg. Rec. Rep. 172. But 548 LAW OF LIMITATIONS. aa attacliment in execution, a justice enters a joint judgment against the defendant apd the garnishee, which,- therefore, is de bonis propriis against both, it will be void, and on a cer- tiorari to the execution issued on it several years after its rendition, will be treated as null.^ So, an execution on a judgment for a sum exceeding his jurisdiction, entered by a justice of the peace on a warrant to confess judgment before him, and therefore void, will be set at naught on certiorari to the execution, issued however long after the entry of the judgment.^ A judgment obtained by trick or fraud ought to be reversed if the certiorari is taken within a reasonable time after discovery of the fraud.^ Notwithstanding the first sec- tion of the act of 22d March, 1877,* which requires the justice to render judgment within ten days after hearing all the evidence, the certiorari is in time if sued out in twenty days after the plaintiff therein is informed by the justice that judg- ment (not rendered till after the ten days) haa been entered.® The twenty days' limitation applies only to judgments in civil action^, not to judgments for penalties under the ordinance of a city.* It does not apply to proceedings before justices by landlords to dispossess tenants.' Appeals from Judgments of Justices. § 386. The fourth section of the act of 20th March, 1810,* directs that "if either party, or their agents, shall fiee Tully v. Williamson, 3 Luz. Leg. from their expiration, in the abserice Beg. Rep. 388, of express knowledge of the entry 'Masters v. Turner, 2 Luz. Leg. of the judgment. When a case is Heg. 185 ; Jd., 30 Leg. Int. 337. adjourned by the justice without "Adams v. Hill, 29 Leg. Int. 126. designating a particular day for the 'Lacock ■«. White, 19 Pa. St. 495; resumption of the hearing, he must Stedman v. Bradford, 3 Phila. 258 ; serve notice on the defendant of the Eoad Commissioners v. Flickinger, day he intends to resume the hear- 61 Pa. St. 48. ing or enter judgment. The twenty ' P. L. 13 ; 1 Bright. Purd. p. 986, days would not begin to run until pi. 62, such notice. Edwards v. Carr, 3 Luz. 'Hofifner v. Kottka, 2 Pears, 360. Leg. Reg, Rep, 192. Haines v. Townsend, 1 Oh. Co, Rep. °Caughey«,Pittsburgh,12S.&R.53. .146, implies that when the judg- ' Graver v. Fehr, 89 Pa. St. 460. ment is in fact entered within the '5Sm. 163; 1 Bright.' Purd, p, 985, ten days, the twenty days will run pi, 58. MISCELLANEOUS LIMITATIONS. 649 refuse to refer, the justice may proceed to hear and examine their proofs and allegations, and thereupon give judgment publicly, as to him of right may appear to belong ; either party having the right to appeal within twenty days after judgment being given, either by the justice alone or on award of referees, when such award shall exceed the sum of ^20; * * * provided always, that if the party appel- lant shall enter hail to appeal within twenty days after judgment being given as aforesaid, such ' appeal shall be effectual in case«uch party appellant shall file the transcript of the record of the justice in the prothonotary's ofl&ce, on or before the first day of the next term of the Court of Common Pleas of the proper county, after entering such bail as aforesaid." ' The Iiimitation. § 387. The appeal may be applied for and taken at any time within the twenty days ; on the last as well as on any earlier day. The fact that a terin, of court begins during the twenty days does not abridge the time allowed for , appeal.^ In computing the time, the day on which the judgment is entered is not counted. The appeal is in time if taken on the twentieth day succeeding it. Hence, from a judgment entered 2d October,* or 1st March,* the appeal was early enough when ta,ken on 22d October, and on 21st ' 1 Bright. Purd. p. 994, pi. 103. In an appeal subsequent to the sale and Philadelphia the appeal must be filed within the twenty days will not in the Common Pleas " on or before vitiate the title of the purchaser, the monthly return-day in said court Patterson v. Peironnet, 7 W. 337. next ensuing the dafe of the entry of 'Dickinson v. McGuire, 1 Ash. 47. the judgment before the alderrhan, * Browne v. Browne, 3 S. & R. 496 ; instead of to the first day of the next Cromelien v. Brink', 29 Pa. St. 522 ; term, as heretofore." Section 1, Act Thomas v. Premium Loan Assn., 3 , 1st May, 1861, P. L. 535; 1 Bright. Phila.425. The decision in Agnewi;. Purd. p. 995, pi. 106. The City, 2 Phila. 370, that the judg- ' Moore v. Creamer, 3 P. & W. 416 ; ment being entered IBth June, the Russell V. Smith, 1 Phila. 425. If an appeal taken 3d July was too late, execution is executed by a consta- though supported by Thomas v. Af- ble's sale before the -lapse of the flick, 16 Pa. St. 14, is erroneous, twenty days allowed for an appeal, 650 LAW OF LIMITATIONS. March, respectively. Judgment being rendered 17ih Jan- uary, the time for an appeal expires on the 6th February.^ An appeal taken on 5th September,^ or on 24th June,^ to a judgment entered in the former case on 15th August, in the latter on 3d June, is one day too late. If the twentieth day following that on which the judgment is rendered is Sun- day,* or Good Friday ,° or other legal holiday, the appeal may be taken on the next dies juridicus. Normally, the right to appeal expires with the lapse of "twenty days after judg- ment." If the action" brought before the justice is, by con- sent, referred, but the award is set aside by the justice, and a trial had, the twenty days run from the day he enters his - judgment." When the defendant is not chargeable with knowledge of the entry of the judgment on the day on which it is entered, the right of appeal is not lost in twenty days from the day of judgment. This was so when, the summons being returnable on Thanksgiving Day, no judg- ment was entered on that day, but on a later day, without notice to the defendant.^ When the justice reserves his decision at the hearing, but fixes no time for the entry of his judgment, the twenty days begin to run only with notice of the entry of it.' The first section of the act of 'Souders v. Potteiger, 2 Woodw. justice what he must do, and is told 18 ; Jd,, 7 Luz. Leg. IReg. 157. he must answer certain interroga- ' Read v. Dickinson, 2 Ash. 224. tories, and is directed to a clerk in 'Taylor «. Smith, 2 Ci. 318. Judg- the office, who prepares them and ment 30th May. An appeal on 20th his answers. Subsequently, without June is too late. Carothers v. Cum- notice to B., a judgment is entered mings, 63 Pa. St. 199. against him for want of an appear- ' Moore v. Krier, 2 W. N. C. 724; ance. He is entitled to an appeal Dwire v. Weber, 1 W. N. C. 64; on discovery that- the judgment had Singer Co. v. Rice, 1 Ch. Co. Rep. 108. been rendered. Schoneman v. Stern- 'Linville v. Dalsam, 5 W. N. C. berger, 7 W. N. C. 111. 628. 8 Taylor v. Smith, 2 CI. 318 ; Brown 'Paul V. Cunningham, 9 Pa. St. «. Ham bright, 3 Luz. Leg. Reg. Rep. 106. 35; Haines v. Townsend, 1 Ch. Co. 'Gilbert v. Maxwell, 1 W. N. C. Rep. 146 ; Frantz v. Dehart, 1 Pa. C. 471. B., summoned as garnishee in C. Rep. 5. An appeal will not be an attachment-execution, asks the allowed nuTUi pro tunc because the MISCELLANEOUS LIMITATIONS. 551 22d March, 1877/ requires the justice to render judgment within ten days after all the evidence shall have been heard. "When the party is not aware of the entry of the judgment, he will be bound to presume it entered within these ten days, and the right to appeal will continue only till the lapse of Iwenty days subsequent to these ten.^ When an irregular judgment is opened by the justice, the twenty days run only from the re-affirmance of it ; ^ the right of appeal cannot be destroyed by the fact that the justice does not dispose of the rule to show cause why the judgment should not be opened till more than twenty days after the rendition of the judg- ment.* _ But the defendant does not, by obtaining a rule for the opening of the judgment after the twenty days have expired, acquire a second period of twenty days, beginning with the discharge of the riile.^ Requisites of the Appeal. § 388. Besides the application for an appeal, the law requires certain acts to be done by the appellant, which are essential to the appeal, and must therefore normally be done within the twenty days succeeding the judgment. Thus, in appeals generally, "bail absolute in double the probable amount of costs accrued or likely to accrue " ° is necessary. When the. appellant is a non-municipal corporation, bail defendant was not served, where the ' Sleek v. King, 8 Pa. St. 211 ; Dicks record shows an appearance. Per- v. Carter,, 21 Leg. Int. 340. If, the kins V. Ward, 1 Leg. Gaz. Kep. 239. judgment being opened, no day is ip. L. 18; 1 Bright. Purd. p. 986, fixed for decision, the twenty days pi. 62. Under this act it is not error, run only from the time the party for ^hich the judgment is reversible receives notice of the final entry of on certiorari, for the justice to delay the judgment. Frantz v. Dehart, 1 hisjudgment for a time not exceed- Pa. C. C. Kep. 5. The time of the ing ten days after the hearing. -Luke receiving of such notice m^y be V. Schleger, 8 Luz. Leg. Keg. Rep. determined by depositions. Id. 505. *Beadi;. Dickinson, 2 Ash. 224. "Hainesti. Townsend, 1 Ch. Co. Kep. ^ Russell v. Smith, 1 Phila. 425. 146; Imler v. Houser, 1 Pa. C. C. "Section 1, Act 20th March, 1845, Kep. 6. ' P. L. 188 ; 1 Bright. Purd. p. 992, pi. 99. 552 LAW OF LIMITATIONS. absolute for the debt, interest and costs, on the affirmance of the judgment, is essential.* Certain local statutes have required that the appellant, at the time of taking his appeal, pay to the justice all the costs accrued before him.^ In Philadelphia,' and certain other localities, an affidavit must be made by the appellant, that the judgment as it stands requires him to pay more money, or to receive less than is justly due, or that injustice has been done him. The first section of the act of 20th April, 187.6,* requires, in all cases in which judgment shall have been rendered by any justice of the peace or alderman " for wages of manual labor," that the defendant, or his agent or attorney, before he shall be entitled to an appeal, shall make oath or affirmation that the appeal is not intended for the purpose of delay, but that he believes that injustice has been done him, and directs that this affidavit be attached to and sent up with the transcript of appeal. It requires, also, bail for the payment of the debt and costs. Filing of the Appeal. § 389.^ To make the appeal effectual, though it be taken ,out with all the necessary circumstances, within the twenty days, the appellant must file the transcript of the record of the justice in the prothonotary's office on or before the first day of the next term of the Court of Common Pleas of the proper county, after entering the bail,* and in the city and 'Section 1, Act 15th March, 1847, the Landlord and Tenant act of 14th P. L. 361 ; 1 Bright. Purd. p. 993, pi. December, 1863. Carjier v. Hess, 3 100. The District of Penn {King-«. W. N. C. 325. District of Penn, 1 Phil a. 402), a *P. L. 43; 2 Bright. Purd. p. 1699, county(EobirisonD.JefrersonCounty, pi. 11. This affidavit is not neces- 6 W. & S. 16), any municipal cor- sary when the defendant is an ex- poration, need not give the recog- ecutor or administrator. Koontz's nizance.. Adm. v. Howsare, 100 Pa. St. 506. 'Act 2d March, 1868, P. L. 256; The act applies to all judgments iiide 1 Bright. Purd. p. 994, n. (h). rendered since its passage. Cochran 'Section 1, Act 27th March, 1865, v. McKelvy, 25 Pittsb. L. J. 120. P. L. 794 ; 1 Bright. Purd. p. 994, pi. ' Section 4, Act 20th March, 1810, 105. The affidavit is necessary under 5 Sm. 164. 1 Bright. Purd. p. 994, MISCELLANEOUS LIMITATIONS. 55a county of Philadelphia the transcript must be filed in the- Common Pleas on or before the monthly return-day next ensuing the date of the entry of the judgment before the alderman, instead of to the first day of the next term.^ Both beyond'^ and within^ Philadelphia, it is not necessary for the appellant to enter his appeal to the next term-day or the next monthly return-day, ensuing on the rendition of the judgment, but happening within the twenty days, if the appeal has in fact not been taken before such term-day or monthly return-day. The appellant is entitled to the whole twenty days for the taking of his appeal. But if the appeal has in fact been taken, however early in the twenty days, it must, outside of Philadelphia, be filed in the prothonotary's office to the next first day of a term thereafter, though it pi. 103. The appeal must be filed by the appellant. The appellee can- not file it without authority from him. Nicolet v. Oellers, 2 Ash. 115 ; Dietrick v. Mann, 1 Leg. Chron. 159 ; Id., 6 Luz. Leg. Eeg. 16. When the county is divided after the entry of bail for an appeal, it may be filed inihe new county of which the jus tice thereby becomes an officer Wells V. Morse, 1 Lack. L. Rec. 391 ^Section 1, Act Ist May, 1861, P. L. 535. 1 Bright. Purd. p. 995, pi 106. If the appeal is not filed in Philadelphia to the next monthly return-day it is a nullity, and the jus- tice may issue an execution. Dailey V. Mayer, 2 Leg. Gaz. 223. Or the appellee transcripting it to the Com- mon Fleas, his execution on it from that court will not be superseded by a subs^equent appeal never perfected by filing the transcript with the pro- thonotary. Herron's Appeal, 29 Pa. St, 240. To make an appeal a super- sedeas, it must be filed in the Commqn Pleas. Lee I). Farrell, 2 Bright. Dig. p. 766, pi. 287. 'Long V. McCorrhiok, 1 W. N. C. 134; Beale v. Dqugherty, 3 Binn. 432 ; Talbert v. Williams, 1 Bro. 159. 'Lingerfield v. George, 10 Phila. 80 ; Long V. McCorraick, 1 W. N. C. 134. In Philadelphia it is not necessary to file the appeaf to the next first day of the term when this occurs before the monthly return-day. Judgment 8th September; appeal I2th September, The September term began on the 17th. The appeal filed on 19th Sep- tember was in time. Hartranft v. Clarke, 12 Phila. 487 ;. Jd.,.4 W. N. C. 543. The act of 9th April, 1862, (P. L. 347,) provides that in Delaware county all appeals shall be filed on or before the next return-day after the taking thereof, if twenty days- shall have elapsed, and if not, then on or before the next return-day thereafter, i. e. if, when the next monthly return-day after taking the appeal arrives, twenty days shall h ave elapsed, the appeal must be filed on or before it ; if not, it may be filed at thex next monthly return-day. Singer Co. v. Rice, 1 Ch. Co. Rep. 108. 554 LAW OF LIMITATIONS. occur within the twenty days/ In Philadelphia the appeal must be filed on or before the monthly return-day next fol- lowing the taking of the appeal, though it come within the twenty days.^ But the appellant may withdraw the first appeal, and, after the lapse of the first day of a term^ (or, in Philadelphia, of the next return-day),* but within the twenty days, may take out another appeal and enter it to the succeeding term-day. When the day on which the appeal is taken is also a return-day, the appellant has, in Philadelphia, until the next monthly return-day for the filing of it in the prothonotary's office.^ Exceptions to the Above Limitation. § 390. As a general rule, the appeal must be taken within the twenty days, and it must be filed within the time already indicated, in the oflfice of the prothonotary. Thus, if, within the twenty days, the defenda!nt tells the justice he wants to appeal, and pays the costs, but not till eight days after their -expiration, brings the surety to sign the recognizance, he is too late ; * as he is when he demands the appeal in time but -declines to give bail.^ The second section of the act of 4th March, 1824, gives a person sued for the tax for license to sell ' Moore v. Creamer, 3 P. & W. 416 Bechtel v. Leinbach, 1 Wood. 470 Smith V. Walker, 1 W, N. C. 415 Talbert v. Williams, 1 Bro. 159 'Potts V. Staeger, 12 Pa. St. 363; Gehring v. Lambert, 1 Leg. Gaz. 85. Though the justice's docket-entry shows that the bail was withdrawn Williams v. Gibbons, 2 L. Bar, 5th on Sunday, still, if the bail for the FebruaCry, 1871 ; Ruddy v. Pfouts, 2 new appeal was entered the foUow- Luz. Leg. Reg. Rep. 217; Sollenber- ing Tuesday, it, ipso /ac«o, supersedes ger V. Heisker, 2 Leg. Rec. Rep. 368 ; the former appeal. The former ap- Galbraith v. Gonder, 3 Luz. Leg. Reg. peal will be presumed, the contrary 72 ; Shertzer v. Gonder, 7 Luz. Leg. not appearing, to have been with- Reg. 192. drawn because defective. Gehring 'Wilson V. Hathaway, 8 Phila. ' i'. Lambert, 1 Leg. Gaz. 85. 235; Kerr v. Rodgers, 9 Phila. 525; 'Murphy v. Roberts, 1 W. N. C. Kline v. Hochstader, 2 W. N. 0. 140; 232. Sohlecht V. Ristine, 3 W. N. C. 43. » Dwire v. Weber, 1 W. N. C. 64. Judgment 1st September; appeal 'Beerbower •». Furry, 1 Ch. Co. taken 7th September. The next Rep. 369; Soudersv. Potteiger, 2 monthly return-day 18th Septem- Wood. 18 ; Id., 7 Luz. Leg. Reg. 157. ber. The apppal filed 20th Septem- ' McElhaney v. Holland, 17 W. N. ber was too late. C. 334. ' MISCELLANEOUS LIMITATIONS. 555 merchandise, a right to appeal on affidavit that the appea,! is not for delay. An appeal taken without this affidavit will be stricken off on motion.^ The same is true under the act of 1868,^ which requires an affidavit for appeals in Lancaster county.^ , Under the first section of the act of 27th March,- 1866,* which requires affidavits for appeals in Philadelphia, if the appeal is taken in time, but the affidavit is not filed with the justice till over a year afterwards, the appeal will be stricken off.® The act of 20th April, 1876,* requires that the appeals by the defendant in suits for the wages of manual labor shall be accompanied by an affidavit that the appeal is not intended for delay. The record must show that the claim falls within the statute, otherwise without other evidence of its nature, the affidavit will be unnecessary;' but it is not necessary that the words "manual labor" should be in the record, if it describes the kind of labor so as to show that it in fact was manual labor.* In cases requiring the affidavit, if it is not made and attached to the transcript, the latter -will be stricken off.* In counties in which, by local statutes, 'Devenny v. Commonwealth, 2 ° Murrey ti. Todd, 1 Ch. Co. Kep. 51. Thila. 137; S. C, i;;0vering v.' Com- 'Mee v. Kurtz, 2 Ch. Co. Rep. 63; monwealth, 1 Pittsb. 333. Kingeter v. Stritzinger, 3 Luz. Leg., ~ 'P. L. 256. Eeg. Rep. 147; Schneider w. Hess, 7 ' White V. Martin, 1 Leg. Rec. Rep. Luz. Leg.- Reg. 152 ; Id., 10 L. Bar 99 ; ■95. The act of 28th February, 1870, Murrey v. Todd, 1 Ch. Co. Rep. 51 ; (P. L. 269,) requires the appellant to Carter v. Hess, 3 W. N. C. 325 ; David- make afltidavit when the claim was son v. MarkVey, 1 Pa. C. C. Rep. 594. . for "wages or salaries for work, labor But if, on the hearing of the rule to -or service done or performed," that strike off the appeal for want of the the appeal is not for delay. The affidavit, the defendant asks for leave fees of an attoriiey-at-law are not to amend by filing the affidavit, and -withinthemeaning.of this act. Col- satisfactory reasons for failing to lins i). Savage, 2 Luz. Leg. Reg. 216. make the affidavit are given, and * P. L. 794. no unreasonable delay has ensued, 'Mountney v. McFarland, 7 Phila. the leave will be granted. Thomas .392. V. Pyle, 2 Ch. Co. Rep. 295 ; Davidson •P. L. 43. V. Markley, 1 Pa. C. C. Rep. 594. If 'Reagan v. Stetler, 3 Luz. Leg. the justice has misled the defend- Reg. Rep. 504 ; Womelsdorf v. Heif- ant as to the necessity of the affl- tier, 104 Pa. St. 1 ; Cochran v. Doug- davit, this is probably a good excuse." iass, 25 Pittsb. L. J. 120. Kingeter v. Stritzinger, 3 Luz. Leg. 656 LAW OF LIMITATIONS. the prepayment of tlie costs on taking an appeal is required, if the appeal is taken in time, but the costs are not paid till after the lapse of the twenty days, it will be void.^ If an execution has issued, the defendant must pay the costs thereon when appealing.^ The justice's transcript being silent as to payment of the costs, his affidavit is admissible to show that they were in fact paid when the appeal was taken,^ The act , of 20th April, 1876, does not repeal the local statutes requiring payment of costs on appealing.* The act of 24th June, 1885,* authorizes the justice or alderman in all cases to demand from the appellant the costs before delivering the transcript. This act applies to appeals from magistrates in the city and county of Philadelphia. Till tender of the costs, the magistrate is under no obligation to furnish a transcript.*^ Exceptions — Continued, § 391. There are certain excuses, however, on account of which an appeal will be allowed beyond the twenty days, or the filing of the transcript with the prothonotary will be permitted beyond the next return-day, or first day of the term. When the justice of the peace is the obstacle to com- pliance with the law, the appellant will be excused.^ Thus, when his sickness' or absence from the county,® or from hia Rep. 147. It is the justice's duty to Luz. Leg. Eeg. Rep. 100; RaflFerty v. inform the appellant of the neces- McKeeby, 11 L. Bar 150. Gainer's- sity of the affidavit. Swallows. Red Appeal, 8 Luz. Leg. Reg. 329; Id.,. Ash Coal Co., 2 Kulp 369. The use 11 L. Bar 135, is contrary. of the word "merely" in the affi- 'P. L. 159. davifisunnecessary, if an equivalent 'Tiernan v. Manigle, 2 Pa. 0. C- expression occur. Morton v. Blank, Rep. 96. 4 L. Bar, 7th December, 1872. ' Louderback v. Boyd, 1 Ash. 380 ,- •Donnelly ti.Purcell, 7 Luz. Leg. Bechtel v. Leinbach, 1 Wood. 470; Reg. 199 ; Bloxham v. Roberts, 8 Butterworth v. Pratt, 1 Ch. Co. Rep. Luz. Leg. Reg. 26; Columbia v. Pat- 53. ton, 5 L. Bar, 7th June,. 1873 ; White « Woodaide v. Pa. R. R. Co., 1 Pears. r. Martin, 11 L. Bar 55 ; Heitler v. 301 ; Wilson v. Hathaway, 8 Phila. Earing, 18 Pittsb. L. J. 59. 235; Kerr v. Rodgera, 9 Phila. 525; 'Knapp V. Stoner, 13 L. Bar 67. Read v. Dickinson, 2 Ash. 224. •Oberi). Koser, 12L. Barl04. 'Kerr v. Rodgers, 9 Phila. 525; * Gwyllyn v. Plymouth Coal Co., 3 Read v. Dickinson, 2 Ash. 224. MISCELEANEOtrS LIMITATIONS. 557 office/ makes access to him impracticable ; or when he will- fully refuses to grant the appeal ;^ or when he. misinforms the appellant of the period within which he must make the appeal/ and so causes the failure to appeal within the pre- scribed time, the appeal will be permitted beyond that time. To the defendant inquiring of him, the justice said be had yet five days for appealing. The former again called in three days, but finding a constable in charge of the office, was informed by the latter that he had till the following Tuesday, which was one day too late. The appeal was per- mitted after the legal time.* But the mere omission of the justice, when writing to the appellant concerning the appeal, to instruct him, in addition to the fact that he must give bail, that he must do so within twenty days, will not be a cause for extending the privilege of appealing beyond that term.® If the justice, when asked for an appeal and bail is tendered. 'Wilson V. Hathaway, 8 Phila. 235; Clark v. Qainn, 10 Luz. Leg. Eeg. 238 ; Smith v. Sperling, 10 Luz. Leg. Keg. 119. In Castner v. Bilbow, 9 Luz. Leg. Reg. 241, it is said that ijrdinarily if the defendant, knowing of the judgment, waits till the last of the twenty days for taking out the appeal, and then fails to take it, because of the temporary absence of the justice from his ofiSce, his delay will not be excused. If he has no knowledge of the entry of the judg- ment (as in cases under the stray law) till a short time before the ex- piration of the twenty days, and going to the justice's office on the last of them, fails to find the justice, an appeal on the twenty-first day is not too late. 'Wilson V. Hathaway, 8 Phila. 235 ; Kerr v. Eodgers, 9 Phila. 525 ; Sollenberger v. Heisker, 2 Leg. Rec. Rep. 868 ; McElhaney v. Holland, 17' W. N. C. 321 ; Read v. Dickinson, 2 Ash. 224. 'Kelly D. Gilmore, 1 W. N. C. 73; Butterworth v. Pratt, 1 Ch. Co. Rep- 53. If, after taking the appeal and ' giving the recognizance, the defend- ant waits till the last day of the twenty to take the transcript, which, having been made out but not signed.by the justice -(who is absent from his office), his clerk attaches his name to it, the appellant will be permitted to procure the signature and so perfect the appeal nunc pro tunc. Singer Manufacturing Co. v. Parsons, 2 Luz. Leg. Reg. 176. When, eight days before the expira- • tion of the twenty, the justice told the appellant he had yet a few days,- this would not excuse the delay of eleven days. Souders v. Potteiger, 2 Wood. 18. * Moore v. Krier, 2 W. N. C. 724. 5 Butterworth v. Pratt, 1 Ch. Co. Rep. 53. 558 > LAW* OF LIMITATPONS. takes and records it as for a stay of execution, and though the appellant makes several attempts before the lapse of the twenty days to obtain a transcript, he is put off by the justice till their expiration, when the'prothonotary declines to enter it as an appeal, the appellant will be permitted to take and file his appeal nunc pro tunc? On the appellee's rule to strike off the appeal, or on the appellant's rule to show cause why the appeal should not be allowed, any excuse for failing to take out the appeal in the twenty days may be assigned, and if satisfactory the appeal will be permitted to stand ; but if without such rule, the appeal tardily taken is filed in the Common Pleas, the appellee may ignore it as a nullity. The appellant cannot, under a rule of court, cause a judgment of non pros, secundum reguldm to be entered.^ Excuse for Failing to File in Time. § 392. The conduct of the justice may also excuse the failure to file the transcript in the prothonotary's office before the next return-day, or first day of the term.^ This is the case if the justice undertakes to make out the transcript Und send the case to the court, and so misleads the appellant into depending on him ;* or if he misinforms the appellant as to the time within which the appeal must be filed, naming as the Hniit a day which is one week too late.® But, as it is not the business of the justice to know whether the pro- thonotary will be in his office on a certain day, the monthly return-day in Philadelphia, his erroneous statement to the appellant that that officer, will not be in his office on that day, will not excuse the failure to file the appeal until after- wards." If the justice's refusal^ to make out, or his delay ' Louderbaok v. Boyd, 1 Ash. 380. But if the appellant does not depend- ' Carothers v. Cumminga, 63 Pa. on the justice's information, its erro- St. 199. neousness will not excuse delay in ' Louderback 4). Boyd, 1 Ash; 380 ; filing the transcript. Bechtel v.. Sloan V. Boyd, 1 Pittsb. L. J. 50.' Leinbaoh, 1 Wood. 470. *Devine V.Boyle, 4 W.N. C. 139. 'Wilson v. Hathaway, 8 Phila. » Donnelly D. Purcell, 7 Luz. Leg. 235. ' Keg. 199 ; Id., 1 Susq. L. Chron. 47. ' Houk v. Knop, 2 W. 72 ; Snyder MISCELLANEOUS LIMITATIONS. SSO' in making out the transcript after seasonable demand for it^ prevents the filing of it by the next first term-day, it may be subsequently filed nunb pro tunc;^ but if the justice, engaged when the application for th^ appeal is made to him simply states that he will postpone the making of the tran- script till the matter then engrossing him is finished, where- upon the appellant requests him, when able, to prepare it and send it to the prothonotary's office, his failure to send it in time- will not be relieved from, for the appellant, making him agent, will be bound by his negligence.^ Having signed the affidavit and bond, before the justice, the latter requests the appellant- to call in a few days for the transcript. He calls -again, within the twenty days, but does not insist that the justice give hiih the transcript. Five days afterwards, but beyond the time^ when the transcript should have been filed,, he calls again and obtains it. It' is too late.* Other Excuses than Conduct of Justice. § 393. The fact that the plaintiff, against whom the judg- ment was rendered, was not a resident of Pennsylvania, and that he had no knowledge of the twenty days' limitation ; * that the appellant was ignorant that he had a right of appeal V. Snyder, 7 Phila.- 391; Kerr v. When the defendant and the justice Bodgers, 9 Phila. 525. But if the live in the same small town, the fact ■ appellant allows the next return-day that the former stops in the office of to elapse after demanding the tra^- the latter early in the twenty daysj script, he will not, on rule by him to and does not find hiiil, will not ' show cause why he should not file it excuse from taking the appeal in nunc pro tunc, be permitted to do so the regular time, the justice being iii in the absence of all excuse. Kerr the office most of the time. Smith V. Eodgers, 9 Phila. 525. v. Sperling, 10 Luz. Leg. Reg. 119. ' Paulin V. Peters, 1 Ash. 380. 'Dobsoh v. Fell, 14 W. N. C. 456. ' Houk V. Knop, 2 W. 72. So, if In this case an execution had issued the justice promising to make the before the rule to show cause why transcript and to enter it in the office the appeal as filed should not be- or furnish it to appellant's counsel, decreed to be valid. The court says, makes the transcript in time but " The appeal was taken too late, sends it neither to the prothonotary The execution has gone forth, and nor to the counsel in time for entry, we cannot stop it." the delay will not be relieved from. *.Butterworth v. Pratt, 1 Ch. Co» Sherwood v. McKinney, 5 Wh. 435. Rep. 53. 560 LAW OF LIMITATIONS. till the proper period had elapsed;^ that he was ignorant that bail was necessary;^ that he was not aware of the necessity of filing the transcript in the prothonotary's office by the next return-day,^ will not authorize the relaxation of the requirements of the statutes. The neglect of an agent, whether he be the justice or another, to take the appeal in time,* or to cauf e it to be filed in the prothonotary's office in time,* will not be excused. That the defendant, proseouted criminally for the transaction, for which he was sued civilly, thought the decision in the criminal proceeding would super- sede the suit before the justice, is no excuse for omitting to appeal in twenty days,^ nor is his ignorance of the amount of the judgment, he being present at the hearing, and failing to inquire for how much it had been rendered against him.'' That, when the summons is legally served, and judgment is rendered, the defendant is some hundreds of miles from home, would be cause for a rehearing within thirty days, ■according to the seventh section of the act of 20th March, 1810, but not for permitting an appeal after the twenty days.* The fault or ignorance of counsel, when the cause of thC' delay, is often relieved against.' It is the practice, when the omission to file the appeal, properly taken, till after the return-day, is attributable to counsel, to allow it to be filed nunc pro tunc ; ^^ but when the defendant, after himself fail- 'Hepperd v. Van Horn, 2 W. N. ° Munday v. Soult, 2 Luz. Le^. Keg. €.67. Rep. 418. ' Uhler V. Ketcherra, 1 W. N. C. 3. ' Nutz v. Barton, 9 Phila. 526. •Dobson V. Pell, 14 W. N. C. 456; "Haines d. IJillary, 9 Phila. 526. Kerr v. Eodgers, 9 Phila. 525. 'Uhler v. Ketcherra, 1 W. N. C. 3. *Fick V. Wellendorf, 7 W. N. C. ^'Wood v. Brolaskey, 2 W. N. C. 111. 198 ; Schlecht v. Ristine, 3 W. N. C. 'Houk V. Knop, 2 W. 72; Sher- 43. When a change in the begin- wood "0. McKitiney, 5 Wh. 435; ning of the term was made, of Bechtel v. Leinbach, 1 Wood. 470; which the counsel was ignorant, his Harrison i>. Crockett, 10 Luz. Leg. failure to file the appeal before the Reg. 232; Ruddy v. Pfouts, 2 Luz. new first day of the term was re- Leg. Reg. Rep. 217. lieved from. Kear v. Banner, 2 Leg. Rec. Rep. 218. MISCELLANEOUS LIMITATIONS. ^ 561 ing to file the appeal in time, then employs counsel, who asks leave to file it nunc pro tunc, it will not be granted/ The second section of the act of 16th April, 1879,^ makes it the duty of the city solicitor of Philadelphia to defend tenants, when sued for rent by their landlords, if the former had paid the taxes upon the property. If the solicitor has no notice of the suit before the justice, and the defendant making no appearance, judgment by default is entered, in a -proceeding to recover possession of the property for non- payment of the rent, le^ve to file, nunc pro tunc, an appeal, will, at the instance of the solicitor, be granted.^ The sick- ness of the defendant during an early portion of the twenty days, he being able to be out attending to business on the tenth day after judgment, and again a couple of days after- wards, will not excuse the failure to appeal in the statutory term;* but when the judgment was rendered in his absence, and the sickness of his wife prevented his going to the justice's office until the twenty-first day thereafter, an appeal was allowed nunc pro tunc!" Misdirection by a layman will be no excuse for letting the twenty days expire. Thus, a Prenchman goes with his surety to the justice, and enters bail for stay of execution, thinking and intending it for an appeal. On finding out his mistake, he was told by a friend that nothing could be done until the time for the stay had expired. His application to the justice, after the lapse of that time, to rectify the mistake, was too late." Though the appellant's neglect to file the appeal in time is due to his 'Alleii V. Berry, 8- W. N. C. 237. before he relied upon it. Hibbs «. When the defendant, after the judg- Stines, 8 Phila. 236. ment is rendered against him, sends ' P. L. 24. a note to a lawyer to attend to the 'Eagan v. Wilkins, 7 W. N. C. appeal, but this note is not received 486. by the latter, and therefore the ap- *Hibbs v. Stines, 8 Phila. 236. peal is not taken and filed in time, ' Killion v. Kramer, 4 W. N. C. the delay will not be excused. The 381. defendant should have satisfied him- 'Scott v. Fontyn, 2 W. N. 0. 187. self that his note had been received 2l 562 LAW OF LIMITATIONS. mistaken expectation that the matter in controversy would be settled, it is incurable.^ A certiorari having been sued out within the twenty days, and on the twenty-first a rule for an appeal nunc pro tunc, which was made absolute, and the appeal filed on the twenty^second day, a rule to strike off the appeal was discharged on discontinuance of the certiorari.^ The Bail. § 394. If, with knowledge that the recognizance is neces- sary, the appellant neglects to give any, and for two years does not tender any, when the appellee moves the court to strike off the kppeal, it will be too late to enter into the re- cognizance.^ If the appellant gives notice of his purpose to- appeal and enters into recognizance, but before the transcript is applied for the justice rul6s him to justify his bail, and decides that the bail is insufficient, and enters on his docket that it is rejected, the transcript then obtained, showing this, action of the justice, filed in the Common Pleas, will, on rule,, be stricken off. The case will be as if no bail had been entered.* If, prior to the decision of the justice, on a rule granted before or after he has delivered a transcript, the ' Henninger v. Woodring, 2 Penny. A recognizance in $50 " for the prose- 205. cution of this suit to effect " is suffi- ' Ward V. Harligan, 1 W. N. C. 72. cient to support an appeal under the 'McElhaney v. Holland, 17 W. N. act of 20th March, 1845, which re- C. 324. In Guilky v. Gillingham, 3 quires bail absolute conditioned for 8. & E.. 93, where an appeal was the payment of all costs accrued or struck off by the Common Pleas on thatmay be legally recovered against an erroneous ground, the judgment the appellants. Rheyu. Baird,51Pa. was affirmed, because the appellant St. 85 ; Murray v. Haslett, 19 Pa. St. had not given bail. — The appellant's 356. The recognizance should be in having deposited the amount of the a sum certain. Williamson v. Mitch- judgment only, but not that of the ell, 1 P. & W. 9 ; Caldwell v. Brindle, interest and costs, with the justice, is 11 Pa. St. 293. One in " $20, or such no substitute for the recognizance, sum as may be necessary to pay all The appeal will be dismissed. Stew- costs,", was sufficient. Seidenstriker art V. Prosser, 1 Bro. 281. It is not v. Buffum, 14 Pa. St. 158. necessary that the appellant should * Cummings v. Forsman, 6 Pa. St. join with his surety in the reoogniz- 194. ance. Cavence v. Butler, 6 Binn. 52. MISCELLANEOUS LIMITATIONS. 56S transcript is filed in the prothonotary's office, the Court of Common Pleas will give an opportunity to the appellant, on motion or rule to strike off, to justify or perfect his baiil.-" Should the decision of the justice that the bail be strnek off" (the appellant failing to appear in obedience to the rale and to justify or give new bail), be rendered before the trantscript already given be filed, the appellant has no right to file it, ■But when it does not appear that he had notice of the rule and no hearing was had before the justice, and the bail was. in fact, sufficient, the court will permit the defendant, who has emteredi his transcript, to give, on a rule to strike off the appeal, a new recognizance with sufficient surety ; otherwise will make the rule absolute and strike it off.^ The BaiL — Continued. § 395. The appeal being taken and bail given within the twenty days, if there is exception to itsbefore the justice, he may, before the filing of a transcript in the prothonotary's office, require the appellajit to justify or give new bail.* Should new bail be given, though beyond the twenty da,ys, •and the transcript b^ then filed in the prothonotary's office, it will not be stricken off, because the bail finally accepted was not entered till after the period for appealing.* The appellant cannot defeat the jurisdiction of the justice con- cerning the sufficiency of the bail, by filing his transcript. ' Morgan v. Trescott, 3 Luz. Leg. ' Crease v. Myers, 2 Luz. Leg. Reg.. Keg. Rep. 25. So, if, after giving the > Rep. 420. When the Common Pleas,, transcript, the justice grants a rule on a rule to perfect an appeal, allows- on the appellant to justify the bail, it, the securities must be entered be- and the appellant not appearing, fore the justice. McMuUin v. Max- requires him to furnish new or addi- well, 1 W. N. C. 39. The recogniz- tional security within a specified ance must be taken by the justice • time, and afterwards, but before the who rendered the judgment; but if lapse of this time, the transcript is it is taken by another, the court will filed in the Common Pleas, that permit the appeal to be perfected, court will, on motion to strike off Columbia Fire Ins. Co. v. Sweigert,. the appefil, give a certain time for 9 L. Bar 138. the furnishing of a good recogniz- ' Dickinson v. Maguire, 1 Ash. 47 ; ance. Johnson v. Miller, 2 Ch. Co. Smith v. Steel, 1 Ash. 80. Eep. 148. I * Dickinson v. Maguire, 1 Ash. 47- 564 LAW OF LIMITATIONS. pending, the justice's rule on him to justify or furnish ne^ bail. Should the justice strike off the bail after the filing of the transcript, the Common Pleas will, on rule, strike off the appeal.^ After the filing of the transcript, before objec- tion to the sufficiency of the bail, the justice loses all juris- diction over the appeal,^ but the Common Pleas acquires it. That court will, on rule, require the appellant to justify or to furnish new bail, in case of the insufficient solvency of the •surety.^ If the justice ,accepts bail for costs only, when, the <;ase falling under the act of 9th April, 1872,* bail absol"ute in double the amount of the judgment and the probable amount of costs accrued and likely to accrue should be demanded,^ or when, the case falling under the act of 20th April, 1876,® good and sufficient bail for the payment of the debt and costs is necessary,' the court will, on a rule sued out by the plaintiff (to strike, off the appeal, not make the rule absolute, without ^allowing a time in which to perfect the appeal by entering ^proper bail nunc pro tunc. So, when, in a landlord's proceed- ing to recover possession of the leased premises, the tenant gives security, on appeal, only for costs and damages till final judgment, and not for all costs and rent that have accrued or shall accrue, ihe court, on the landlord's motion to strike off the appeal, will, the appellant asking leave to file an \amended recognizance, grant it.' If the appellant, believing ' Smith V. Steel, 1 Ash. 80. N. C. 240. So, the appellant may .' Smith V. Steel, 1 Aah. 80 ; Dick- ask leave of the court to perfect the Snson V. Maguire, 1 Ash. 47. appeal by filing a proper recogniz- 'Id. ance, and such recognizance, though '* P. L. 49. The wages of a clerk in filed after the time , for appeal, and ja drug store are not within this act. after the day for entering the appeal ffieichard v. Duryer, 10 W. N. 0. 189. in the prothonotary's oflice,^ will 'Woodruff t). James, 2 W. N. C. make the appeal valid. Womels- 50; Donahue v. Hill, 2 W. N. C. 172. dorf v. Heifner, 104 Pa. St. 1. •P. L. 43. sKoenig v. Bauer, 57 Pa. St. 168. ' Ryan v. McDonough, 3 W. N. C. In case of defective bail, entered 44; Davidson v. Markley, 1 Pa. C. C. within the time for appeal, the Hep. 549; Thomas v. Pyle, 2 Ch. Co. proper course is to call on the ap- Eep.295; Swallows. Coal Co., 2 Kulp pellant by a rule to perfect his bail :333, 369; Mayberry v. Gerber, 3 W. within a specified time, or, in default MISCELLANEOTTS LIMITATIONS. 665 that his being a freeholder exempts him from the necessity of giving bail, omits to give bail, he may, on the return-day of the rule to dismiss his appeal, move for permission to» give the recognizance, and it will be allowed.^ The Bail — Continued. § 396. Any corporation, except municipal, being required,, on appealing, to give bail absolute for the debt, interest and, costs on affirmance of the judgment,^ if it should give bait for costs only,^ or the recognizance should be improperly conditioned,* the appeal will not, on rule, be stricken oflT without giving the alternative to the appellant to perfect the: bail.* If an attorney, contrary to a rule of court,* or the; thereof, to quash the appeal. Means V. Trout, 16 S. & R. 349. In Langs v. Galbraith, 1 S. & R. 491, the court quashed an appeal because the bail was not for double the amount of the judgment, without leave to perfect. ' Fishburn v. Schifler, 2 Pears. 523 ; Davis V. Marra, 1 Ch. Co. Rep. 328; Redheffer v. Filler, 7 Phila. 338. But after a long delay, e. g. two years, the appeal will be struck off without leave to give the recog- nizance. McElhaney v. Holland, 17 W. N. C. 324. 'Section 1, Act 15th March, 1847, P. L. 361 ; 1 Bright. Purd. p. 993, pi. 100. Yet, in Throop v. Susquehanna Mutual Fire Ins. Co., 2 Pears. 306, it was decided that this section did not apply to appeals from justices of the peace. " Benedict v. Penna. Canal and R. R. Co., 4 Luz. Leg. Reg. 8 ; Borough of Huntingdon v. Jackson, 2 P. & W. 431. The seventh section of the act of SOth March, 1859, (P. L. 304,) provides that in appeals from judg- ments for wages of labor rendered to any person or chartered company engaged in mining coal in Luzerne county, the defendant shall make- oath that the appeal is not for delay,! and shall give bail in double the? amount of the judgment and costs. The affidavit of the appellee that his» cause of action was wages for this^ kind of labor, will not be received.. The record must show it ; otherwise- the act will have no application^ Delaware and Hudson Canal Co. v.. Lo'ftus, 71 Pa. St. 418. * Borough of Huntingdon v. Jack- son, 2 P. & W. 431. 'Iri Germantown &c. Turnpike Cov. V. Naglee, 9 S. & R. 227, the alterna- tive does not seem to have been" granted. The same principle applies^ to appeals from county auditors. (Speicher v. Township of Clifton, lo- Luz. Leg. Reg. 279), and to writs of error from the Supreme Court. (Hosie V. Gray, 4 Brewst. 127). 'Short V. Rudolph, 1 Pittsb. 50.. The rule of court forbidding attor- neys becoming bail does not extendi to justices' courts ; an attorney may- become bail for an appeal. Qber vu Koser, 12 L. Bar 104. Though, under the thirty-third section pf the- aot of 12th February, 1842, the ap- pellee was entitled to the security of" 566 LAW OF LIMITATIONS. justice who rendered the judgment,^ becomes bail, the court will, on rule to strike off the appeal, allow a new recogniz- ance. The Common Pleas having granted a rule to strike off the appeal, unless the appellant should perfect his bail in the meantime, and at the hearing having made this rule absolute, the appellant having failed to complete his appeal, the latter may, on a rule to show cause why the order making the former rule absolute should not be stricken off; effectively shoT*^ that prior to the making of this order he had perfected the bail, though he had not filed the transcript thereof and thus perfected the appeal, the rule not requiring the latter.^ The Bail— Continued. § 397. The conduct of the appellee may preclude him from assailing the sufficiency of the appeal. Thus, after he' as plaintiff declares, it is too late to move the court to dismiss the appeal because not taken out within the twenty days.^ If the all (he property of the appellant at the time of taking his appeal, a proper recognizance nuno pro tunc snay be filed bearing even date with *he former one, so as to take effect from that time. The appeal must not be quashed without giving the ^appellant this opportunity. Adams *. Null, 5 W. & S. 363. ' Bream v. Spangler, 1 W. & S. 878. 'Peters v. Smith, 10 Luz. Leg. Heg. 192. If the recognizance and :affidavit be defective, the defendant onay have leave to perfect the ap- peal. Cochran ■». Douglass, 25 Pittab. Xi. J. 120; Peters v. Smith, 1 Kulp 404; Lloyd v. Munroe,' 11 Luz. Leg. Keg. 81 ; Hummer v. Ephrata School District, 10 Phila. 494. The rule to ahow cause why the appeal should not be struck off, having been made absolute because of the appellant's failure to perfect the appeal in one ■week, as the court required, the ap- pellant obtained a rule to file an ap- peal nunc pro tunc, which was made absolute, she showing 'that she was not connected with the defendant firm, and that her inaction had been caused by this fact. McNulty v. Mc- Carty, 4 W. N. C. 478. The plaintiff appealing, the court granted a rule to show cause why the appeal should not be quashed, and also granted leave to the plaintiff to file an amended transcript. When the rule came on to be argued, the amended transcript was found defeotiye. A second rule to amend, asked for by the plaintiff, was properly refused, and the appeal quashed. Miles, v. Tanner, 3 P. & W. 95. 'Sleek V.King, 3 Pa. St. 211 ; Eob- inson v. Shrouds, 1 Ash. 168 ; cf. Weidner v. Matthews, 11 Pa. St. 386 Zeigler v. Forster, 3 S- & R. 288 Clarke v. McAnulty, 3 S. & R. 369 Cameron v. Montgomery, 13 S. & R. 128. MISCELLANEOUS LIMITATIONS. 667 transcript shows simply "J. C. bound as bail in appeal accord- ing to law," naming no amount, and tbe appellee taking no step to have the appeal dismissed, the appellant, four months afterwards, on motion, obtains from the Common Pleas a direction to the justice to amend his transcript by stating the sum for which J. C. became bail,, a rule fourteen months after this is done, by th'fe appellee, to show cause why the appeal jghould not be dismissed, will be too late.^ The defendant appealing, the plaintiff appears, and the former pleads. Not till the third term following the appeal is a rule to strike off the appeal prayed for. It is too late.^ After three full terms have expired and more than a year elapsed since the justice's transcript was filed in the Common Pleas, it is too late to move to quash the appeal because no stamp was affixed to the justice's certificate.^ The plaintiff appealing from the award of referees before the justice, entered a rule under the Com- pulsory Arbitration act. The arbitrators awarded for him a larger sum than he had received from the justice. From this av^ard the defendant appealed, having previously, however, but since the award was rendered, obtained a rule to show cause why the appeal from the aw^ard before the justice should not be quashed. This rule was too late.* 'Oochran v. Parker, 6 S. & B. 549. waiver of the objection. Cavence v. A delay of nearly two years in mov- Butler, 6 Binn. 52. ing the court to strike off an appeal 'Delaware and Hudson Canal Co. for defective recognizahce will be v. Loftus, 71 Pa. St. 418. unreasonable. The appeal will be 'Craig «. Brown, 48 Pa. St. 202. allowed to stand. Shank v. Warfel, The laches in not taking an appeal 14S. &E. 205. If, after the appeal tillaftertwenfy days from judgment, is entered and the defendant enters would be waived by the plaintiff if a, rule for arbitrators, and both par- he did anything in the case after the ties attend and choose arbitrators, .entry of the appeal, towards getting a rule to strike off the appeal, be- it ready for trial., Carothers v. Cum- cause the recognizance was not in mings, 63 Pa. St. 199. proper form, is then taken, the sub- * Marks v. Swearingen, 3 Pa. St. sequent appearance by both parties 454; Hoffman v. Dawson, ,11 Pa. St. before the arbitrators for trial, fol- 280. The court will not strike off an lowed by a decision against the appeal after plea pleaded. 4 Law plaintiff, the appellee, will be a Times (n. s.) 13 ; ef. Wilson v. Kelly, ' 81 Pa. St. 411. INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the- numbers following n. the notes thereon. A. ABANDONMENT of personal action, efTeot of on limitation 178- lines of land held under color of title 35 m. 1 land acquired by limitation 108 ABATEMENT of former action, effect of on limitation ISO- ACCIDENT clearing over boundary by, adverse possession 45 n. Z entry by, ineffectual .' 117 ACCOUNT merchants', limitation as to , 262 et seq. presumption of payment as to 305- , mutual, limitation as to i 263 et seq. stated, limitation as to .> 269^ partnership 270 mistakes in, limitation as to correction of 204 of executor or administrator, presumption of payment of legacy or distribu- tive share 327 et seq. items in, received less £han twenty years before, 327 matters in, rebutting previous settlement of account 329' actions of, barred : 154 ACKNOWLEDGMENT of resulting and implied trusts in five years ISO^ debt (see Admissions). ACTION personal, in which limitation available 285 et seq.. on original undertaking, not on new promise 255 in Common Pleas, preserving debt from bar in Orphans' Court, 178, 180 abatement of, effect on limitation ISO begins with issue of writ...- 178 cause of, not form, determines limitation. 168, 286 abandonment of. 178 delay in prosecuting, irrelevant to limitation 178 connecting later with earlier, to arrest statute 179 et seq. prohibition of, by unconstitutional law, arrest of limitation 187 -570 INDEX. • 1 IJumbers without n. Indicate the sections. Numbers -preceding ». indicate the pages, and the numbers fallowing n, the notes thereon. ACTWH!— Continued. personal, amendment of. 181 et seq. presumption of payment during its pendency 313, 314 ■ agreement to postpone, effect of, on presumption of payment 331 for land, barred in twenty-one years 2 et seq. interrupts available posseesion 80 effect of, on limitation in later action 81 kinds of, in which limitation is available 113 ACTS OF ASSEMBLY '^ 1700 6m.5 1705 ..: 6ji.5 27th March, 1713 154: et seq. 28th May, 1715 157 22d April, 1718. 22571.5 21st March, 1772 358 12th March, 1783 24371.2 26th March 1785.... 1, 2, 3,4, 5, 362 13th April, 1791 '. ^77 3d April, 1792 57,7071.2,102 19th April, 1794 52471.3 22d April, 1794 ( 360 4th April, 1797 353 , 4th April, 1798 354,356 11th March, 1800 [ , Sti.I 28th March, 1803 357 20th March, 1810 (constables' bonds) „ 356 ' 4th section, 20th March, 18lO 386 7th section, 20th March, 1810 .'. ; 393 21st section, 20th March, 1810 385 13th March, 1812.. , 243 71.1 25th Mirch, 1813 57i.l 26th March, 1814 190 11th March, 1815 '. '. 6,93 17th February, 1820 359 4th March, 1824 390 29th March, 1824 356 12th April, 1828 363 «th April, 1830 231»i.5 31st section, 15th March, 1832 348 42d section, 15th Marci, 1832 380 29th March, 1832 ; 379 8th April, 1833 366 74th section, 15th April, 1834. , 21l7t.3 112th section, 15th April, 1834 356,517 71.1 14th June, 1836 378 27th section, 16th June, 1836 381 fi9th section, 16th June, 1836 383 INDEX. 571 Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the number's following n. the notes thereon. J^CTS OF ASSEMBLY— Conimited. ' 2d July, 1839 361 13th October, 1840 384 . 30th July, 1842 159, 220J1.3 Kesolution, 21st January, 1843....... ; : 282, 303,340 15th March, 1847 388, 565 to. 1 11th April, 1848 90,94,104,111,174 16th April, 1849 160,173 ' 7th section, 25th April, 1850 161, 191,303 2l8t section, 25th April, I850 124, 224 W.2 35th section, 25th April, 1850 158 14th April, 1851 ; • 7 4th May, 1852 4m.l i!2d April, 1855 212n.4 26th April, 1855 164,287,508)1.2 27th April, 1855 '. 122, 212».3 1st section, 22d April, 1856 8, 87, 90, 91, 104, 141 etseq. 7th section, 22d April, 1856 £-..212 ra. 2, 349 28th May, 1858 369 ■30th March, 1859 565 n.3 13th April, 1859 9, 10, 114 18th April, 1861 ^ 246 71.1,293 Ist May, 1861 549ji.1 18th July, 1863 169, 218,282 14th December 1863 .^ 364,365 18th March, 1864 356 ■27th March, 1865 142, 145 ' 28th March, 1867 162, 216 n. 2, 282, 287 n. 5 4th April, 1868 210 n.3 15th April, 1869 : J \ 256 3d April, 1872 524 m. 2 9th AprU, 1872 395 13th April, 1872 368 1st April, 1874 375 et seg., 510 n. 4 20th April, 1876 ' 388, 390, 396 22d March, 1877.; 385,387 16th Apriii 1879 393 11th June, 1879 370 2l8t May, 1881, P. L. 24 523 71.4 2l8tMay, 1881, P. L. 26 163, 217 7t. 7 20th June, 1883 226 71.2 24th June, 1885 390 -A:CTS OF CONGKESS 3d June, 1864 529J^.1 2d March 1867 212 71.5 22d June, 1874 2427».l 572 INDEX. I Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. ADMINISTEATION effect of want of, on limitation „ 18& ADMINISTRATOR supersedure of, effect on limitation.' 191 debtor's fraudulent abstraction of note from, limitation 191 when debtor is, arrests running of statute 192 excessive advance to widow, limitation as to recovery back 204, 222 effect of his acknowledgment of debt, or promise to pay 253- action against, for distributive share, no limitation 273- after devastavit, when no limitation 273- , duty to file account not barred by limitation '. 279 may plead statute 291 special bond of, seven years' limitation as to 353- general bond of, without limitation ■. 353 bond of, subject to twenty years' presumption 302; when twenty years begin to run 308,309' as to surety '. 308- paying proceeds of land sold, when presumption begins 311, 328 liability of, to file account, twenty years' presumption as to 303,306 presumption as to his paying over balance on first account 320' in action on transcript 304, 328 selling land in partition, presumption he has paid arrears of dower .'306 ADMISSION of want of title, consistent with adverse possession... ^ 43'- owner's title, when inconsistent with adverse possession 43- by widow of intruder, that he claimed but a life estate, cannot affect heirs... 45' after title by adverse possession acquired, harmless 142 71.3- that user of way is not adverse 128 of non-payment of debt, overcomes twenty years' presumption 316- as repelling presumption of payment of debt 32,3 et seq. I action on the original obligation 316< must be reasonably certain 324r implied in claiming a partial credit 324- miist be by debtor or agent 325 need not be made to creditor or agent 316, 325- by one of several joint debtors 316. two or more several debtors 325 pending suit 323 of non-payment of debt, by pleading 323: must be intelligible 323 reasonably applicable to the debt 324 when not identifying debt 317, 324 by non-denial of the debt 326 when declared purpose not to pay is not 326 valid, despite declared purpose not to pay 326. not implied in negotiating for satisfaction of a mortgage of record 473 m. L INDEX. 573 Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. ADMISSION— Confirmed. of payment to wrong party, effect of on presumption 326 debt by act ambiguous in character., 326 liability by filing account..'. , ,327 etseq, implied in conditional promise 332 payment, creditor's, as aiding presumption from less than twenty years... 346 as tolling statute of limitations ..j 229 et seq. of debt, implies a promise to pay 230 after or before six years expired 230 pending suit 230 on Sunday 230 more than six years before action 230 necessary characteristics of. 230,238 that it once existed, must be clear ; 232 still subsists, must be clear 233 as subsisting, not implied in admitting note 238 silence not equivalent to 233 not implied in accepting service of summons 233 refusing to swear debt paid 233 need not be express 234 by surety's accepting indemnity 234 co-debtor's taking from his fellow an indemnity 244 bank's taking a refunding bond 234 ineffectual, when purpose not to pay appears 235 with expressed purpose to pay to another 235 not implied in insolvent's enumeration of it, in his petition 236 executor does not make, by naming own note to appraisers 236 items in an account 237 part of a debt 237 by bank's attorneys, list of overdue notes 241 must identify the debt , 243 et seq. in will, of "debts" 243 particular debt ; 244 must ascertain amount of debt 245 et acq. of physician's bill 245, 247,251 indebtedness for domestic service... 245, 250,252 farm labor 247 supplemented by another 238, 330 n. 1 that was sufficient 241 by whom made 253 executor or admlnistrictor 253 to whom made > 254, ADVANCEMENTS limitation not applicable to 273 unascertained, rebuttal by, of twenty years' presumption of payment of recognizance .^ 336 574 INDEX. Numbers without n, indicate the sections. Numbers preceding n. indicate the pages, and thfr numbers following n. the notes thereon. ADVEESE user of right of way 126, 128- ADVERSENESS of possession, evidence of. 4& as between co-tenants, rebutted 71 user, necessary to create easement 133- ADVERSE POSSESSION not necessary under seven years' limitation, of fifth section act 26th March, 1785 12: necessary to operation of twenty-one years' limitation .14, 32 nature of : ; 32,46 intruder's knowledge of true owner, unnecessary to ; 32, 34 not inconsistent with 33, 35- and admission he is such, not inconsistent with 35, 43 may be got or maintained by violence .' 34 force unnecessary to i. 34 acquired under habere fadoi possessionem 43 71.3 and maintained by threat 43n. 3 explicit denial of owner's claim unnecessary to 35- ptirpose to surrender on demand, inconsistent with 43 n. 5 express or tacit consent of owner 35- eflfort to find owner and buy from him, not inconsistent with 35, 43 ieffect of mistake on 36, 37~ begun by right, not 38 entries in pursuance of license, not 39^ following friendly ppssession 40- • ceasing to be adverse 42, 57 of tenants in common 61 et teq- see Tenants in Common. must last twenty-one years 73- AFFIDA.VIT OF DEFENSE alleging bar of statute '. 295- age;nt of commonwealth ' adverse possession by, makes title for State 42 m. 5 AGENT when intruder is, for the owner 4571.2 intruder's agreement with, estopping from alleging possession adverse 44 possession of, not hostile to principal 48 for sale, estopped from alleging title by limitation against his vendee 108 limitation of action against, for taking inadequate securities in loaning prin- • cipal's money 195- fraudulent purchase for principal at exces- sive prices... 197 to collect money, fraudulent concealment of collection 198 settle and pay a debt, fraudulent overstatement of amount paid 19& negligence of, in not keeping debtor's judgment alive, assigned as security... 202,221 INDEX. 575- Numbers without n. Indicate the section^. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. AGENT— Coniijiued. to collect money, when limitation runs 203 compensation of, at close of agency, limitation 215 may acknowledge a de})t and toll statute .'. 253, 254 of creditor, admission of debt to, as overcoming twenty years' presumption of payment 316- ALDERMAN'S FEES actions for, limitation 216- ALIAS WEIT to continue action, limitation ,178- presumption of payment : 314- AMENDMENT of ejectment, adverse possession counted to 80- to creditor's bill 227 n. 3 personal actions, limitation 181 etseq. form of action.. 182: by adding or substituting defendants 183 to bill in equity, limitation 284 of action on official bond 355- APPEALS errors and, limitation to 375 e< seq. from justices' judgments 171, 230 n.. 3, 386 etieg.. AKBITEATOES appeals from awards of, limitation of 381 et seq^ waiver of limitation 382 ARREST of the limitary period, once begun 184 et seq^ beginning of limitary period, by debtor's death without admiaistration.... 189 term, by statutory suspension! of right of action 190- limitary term, by fraudulent supersedure of administration of creditor's estate 191- altemative option in debtor's will 191 corporation, debtor, making assignment, &c 191 beginning of limitary term, by law's withholding right of action....:.. 192: limitary term when debtor becomes administrator 192 ASSESSMENT condition to action on stockholder's note -■■•• 224 on stock, oral agreement as to inadmissible, as to twenty years' presumption.. 312. for street improvements, no limitation as to ...272, 273 damages by canal company, twenty years' presumption as to 305 ASSIGNEE appeal to Supreme Court in cases relating to limitation of. 378- effect of nonpros, of, one appeal on... '■■ 378^ may avail himself of twenty years' presumption, as against assignor 310, 341 assignor may avail himself of twenty years' presumption against 310, 341 . assignee may avail himself of twenty years' presumption against creditors... 341. 576 INDEX. ITumbers without n. Indicate the sections. Numbers preceding n. Indicate the pages, and the numbers following n. the notes thereon. ASSIGNEE— Continued. liability of, to account, presumed discharged in twenty years 303, 307 for creditors, possession o^ adverse to resulting trust of assignor 80?i. 4 liability to file account not subject to limitation 279 of securities, as collateral, recovery of excess beyond debt ..., 203, 210, 214 back thereof. 226 promise of, to re-assign 304 m. 9 improper sale of 260 m. 2 judgment as collateral, failure to keep it revived , 202, 222 action to recover proceeds of, from 257 n. 3 of, against his agent for failing to keep revived 202 ASSIGNMENT voluntary, in trust, debts presumed paid » 303 in insolvency, debts presumed paid. 303 when the twenty years begin to ran against the debts 310, 344 revesting of title, notwithstanding, by presumption of payment of debts 310 property embraced in, presumed the only source of payment 310, 446 n. 3 time pending suit contributive to presumption 313 of claim does not arrest running of the twenty years 339 statute 187 by corporation, effect of, on limitation of actions against 161 distribution under, limitation set up in 168, 175, 278 in Maryland, distribution under with regard to Maryland limitation 219 n. 2 for creditors, by debtor, does not arrest statute , 186 ASSUMPSIT presumption of payment applicable in 305 ATTACHMENT in execution, twenty years' presumption in 307 foreign, twenty years' presumption ..305, 314, 333, 335, 340, 445 n. 4 ATTOKNEY-AT-LAW limitation as to land purchased by 142, 145 negligence of, limitation to bill in equity for 169 of action for 212,213 money collected by, limitation of action for 196, 203, 226 false concealment of fact of collection 193 silence of, as to collection, or negligence 199 negligent failure of, to collect, limitation. .- 201, 213 to enforce resulting trust against, as to chattels 203, 210, 226 negligent delay of, to bring suit, limitation of action for 201, 213 management of suit, limitation of action for 201 limitation of action for fees 205, 212 when fees are annually payable.... 215 payable after future event 220 partial collections are made, limitation of actions for the money col- lected 213 INDEX. 577 INum^eis without n. Indicate the sections. Numbera preceding «. indicate the pages, and the numbers following n. the notes thereon. ATTOKNEY-AT-LAW— CbniiTMjed!. , fault of, relief against, in appeals from justices' judgments 393 as bail in appeals from justices' judgments 396 authority of, to waive statute 237, 253 action of, against co-attorney for share of fees 222, 257 n. 3 ATTORNMENT by intruder to owner, possession ceases to be adverse 44, 45 tenant to another thaui landlord .* 58 true owner, interrupts adverse possession. 75 threatened with habere faeias possessionem 81 AUDITOR making distribution in Common Pleas applies limitation 168,175 Orphans' Court applies limitation 185 AWAED action on, not subject to limitation 272 of arbitrators, appeals from 381 ei seq. B. BAIL in appeal from judgments of justices , 388, 390 BAILEE limitation to bill to compel surrender of bailment 169, 211 BANK DEPOSITS limitation of actions for 224 statute tolled as to, by taking refunding bond 234 subject to twenty years' presumption of payment '. 304 when "twenty years begin to run 308 honoring check drawn on, admission of balance 479 n. 1 BANK'S LIEN on stock, limitation as to 278 BANK NOTES less than $5, action on subject to six years' bar 363 penalty for not keeping notes at par in Philadelphia and Pittsburgh, two years' limitation as to 363 BANKRUPTCY proceedings in, statute of limitations not arrested by 187 BARK entries to peel, not possession 20 BASE FEE possession under not adverse to reversioner 95 BETTING - in horse racing, limitation as to recovering back the thing bet 359 limitation as to recovering back the thing bet.. 360 of action of poor commissioners to recover the thing won 361 2m 578 INDEX. Numbers without n. Indicate the sections. Numbers preceding n. Indicate the pages, and the- numbers following n. the notes theieon. BILL IN EQUITY see Equity. BILL OF PAETICULAKS by plaintiff, showing reliance on admission or new promise to toll statute, unnecessary 256 BILL, SINGLE presumption of payment of. 302: BILL OF REVIEW in Orphans' Court 384 BONDS «ee Official Bonds. not subject to limitation 271 twenty years' presumption applies to 302^ when twenty years begin to run 308 administrators', presumption of discharge of. 302 by executor, to pay legacy, presumed paid 302 BOOK ACCOUNT , unilateral, when limitation runs 217 BOEROWEK who lends, action against his borrower, limitation 220' of chattel, limitation of action to recover it 28(^ BOUNDARY mistaken adoption of, effect on limitation 45n.4 renunciation of claim to 42; possession up to, by grantee of part of grantor's land 51 BRIDGE easement for abutting, possession under not adverse 48 n. 3 created by user 132: BURDEN OF PROOF on party alleging title by adverse possession 48- last occupant to show connection of his possession with that of previous occupants 84 to overcome presumption of payment 338 "BY NOVEMBER NEXT" mill to be finished, when limitation begins 220' O. CASE STATED presumption of tw'enty years, in SIS' CASHIER debtor to his bank, limitation 199 CATTLE herding and grazing in summer, not continuous possession of land 19 n. 1, 74 CAUSE OP ACTION not form, determines applicability of limitation 168 INDEX. 579 Numbers without n. indicate the sections. Nuuheis preceding n. indicate the pages, and the' numbers following n. the notes thereon. CAVEAT as means of contesting will 349 et $eq., 0& CLERK liability of, in Philadelphia, for false search, limitation 36& COAL severed from general title to soil, adverse possession of. 15, 20, lOO periodical entries to take, not possession of land .....20, 74 easement to extract from another's land 132 COLLATERAL SECURITY actions to recover back ,- 210 right to retain survives bar of personal action directly on the debt 27&' COLOR OF TITLE what is 22: effect of, on extent of possession 21, 23- 40 two or more adjacent tracts, effect of, on extent of possession 21 n. 5- want of, as affecting, extent of possession 23 et >eq~ unnecessary to make adverse possession effective 23, 33- abandonment of lines under, effect of, on possession 35 n. 1 COLLECTING MONEY by attorney, client bound to inquire , 20S when attorney conceals fact. • 196 et »eq.. agent for, fraudulently conceals 198, 257 ». 6» COLLECTION OF JUDGMENT held as collateral, concealed, limitation 257 ». 3; S90 INDEX. Numbers without n. indioate th6 sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. COMMENCEMENT of twenty-one years, not with descent cast, but with beginning of adverse possession 15 six years' limitation in personal actions.. 173, 206 et seq. twenty years making presumption of payment 308 COMMISSIONEES' SALE limitation of ejectment by purchaser at 370 el seq. COMMONWEALTH title acquired by, by adverse possession 42 n. 5, 110 cannot lose title by adverse possession 102, 112 not subject to six years' limitation 290 twenty years' presumption 339 , seven years' limitation as to o£Scial bonds 355 (COMPUTATION of the six years' term of limitation 177 twenty years, making presumption of payment 313, 339 six months' limitation as to usury 369 .three years for appeals fromdecrees of Orphans' Court 379 twenty days for appeals from arbitrators' awards 381 justices' judgments 387 decree in distribution proceedings 383 CONCEALMENT fraudulent, of fraud, effect'of, on limitation 195 non-fraudulent, of fraud, effect of, on limitation 196, 197 fraudulent, of non-fraudulent ground of action 198 mere silence not 198 of receipt of money for another .' 198, 257 m. 3 by debtor, of existence of debt 198 fCONDITIONAL PBOMISE to pay debt, effect of, on limitation 239 twenty years' presumption 332 'CONNECTICUT title, protected by twenty-one years' limitation 5n. 1 (CONSTABLE admission of debt made to, while executing capias 230 six months' limitation as to actions against 358 OONSTABLfeS BOND limitation of actions on 356 in Philadelphia, three years' limitation applies to 356 special, under the seven years' limitation 356 •CONSTITUTION Sec. 21, Art. III., as to limitations of actions against corporations , 165 430NSTITUTIONALITY of acts of limitation 166 et seq. limitation for damages for death 210». 2 .statute destitute of, forbidding action, effect of, on limitation 187, 190 INDEX. 58 X Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the' numbers following n. the notes thereon. CONSTRUCTIVE POSSESSION insufficient to bar title '. ; 14J CONTINUED possession must be, to bar title 1^ user must be, to create easement adversely ' ..; 133: make right of way. 124- CONTEACT OF SALE as making color of title 22 CONTRACTUAL LIMITATION... ,. 375 etseq. legality of '. 375. , for and against corporations 373; form of contract for 373; waiver of. ; 374. mistake in origin of risk, in policy 3V4 CONTRIBUTION excessive, of one joint debtor, limitation as to recovery back 204, 209, 227 CONVEYANCE promise to reward for service by, when limitation begins... „ 250 to. E CORPORATION may acquire title to land by limitation : llOi lose title to land by limitation , 110>' suspending business, making assignment, &c., no limitation in favor of... 161, 192^ directors in, limitation as to , 162: peculiar limitations in favor of, unconstitutional 165- bills, when the statute ceases to run against .....183,284 limitation of action against for refusing to transfer shares j 22&- subject to six years' limitation 290» lien against, presumption of discharge of. ; :... SOS- may subject itself to contractual limitation.. 373- must give bail in appeals from justices' judgments 388, 389» CORROBORATION of presumption of payment 31& by plaintiff's admission that debt is paid s 31& ' financial capacity of debtor 818' COUPON attached to bond, not subject to limitation 271. COUNTY may Require title to land by limitation 110 lose title to land by limitation 110> affected by twenty years' presumption 339< seven years' limitation on official bonds 355- six years' limitation 290> action by, against commissioner for money received, when limitary term begins 195' division of, after appeal from justice, where transcript must be filed 552 w. & •582 INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n, the notes thereon. COURTS which apply the six years' limitations 171 function of, with respect to adverse possession 48 of co-tenant 72 entry 119 presumption of conveyance 188™. 6 admissions or promises to toll the six years'' limi- tation 296,297 in applying twenty years' presumption 315 • as to rebuttal of presumption 317 admissions, as rebutting presumption 326 with respect to contractual postponement of time of payment, as affecting twenty years' presumption 331 conditional promise to pay, as affecting the twenty years' payment 332 when less than twenty years have run 343, 344 COVENANT under seal, presumption of discharge or payment of 302 COVEETUEE under statute 32 Henry VIII. c. 2 11 no exemption for, under fifth section of act 26th March, 1785 .'. 13 exemption for, as to twenty-one years' limitation 87, 90, 91 ad verae user of way during, ineffectual. 127 no exemption for, from five years' limitation as to implied trusts.. 147 ■exemption for, in personal actions , 156, 175 el leq. assiim/pnt 175 from twenty years' presumption 339 no exemption for, as to five years for contesting probate of will 351 exemption from seven years' limitation for claiming shares in intestates' estates 366 two years' limitation, in errors and appeals 375 CEEDITOES may oppose statute to claims against decedent's estate 253, 291 claims of, under assignment, when twenty years' presumption runs 310 CEEDITOE'S BILL limitation astp 169 amendment of 227 n. 3, 237 n. 1 when statute stops running against 183 CULTIVATION adverse possession by, sufficient 16, 19 not essential 16, 17, 18 must be uninterrupted for twenty-one years 77 CURTESY possession during, not adverse to heirs 39 adverse possession during, as affecting remainderman 91 INDEX. 583 ITumbers without n. indicate the sections. Numbers preceding ». Indicate the pages, and the numbers following ». the notes thereon. CVRTESY— Continued. when barred 91, 104 by possession prior to wife's death 94 release of, to remainderman, effect of on title gained by adverse po8seBsion..l38 n. 1 in ground-rent 121 D. DAM easement to maintain 132 DAMAGES from death, limitation of actions for J 164 breach of contract to convey land 205, 251)1.3 for sale as slave, of one in fact free, vendee's action 200 flooding land 221 railroad taking land, no limitation for future 274 from construction of canal, no limitation 274 for diminished flow of water, under eminent domain 274 land taken under eminent domain 303 DEATH damages for, limitation as to ., . 164 as interrupting statute , 1S5, 189 of debtor, before maturity of debt, delay of statute 189 creditor does not interrupt the twenty years' presumption 339 DEBT action of, barred 154 substitute .for o^sumpstt, barred 168 presumption of payment available in 306 DEBTS payable infuiuro, when limitation begins 215 DECEDENT'S personalty, creditors' claims against, barred %.... 278 presumed paid 311 seven years' limitation to claims of shares in 366 et seq. irrelevant to creditors' claims 367 land, liability of, to sale for debts presumed discharged 303, 307 not subject to seven years' limitation 367 DECEIT in representing another's solvency, when limitation runs 249 «. 2 DECEAEATION by intruder, effect of on adverseness of past possession 48 n. 1 as showing adverseness 46 tenant in possession, as to whom he is in under 46 as to boundary claimed to ^ 46 that life estate is claimed by pefson in possession 46 by tenant, of hostility of his possession to landlord 61 n. 1 written, showing possession not adverse 47 684 INDEX. Numbers without n. Indicate the sections. Numbers preceding ». Indicate the pages, and the numbers following n. the notes thereon, DECLAEATION— Continued. of person making entry, for whom ^ 115 of hie purpose 117 by co-tenant, not enough to oust co-tenant. 62 when unnecessiry 63 of person in possession, for whom he holds 82 DEDICATION of way to public 131 DEED color of title by 22 yoidable, adverse possession of grantee under 33 possession under, not presumed to extend beyond limits therein defined 39 by grantee, adverse 49 preceded by contract, possession under both adverse 70n. 2 receipt in, presumed accurate in twenty years 303 DEFENDANT in judgment, presumption of payment rebutted as to, by revival against terre- tenant 342 DEFINITE posseseion must be, to bar title ■. 14 DEMAND as precondition of right of action 224 e< seq. for payment of stock subscription 225 debt, as rebutting presumption^ of payment 319 DEMUEEER to bill in equity, setting up limitation 284 plea of statute 293, 294 bill in equity, setting up presumption of payment _. 483 n. 3 evidence.. 296 DENIAL verbal, of owner's title unnecessary to adverseness of possession 35 DESCENT connecting adverse possessions of successive persons by 83 when presumed : 137 ef sej. DETINUE action of, barred 154 DEVASTAVIT after judgment against administrator, no limitation 273 ' beginning of twenty years' presumption, as to surety's liability on administra- tors' bonds 308 DEVISE possession of wrong land under, adverse 52 conditional, failing to take effect, limitation as to heirs 94 on devisee's promise, trust barred in five yeara 146 when five years begin ; 147 INDEX. 585 I^umbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the' numbeis following n. the notes thereon. D^YISE— Continued. conclusiveness of probate of will as to , 348 etseq. color of title by 22 connecting successive adverse possessions by 83^ when presumed , 137 etseq. DIBECTOE ' in corporation, limitation of actions against 162, 218, 219" bill in equity against 162, 169,.218, 219- DISABILITIES exemption of, from twenty-one years' limitation as to land 4, 7, 8, 87 et seq. no exemption for, under fifth section of act 26th March, 1785... ., 13- supervening after right of action as to land begins : 87, 184 successive, only first operative. 88, 127 of successive owners, only first operative....'..,.... 88 as to personal actions 173 et seq. courts cannot make exemption for 167 DISCLAIMEB of part of laud held twenty-one years adversely 45 landlord's title by tenant .'. ^ '. 58 by trustee of the trust 59 DISTINCT possession must be to bar title 14 DISTEIBUTEE'S claims must be made in seven years 366 et seq. action on administrator's bond, twenty years' presumption as to... 309- share, action for against administrator 273 DISTRIBUTION proceedings, twenty years' presumption applied to 306 days' limitation for appeals in 383 DITCH easement to maintain on neighbor's land 132 DIVIDENDS on stock, limitation of actions for 224, 273 sealed agreement to pay, no limitation to action on 271 from decedent's personalty, twenty years' presumption as to 311 DOMESTIC RELATIONS consistent with loss an^ gain of title to land by limitation Ill DONEE OF LAND by parol, adverse possession of. 33 DOWEB ' widow's possession presumedin exercise of. 38 acquired by adverse possession '. 101 lost by adverse possession 103 charged on land, action for money not subject to limitation 273 wnde nihil habet, twenty-one years' limitation available in 113; no limitation as to arrears 273 586 INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. DOWER— Cojiiinued. arrears presumed paid in twenty years , 302, 306 principal sum presumed paid in twenty years from widow's death 302, 304 when presumptive period begins 308 partial payment of as overcoming presumption 330 DEUNKAED committee of, must set up statute 168 halance found due, limitation as to 272 DUE-BILL payable on demand, limitation as to 224 DUNG-HEAP adverse possession by maintaining 21 n. 1 DURATION »of adverse possession .- 73 beyond 'statutory term 108 ' E. "EASEMENTS possession under, not hostile to the servient title 48 m. 3, 134 n. 3 acquired by adverse user 120 transferred by adverse user. ; 120 in gross 163 n. 4, 167 n. 4 of light and air 130 miscellaneous, acquisition of by user 132etseg. properties of the user 133 extent of right by user 134 by and against whom acquirable 135 extinction of. • 136 not subject to six years' limitation 274 ' EJECTMENT limitation as to second .^ ,.364etse7. by purchaser at sheriff's, treasurer's and commissioners' sales ". 370 6*889. probated will cannot be contested in 351 presumption of payment available in 305 on mortgage for part of premises, rebuts twenty years' presumption in second ejectment for other parts > 321 effect of on defendant's possession 81 recovery in by title by limitation 81 EMIGRATION of debtor, effect of on presumption of payment 335 ENTEY none after twenty<-one years 2 how it operates 85 of minors, femet covert, &c 4 ejectment within one year after, necessary 5 I INDEX. 587 3JumbeTS without n.' indicate the sections. Numbers preceding?}, indicate the pages, and the numbers following «. the notes thereon. ENTRY— Confimwed. virtue of. 114 by whom it may be made. ill5 where it must be made 116 nature of. 117 notice of to person in possession ' 118 proof of '. 119 need not precede ejectment 151m. 1 EQUITY of redemption, barred in five years 144 acknowledgment of, extends limitary term 150 bill in, subject to six years' limitation „...168, 169 limitation in 281 et seq. subject-matters in, to which limitation applies 283 bill in, for dower, limitation 283 laches in less than six years' delay 283 pleading in respect to limitation 284 demurrer in respect to limitation 284 amendment of 284 twenty years' presumption availp,ble in 304, 305 EEEOES AND APPEALS limitation as to , 375.e< seg. ESCAPE action against constable for permitting, limitation 358 ESTATES for years, possession under, not adverse 41 successive in same person, effect of on limitation. 94 different person, effect of on limitation 95 tail, limitation as to 96 ESTOPPEL against asserting adverseness of possession 42, 44, 52 n. 3 from inducing owner to refrain from suit. 48 title acquired by,It)st by 108, 142 ji.4 against asserting six years' limitation 298 a contractual limitation 374 EVICTION beginning of twenty years' presumption as to warranty in deed 311 EVIDENCE whether possession is adverse 46 ' of ouster by one co-tenant, of another 64 adverseness of user of way 128, new promise or acknowledgment to toll statute 256 I partial payment to toU statute 261 -EXCEPTION in deed, of part of tract, effect of on title to by limitation 45 588 ' INDEX. Numbers without n, indicate the sections. Numbers preceding n. indicate the pages, and thet numbers following n. the notes thereon. EXCLUSIVE possession must be, to bar title 14, 85 <■ meaning of 85- EXECUTOR promise to pay, or admission, effect of on statute 253 may plead statute 291 his payment of legacy presumed in twenty years 30& liability to settle account in twenty years 311 EXTENT of adverse possession 21 etaeq. determined by unity of title 28 use : 2» as affected by owner's actual possession be- yond interference 30 as affected by owner's actual possession of contiguous tract 31 I beginning under a dee.d 39 must be uninterrupted 79 exercise of right, as admeasuring easement 134 F. FACTOR excessive credits allowed, recovery back, limitation 194 FEE TAIL limitation as to 9& FEME COVERT • actions as to land, statutes ■. 4, 7, 8 no exemption under 32 Henry VIII. c. 2. 11 fifth section of act 26th March, 1785 13 cestui que trust, possession adverse to 52, 81 n. 1 exemption as to twenty-one years' limitation 87 may acquire title by limitation ., .^ 110 adverse user of way ineffectual against 127 no exemption as to five years' limitation for implied trusts 147 exemption of in personal actions 156, 175 et seq. valid, in action during coverture 174 applies in assumpsit 175 cannot, by admissions of debt, toll statute 253 not subject to presumption of payment 339 no exemption from five years' limitation as to probated wills 351 exemption from seven years' limitation ijy distributing intestate's personalty.. 366 two yeai's' limitation in errors and appeals 375, 537 Ji. 1 FEME SOLE TRADER exemption of from limitation 175 FENCES worm, as defining boundary 45n.4 division 4571.4 land covered by, limitation 39i INDEX. 589 ' Numljers without n. indicate the sections. Numbers preceding ». indicate the pages, and the ' numbers following n. the notes thereon. J'ERRY right of way acquired by owner of 126, 163ra.4 landing acquired by owner of 132, 134, 163 n. 4, 178 n. 1 from, acquired by public 131 to, not acquired by user 177 Ji. 5 FIEEI FACIAS ^ ■ - twenty years between successive writs of, presumption 314 rebuttal of presumption as to subsequent fi./a 321 TIEE ENGINE CO. admission of liability by 231 FISH periodical entries to, not possession. 19n. 1 easement to, in other's waters 132, 138 FISHERY owner of gains right to drag nets ashore 163 m. 4, 167 m. 4 FIX A DEBT , , promise to, as tolling statute , 251 et seq. PLOODINa of neighbor's land, easement for 132 land, damages for, limitation 221 FORCE adverse possession interrupted by 75 possession begun and continued by, limitation 142 n. 4 unnecessary to make user of way adverse 126 FOREIGN ATTACHMENT presumption of payment in 305 by time pending action ^■. 314,333 garnishee may assert presumption ; 335, 340 J"OREIGN COUNTRY debtor's residence in, effect of on presumption of payment j 335 garnishee in foreign attachment 335 see Seas, Beyokd. PORFEITUEE limitation in actions for • 362 et seq. FORGED ORDER limitation as to recovery back of money paid on 203, 218, 249 n. 3 TORTY YEARS' LIMITATION as to land ' FRAUD adverse possession under deed tainted by, as to creditors...! 52 interruption of possession by means of. 75 of purchaser at sheriff's sale, limitation as to trust arising 146 in stating an aicconnt ". ; 269 constructive 200e«»eg. 690 INDEX. Numbers without ». indicate the sections. Numbers preceding n. indicate the pages, and thff numbers following ». the notes thereon. FRAUD— CoTUinued. as cause of action, when limitation begins to run 193 et seq, in trustee's account, bill of review.. .1 384- justice's judgment, effect of on time for certiorari 385> breach of promise to compensate by land, not 250 n. 1 FRAUDULENT CONVEYANCE when statute runs as to attaching purchase-money due by grantee 250™. Z- twenty years' presumption as to 313, 341 FUEL -■ periodical entry to cut, as indicating extent of possession 25" not a continuous possession 74 FUTUEE maturing of debt, when statute runs > 215 compensation for labor, at debtor's death 215- by devise 215 payment on happening of an event 216,220' sale of land 21ft timber 22a annually for use of patent previous year ^ 219 promise of, as tolling statute 241, 242^ a. GARNISHEE in foreign attachment, may set up twenty years' presumption... .335, 340^ 341, 342^, attachment execution 341 GAS WORKS fraudulent purchase by chief engineer, limitation 197" GIFT OF LAND making color of title 22 possession under adverse 50 GOOD FRIDAY when last of twenty days for appeals falls on 387 GRANT unnecessary to support prescriptive right to way 123- when presumed 137 etseq. GRANTEE after-born, adverse possession as to 98 possession of, under deed, adverse 49,50 in excess of grant, adverseness of. 51 Tfrong tract 51 GRANTOR when possession of, not adverse to grantee 40 GRAVEL periodical entries to take, not a possession 20^' INDEX. 591 Numbers without n. inclioate the sections.. Numbers preceding ». indicate the pages, and the numbers following n. the notes thereon. GROUND-KENT entry and possession by ground landlord not adverse 38- possession of ground tenant not adverse to landlord's remedies 48 adverse possession of. ; 129 n. 1 title to acquired by adverse possession 121 .partition of 121 destroyed by non-recognition 122; creation of, presumed 139 entries for condition broken, redemption barred ; 144 payment of, to cestui que trust of rent, five years' limitation 148- resulting trust in 148 arrears of, not subject to limitation ; 272: presumed paid in twenty years 302, 305, 311 GUAKANTOE limitation of action against 208- GUAEDIAN liability of, limitation 170,279- suing forward, exemption 176- payment by, justified 220' liability of, presumed discharged in twenty years 307, 309' H. HABERE FACIAS POSSESSIONEM effect of, on possession 81 possession begun by, effectual 142 n. 4 HOSTILE possesspn must be, to bar title 14 HUNT periodical entries on land to, not a possession 19 n. 1 HUSBAND second, possession of, as adverse to heirs of first husband 38, 46 n. 3 of co-tenant, possession presumed not adverse 38 possession of, before act of 1848, not adverse to wife 39- submission to owner impairs not wife's possession 56 n. S- possession of, of wife's land, after her death, without curtesy 57 adverse to wife and heirs 58, 111 and wife, limitation as to action by, for land 91 action by, for death of wife 164 cannot, by admitting wife's debt, toll statute 253- I. IDENTIFICATION of debt, by promise or admission 243 et seq. extent of debt 245 et teq.. 592 . INDEX. Numbers without n. Indicate the sections. Numbers preceding n. Indicate the pages, and the numbers following n. the notes thereon. IGNOBANCE of cause of action, limitation 203 twenty years' presumption 334 plaintiff in foreign attachment, that garnishee has assets of defendant, presumption of payment 334 better title not inconsistent with adverseness of possession 34 IMPLIED trusts, enforcement of, barred 1.145 et seq. IMPEISONED exemption of, as to land, statutes 4,7, 8 no exemption under fifth section of act 26th March, 1785 13 exemption as to twenty-one years' limitation 87, 93 in personal actions 156, 176 as to two years' limitation in errors and appeals 375 IMPEOVEMENT seven years' limitation as to 5, 12, 13 INCLOSUBE possession by .' 18 must be uninterrupted , 76 INCOEPOREAL HEREDITAMENTS 120 et$eq. INDEMNITY taking of, as admission of liability 234, 244 INDORSEMENT of partial payment, evidence to repel limitation 261 overcome twenty years' presumption ' 330 INDORSEE'S action against maker, limitation as to 206 liability, limitation as to ; 206 INFANCY disability as to land: 92 personal actions 156, 176 presum{>tion of payment 337, 339 exemption from seven years' limitation as to sharing in decedent's personalty, 366 in respect to errors and appeals 374 INSANITY exemption from twenty-one years' limitation 4, 7, 8, 89 not exempt from seven years' limitation, section 5, act 26th March, 1785 13 exemption from six years' limitation 156, 176 exempt from two years' limitation as to errors and appeals 375 see NoN Compotes Mentis. INSOLVENCY of debtor, as affecting twenty years' presumption 333 INSOLVENT'S assignee, partial payments by as tolling statute 253, 258 petition,' enumeration of debts, statute not tolled by 236, 254 INDEX. 593 Numbers without n. Indicate the sections, Numhers preceding ». indicate the pages, and the numbers following n. the notes thereon. INSTALLMENTS debts payable in, presumption as to 312 former suit for earlier, rebutting presumption as to later 322 on shares of stock, limitation as to 2i8 INTENTION adverseness of possession a question of 46 INTEEEST unlawful, six months' limitation as to 369 limitation available in assumpsit, execution-attachment, &c 369 computation of the six months 869 six months' limitation not applicable to national banks .....529 n. 1 INTERFERENCE of surveys, when possession with true owner 15, 23 extension of possession to by pedal possession beyond 28 with two or more tracts owned by diflferetit persons 28 same person 29 rightful owner without possession beyond 28, 29 in possession beyond ; 30 INTERRUPTION of user, effect of on right of way.... 125 possession must be without for twenty-one years 74 adverseness must be without for twenty-one years 75 inclosure must be without for twenty-one years 76 cultivation must be without for twenty-one years 77 residence must be without for twenty-one years 78 extent must be without for twenty-one years 79 of possession by bringing action 80 six years having once begun.... 184 et »eq. by death '. v 185 assignment for creditors 186 war 188 criminal prosecution •, 188 bankrupt proceedings • 187 otherwise 187 of twenty years making presumption 337 JNTRUDERS rival, on same tract, extent of possession 31 n. 2, 107 n. 2 interruption of each other's possession 74 co-operating in maintaining adverse possession .'s 117 n. 1 ISSUE OF TENANT IN TAIL when barred If'^^ J. JOINT DEBTORS partial payments by one, tolling statute 260 2n 594 INDEX. Numbers without ». indicate the sections. Numbers preceding n. indidate the pages, and the- numbers following n. the notes thereon. JUDGMENT in ejectment, effect on adverse possession 81 I scire fcudaa quare executionem non, on 110 n. 2 purchaser at sale under, defendant's possession adverse 132 n. 1 in ejectment, against intruder, innocuous as to title already acquired by ad- verse possession 14:2 n.^ personal action, reversal of, how limitation affected 155, 180' arrest of, how limitation affected 155,180 actions on, no limitation as to 172, 272' tcire fadas on, no Limitation as to 272 improper satisfaction of by assignor, limitation 193, 205- substitution for mortgage by agent to loan; limitation 195 warrant for entry of, twenty years' presumption 305, 438 m.4 against co-defendant, presumed paid... 307 courts will open to allow defense by statute of limitations 299 foreign, presumed paid in twenty years , 302 domestic, presumed paid in twenty years - 302 in foreign attachment, presumed paid in twenty years 302 JUNIOR survey, interference with senior, possession of 28- several senior surveys, possession 28 surveys, contiguous, interferences of with one senior, possession of. 28, 35 n. 1 JUKY "function of, as to adverse possession 48 co-tenant's adverse possession 72 entry 119 presumption of conveyance 188ji.fr admissions oi debtor promises to pay 296, 297 whether pronjise is conditional or not 239 duty of obedience to court 299 function of, as to twenty years' presumption 315- rebuttal of presumption 317 by admissions 326 presumption in less than twenty years 343 JUSTICE OF PEACE ■ reversal of judgment of, effect on limitation 163 limitation, applied by 171 in appeals from 230 n. 3 fees, action for, limitation 216 actions against, six months' limitation 358 certiorari to, limitation 385 when no service of summons. 385 notice to defendant where to appear 385 record not conclusive when judgment was entered 38& want of jurisdiction 385 fraud in entering judgment 385 to what judgment twenty days' limitation not applicable 385 INDEX. 595 Numbers without n. indicate the sections. Numbers preceding «. indicate the pages, and the numbers following n. the notes thereon. JUSTICE OP PEACE— OwiJiTMied. appeals from, limitation .^...- 386 et aeq. computing the twenty days 386 . requisites of. 388 et seg. bail in , .•388,390, 394 e< seg. a£Bdavit 388,390 payment of costs 388,390 wages cases, affidavit 388, 390 excuses for delay in 391 filing in Common Pleas 386,489 et eeq. of Philadelphia 389, 549 re. 1 after division of county 552 re. 5 excuses for failing in .". 392 e« seg. withdrawing appeal , 389 imperfect bail 394,395,396 by corporations 396 appellee's waiver of. .^ 397 K.. KNOWLEDGE of owner, effect on adversepess of possession 43 re. 5 want of title, effect of oij adverseness 35 facts creating trust, five years' limitation 151 et seq. want of, as affecting twenty years' presumption 334 statute of limitations v 203 to wrongful aoi of justice or constable, effect on six months' limita- tion 358 L. LANDLORD proceeding to dispossess tenant, tw.enty days' limitation for ceriioraii 385 LAWS agreed upon in England, limitation as to land 6re. 5 LEASE ' - entry without, not necessarily hostile 35 intruder's accepting, his possession ceases to be hostile 42, 52 n. 3, 57 adverse possession begun during 95 LEGACY action for, against executor, not subject to statute 273 devisee, subject to statute 273 executor's bond to pay, presumption of discharge of. 302, 306 presumption of payment of •. 308, 311, 328 presumed paid, notwithstanding settlement of account within twenty years... 328 suit for against executrix and husband, rebuts presumption in subsequent suit on bond by same defendants for the legacy 321 LEGATEE luay interpose statute against claims against testator's estate 253, 291 596 INDEX. Numbera ^without n. indicate the sections. Numbers preceding n, indicate the pages, and the numbers following n. the notes thereon. LEX FORI not lex loci contractus, applicable, as to limitation 172 LIBEL limitations of actions for -. 158,175,287 LICENSE entries in accordance with, not adverse 39 LIEN of judgment, possession of land when adverse to 53, 132 n. 1 charged in deed, grantee's possession not adverse to „ 53 for purchase-money, grantee's possession not adverse to 53, 54 of recognizance, possession not adverse to ._ 53 decedent's debts, not affected by barring of personal action for 239 n. 5 municipal, no limitation as to 273 not extinct when statute bars personal action 278 against corporation, presumption of payment 303 on land, presumed discharged in twenty years 437 ».l -when titue after suit countable in making presumption of discharge of. 813 creditors may allege earlier presumed paid 340 presumption rebuttable as to, by debtoi''s admissions 342 vendor may allege presumed discharge, in action for purchase-money 341 LIFE ESTATE acquired by adverse possession 101 claim to, shownby declarations 46 lost by adverse possession 105 XIFE TENANT possession of presumed pursuant to estate 39 under adverse claim of a fee 48n.4 when possession adverse to, counts against remainderman.... 89 does not count against remainderman 90, 96 acquisition of right of way by user. 127 LIGHT AND AIE easement for 130 LIMITATION as to land, before act of 26th March, 1785 ' 11 of SLKty years 11 fifty years 11 twenty-one years 14 et seq. seven years i... 12 et aeq. trusts in land, of five years 141 et teq. in personal actions, of six years 154 et seq. actions for death, of one year 164, 287 slander and libel, of one year 154, 175, 177, 287 trespass, of two years 154, 177, 287 as against passenger railway companies, of six months 210 n. 3 of five years as to probated wills 351 INDEX. 597 Numbers without n. Indicate the sections; Numbers preceding n. indicate the pages, and the '' numhers following n. the notes thereon. ' LIMITATION— aniinued. of seven years as to additional bonds of executors and administrators 35S ofScial Jjonds 354 three years as to constables' bonds 356 five years as to sheriffs' and coroners' bonds 357 six months of action against constable and justice ; 358 two months to recover back thing bet.... 359 ten days to recover back thing bet. , 360 two years for poor directors to recover money won in betting 361 one year for qui tarn actions to enforce forfeitures i.! 362 two years for actions by State to enforce forfeitures 362, 36S six months for bringing second ejectment 364 seven years for claiming shares of intestate's estate 366 et seq. five years in Philadelphia for false se?irehes ; 368 six months to recover back excessive interest 369 two years in errors and appeals. SK et seq. one year in appeals in cases relating to assignee's 378 three years in appeals in cases relating to trusts 378 from decrees of Orphans' Court 379' one year in appeals from Register's Court to Supreme Court 380 five years for bills of review in Orphans' Court '. 384 twenty days for appeals from awards of arbitrators 381 et seq, decrees in distribution proceedings to the Supreme Court 38$ certiorari to justice's judgment 385 et seq. appeals from justice's judgment 386 et seq. computation of term of, in act 27th March, 1713 177 termination of term of. 178 e4 seq. term of, not prolonged by intervening action l79 et seq. policy of as to land , 109 personal actions..... 299 by contract 373 et seq. see CONTEACTTJAIi LIMITATION. LINES when marking necessary to define extent of possession 23, 26 not necessary to define extent of possession...! 23^ unofficial marking of. ,... 24 of tract, intruder without colorof title claiming up t6 25 LOCATION title by seven years' limitation 12, 13' descriptive seven years' limitation ^ 8n. 4 LUNATIC committee's surety, action for indemnity, limitation 214 see NoN Compotes Mentis. M. MEDICAL ATTENDANCE bill for, admission of. 245, 247 598 INDEX. Nambers without n. indicate the sections. Numbers preceding n. indicate the pages, and the- numbers following n. the notes thereon. MERCHANTS' ACCOUNTS ,..., 262,268 who are merchants 263,268 stated ; , 269 fraud in 269 tee Mutual Accounts. MERGER of particular estate in remainder, effect on limitation 94 MESNE PROFITS limitation as to, in ejectment and trespass 168, 223, 286 MILL negligence in construction, limitation j 202 MINORS exemption from limitation as to land, statutes 4, 7, 8 not exempt from seven years', limitation of fifth section of act 26th March, 1785 13 exempt from twenty-one years' limitation T....87, 92 other disability supervening, only minority exempt 88 co-tenants, how disability operates.. 92 cestui que trust, how disability operates 126 m. 3 barred as to the trust 60 , possession under deed of, adverse 50 exemption of in personal actions 156, 176 / assumpsit, '. 176 V no exemption of in five years' limitation as to implied trusts in land 147 user of way adversely to, ineffectual ,... 127 exemption from seven years' limitation for shares in intestate's tetate 366 two years' limitation for errors and appeals. 375 twenty years' presumption as to 337, 339 MISTAKE intrusion over true boundary by, when not adverse 36 adverse 37 ceases to be adverse 42 in settling account, action to correct, limitation 204, 217, 218, 220, 227 policy, effect of on contractual limitation • 374 MONEY received by one for another, limitation as to 199, 205, 222, 257 n. 3 collected from debtor without authority, limitation ■ 216 MORTGAGE presumed paid in twenty years 302 parol correction to affect twenty years' presumption 312 in parol, possession under united with that of mortgagor to make twenty-one years' adverse possession , 84 MORTGAGOR'S possession not adverse to mortgagee ,...40, 53 when adverse 69 n. 1 equity of redemption not subject to five years' limitation 144 INDEX. 599 Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. MOTIVES of rule presuming payment in twenty years 301 MUNICIPAL CORPOEATIONS may acquire title to land by limitation 110 lose title to land by limitation 110 barred by six years' limitation 290 MUTUAL ACCOUNTS , 263e<.eg. necessity of mutual demands 264 parties to 265 how affected by statute 266 characteristics of ......' 267 N. NEGLIGENCE of directors and stockholders, limitation 162 attomey-at-law, limitation 169 in not collecting 201 in construction of a mill 202 imperfect performance q^ work, non-diaclosare of imperfection..., 195 and constructive fraud 200 et seq. statute runs from commission of, not from the accruing of the damage 200, 213 NEXT OF KIN may oppose statute to claims against estate 253, 291 NON COMPOTES MENTIS actions as to land, statutes 4, 7, 8 not exempt from seven years' limitation 13 exemption of, from twenty-one years' limitation , 89 not exempt as to five yeai!^' limitation as to implied trusts 147 exemption of, in personal actions 156, 176 no exemption from five years' limitation as to probated wills 351 exemption from two years' limitation as to errors and appeals 375 NONPROSSING ONE APPEAL effect of, on limitation for second 378 NON-SUIT of ejectment, efiect of on possession 81 effect of on prolonging limitary term for subsequent action , 179 NOTICE of true owner's title not inconsistent with adverse possession 42 n. 3 NOTORIOUS possession must be, to bar title 14, 16, 85, 86 user must be, to make right to easement 133 NUISANCE public, not legalized by time 148 n. 6 600 INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. NULLA BONA garnishee's plea^ effect on twenty years' presumption 334 effect of want of fi. fa. and return of, as to presumed payment of justice's judgment 345' return of, to execution against administrator, preliminary to liability on bond 353 O. OFFICIAL BONDS seven years' limitation as to , 354 Commonwealth not affected 355 am^tidment of action 355 of sheriffs and coroners, liriiitation 357 OFFICIAL MARKING of lines unnecessary to extend possession beyond inclosure, &c 24, 29 OPENING JUDGMENT to allow defense of statute of limitation 299 OEDEK sealed, on borough treasurer, not subject to limitation 271 OEE • periodical taking of, not adverse possession of land 20 continuous possession 74 ORPHANS' COURT bill of review in 384, 544 n. 9 limitation applied in, to creditors' claims 168,185 to citation to guardian , 170 in, to specific execution of decedent's contract to convey land 170 applies the twenty years' presumption 304 ' three years' limitation for appeals from decrees of. ^ 379 substitute for Register's Court, appeals from 380 OUSTER confession of, by refusal to pay taxes 18 n. 3, 25, 25 n. 1 necessary between tenants in common 61 et seq. by co-tenant, evidence of..: 64 cases of 65 et aeg. confession of, by co-tenant 70 P. PAROL sale or gift, adverse possession in pursuance of. 50 between co-tenants, possession in pursuance of.: 68 as connecting successive adverse possessions 84 modification of mortgage, twenty years' presumption 312 PARTICULAR ESTATE non-acceptance or forfeiture of, effect on remainderman 94 supervening, effect on adverse possession already begun 95 possession begun during, not adverse to remainderman 95 INDEX. 601 Numbera without n. indicate the sections'. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. PAETICULAE ESTATE-Cbntinued. adverse possession after termination of. 99 lost by adverse possession. 105 PAETIES as to whom limitation available 290 PAETITION by deed or parol, adversp possession, under 52, 58, 91 n. 1, 70 invalid, adverse possession under 65, 88 n. 3 adverse possession a bar to 113 ■ of ground-rent 121 limitation as to owelty in ; 228 PAETNEE partial payment by ', 260 revival of debt by, as against other partners 260 PAETNEESHIP accounts, limitation as to 270 bill to settle, limitation as to ;169, 270- PAETY-WALL •- adverse possession of land below '39 PATENTEE action by, against his lifcensee, annually accountable 219' from State, as security for money advanced, twenty years' presumption as to ,.302,305 PAWNEE improper sale or pledge by, limitation 260 m. 2 PAYMENT partial, as tolling statute ^ 237, 257 et seq. note must be identified 243,259' in'money or otherwise 257 offer to make 257 ^ by whom 258 e. g. of costs on judgment 258 installments .' 258 by joint debtors 260, 342 evidence of 261,330- rebutting twenty years' presumption 316, 330, 496 n. 1 to wrong person, twenty years' presumption 330 of debt negatived, effecton statute 299 twenty years' presumption of. 300 et seq. see Presumption or Payment. postpoitement of time of, by agreement 331 ambiguous admission of, aided by time ^ 346 inconclusive receipt of, aided by time 346 by counter-claim ,. 289- ^02 INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. PEACEABLE possession must be, to bar title ..' 14 :pedis po'ssessio what is 21 effect of, on extent of possession 21 extends possession only to land of same owner 27, 28 same tract of land 29 PHILADELPHIA constables' bonds in, three yearsMimitation 356 liability for false searches in 368 filing of appeals from magistrates in Common Pleas in 389, 549 n. 1 city solicitor of, duty in landlords' proceedings against tenants 393 PIPES easement to lay, in neighbor's land , 132 PIT nse of, as dung-heap, adverse possession by 21n. 1 PLEA of limitation, form of 292 six months' limitation by constable unnecessary 358 admitting non-payment of debt by, twenty years' presumption 323 of limitation necessary 292 replication to 293 PLEAD the statute, who may 291 PLEADING with respect to new promise or admission 256 limitation in equity 284 in case of set-off 288,294 PLEDGE creditor may retain, though action for debt barred... 278 limitation of bill to redeem 169 improper sale by pledgee, when limitation begins 194, 210, 260 71.2 POLICY of statutory limitation as to land .' 109 personal actions 299 twenty years' presumption of payment 301 POLLUTION of stream, easement for 132, 184 n. 1 extent of right 134 POSITIVE possession must be, to bar title 14 POSSESSION adverse, see Adverse Possession. by non-owner, unnecessary under seven years' limitation, section 5, act 26th March, 1785 12 INDEX. ■ 603 Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. POSSESSION— Cbntinued. ' necessary under twenly-one years' limitation 14,15 mere want of, by owner, inoperative 16 of intruder, must be more than secret 14 actual, not constructive 14, 15 hostile t 14 exclusive 14 continued '. 14 peaceable 14 distinct „ , 14 definite 14 interferences of warrants and surveys 15 coal, when severed from soil 15 natureof. 16,149 by residence 16 not essential 17 adequate to bar title 17 inclosure 16 not essential 18 adequate to bar title 18 cultivation , 16, 19 methods of 20 •extfentof ._ 21 et seq. by owner's use of woodland; 31 -of town and city lots 18 -claim of title not 20 paying taxes not.. ,. 20 of grantee in void deed, adverse 49 by parol vendee ^ 50 of grantee in excess of conveyance 51 adversary must endure twenty-one years 74 maintained by means of tenants 82 vendee of part of tract 82 by successive occupants, tacking of. 83 interrupted by action 80 originally friendly, become adverse 40 hj cestui que trust, five years' limitation US et seq. vendee, five years' limitation 148 et seq. kind of that stays five years' limitation 149 when not notice of fraud of co-vendee v 152 TOVEETY of debtor, rebutting twenty years' presumption 333 garnishee in foreign attachment, twenty years' presumption 333 J>OWEE to sell land, possession prior to election to take in specie 97 possession pric» to sale adverse to purchaser 97 604 • INDEX. Numbers without n. indicate the sectiona. Numbeis preceding n. indicate the pages, and the: numbers following n, the notes thereon. PE^CIPE not commencement Of action ~. 17S for writ of error, not beginning of appeal 376 pbesum;ption of grant, derise, &c .'. 1S7 eiaeq, PEESUMPTION OF PAYMENT in twenty years 300 et seq. origin of rule 300 motives of rule 301 subjects to which applicable , 302 etseq., 339 proceedings in which available 304 in scire facias.: 304 actions of debt 304 covenant 305 ejectment ' 305- foreign attachment 305- assumpsit 305 petition for venireto assess damages :.. 305 set-off of bond , 305 bill in equity, lien against corporations 305 opening judgment on mortgage on application of terre-tenant 305 distribution proceedings in Orphans' Court 30S when twenty years begin to run ; '. 308 etseq. by time, pending suit 313,314 time between judgment and scire facias 314 fieri fadag 314 successive /eist/octog 314, 321 nature of. , 315 et seq^ is mediate , 315 valid, prima facie, thougK jury believes debt not paid : , 315 in case stated 315 contrasted with statutory bar 316 how overcome 316 overcome more readily than statutory bar 316 rebuttable 317 , burden of rebutting 317 rebutted by admissions of debt 316, 323 etseq. promise to pay..., 316 previous suits 316, 320 financial incapacity of debtor ." 317, 333 partial payment 316 partial payment by one co-debtor 316 rebutted by former demand ; ,..'. '319 citation to file account. 320, 467 n. 3. filing account i 327 etseq. aflFected by agreement making suit depend on future contingeiiey 331 INDEX. . 605 Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. JPBESUMPTlON OF V AY MENT— Continued. rebutted by plaintiff's ignorance of cause of action 334 war 335 mortgagee's possession of land.^... , 335 retention of obligation, as against a terre-tenant 335 fraudulent abstraction of evidence of debt, obstructing suit 336 counter-claims 336 dispute as to amount of claim 336 , death of debtor, effect of 337 may become irrebuttable 318 corroborated ^i 318 suit on original debt, not on new promise , 316 against what parties urged 339 et seq. for what parties urged 340 et seq. rebuttable against whom.. 342 in less than twenty years .' '. 343 el seq. solvency of debtor 345,346 inaction of assignee for creditors for long time. 345 less than twenty years, withholding justice's docket 345 circumstances which aid 345 et seq, settling account and paying balance 345 sherifi's sale of debtor's land sufficient proceeds to pay debt „ 345 ancient counter-claims 345, 346 ambiguous admission of payment 346 . insu£Scieut circumstances 347 PKIVY site of, used as dung-heap, adverse possession by 74, 100 PROBATE OF WILL when conclusive as to land devised..... 348 et seq. inconclusive prior to 1856 350 is a decree in rem, as well as in personam 352 conclusive as against later codicil 352 upon heir or devisee, or grantee 352 as to legal execution of will 352 testamentary capacity 352 not conclusive as to devising power over property 352 PEOCEEDINGS in which twenty years' presumption is available 304 PROMISE to pay debt, as tolling statute 229 et seq. 1 implied in admission of debt 230 after or before six years have run 230 pending suit ' •' 230 on Sunday 230 conditional, effect of. • 239 etseq., 297 606 INDEX. Numbers without n. indicate the sections. Numbers preceding ». Indicate the pages, and the numbers following n. the notes thereon. PROMISE— Continued. ' to pay "when able" ..239, 242 "do what lean" 241 pay at future time 241, 242 must identify the debt 243 et seg. to pay "the note" not suflBcient 243 of administrator to pay "all debts" 244 to pay "every cent I owe you" 244 "all my debts and you too" 244^ extent of debt must be ascertained 245 et leq. to pay residuum after dividend from an assigned estate o£ co-debtor... 248 settle, fix, arrange '. 251 eteeq. by whom must be made 253 feme covert 253 executor or administrator , 253 partner 253 attbmey-at-law 253 president of fire company , 253 habitual drunkard 253- principal debtor 253. to whom must be made 254 agent of creditor 254 action on the original, not on new 255- pleading and evidence as to 256 unnecessary to overcome twenty years' presumption 316 sufficient to overcome twenty years' presumption '. 316 conditional, as rebutting twenty years' presumption 332 PEOMISSORY NOTES when limitation begins to run 206 indorser's action against maker 206 liability 206 limitation as to 157 payable on demand, limitation L -. 224 PEOTHONOTAEY liability in Philadelphia for false searches. 368 false searches, limiiation 19^ erroneous inde:^ing of judgment 200 PROTHONOTAEY'S BOND action on, by Commonwealth 355 individuals 355 PUECHASE-MONEY recovery back, limitation • 194, 251 n. 3 on land, limitation 22S tw6nty years' presumption 304, 306 PURPRESTUEE not legalized by time 148 n. 6» INDEX. 607 Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the- numbers following n. the notes thereon, ^■ QUARTER SESSIONS limitation in proeeedings in 170, 171 order of, vacating road, limitation for error in , 538 4. 2: QUASHED writ of error too late, will be 538 n. 1 appeal from arbitrators' award too late, will be 382 decree in distribution proceedings, when too late, will be 383- R. RACE easement to maintain over neighbor's land 132; RAILROAD adverse possession by, as against right to damages 70n. 1 REBUTTABLE twenty years' presumption is 317 RECEIPT in deed, presumed accurate in twenty years 303, 341 ambiguous, aided by time 346 RECOGNIZANCE twenty years' presumption applicable to 304, 326 in partition, possession not adverse to lien of. 53- of sheriff and coroner, limitation as to 357 RECORDER erroneous search, limftation 199, 200* in Philadelphia .'. 368 RECORDING of true owner's deed, not inconsistent with adverse possession 42 n. 2 neglect of, cured by possession adverse to later grantee of same land 52' of title by adverse possession, unnecessary 108 as notice to co-vendee of grantor's deed ; 152; REDEMPTION equity of, barred in five years 144 effect of acknowledging iSO of pledge, limitation as to bill for. 169' of action for 210- land sold for taxes, purchaser's action for redemption-money 217 REGISTER OF WILLS conclusiveness of probate 348 et^eq,. probate a judicial act 350 made conclusive by act 1856 .-. 351 REGISTER'S COURT appeals from to Supreme Court 380- REMAINDER contingent, destroyed by adverse possession during previous particular estate.. 96- '608 INDEX. Numbers without ». Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. BEMAINDEEMAN action by barred, statute 10 possession of Life tenant not hostile to, 48 n. 4 title for made by possession of life tenant 113 ».3 aflFected by possession adverse to life tenant 89 as affected by possession adverse to curtesy i 90 when particular estate is forfeited 94 particular estate created after adverse possession begins 95 wh^ adverse possession begins during the particular estate 95, 96 how affected by adverse possession after termination of particular estate 99 where five years' limitation for trusts begins as against 147 action for price of land sold under power, by life tenant 217 KENT action for, limitation 282 n. 4 on sealed lease, no limitation 272 unsealed lease, subject to limitation 272 EEPLEVIN adverse possession available in 113 barred < 154 when limitation begins 214 JREPLICATION to plea of statute 293 of statute, to plea of set-off. 294 EESCISSION recov^y back of purchase-money, limitation .Y 194, 251 n. 3 BESIDENCE adverse possession by 17 , continuousness of 78 EESULTING TEUST barred 145 et aeq. EEVIEW bill of in Orphans' Court, limitation... 384 JIIGHTS OF WAY I acquired, transferred, and lost 123 by owner of ferry 163 n. 4 see Way, Eight op. EOADS damages for laying out, &c., limitation 170,219 S. SALE trust to make, and distribute proceeds, adverse possession of land prior to election to take it in specie 97 SATISFACTION of judgment, improper, limitation 193 INDEX. 609 « Numbers without n. indicate the sections. Numbera preceding n. indicate the pages, and the numbers following n. the notes theieon. SAWDUST easement to cast into stream , 132,134 SAW-MILL taking timber from a tract for, not adverse possession 74 SCIRE FACIAS on judgment in ejectment 110 n. 2 twenty years' presumption of payment in 304, 314, 320, 342 less than twenty years' presumption, payment in ....i 345 SEAL coyenants under, twenty years' presumption of discharge 302 SEALED AGREEMENT to pay dividends on stock, no limitation ; 271 see Specialty. SEALED NOTE not subject to limitation 271 twenty years' presumption 303 SEARCHES false in Philadelphia, limitation 368 limitation , 199,200 SEAS beyond, exemption of such as are, as to land 4, 6,78, 93 personal action 156,159,160,173 obtains in ossMmpsii.. 173 from two years' limitation for errors and appeals 375 SECTION 5 act 26th March, 1785.. 5, 12, 13 SERVICES ' , domestic, admission of debt for... 245 SERVITUDES miscellaneous, created by user 132 et eeg. SET-OFF subject to limitation ^...168, 288 et se(j. pleading in •_ 288,294 twenty years', presumption as to... 305 SETTLE promise to, as tolling statute 251 et seg. SETTLEMENT seven years' limitation, fifth section of act 26th April, 1785 5 judicial decisions. 12, 13 adverse possession beyond pedally-occupied part 25 n. 1' begun for making a 24 SEVEN YEARS' LIMITATION as to land by settlement, &c 3,6 n. 6,12,13 2o 610 INDEX. Numbers without n. indicate the sections. Numbers preceding «. indicate the pages, and thff numbers following n. the notes thereon. SEVENTEEN TOWNSHIPS Luzerne county, repeal of act 26th March, 1785, as to 5 n. 1 restoration of act 26th March, 1785, as to 5 n. 1 SHERIFF action against for excess of money made beyond debt — '. 204 demand precedes '. 226 of against purchaser for price 218 on refunding receipt from lien creditor, limitation 226 admission of debt made to, in serving summons 230 bond and recognizance of, limitation 357 SHERIFF'S SALE void, adverse possession under 52 limitation for ejectment by purchaser at 370 et seq. SINGLE BILLS presumption of payment of. 302 SLANDER limitation of actions for 158, 175, 287 amendment of action for 181 SLAVE one's action for services when unlawfully held as. 194 vendee of one erroneously sold as, action to recover back the purchase-money.. 200 SOLICITOR OF PHILADELPHIA duty of, in landlords' proceedings against tenants 393 SOLVENCY deceitful representation of, limitation v"-249n. 2 SPECIALTY limitation not applicable to '. , 271 note with a scrawl is 272. successive modification of by parol and specialty.. 271 SPECIFIC PERFORMANCE vendee's suit barred in five years 143 et sej. when five years begin to run 147 acknowledgment ^ 150 SQUARE, PUBLIC - adverse possession of 41 STATUTES 32 Henry VIII. c. 2, limitation as to land 11 21 Jacobus I. c. 16, lijaitation as to land 6n. 1,300 27 Henry VIII * 60 STOCK assignee of, action against corporation 226 bank's lien on, limitation as to 278 STOCKHOLDER action against, limitation.. 162 bill in equity against, limitation 162,169 INBEX. 611 Numbers without n. Indicate the sections. Numbers preceding ». indicate the pages, and the numbers following n. the notes thereon. STOCKHOLDER— Continued creditor's bill against 169 in national bank, liability for twice the stock, limitation 217 liability for stock subscribed, .limitation 217 on note payable when assessments are made ,. 298 stock subscription payable on demand 225 acknowledgment of his subscription 241 mortgage of, parol inadmissible to vary terms, as to twenty years' presump- tion 312 SfONES entries to quarry not possession 20,74 STREETS damages from laying out, &c., limitation 170,219 SUBJECTS of six years' limitation as to personal action 168 to which six years' limitation does not apply.., ; 271 et seq. twenty years' presumption applies 302 of adverse possession 106^ SUBROGATION limitation as to 209 SUGAR periodical tapping for, not adverse possession of land 20, 74 as indicating extent of possession 26 SUIT, FORMER ' as rebutting twenty years' presCimption , 316, 320 et aeq. writ not served 320 judgment on one nihil in scire facias 320 essential steps in, must have been taken within twenty years 320- directly on debt, as rebuttal of presumption in later suit on a collateral obli- gation .: ■ • 321 ■unfinished, as rebutting presumption '. 320,321 on mortgage, against difierent part of premises 321 for earlier installments 322 abatable, as brought too soon, rebuttal of presumption by .....'. 322 against mortgagor, when not rebuttal of presumption as to personal liability of the terre-tenant. ..; 322 SUNDAY when last day of limitary term falls on 177, 369, 383, 387 promise or admission of debt made on 230' withdrawing appeal from justice's judgment on , 654 n.S SURETY limitation as to biU for indemnification 169 when limitation begins to run in favor of principal 207,209 subrogation of. 209 after discharge, principal's action against for collateral securities ...210, 214 limitation as to action of, against one who indemnifies , 213; 612 INDEX. Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereou. SURETY— Continued. admits debt by accepting indemnity 234 partial payment by as tolling statute 260 on administrator's bond, twenty years' presumption 308 may set up twenty years' presumption 341 seven years' limitation as to 353 SUEEENDER of possession by tenant, adverse resumption 58 SUEVEY when none, seven years' limitation 12,13 T. TACKING the possessions of successive occupants of land 83 ei seq. of successive suits, to avoid statute of limitations 179 et seq. TAPPING 4 trees for sap, periodical entries for, not possession 20 TAX COLLECTOE bond of, limitation i 355 TAXES exclusive payment of, not possession of the land taxed 20 confession of ouster by refusal to pay 18 71.3, 25n.l void sale of land for, purchaser's possession adverse 52 adverse possession as against purchaser at sale for 53 payment of, evidence of adverseness of possession of party paying 62 m. 1 as presumption of grant, devise, &c 137 et seq. ■trespasser not paying, when disclaimer of possession 19 n. 1 non-payment by adversary with color of title 21 n. 4, 2371.5, 25 7i. 1 payment of as manifesting boundaries of possession 25 when not manifesting boundaries 26 when payment of unnecessary to define extent of possession 26 payment unnecessary to extend posse-ssion over interference 28 assessment on two contiguous tracts as one, does not unite them 40 7i. 1 Action by school district against county, for taxes collected by sale of land. . . 216,226 land redeemed, purchaser's action to recover redemption-money .217, 226 suit by-coUector for 222 presumed paid in twenty years 302, 313 State, no presumption of payment 339 county subject to presumption of payment 339 presumed paid before sale happening twenty years after payable 341 TENANT of adjacent premises, possession of one in connection with the other not ' adverse 3g possession by, not adverse 40,56,57 intruder becoming such 42 possession of, becoming adverse 57 53 INDEX. 613 Numbers without n. indicate the sections. Numbers preceding n. Indicate the pages, and the numbers following n. the notes thereon. TENANT— Cbmiinued. ' surrender and adverse resumption of possession 58 b7 sufferance, who is 57 possession of not adverse :.... 57 at will, possession of not adverse. 41 mortgagor becoming such to stranger, how mortgagee affected 51 n. 1 in possession, declaration evidence of his landlord's possession 46 showing possession hostile to landlord 61 n. 1 may maintain adverse possession for landlord 82 user of way by, as making right of way 127 landlord's proceedings against, ceriwrari in 385,395 duty of city solicitor of Philadelphia 39S TENANT IN COMMON possession of each presumed subordinate to right of all 38, 41, 61 each agent of rest to receive subtnission by an intruder 44 may oust co-tenants «. ^. 45,61 assumes to convey all, grantee's sole possession hostile to the others 51 sole possession, in pursuance of partition, hostile... 52 one may make entry for all 115 conveyance by one to other presumed 188».6 possession of one must be adverse to divest title of the others 61 ouster of one by others, what is 61,63 declarations of one in possession, not ouster 6^ ouster by, of the rest, evidence of. > 64 cases of ouster by 65 et seq. possession by one not adverse, till unequivocal act 69 adverseness of possession of, rebutted 71 jury 72 minor, effect on limitation 92 equitable sale by other, having legal title, action tot share of the money, limitation , 221 of chattel, action by one against other for share of purchase-money 222 TENANT IN TAIL limitation as to • •' 10, 96 TEEEE-TENANT presumption of payment rebutted as to, by unextinguished personal obliga- tion for dower 336 rebutted as to, by former action against mortgagor 321,322,342 by partial payments.bymor^agor 49671.1 may avail himself of presumption of payment of the lien 340 . prosecution rebuttable as to, by admissions of previous owner that lien is undischarged • 342 judgment against, in sci.fa. to revive, preserves original judgment from pre- sumption of payment as to defendant -. 342 THEEAT8 adverse possession acqtured and maintained by .43 n. 3 614 , INDEX. Numbers without n. Indicate tlie sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. TIMBER periodical entries to cut, not 'possession 19 n. 1, 20 entries to cut, as indicating extent of possession 25 TITLE color of. 21,22,23 what is 22 effect of, on extent of possession 21 to several adjacent tracts, how extent of possession affected 21 n. 5 when possession is assumed to be in pursuance of. 47 gee Color of Title. lost by limitation 102 acquired by limitation 107 who can acquire by limitation ^ 110 by limitation, what does not estop from using 107 once gained, not lost by recognition of former owner's title ■ 45 oral declaration of part of prAises ineffectual 45 by limitation, is legal, not equitable 107 kinds of, acquirable by limitation 100 et seq. gained by limitation, how lost 108 TOWN AND CITY LOTS adverse possession of. „..18, 106 TOWNSHIP subject to six years' limitation 290 TKANSCKIPT of balance of administrator's account, twenty years' presumption 304 iTKEASUEER school, improper credits of, limitation 194, 218, 252 n. 3 TKEASUEEE'S SALE limitation of purchaser's ejectment 370 et aeq. TRESPASS actions of, limitation 154 quare clauswm /regit, adverse possession available in 113 limitation 154,222 TROVER adverse possession available in 113 limitation , 154 for a pledge 210 TRUCK patch, each summer, not effective adverse possession by 19n. 1 TRUSTEE void conveyance by, adverse possession under 62 possession of, adverse to cestui que trust 59, 60 dismissed, payment to, action to recover from, limitation 197 appeals to Supreme Court in cases relating to 378 INDEX. 615 Tfumbers without «. indicate the sections. Numbers preceding, indicate the pages, and "the numbers following n. the notes thereon. "TRUSTS resulting, adverse possession against cestui que trust 52 implied adverse possession against cestui que trust 59 express, adverse possession in 60 to sell and distribate, distributees affected by hostile possession during 97 purchaser at sale affected by hostile possession prior to, . 97 for ailer-bom children 98 implied and resulting, five years' limitation 145 reposing on promise, five years' limitation ,. 146 implied and resulting, how five years', liditation operates. .'. 153 when five years begin 147 five years deferred by possession of cestui que trust 148 effect of loss of possession on the limitation 149 acknowledgment of, on five years' limitation 150 from fraud, when five years begin 151 knowledge of facts as affecting the Imitation 151 etseq. arising before act 22d April, 1856, affected by it 204 n. 1 six years' limitation as to , 275 etseq. direct, when six years' limitation applies 275 constructive limitation as to 277 fund for creditors, limitation as to.., 278 express, denial and dbsolution of relation 280 TWENTY YEARS presumption of payment in 800 et seq. origin of rule 300 motives of rule 301 when time begins '. 308 el seq. begins as to administrators' bonds 308,309 legacy 308 principal of widow's dower 308 ordinary bond 308 bank deposit 308 guardian's liability 309 debts covered by assignments in trust.. 310 termination of, ■ ■ 313 computation of 313 terminated by bringing action 313 when time after suit begins, can be counted .'. 313,314 once begun, may be interrupted ..; 316 time less than, alone, makes no presumption of payment 343 with circumstances, may justify inference of payment... .^43 et seq. U. 3UNDIVIDED INTERESTS inland, acquired by limitation 100 lost by limitation 102 616 INDEX, Numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, ai:d the- numbers following n. the notes tbereoa. UNITED STATES subject to six years' limitation SOCV being beyond limits of, exemption from two years' limitation in errors and appeals 375' see Seas, Beyond. UNITY of better title, condition for extension of possession by pedal occupancy 27, 28- tract, condition for extension of possession by pedal occupancy 29' whatisi 29' necessary to extension of •wner's possession to woodladd 31 USE AND OCCUPATION OP LAND action for, limitation 216- ■USEE adverse, in making easements 126,128,133 as making right of way 123 etseq.. USQUE AD CCELUM adverse possession of surface giving right 100* USURY action to recover back, limitation 203- six months' limitation 369- forfeiture for, action to enforce 362 aee Interest, Unlawful. V. VAULT easement to maintain on neighbor's land ; 132: VENANGO COUNTY special bond Of constable in, for taxes collected, limitation 356' VENDEE by parol, adverse possession of.... 33- possession of not adverse 40- adverse 5t suit by, in disafiSrmance of contract, for purchase-money 221 for specific performance, five years' limitation 143 et >eg.. damages for non-performance.. .■ 194,205 VENDOR possession of, not adverse to vendee ; 54 adverse to vendee 55- action for purchase-money, presumption of payment 304, 305 may set up presumption that liens are discharged, in action for purchase- money 341, VERDICT special, twenty years' presumption 315. VOLUNTARY GRANTEE may set up presumption that grantor's debts are paid since conveyance 3411 INDEX. 617 numbers without n. Indicate the sections. Numbers preceding n. indicate the pages, and the ' numbera following n, the notes thereon. ■w. WAGES OF LABOR appeal from justice's judgment for 388, 390, 565 n.3 WAlVEE of limitation by not pleading 292, 298 agreement 298 for six years 298 of contractual limitation „ 374 . limitation for appeals from awards of arbitrators 382 by appellee of defects in appeals from justices' judgments 397 "WAE suspension of limitation by 188 effect of, on presumption of payment 335 WARRANT WITHOUT SURVEY seven years' limitation, statute ; 5 decisions 12, 13 WARRANTEE equitable, claim to land as color of title 22 junior, color of title of. 22 WARRANTY IN CONVEYANCE twenty years' preswnption as to , 303,305 when twenty years begin 311 WATER easement to divert or retain 132 WAY public rights of. 131 right of, created, transferred and destroyed by user..„... , 123 properties of the user which create 124 «< seg. continuous use of same route ....;....' 124 change of ownership of servient land 127 in uninclosed woodland ; 124 user for twenty-one years necessary 125 must be uninterrupted 125 exclusive ; 125 adverse '■ 126 in gross 167 n. 4 user under claim of right..... 126' by whom, creates right 127 extinction of right of. 129 suspension of right of. 129 WIDOW action by, for damages for death of husband 164 adverseness of possession of, aS against heirs 38, 46 n. 4 devisee durante viduitale, possession by 39,41 for life, possession by 48n.4 618 INDEX. Numbers without n. indicate the sections. Numbers preceding n. indicate the pages, and the numbers following n. the notes thereon. WIDOW— Continued. purpart allotted to, in partition, fee or life estate (?) , 39 prolonging possession of husband, as tenant by sufferance 57 continuing the possession perfects title for heirs ,. 83 of vendee, possession as affecting five years' limitation 149 statutory dower charged on land, action for arrears of, limitation 272 may oppose statute against creditors in distribution of deceased husband's personalty 291 WILL direction in, to pay "all my just debts," statute not tolled 243 a particular debt 244 probate of, when conclusive 3i8 et seq. after probate, assailable only in direct proceedings 351 WITNESS competency of justified by twenty years' presumption 307, 341 principal may be, as aigainst, surety, to rebut presumption of payment 342 owner of land may be, as against lien creditors, to rebut presumption of pay- ment 342 WITNESS FEES action for, limitation 218 WOODLAND right of way through ;.. 124 use of as defining extent of possession , 26 in interference, not possession ofit 28 exclusive use of by intruder 30 concurrent use of by owner 30 possession of by owner, desiderates its unity with the land pedally occupied by him.; 31 what makes possession of by owner 31 WOOD LOT use of timber-land as, for iron works, not possession ; 74