ERROR to the district court of the United States, for the western district of Pennsylvania. This case was submitted to the court upon printed arguments, by Mr. Watts for the plaintiff in error, and Mr. Fetterman for the defendants. The case is fully stated in the opinion of the court. As the decision of the court was upon the application of the statute of limitations of Pennsylvania only; the arguments of the counsel, upon other points presented to the court, are omitted. Upon the effect of the statute of limitations on the case: the counsel for the plaintiffs in error contended, that the defendant having shown an actual, adverse, notorious and continuous possession of the land in controversy, from the year 1799, until after the institution of this ejectment; and having also exhibited deeds of conveyance for the same, dated the 24th of November 1804, and the 13th of April 1805, from John Ormsby to Isaac Gregg and Sidney his wife: the court erred in their charge to the jury, that the defendant was not protected by the statute of limitations.
The opinion of the court was delivered by: Mr Justice M'lean delivered the opinion of the Court.
An action of ejectment was originally commenced, between the above parties in the district court, which possesses circuit court powers, for the western district of Pennsylvania, and a judgment was obtained by Sayre and wife, to recover possession of certain lots of land within the original manor of Pittsburgh. To reverse this judgment, a writ of error was prosecuted, which brings the case before this court.
On the trial in the district court, a bill of exceptions was taken, out of which arise certain points that are now to be considered and decided. The bill of exceptions reads in part, as follows. 'And the counsel for the plaintiffs, to maintain and prove the issue, gave in evidence, among other matters, a deed from John Penn, Jun. and John Penn to Nathaniel Bedford, dated the 31st day of May 1786, for sixty-two acres of land on the Monongahela river, in the manor of Pittsburgh, being acknowledged on the 1st day of June 1786, in the city of Philadelphia, and duly recorded, &c.; also an assignment, indorsed upon said deed, of all the right, title, claim and interest of the said Nathaniel Bedford to the premises, to Mrs Jane Ormsby, dated the 1st day of June 1786, and duly acknowledged, &c.; also a certificate of the recorder of the county of Washington, dated the 15th of October 1831, that there is no record of the transfer of the title to the premises aforesaid, by said N. Bedford to Mrs Jane Ormsby, in the office of Washington County. It was then admitted, by the attorneys for the parties, that the children of John and Jane Ormsby were: Mrs Bedford, who died on the 8th of July 1790, without issue; John Ormsby, Jun., who died in August 1795; Joseph B. Ormsby, who died on the 20th of December 1803; Oliver Ormsby, who died in the year 1832; and the present defendant, Mrs Sidney Gregg, who is the only survivor, and under the providence of God a lunatic.
It was further admitted, that Mrs Jane Ormsby, the wife of John Ormsby, died intestate, on the 13th day of June 1799, and that her husband, John Ormsby, died on the 19th day of December 1805.'
The possession of Mrs Gregg, of the twenty-five acres, and of the eight acres and one hundred and twenty-two perches, the upper part of the sixty-two acre tract, was then admitted by the counsel for the defendants.
The plaintiffs further offered in evidence, a petition to the orphan's court of the county of Allegheny, signed by O. Ormsby and N. B. Craig, the committee of Mrs Sidney Gregg, and filed in November term 1828.
Among other evidence, the counsel for the defendants proved, by the testimony of John Hutchinson, that he had known the family of Mr Ormsby for forty years, and lived as a tenant under the old gentleman and his son Oliver Ormsby, about thirty-five years, and sometimes in their families, before old John Ormsby's death. Isaac Gregg, his son-in-law, as early as 1799, employed hands to clear out the piece of property where the ferry house now stands; the part next the hill being cleared, and the part next the river being in woods. That the said Gregg employed his brother and himself, who cut off the timber into cord wood; that Mr Gregg was cautious in showing them the lines market by a post on the bank, and a butterwood tree blazed, four or five rods above the run that falls into the river, that we should not cut the timber below it, as the land belonged to Mr. Ormsby; that in the year 1800, Mr Gregg employed them to go up the hill, and to cut timber to build a house and four fences; and in the autumn of 1800, the house was put up by them, and that he paid them seventy-five or eighty dollars for doing it.'
'Mr Gregg put Alexander Gibson as a tenant in the house, who occupied it that fall and the succeeding winter, and made an agreement with Mr Gregg, to rent it for several years, but afterwards abandoned it.'
'Samuel Emmet went into the house in the spring of 1801, and occupied it for a great number of years. George Kintzer was in it for many years after Emmet. Andrew Rearick was there; and Young lived in it a year; George Bonners for six months; Jacob Drake for the years. These tenants were all put in by Isaac Gregg and his family. Witness also stated, that he recollected that Isaac Gregg got another lot adjoining the twenty-five acre lot, and between it and the bridge, about twenty-nine years ago. Mr Gregg was to allow John Tate, his tenant, out of the rent, for putting up a barn, and witness assisted him, &c. On the twenty-five acre lot, there was the ferry house, a stable and a large shed: these improvements were all made by Mr Gregg. The fences were put round the upper lot in 1800; the lower lot was fenced long before. The fences, since that time, have been kept up, and the witness never understood, that any one, except Mr Gregg, had any claim to the lots. Witness refers to the two lots in controversy.'
'James Ross, Esq. testified, among other things, that he was acquainted with John Ormsby's family in 1782. In 1784, Colonel Woods, as the agent of the Penns, surveyed the sixty-two acres in controversy, and noted, in his draft, that the tract was platted for John Ormsby. After the reservation of this lot, from Mr Ormsby, the manor was subdivided. Mr Woods and Mr Brackenridge, who were the counsel for Mr Ormsby, recommended that the deed should be taken out in the name of Mrs Ormsby; and Doctor Bedford, her son-in-law, proceeded to Philadelphia for that purpose, and brought back the title; the consideration money had, probably, been accumulated by Mrs Ormsby. Isaac Gregg was in possession of the property before the dates of the deeds to him. In 1802, Mr Gregg had the ferry, and he and his tenants have held possession ever since.
'Other witnesses were examined, who corroborated the facts already stated. Defendants also produced, and read in evidence, two deeds; the first from John Ormsby, Jun., to Isaac and Sidney Gregg, dated the 24th day of November 1804, which had been duly acknowledged and recorded, for twenty-five acres of the land in dispute; and also a deed from the same to Sidney Gregg, dated the 13th of April 1805, for eight acres and one hundred and twenty-two perches. Several leases of the tenants of Isaac Gregg and his family were read, and proof was made of the payment of taxes on the lots. The defendants also read in evidence, the will of Joseph B. Ormsby, and reference was made to an action of partition, instituted by the plaintiffs against the defendants, in which a judgment had been rendered in favour of defendants; to reverse which judgment, a writ of error was brought, and was still pending in the supreme court of Pennsylvania.'
The plaintiffs' counsel then proved, by the testimony of Samuel Pettigrew, Esq., that he was one of the viewers appointed by the orphan's court, under the petition of the 23d of December 1832, before referred to; that the viewers went on the ground, and allotted a portion of the upper part of the tract to Mrs Gregg, and the lower part to Mrs Ormsby.
The counsel for the defendants then offered to prove, by the testimony of H. M. Watts, who was attorney for Mr Ormsby, and presented the petition above referred to, that it was done at the instance of Mr Ormsby, for the purpose of establishing his title to the lower part of the tract; that at the time said petition was signed, it was done reluctantly by Mr N. B. Craig, as the committee of Mrs Gregg, and understood that Mrs Gregg had heretofore claimed the portion of the tract she occupied in severalty, and that the said petition, and the decree of the court upon it, were not to affect her right. Which testimony, on being objected to, was overruled by the court.
The evidence being closed, the counsel for the defendants prayed the court to instruct the ...