McNamee v. Moreland. other party was holding by agreement with him, that there was such acquiescence or failure to assert a right as would defeat the true title. claim title: Then, again, the law is stringent in requiring strict proof of the facts requisite to constitute adverse posses2. intent to sion. Among these is the material and essenevdence of. tial one, that the occupancy must have been with the intention to claim title. In other words, the fact of possession and the quo animo it was commenced and continued, are the true and only tests (3 Wash. 489); and as showing this intent it is clearly competent to show by the declarations of the occupant, that he did not hold adversely. St. Clare v. Shale, 9 Bar. 252; 2 Smith's Lead. Cas. 566. So, if the entry is permissive, it of course should be shown, that the party did some act which would make his holdings adverse (Hall v. Stevens, 9 Metc. 418); and where the occupancy is the result of mutual consent it cannot well be hostile or adverse. In Burnell v. Maloney (39 Verm. 583), where the line between two adjacent owners was in dispute, and they 3. rule applied; disputed line: agreement: estoppel. agreed that the fence between them was not the true line, and that this should be ascertained, the occupancy in reference to such a fence was held not to be adverse on either side. That case differs from this, in the single thought, that the adjacent owners agreed that the fence was not the true line. In this case, however, they did agree that when the final decision should be reached in the case then pending, "either party should place his fence upon the line which should be established by such decision." And, remembering that the statute protects the occupant, not for his merit, but for the demerit of his antagonist in delaying the contest beyond the period assigned for it, when papers may be lost, facts forgotten or witnesses dead (GIBSON, J., 4. ESTOPPEL: prevention of fraud. McNamee v. Moreland. in Sailor v. Hertzogg, 2 Penn. St. 182), the question is inost pertinent, how could there be demerit on plaintiff's part in not moving, or how could it be said that he delayed the contest, when the parties were engaged in its settlement in the proper tribunal and in the manner selected by the ancestor of these defendants himself, and accepted by the present plaintiff? The real owner yielded nothing. This holding was not without opposition. Stevens v. Taft, 11 Gray, 35. He could not very well do more than he did. Not only so, but it seems to us that to allow defendants, in the face of the acts, conduct and agreements of their ancestor, to now insist upon this adverse possession, and avoid the force and legitimate effect of such acts upon the conduct of plaintiff, would give them the benefit of a fraud, actual or constructive. Certain it is that such conduct, if not fraudulent in its purpose, would, if plaintiff can now derive no benefit from it, be most unequal in its results; and as Moreland's course in the former case was intended to and did influence plaintiff's conduct (it certainly could have no other effect), and as plaintiff would be prejudiced unless defendants are cut off from the power of retraction, it follows, that they are estopped from claiming in this action that they held adversely to plaintiff prior to such acts, conduct and agreement. For in this we have the essence, the definition, of an estoppel. Dalzell v. Odell, 3 Hill, 219; Lucas v. Hart, 5 Iowa, 419; and see also Stephens v. Baird, 9 Cowen, 274; Dewey v. Field, 4 Metc. 384; Shelton v. Alcox, 11 Conn. 240. While it is true that an estoppel should and will be suppressed where fraud would be produced, on the other hand, it will be called into being for the prevention of fraud. 2 Smith's Lead. Cases, 564. In our opinion, the case before us demands the application of the latter part of this proposition, and that the record offered in McNamee v. Moreland. evidence should have been received for something more than merely to show that Moreland's possession was not undisputed, but that there was controversy in relation to the same. It was competent to show that such possession was not adverse within the meaning of the law; that the parties made an agreement in relation to such possession, and that as this was made with the party shown to be the true owner of the title, the possession to the time of the determination of the action, could not be in derogation of such title. 5. FORMER effect upon privies in interest: In the second place, we think plaintiff is entitled to the benefit of the adjudication in the former case. This is conceded if he was a party or privy to the deterAIUDICATION: mination, and if that adjudication covered the matter now in controversy. As the record of estoppel. the former trial was excluded, or its effect as an estoppel denied by the court below, because the parties were not the same, and as there is really nothing in the record to justify such refusal upon any other ground, we shall confine ourselves alone to this objection. It is true that Page only claimed to hold from McNamee a small part of the disputed strip. Moreland, however, claimed by his petition against him all the land up to the line "A B" or "Bailey line," and Page by his pleading claimed to the line "CD" or "James line." If there is any thing clear, plain and undisputed, this is. Between these two lines is the very land now claimed by plaintiff, and the former adjudication expressly holds that the "James or C D line" was the true one. So, too, it will be remembered, that, by the agreement of Moreland and Page, in October, 1853, it was expressly stipulated that the question in dispute was the position of the line dividing the north from the south half of the section; that if Page was found to be upon Moreland's land, there was to be judgment for nominal damages; if not, the judgment McNamee v. Moreland. was to go for defendant (Page). We are assuredly not mistaken, therefore, in saying, that if Page was a party to this case he could insist that his title could not be again drawn into controversy. The real question is, can the present plaintiff claim a like protection from this adjudication? He was not a party to the record in the trespass case. (What disposition was made of the "Road case" does not appear, and we, therefore, except as noticed hereafter, make no further account of it.) Was he, however, in the trespass case, so far a stranger in person or estate, as that he was not bound by it, and hence not entitled to its benefits? In answering the inquiry, as we must very briefly, we remark, that nothing can be clearer than that by consent of the parties to the record, the object was to settle the title to this disputed strip; and while the question of title might or might not have arisen as the case stood at its commencement, the parties so framed their pleadings and their agreement, as to the real vital and conceded issue, as to convert it into an action to determine and have settled the title. This is shown by almost every line and sentence of the pleadings, by all the arguments, and by the judgment and opinion of this court. The controversy was one of a public nature somewhat, affecting not alone the parties to that controversy; and everywhere there is the most abundant evidence that it was a test case to determine where the true line was in this "lost survey." Now, under these circumstances, and upon the facts disclosed, is plaintiff entitled to the benefit of this adjudication? Page was either his tenant or grantee. Defendant insists he was the latter, while plaintiff, as will be seen in the statement of facts, proposed to show he was the former. Whether the one or the other, makes but little difference. For plaintiff's protection is put upon the ground, that he was interested McNamee v. Moreland. in the defense of that action-was notified of its pendency, and did in fact and in reality conduct the defense, though in the name of Page. This, if true, would conclude him, so that he could not have disputed Moreland's title if the line "AB" had been recognized as the true one. And as he would have been concluded, we hardly need say that he can claim the benefit of the determination that the line "CD" was that which divided their lands. These propositions are well sustained. In their support we content ourselves with citing the following authorities: Chirac v. Reinecker, 2 Pet. 617; Chambers v. Safely, 7 Barb. 24; Collingwood v. Irwin, 3 Watts, 311; Hamilton v. Cutts, 4 Mass. 349; Kelly v. The Church, 2 Hill, 115; Rawle. on Cov. 109; Duffield v. Scott, 3 Tenn. 374; Kip v. Brigham, 6 Johns. 158; Blasdale v. Babcock, 1 id. 517; Bender v. Fromberger, 4 Dall. 436; Rev. §§ 3582, 89; Code of 1851, §§ 2012, 18; Brown v. Sprague, 5 Denio, 545; Dunckle v. Wiles, id. 296. We need hardly say that the existence of the estoppel is always a question of law for the courts. If the facts were as above suggested, then the jury should have been told that defendants were estopped by the former adjudication, and that their claim of adverse possession could not date back of that time. It is suggested, in argument, that the estoppel should have been replied specially to the plea of the statute, or at all events, defendants should in some way have had notice by the pleadings that plaintiff intended to rely upon this judgment. A sufficient answer is, that our statute expressly prohibits a replication, except in cases of set-off, counter-claim or cross-demand. Then again, under no system of pleading in an action of ejectment was it necessary to plead the estoppel, and especially so, when, as under our statute, there is no opportunity to plead it. See, on this subject, Sprague v. Waite, 19 Pick. VOL. XXVI. - 15 |