Opinion
Fall Sessions, 1842.
Smithers and Frame, for plaintiff.
Bates and Huffington, for defendant.
The plaintiff claimed title under Daniel Bedwell, assignee of Ann Peterson, to whom the land was assigned in the Orphans' Court as intestate land of Rebecca Sutton. Exceptions were taken in the Orphans' Court to the assignment of the land, and objections made to the return, by this defendant; but it was confirmed by that court after hearing. The title of Rebecca Sutton rested on a very ancient holding. Ann Peterson had recovered in a previous ejectment of this defendant by confession.
The defence was, that this holding had not been adversary; and that the assignment in the Orphans' Court was not in conformity to the act of assembly, and conveyed no title. The principal objection to these proceedings was, that they assigned the land as intestate land of Rebecca Sutton, when she was proved to have married, and was the widow of one Hamilton.
The plaintiff's counsel replied, that the proceedings in the Orphans' Court, to which John Hayes became a party on his own motion, precluded him from denying the title of Rebecca Sutton; ( Dig. 324; 1 Harr. Rep. 485, 555, Martin's lessee vs. Roach:) that the recovery in ejectment at the suit of Ann Peterson against the present defendant was conclusive, the judgment being by confession, (2 Harr. Rep. 30, Porter's lessee vs. Matthews:) that Rebecca Sutton had title by possession; and the proceedings for dividing the land were properly taken in the name of Mrs. Sutton, because, though she married Hamilton, they never lived together, and she was always known by the name of Sutton.
The case was argued before the jury by Smithers and Frame, for plaintiff; and Bates and Huffington, for defendant.
Chief Justice Booth charged the jury: —
Plaintiff claims through proceedings in the Orphans' Court the title of Rebecca Sutton; who, he says, died seized of the land. Rebecca Sutton left three children, of whom Ann Peterson was one. Ann Peterson conveyed to Daniel Bedwell, to whom the land was assigned in the Orphans' Court. Bedwell conveyed to plaintiff. The proceedings in the Orphans' Court were on the petition of Bedwell, and the assignment in the Orphans' Court conveyed to him all Rebecca Sutton's title in the land.
What was the title of Rebecca Sutton? Plaintiff insists that she had a title by possession. Twenty years adverse possession, uninterrupted, gives a good title. It is for the jury to say whether there has been such, a possession in Rebecca Sutton; if so, the verdict ought to be for plaintiff for all the land.
The plaintiff contends also, that because of a recovery had by Ann Peterson against this defendant, in a previous action of ejectment, the defendant is estopped from controverting the plaintiff's title as to one-third. The general rule is, that a recovery in ejectment is not conclusive in any other ejectment; and we do not think this case varies the matter, though it is called a recovery on confession. The record shows that it was not a confession formally made in open court, but a general confession of judgment, having no other effect than the verdict of a jury.
The plaintiff also contends that the proceedings in the Orphans' Court are conclusive against this defendant. These proceedings in the Orphans' Court are ex parte, on the petition of some one or more of the persons concerned. Those proceedings conclude no one, not a party to them, from denying the title of the intestate.
The plaintiff had a verdict.