Opinion
May Term, 1819.
From Martin.
As an adverse possession alone will not take away a right of entry, it shall not have this effect when under a title which is common to the Plaintiff and Defendant; the intendment of law being in such case, that the Defendant's entry was for the benefit of all entitled as co-heirs.
Where both parties claim by descent from the same common ancestor, a color of title, by virtue of such descent, cannot be set up by one against the other, whatever may be the effect of a descent in any other case.
Ezekiel Moore, being seized of the land in question, devised the same before 1784 "to his three daughters, Rosanna, Celia and Elizabeth, and their heirs, share and share alike." (165) These daughters were his only children. Celia died since 1784, intestate and without issue; Elizabeth also died intestate and without issue, but whether before or since 1784 did not appear. The widow of Ezekiel Moore, the testator, intermarried with ____ Collins, by whom she had issue the wife of Thomas Midford, the lessor of the Plaintiff. Rosanna Moore, who survived her sisters Celia and Elizabeth, entered upon the land, claiming it adversely to all persons, and put into possession thereof the present Defendant as her tenant, who had more than seven years' possession before the institution of this suit. The Jury found a verdict for the defendant; and a rule for a new trial being obtained, upon the grounds, 1st. That the possession was without color of title; and 2d, That as between coheirs, the possession of one shall not be deemed adverse to that of another. The case was sent to this Court.
This case arises upon a will made before 1784, by which the testator devised the land to his three daughters, Rosanna, Celia and Elizabeth, his only children, to be equally divided between them and their heirs, share and share alike. That these words created a tenancy in common, and that the daughters took by a purchase under the will, will not admit of any doubt. Com. Dig. Assets B. 4 Cruise, 147, Powell on Devises, 440.
It follows that, upon the death of one since 1795, her share would descend to her brothers and sisters of the (166) half blood, as well as the whole blood, to those on the maternal side, as well as those on the paternal side, and whether they were born since the death of such sister or before it. The descent upon Rosanna of the share of either of her sisters, cannot amount to a color of title, so as to make her seven years' possession bar the entry of the Plaintiff's lessor, because such title was claimed in common, and was not adverse. As an adverse possession alone will not take away a right of entry, neither will it, when under a title which is common to the Plaintiff and Defendant; the intendment of law being in such case, that the Defendant's entry was for the benefit of all entitled as co-heirs. Where both parties claim by descent from the same common ancestor, a color of title by virtue of such descent, cannot be set up by one against the other, whatever may be the effect of a descent in any other case, which the Court does not decide. Let the rule for a new trial be made absolute.
New Trial. (167)