DAVIS v. COBLENS(1899)
F. [174 U.S. 719, 720] H. Mackey and W. Mosby Williams, for plaintiffs in error.
J. J. Darlington, for defendants in error.
Mr. Justice McKENNA delivered the opinion of the court.
The is an action of ejectment brought by the plaintiffs in error and one Charles M. N. Latimer against the defendants in error for 99/100 undivided part of original lot 10, in square 1031, in the city of Washington, D. C.
The declaration was in the usual form, and defendants pleaded not guilty, on which issue was joined.
The plaintiffs derive title from Richard Young as heirs at law or grantees of heirs at law. The defendants claim by adverse possession under claim of title under an execution sale upon a judgment recovered against said Richard Young some time in the year 1826.
The case was tried by a jury. Before the case was submitted, leave was granted to amend the declaration by striking out plaintiffs Charles M. N. Latimer and William W. Boarman. The verdict was for defendants; and, after a motion for new trial was made and denied, judgment was entered in accordance therewith. The plaintiffs appealed to the court of appeals, where the judgment was affirmed, and the case was brought here.
There are 11 assignments of error in plaintiffs' brief. All but three relate to instructions given or refused or modified concerning adverse possession. The plaintiffs contended for or objected to instructions which submitted the question of adverse possession to the jury. The other assignments of error will be noted hereafter.
1. The evidence of adverse possession contained in the bill of exceptions is as follows:
We think the evidence was sufficient to justify the action of the court in submitting the question to the jury, and the exceptions based on such action were not well taken.
2. Did the adverse possession apply to the title derived by the plaintiff Lucy T. Davis from her mother, Tracenia Latimer, and to the title of the plaintiff Millard P. McCormick, derived from his mother, Elizabeth McCormick?
It is one of the contentions of the plaintiffs that it did not apply to those titles, and error is based on a refusal of the court to so instruct the jury. The adverse possession began February 22, 1875. The suit ws brought May 17, 1895. There were therefore 20 years and a few months adverse possession. Richard Young, the common source of title, died in 1860, testate. His will, in effect, devised the property in controversy to Matilda, his wife, for life; remainder to Tracenia and Elizabeth and other children. Both were then married. Their mother, to life tenant, died October 7, 1874. Tracenia [174 U.S. 719, 724] died November 17, 1879, and her husband April 20, 1880. She left two children, one of whom is the plaintiff Davis. Elizabeth died March 22, 1889. Her husband survived her, but died July 2, 1891. October 14, 1887, she and her husband conveyed their in terests to their son, the plaintiff Millard P. McCormick. From the death of Elizabeth and her husband, five and four years, respectively, elapsed before suit, and from the date of the conveyance to Millard over eight years. Assuming that Tracenia Latimer and Elizabeth McCormick were under disability when the adverse possession commenced, did that possession ever run against their interests, and, if so, when did it commence to run?
The statute of limitations in force in the District is that of Jac. I. c. 16. Under that statute, no suit for lands can be maintained, except 'within twenty years next after the cause of action first descended or fallen, and at no time afte the said twenty years.' Additional time is given to those under disability, as follows: 'That if any person ... shall at the time of said right or title of entry be or shall be at the time of the said right or title first descended, accrued, come or fallen within the age of twenty-one years, feme covert, non compos mentis, imprisoned, that then such person and persons, and his and their heir and heirs, shall or may, notwithstanding the said twenty years be expired, bring his action, or make his entry as he might have done before this act; ( 2) so as such person and persons, or his or their heir and heirs, shall within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or death, take benefit of, and sue forth the same, and at on time after the said ten years.' Comp. St. D. C. p. 359, 2.
More than 20 years elapsed after Tracenia's right accrued, as we have seen, before suit was commenced, and more than 10 years of that time accured after her death and that of her husband. She died under disability, but that made no difference. By the terms of the statute the time of limitation of suit commenced to run upon her death against her heir, Lucy T. Davis, and expired in 10 years. No dis- [174 U.S. 719, 725] ability of Lucy T. Davis, if she was under any, arrested the running of the statute. Cumulative disabilities cannot be used to that effect. Thorp v. Raymond, 16 How. 247; Demorest v. Wynkoop, 3 Johns. Ch. 129; Smith v Burtes, 9 Johns. 174; Jackson v. Johnson, 5 Cow. 74; Walden v. Gratz's Heirs, 1 Wheat. 292; Hogan v. Kurtz, 94 U.S. 773 ; Mercer's Lessee v. Selden, 1 How. 37; McDonald v. Hovey, 110 U.S. 619 , 4 Sup. Ct. 142.
The bar of the statute was therefore complete against her. But it was not complete against Millard McCormick. Ten years of the period of adverse possession had not run after the death of his parents or after the conveyance to him and before suit was commenced, and we are brought to the contention that a verdict should have been rendered for him. Passing on and disposing of the contention adversely, Mr. Justice Shepard, speaking for the court of appeals, said:
These remarks express the rule correctly.
It was urged at the argument by defendants in error, though not claimed in their brief, that neither Tracenia Latimer nor Elizabeth McCormick were under disability at any time during the period of adverse possession. The argument was that by the married woman's act of April 10, 1860 (14 Stat. 45), they were given the same remedies in regard to their property that they would have had if unmarried.
The contention presents an interesting question, and maybe involves the further one whether their husbands ever became tenants by the curtesy. But we need not pass on them. Assuming the disability of Tracenia and Elizabeth and such tenancy, the errors assigned on the instructions given or refused were not well taken.
3. There was introduced in evidence, as part of the chain of title of the plaintiff Lucy T. Davis, a deed from her to John H. Walter, and a reconveyance from him to her. From the latter was excepted 'so much of all the lands and tenements above mentioned as had been conveyed to the party of the first part (Walter) to other persons prior to the filing of a bill in equity cause 11,637 of the supreme court of the District of Columbia.'
Walter was called as a witness by plaintiffs, and testified that such reconveyance was the only one he had made of lot 10,-the lot in controversy. Thereupon defendants' counsel cross-examined him at great length, against the objection of plain- [174 U.S. 719, 727] tiffs, regarding his business of buying and selling real estate, and the extent of it and character. he ruling of the court permitting the cross- examination is assigned as error. We see no error in it. The question of plaintiffs' counsel was a general one, and opened many things to particular inquiry. The extent and manner of that inquiry was necessarily within the discretion of the court, even though it extended to matters not connected with the examination in chief. In Rea v. Missouri, 17 Wall. 532, it was said: 'When the cross-examination is directed to matters not inquired about in the principal examination, its course and extent is very largely subject to the control of the court in the exercise of a sound discretion, and the exercise of that discretion is not reviewable on a writ of error.'
It is also objected that Walter was subjected to discriminating remarks by the court. Plaintiffs requested the following instruction:
The court struck out the words in italics, and inserted instead, 'and the weight to be given his testimony is a proper question for the jury.'
The instruction as requested assumed the credibility of the witness; as modified, that question was submitted to the jury, who were the judges of it, and we cannot suppose that the jury misunderstood the court or believed a discrimination was intended.
To the other assignments of error special consideration is not necessary to be given.