May, '75, 78. [No. 41. plaintiff at one time told the assessor to assess it in the name of the defendant; that, if the jury be"lieve that the plaintiff has not accounted for such "long-continued possession by the defendant and "wife, then defendant is not to be held to the same rigid measure of proof as that which is required to 'sustain a parol gift recently made, and the lapse of "time is allowed to supply want of directness and "distinctness of proof, although not to create evi SOWER V. WEAVER. May 5. Evidence-Ejectment- Where the defence in ejectment is purely equitable, the rule in equity, that, where th averments of the bill are contradicted in the answer, the bill must be supported by two competent witnesses or by one witness and corrobo-"dence." rating circumstances, applies-A husband and wife testifying in the husband's favor, where he is a party, considered together as one such witness. Error to Common Pleas of York County. This was an action of ejectment brought by George Sower against Henry Weaver to recover possession of sixty-four acres of land, situated in Washington Township, York County. On the trial, the plaintiff, having shown a perfect paper title in himself, testified substantially as follows: In 1846 the plaintiff put Weaver, who was married to his daughter Elizabeth, in possession of the land in dispute, telling him that he could have it for eighteen years, and keep all he could raise on it. Weaver was to pay the taxes and build a barn. The plaintiff advanced most of the money for the barn. În 1853 the plaintiff sold a portion of the land to the Schol Directors of Washington School District, and received the purchase-money. Weaver helped to measure off the lot so sold. When the eighteen years were up, the plaintiff proposed to give the land to Weaver and his wife at the assessed valuation. Weaver said he would like to have the land, but could not take it. After this, the plaintiff demanded rent at various times; also the possession of the land, but neither was rendered at any time up to suit brought on April 2, 1873. The defendant offered evidence, by the testimony of himself and his wife, that he went into possession of the land under a parol gift from his fatherin-law, Sower, the plaintiff, and denied any understanding that they were to remain in possession for eighteen years only, and that the plaintiff ever demanded rent. He also testified to various improvements on the land made by himself. Several witnesses on behall of the defendant testified to the plaintiff's declarations; that at one time he said to the assessor: "Assess to Weaver, I have "given it to Betsy;" that on another occasion he said that he had given the farm where Henry now lives to Betsy, and she could do with it what she pleased. Also that he said: "The property Elizabeth lives on "belongs to her and her children." The plaintiff asked the Court to charge"That the evidence given by the defendant of an "alleged parol gift of a portion of the land is indi"rect, uncertain, ambiguous, and contradictory in "its terms, and is not sufficient to take the case out "of the operation of the Statute of Frauds and "Perjuries." Refused. 66 2. "If the jury are fully satisfied from the evidence of the fact of a parol gift, of the identity of the land "and extent of the gift, delivery of possession in pur"suance of the gift, and the erection of valuable build"ings and improvements by the defendant; that the "land was assessed to the defendant, and that the 'plaintiff directed it to be assessed in the defendant's "name, and the defendant paid the taxes from that 'time to the time of bringing this suit; and if the jury "believe that the plaintiff has not accounted for such long-continued possession by the defendant, the "plaintiff is not entitled to recover." Defendant's points affirmed. The charge of the Court below (FISHER, P. J.) did not form the subject of any assignment of error. Verdict and judgment thereon for defendant, to which the plaintiff took this writ of error, assigning for error, the answer to points as above given. H. L. Fisher and W. C. Chapman, for plaintiff in error. The case is clearly within the operation of the statute of frauds. Time, place, and circumstances of the gift must be proved. The evidence must be direct and unambiguous. A chancellor would not have decreed the execution of a deed by the plaintiff to defendant on such evidence as is here given. Brawdy v. Brawdy, 7 Barr. 157. Moore v. Small, 7 Harris, 461. The declarations of a father us to family arrangements with his children are the most unsatisfactory kind of evidence. Robertson v. Robertson. 9 Watts, 32. Keesey and Gibson (McElroy with them), for defendant in error. The lapse of time will supply the want of directness and distinctness in the proof. Willey v. Day, 1 P. F. Smith, 57. The plaintiff, being twenty-six years out of possession, and having disclaimed his title to various persons, ought to be estopped from asserting by parol evidence that no gift was made. May 17. THE COURT. Had this case been tried below before the Act of 1869, and without the testimony of the defendant and his wife, there would have been literally no evidence to sustain the defence. There would have been nothing but a few vague declarations by the plaintiff, entirely consistent with a temporary umily arrangement by which the father built a nouse on his land and put his daughter and son-in-law in possession, to hold during his pleasure, and utterly insufficient to establish a parol gift. Even the testimony of Weaver and his wife did not come up to the requirements of the rule that the evidence of the contract must be direct, positive, express, and unambiguous. (Ackerman v. Fisher, 7 P. F. Smith, 457.) A chancellor must look at the whole evidence, and in this case the uncontradicted fact, that during Weaver's possession Sower sold and conveyed a part of the land with Weaver's knowledge and assent for a school house, would of itself contradict the inference of a parol gift... But how stands the case since the Act of 1869, and supposing that the testimony of Weaver and his wife made out the gift? The defence was a purely equitable one. Had the defendant gone into a court of equity for a specific performance, or for an injunction to restrain the plaintiff from pursuing his legal title to turn him out of possession, the denial of the plaintiff on oath of the equity of the bill would have compelled the complainant in the bill to sustain it by two witnesses, or what would be equivalent thereto. Here George Sower, under oath, fairly and squarely denied all the equity which Weaver set up. Admitting Weaver and his wife to amount together to one sufficient witness, where is the remaining witness or that which is equivalert thereto? It is not to be found in the case. It is clear that this well established rule of equity must be applied in cases of this character, or the rule must be abolished on the equity side of the court. As long as equitable ejectments may be maintained and equitable defences set up at law to legal titles. we must see to it that the same rule and measure of justice be applied, whether the proceeding be at law or in equity. We adopted and announced this principle in the opinion in the Dollar Savings Bank v. Bennett, decided at Pittsburg, Nov. 1874, and it is our purpose to adhere to it. Judgment reversed and a venire facias de novo awarded. Opinion by SHARSWOOD, J. [in full] May, '75, 42. KILLE et al. v. EGE et al. May 13. Evidence-Presumptions- Execution and delivery of a deed to be presumed from the recording of it, and possession of the deed by grantor's administrator, the husband of cestui que trust- What acts sufficient to constitute adverse possession of unseated land-Cutting timber, "coaling," etc., not sufficient evidence of adverse possession in the absence of continuous possession. Error to the Common Pleas of Cumberland County. This was an action of ejectment brought by Caroline Ege and others, heirs of Mrs. Elizabeth Ege, against John T Kille and others, for a tract of land known as the William Cox tract, situate in Dickinson township, Cumberland County. Plea, not guilty. The plaintiff's proved title as follows: (1) Warrant William Cox dated October 24, 1785, for 300 acres, adjoining lands of Stephen Foulk and Lewis Foulk. (2) Survey on the warrant, November 12, 1785, and the return of survey on March 10, 1791, the amount being 333 acres, 36 perches. (3) Deed from William Cox to Michael Ege, dated November 10, 1787, tor the land so surveyed. (4) Patent to William Cox for the same land, dated March 14, 1791. (5) Record of a deed from Michael Ege to John Miller in trust for Elizabeth Ege, wife of George Ege (the son of the grantor), dated June 2, 1815; recorded June 7, 1848, reciting the purpose of promoting the interest of the cestui que trust separate and apart from that of her husband, and conveying seven tracts of land, among them— Tract of Thomas Thornburg, warrant dated October 1, 1792. Tract of William Cox, warrant October 24, 1785. Tract of John Arthur, warrant October 1, 1792. Tract of Michael Ege, warrant October 1, 1792. To hold the seven tracts in trust for the sole and separate use of Elizabeth Ege and of her heirs and assigns; with power to the trustee, with the consent of Elizabeth Ege or her heirs, to sell in fee simple, the proceeds of such sale to be for the sole and sepa rate use of the cestui que trust and subject to her disposal by will, deed, or otherwise; acknowledged June 2, 1815; witnessed by George D. Foulk. Appended to the deed, as appeared by the record offered in evidence, was the affidavit of George D. Foulk, made May 23, 1848, "that the name George D. Foulk,' subscribed to the foregoing indenture as a witness, is the proper handwriting and signature of deponent." This affidavit was rejected by the Court when offered in chief, but admitted in rebuttal. (6) Family record of deaths:: 6, Michael Ege died August 31, 1815. Elizabeth Ege, the cestui que trust, died December 1848. George Ege, husband of Elizabeth, died February 11, 1858. John Miller (the trustee) died in 1832. The plaintiffs then proved themselves heirs, as children and grandchildren of Elizabeth Ege, and rested. The accompanying draft shows the shape and position of the William Cox tract, the land in dispute, which is a long, irregular strip of land, almost surrounded by the Thomas Cookson, Lewis Foulk, and John Foulk tracts which were afterwards conveyed and became one property, known as part of the Mount Holly Iron Works estate. The defendant, to invalidate the paper title thus shown in the plaintiffs, set up: (1) that the William Cox tract was part of the Mount Holly Iron Works estate purchased by Michael Ege (the grantor in the deed of trust) in 1803, and afterwards the property of George Ege, his son, whose title to the Iron Works estate, by sheriffs' sales in 1838 and 1849, and by subsequent mesne conveyances, became vested in the defendant; (2) that the plaintiffs' recovery of the land in dispute was barred under Act of 27 April, 1855 (P. L. 369) by the thirty years adverse possession of the defendant, and of those under whom he claimed; (3) that the deed of trust, the record only of which had been given in evidence by the plaintiffs, was never executed, or, if executed, was never delivered; and, under the first ground of defence, read in evidence articles of copartnership, dated December 8, 1785, between Stephen Foulk and William Cox, by which they agree to bring the William Cox tract 66 44 They then made the following offer: "The defendants now offer in evidence a deed of "Stephen Foulk and wife to John W. Kittera, Samuel "Iago, and James Boyd, dated 17 June, 1795, for a "number of tracts of land; among them, one in the "name of Thomas Cookson, one in the name of Lewis Foulk, and one in the name of John Foulk; that "these three tracts of land surround the William "Cox tract in dispute [see draft]; and that the "several tracts of land are conveyed by said deed as 'the Holly Iron Works; and also a deed from the "same parties to the grantees, also dated June 17, "1795, conveying by courses and distances the Wil"liam Cox tract, an interest in which is already shown "to be in Stephen Foulk, the grantor, by the agree"ment of 8 December 1785, in evidence, together "with a mortgage upon the lands embraced in the "aforesaid deeds, both of which were recorded upon "the day they were made, and of even date there"with from the grantees to the grantor, under the "name of the Holly Iron Works; a judgment ob"tained upon said mortgage, a sale made thereon, "and a conveyance made by the sheriff of the lands "embraced in the two deeds of 17 June, 1795, by the "name of the Holly Iron Works to Michael Ege, to "be followed by parol evidence that Michael Ege "adopted the name of the Holly Iron Works, thus "given by the said deeds to the land embraced there"in, including the land in dispute, and that the said "Cox tract, with the other lands from the time "they came into the ownership of Michael Ege down "to the present time, have been used, known and "called by the name of the Holly Iron Works." Objected to by plaintiffs as immaterial, because a good title had not been shown in Stephen Foulk. Evidence rejected. Exception for defendant. The defendants renewed the foregoing offer for the purpose of raising a presumption of a conveyance from Cox to Foulk. Evidence rejected for this purpose, because the Cox title was in Court, asserting itself against the defendants. Exceptions for defendants. Under the defence of the Statute of Limitations, the defendants next offered to prove "that the Mount "Holly estate, embracing the land in dispute, was "put in possession of George Ege by his father, Mi"chael Ege, prior to 1815, and that George Ege "went on to build a furnace and make other improve"ments on it, and treat it as his own property, "recognized by his father as his property prior to "the deed of 2d June, 1815; that Michael Ege died "on the 31st of August, 1815, intestate, leaving three "sons and two daughters; that Peter Ege (son of "Michael Ege) before his father's death had been "put in possession of Cumberland estate by his father, as his property, and that Michael Ege, Jr., "had been put in possession of the Carlisle Iron "Works as his property; each property recognized "and declared by Michael Ege to be the property "of the sons respectively so put in possession; and "that after the death of Michael Ege, Sr., George "Ege continued in the possession of Mount Holly "Iron Works, and all the lands belonging thereto, "including the land in dispute, up to 1838; that said "lands were coaled over by George Ege for his fur"nace and forge; that he spoke of them as his lands, "and had them returned and taxed as his before and "after his father's death, and that in 1835 he gave "an amicable condemnation of the Mount Holly 6. 66 66 66 "estate by boundaries, which included this tract of June 2. 1815, offered to prove: That George Ege "land in dispute; that the interior lines of surveys was one of the administrators of Michael Ege, de"had become obliterated, and the whole body of “ceased, and left the said deed of trust for record at "lands known as the Mount Holly estate became "the Recorder's office, on June 7, 1848; that George "one body, and a part of them cultivated and im- Ege and Elizabeth, his wife, the cestui que trust, in "proved by George Ege from 1812 up to 1838; and "said deed of trust, by their deed, dated the 27th "all this before the purchaser at sheriff's sale in day of July, 1825, and duly recorded, conveyed the 1838 (when the whole property was sold as the "tract of land, under the warrant of the 1st of Octo"property of George Ege) had any notice or knowl-"ber, 1792, in the name of Michael Ege, to Sarah "edge of the deed of trust given in evidence by the "Miller, as bounded on all sides by land of Stephen plaintiffs; and that George Ege, being so put in "Foulk. now of George Ege; that John Miller, of possession of the Mount Holly estate, as stated, it "Carlisle, on July 7, 1815, took out a warrant for was generally reputed, from 1812 to 1838, to be "400 acres of land, adjoining land of Michael Ege, "his property." on the north. under which the land in dispute was Objected to by plaintiffs, because-(1.) Nothing "surveyed to him; that on July 15, 1815, a tract contained in the offer would give George Ege any was surveyed on a warrant granted to Samuel estate to the land in dispute during the lifetime of "White, dated September 8, 1814, that the deputy his father. (2.) The possession of George Ege, after " 'surveyor returned that a portion of the land so the death of his father, was not adverse to the plain- "surveyed was claimed by George Ege, by virtue of tiffs. (3.) That as against the judgment creditors of "a warrant granted to Moses Foulk, dated March 4, George Ege, the recording of the trust deed was not "1786, and that part of it was claimed by Thomas necessary. (4.) The possession of the Mount Holly "Thomburg, by virtue of a warrant to him, dated estate could not affect the title of the plaintiffs. "October 1, 1792, and that on March 3, 1817, the The evidence to prove reputation of title in George "Board of Property, after hearing the claimants, Ege rejected. Evidence that George Ege occupied "decided in favor of the said George Ege, and Thomas the Mount Holly estate during the lifetime of his "Thomburg, upon their respective claims as returned father admitted, subject to the control of the Court, "by the surveyor; that upon the warrant of July 30, to ascertain whether there was a positive contract"1814, to George Ege, the deputy surveyor made a between Michael Ege and George Ege, by which "return accepted May 2, 1845, that he surveyed the George Ege's title would, on June 2, 1815, be supe- "tract on December 11 and 12, 1844, and that his rior to that of his father. [The Court afterwards, in "survey thereof is by the same courses and distances, their general charge, instructed the jury that on and for the precise quantity of land by which it is June 2, 1815, when the deed of trust was executed, "described in said deed of trust; that such a return the title was in Michael Ege.] Exception for de-imports an original survey upon the days mentioned, fendants. The defendants proved by various witnesses that the William Cox tract, being within the exterior lines of the Mount Holly estate, was used by the owners of that estate with the rest of their lands; that there was an old log cabin on the land in dispute which was used from time to time by the tenants of George Ege up to 1838 or 1839; that the garden attached to the cabin was cultivated almost up to 1847. The defendants came into possession in 1869, and made various improvements on this tract. 66 The defendants then offered to prove by a witness "that, about 1823, witness bought some pine trees "from George Ege; that George Ege pointed out the Cox tract, and told witness to cut them on that "tract, that it belonged to him (George Ege), and "that the trees were cut there; this for the purpose "of showing a claim of title to the land in dispute, "and a claim that could not be affected by a secret "trust after the land had passed into the hands of "innocent purchasers, and also for the purpose of "showing that the deed of trust could not have been "delivered at that time, it not being recorded until "1848." Objected to by plaintiffs. Offer rejected. Exception for defendants. The defendants next offered various leases by George Ege, all after 1827, of the Mount Holly Iron Works for the purpose of showing Ege in possession and exercising acts of ownership over the Cox tract. Objected to, because no title is shown in the lessor, and because leasing his wife's land gave him no title. Evidence rejected. Exception for defendant. The defendants then, to rebut the presumption of the execution and delivery of the deed of trust, dated "and that, after the lapse of nearly thirty years from "the date of the deed of trust, a re-survey in the "mountain and in the wooded district would have "shown some variations in the courses and distances; that at a sheriff's sale of the property of W. C. "Chambers, prior to 1838, George Ege gave notice "to bidders that the John Arthur tract under war"rant of October 1, 1792, and about to be sold as "the property of said Chambers, was the property of him, the said George Ege, and was a part of the "Mt. Holly estate; this to be proven by the evidence of George Ege and others in actions brought in this "court for the recovery of said land; that in 1843, George Ege brought an action against the Farmers' "and Mechanics' Bank, the purchaser of the Mount "Holly estate at sheriff's sale, by a description which "included the land in dispute, claiming that he had "withdrawn certain exceptions to the confirmation 66 66 of the sale of said property by the sheriff upon the "promise that the said purchaser would convey said "estate to certain parties in trust for the family of "said George Ege." Objected to by plaintiff as immaterial. Evidence as to who procured the recording of the deed of trust admitted. Rest of offer rejected. Exception for defendant. (The rejection of this offer was the seventh assignment of error referred to in the opinion of the Court.) The defendants in closing their evidence, showed their title: (1) Judgment, levy and fi. fa. in favor of the Farmers' and Mechanics' Bank against George Ege. (2) Amicable condemnation given by George Ege, on the fi. fa., of the Mount Holly estate by a description which included the land in dispute. [This description was by "adjoiners," i. e., 88 bounded by the tracts of adjoining owners.]_ (3) Sheriff's deed, dated August 20, 1838, to the Bank for the land as described in the condemnation. (4) Deed of the Bank to Geisee and Kropff, dated July 1, 1846 (recorded prior to the record of the deed of trust), for the land conveyed by the sheriff. (5) Sheriff's deed, dated November 13, 1849, for the Mount Holly estate, sold as the property of Geisse (who had become sole owner.) The defendant claimed under the title thus made to the Mount Holly estate. In rebuttal the plaintiff put in evidence the petition of Peter Ege, eldest son of Michael Ege, for partition of Michael Ege's estate, setting out in detail the various tracts of land composing the Mount Holly estate, the seven tracts named in the alleged deed of trust not included. Also, the return of inquest, confirmed July 6, 1816, appraising the Mount Holly estate and describing it as "all that estate known as the Mount Holly Iron Works consisting of the buildings and improvements thereon erected "with the privilege of taking ore, etc. . And also the following tracts of land attached to and forming a part of the said Mount Holly Iron Works "estate." Giving the tracts in detail (the seven tracts named in the deed of trust not being included in the enumeration.) 66 The plaintiffs then gave in evidence the award of the Mount Holly estate to George Ege, and having read in evidence the administration account of George Ege, as one of his father's administrators, to show that prior to Michael Ege's death George Ege was in possession of Mount Holly as agent for his father, closed. 66 The plaintiff presented the following points:1. That the land which comprised the Mount 'Holly estate is fixed by the proceedings in partition of the real estate of Michael Ege, dec'd, and these "proceedings being of record and describing accurately the contents of the tract known as Mount "Holly estate, by the names of the different warrantees, with the number of acres contained in each survey, the purchaser at sheriff's sale of the Mount Holly estate, as the property of George Ege, took "it with notice of record that the tract in dispute "did not form a part of it." 64 66 2. That as against the judgment-creditors of George Ege it was not necessary that the deed of trust should be recorded. Points affirmed. 2. If the deed of trust by Michael Ege to John Miller, in trust for Elizabeth Ege, was executed and delivered, Elizabeth Ege or her trustee had the right to bring suit for the land in 1838, immediately after the sheriff's sale of the property and possession taken by the purchaser, as George Ege had no marital right in the land. And as she lived until December, 1846, and never brought suit, and her children and heirs never brought suit until 1874, and all lived within seven miles of the property, and in the same county; and in the mean time the property passed to various vendees, who paid their money for it, and expended money and labor in improving the property, without any notice of claim of title by Elizabeth Ege, or the present plaintiffs, they are estopped from recovering it now; and the verdict should be for the defendants. 3. If the property was represented in the warrants, survey, and patent as seated land, and was returned by George Ege for taxation from 1814 to 1838, as his seated land; and a house was built on it by George Ege, which was occupied by his tenants; and the land was improved and cultivated for over twenty-one years by those who held under him, continuously, notoriously, and in hostility to all other titles; and George Ege was a son and heir of Michael Ege, who held this land in his lifetime, and who died in 1815 intestate; and George Ege used the land from 1812 to 1838 as his land, coaling on it, cutting the wood on it, and it was all this time known as his; this would create in George Ege such a title as would pass the fee-simple to an innocent purchaser at the sheriff's sale, who had no notice o knowledge of the deed of trust. THE COURT (JUNKIN, P. J.) refused to affirm defendants' points, and charged inter alia as follows: "On the death of the father Michae, this Mount "Holly property (but not this land in dispute), was "valued and appraised, together with the other lands "of the father, in due form in the Orphans' Court of "this county, and accepted by George Ege, at the "valuation, and thus he got title to the Mount Holly "lands, but the Cox survey was not embraced. It was not, nor the remaining six tracts embraced in the trust, included among old Michael Ege's land, "by the inquest, and this tends to support the trust deed, because at his death he did not own the lands "embraced therein. 66 "put upon record until the 7th June 1848, which it is "contended excites suspicion, and so it does seem 66 66 ingular that it remained so long unrecorded. But 'the circumstance of the seven tracts embraced in "the deed, being omitted from the Orphans' Court "inquisition on old Michael Ege's estate, and the "amount of the seven tracts reaching over two thou "The law presumes both execution and delivery The defendant asked the Court to charge :- "from the recorded deed as it appears. In order to 1. That the deed of trust, purporting to have been" overthrow it, there must be some satisfactory eviexecuted by Michael Ege to John Miller, in trust for "dence pointing to it as a fraud, or justifying the Elizabeth Ege, never having been recorded or made" conclusion that it was never delivered. It was not known until long after the death of John Miller, nor until 1848, after George Ege had been sold out by the sheriff; and no trustee having been appointed after the death of John Miller; and Elizabeth Ege, not having been shown to have had the deed recorded; and George Ege, who had it recorded, being one of the administrators of Michael Ege, and in possession of all his papers; and other deeds by Michael Ege, executed for parts of his property at the same time, which it is shown were never delivered; the recording of said deed of trust is no evidence of delivery. And delivery being essential to its validity as an instrument conveying title, the facts stated are all suspicious circumstances for the consideration of the jury in determining whether the" deed of trust ever was delivered. 64 66 66 sand acres, and that inquest, held only one year "after the death of Michael Ege, the father, seem corroborative of the valid existence of this trust "deed, that the lands aforesaid were known not to be a portion of his estate, that he had parted with them before his death, and hence properly omitted, as being no part of his estate. And if parted with, to whom were they conveyed? Not to his sons, "nor any one of them, for they can show no deed, |