Boehm and Shitz v. Andrew Engle

*SEPTEMBER TERM, 1767. Present — William Allen, Chief Justice, William Coleman, John Lawrence and Thomas Willing, Justices. Boehm and Shitz v. Andrew Engle. Limitations. The Statute of 82 Sen. VIII., o. 2, extended to Pennsylvania. Action on the case for 802?. The plaintiffs under a power in the will of Henry Bolster, deceased, had sold at public vendue, to the defendant, a house and lot in the city of Philadelphia for 802?., and shortly after tendered him a deed for it, which the defendant refused to accept, being advised by counsel that Bolster had no good title to the lot. Upon which, the plaintiffs brought a special action on the case for the consideration-money. On the trial, in support of Bolster’s title, the plaintiffs produced a patent to Jane Batchelor, dated 1694, and a deed from one Richard Tucker (who had married Jane Batchelor) to John Chambers, dated 1685, and deduced a regular title from Chambers down to Bolster. The plaintiffs acknowledged the defect in the title, in Tucker’s conveying his wife’s estate, without her joining in the deed, but insisted on sixty years’ possession, as giving a good title under the statute of 32 Sen. VIII., c. 2. The counsel for .the defendant denied the extension of that statute, and urged, that if the 32 Sen. VIII. extended, the statute of 21 lac. I, c. 16, likewise extended, being both made before the settlement of the province, but it appears to have been the opinion of the legislature of this province, that these statutes of limitations did not extend, by their having made an act to limit personal actions in the very words of the statute of James, It was likewise contended, on the part of the defendant, that though the statute of 32 Sen. VIII. should be extended, yet this case was not within it ; because, 1st, The act was made on a presumption that there might have been regular conveyances and lost, but here it appears there wa s no conveyance at all from the wife, by Tucker’s granting for himself < id Ms wife. 2d. There is no proof of sixty years’ possession, the witnesse.' for the plaintiffs speaking only to 44 years back. 3d. The act of 32 Men,. VIII. does not operate, unless sixty years elapsed since right of entry accrued, and here Tucker’s wife L¿d no right of entry until the death of her husband, which was in 1708, and not sixty years ago. There was another point made for the defendant, that in one of the mesne conveyances, about sixteen years ago, the wives of the grantors had not joined in the deed, and were now living and consequently, might be entitled to dower. *For the plaintiffs, it was answered, that in 2 P. Wins. 75, and many other cases, it was settled, that all acts of parliament made before the settlement of the colony, extend, unless local in their nature ; that under this rule, the statute of wills, statute of uses, and many other statutes, were always held to extend ; and that the reason of this act extended as well as any other. That as to this case not being within the act, the presumption spoken of was not justified by the act itself, which extended to every case. '2d. Though the witnesses swear only to forty-four years’ possession, yet after such a length of time, it should be presumed the possession had been from the date of the deed to Chambers, which was in 1685. Sd. The rights of femes covert are not saved in this act (except such femes covert as were in being at the time of making the act), and possession was out of Tucker’s wife from the time of her husband’s deed to Chambers. As to the last point, it was said, that it was picked up at the bar, and not objected to at the time of tendering the deed: that it did not strictly go to the title, but was only a claim of two old women for their lives, which the jury might take notice of, if they pleased, by lessening the damages. 12 Ann. c. 2; 1 Sm. L. 76; and 1 Geo. I. c. 8, § 6; 1 Sm. L. 91. [MAJORITY] The Court were unanimous and clear in their opinion, that the act of 82 Hen. VIII. did extend to this province, and gave it in charge to the jury accordingly. The verdict of the jury was conformable to this opinion, by their finding for the plaintiffs, having made an allowance for the lives of the two women in the damages, The same point was ruled in Morris v. Vanderen, post, p. 67. The act of 1785 (2 Sm L. 299), passed since these decisions, has superseded the British statute.