Duncan research files of
"Reports of cases argued and determined in the Supreme Court of Judicature : and in the Court for the Trial of Impeachments and the Correction of Errors of the State of New York" by John L. Wendell; ("Wendell's Reports") Vol.6, pgs.488 to 496 (California State Law Library, Sacramento, 1/2004)
DUNCAN v. SUN FIRE INSURANCE COMPANY; Supreme Court of Judicature of New York; 6 Wend. 488; January, 1831, Decided.
This was an action on two policies of insurance, tried at the N. Y., Circuit in Nov., 1829, before the Hon. Ogden Edwards, one of the Circuit Judges. The defendants, by two policies, insured six frame stores in Mobile, in the State of Ala., against loss or damage by fire, to the amount of $13,600. By the policies, the stores were privileged to contain goods not hazardous, hazardous and extra hazardous. In each policy are contained clauses in these words: "And it is agreed and declared to be the true intent and meaning of the parties hereto, that in case the above mentioned buildings shall, at any time after the making, and during the continuance of this insurance, be appropriated, applied, or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation, denominated hazardous or extra hazardous, or specified in the memorandum of special rates in the proposals annexed to this policy, or for the purpose of storing therein any of the articles, goods or merchandise in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, unless herein otherwise specially provided for, or hereafter agreed to by this company in writing, to be added to or indorsed upon this policy; then, and from thenceforth, so long as the same shall be so appropriated, applied, or used, these present shall cease, and be of no force or effect." And, also; "And it is moreover declared, that this policy is made and accepted in reference to the proposals and conditions hereto annexed, which are to be usedand resorted to, in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for." The proposals referred to in the policy set forth eight classes of hazards, and the rates of annual premiums; the eighth class being thus described: "Buildings entirely of wood. Goods not hazardous therein, 75 a 100 cents per $100." Then follows an enumeration of goods considered not hazardous, and of goods, trades and occupations considered hazardous and extra hazardous, and also a special memorandum, in these words: (MAD: more omitted here)
The premium paid in this case was $1.50 per $100. Within the time for which the buildings were insured, a fire happened. It commenced in one of the stores; and whilst it was consuming, a loud explosion took place, which the witnesses, judging from the shock and the effects produced, all concurred in stating their belief proceeded from powder deposited in the store. The store in which the fire commenced was entirely consumed, and four of the other buildings were more or less injured. At the time of the fire, there were also three kegs of powder in one of the other stores, which were removed during the fire. The stores in which were powder were occupied by tenants of the plaintiff. The damage of the plaintiff was estimated at $6,050, the loss upon the building consumed being estimated at $3,000, the full sum at which it was insured. The testimony being closed, the counsel for the defendants prayed the judge to instruct the jury, that if the building in which the fire originated, was, at the time of the fire, used for the purpose of storing gunpowder therein, although it were without the knowledge or privity of the assured, the assured could not recover for the damage done to the building by the fire, in consequence of the restriction in the body of the policy, and in the proposals and classification of hazards therein referred to and annexed thereto. To this the plaintiff's counsel objected, and insisted that the judge should instruct the jury, that even if there was gunpowder stored in the building in which the fire originated, without the knowledge or agency of the assured, yet that the plaintiff was not barred from recovering the loss on such building. The judge charged the jury that the circumstance of there being gunpowder stored in the building previous to, and at the time of the conflagration, without the agency or knowledge of the assured, did not form a bar to the plaintiff's recovery, and that the whole of the evidence adduced by the defendants to establish that fact was irrelevant, and not to be considered by them in forming their verdict. The defendants excepted to the charge of the judge, and the jury found a verdict for the plaintiff for $7,432.08, including interest upon the estimated loss. The defendants moved for a new trial.
(MAD: counsel's arguments omitted here; case citations omitted)
(opinion) By the Court, Savage, Ch. J. It is not denied that one of the buildings insured was destroyed, and four of the others injured, by the peril insured against. The defendants must, therefore, pay the amount of the plaintiff's loss, not exceeding the amount insured, unless they are excused in consequence of gunpowder being stored in some of the buildings. Whether the powder was there with the knowledge or agency of the plaintiff, seems to me not very material. The absence of agency or knowledge on the part of the plaintiff, excuses him from any imputation of fraud, or an intention to violate his contract. The policies say nothing about the knowledge or agency of the plaintiff in storing articles therein prohibited, but the contract is, in substance, that if the building shall be used for storing articles not privileged to be there, then, so long as they shall be so used, the policies shall cease; and be of no force or effect. The plaintiff could not be supposed to know what articles were deposited in all these buildings, they being let to different persons. The building destroyed was divided into four tenements; two of which were used for storing goods, another as a commission store, and the other for counting-rooms; but whether he knew that there was powder in the stores or not, if the buildings were used in a manner prohibited by the policy, the liability of the defendants ceased.
The proposals and conditions attached to the policy form part of the contract, and have the same force and effect as if contained in the body of the policy. It is expressly stipulated that the buildings may contain articles denominated not hazardous, hazardous and extra hazardous; but if they contain those included in the memorandum of special rates, while they are so used, the policy shall cease and be of no effect. The stipulations in policies are considered express warranties; an express warranty is an agreement expressed in the policy, whereby the assured stipulates that certain facts relating to the risk are or shall be true, or certain acts relating to the same subject have been or shall be done. It is not requisite that the circumstance or act warranted should be material to the risk; in this respect an express warranty is distinguished from a representation. (MAD: part omitted here) In this case I consider the policy and the proposals and conditions annexed as saying in substance, that the buildings are privileged to contain goods -- not hazardous, hazardous and extra hazardous -- warranted not to contain those included in the memorandum of special rates. If gunpowder, by the policy, is included in the class denominated extra hazardous, then it was privileged to be stored in the buildings insured; if not, and it is admitted that gunpowder was contained in the buildings at the time of the fire, then the policy was thereby rendered inoperative and of no effect. To determine whether gunpowder belongs to one or the other of the classifications mentioned, recourse must be had to the instrument itself. The clause in dispute reads thus: "Extra hazardous. The following trades and occupations, goods, wares and merchandise are deemed extra hazardous, and will be charged 25 cents and upwards, per $100, in addition to the premium above specified, for each class, viz.: apothecaries, or druggists," etc., enumerating a great number; ending with "grain unthreshed," and concluding with a period. Then follows in the same line a distinct sentence, as follows: "Gunpowder is not insurable, unless by special agreement." After which a distinct paragraph commences as follows: "Special mem. Grist-mills," etc., etc., "will be insured at special rates of premium." I understand these proposals as including gunpowder under articles extra hazardous, but distinctly stating that it will not be insured at the same rate as the other articles within the same class. I think the defendants so understood it, as is inferrible from that part of the policy out of which the controversy arises, and which I have quoted. The printed part of the policy excludes everything denominated hazardous, extra hazardous, or included in the memorandum of special rates, unless specially provided for. This was evidently intended to exclude everything but such as was considered not hazardous. Gunpowder is either included in extra hazardous or forms a distinct class; if it forms a distinct class, then the printed form permits gunpowder when it excludes articles hazardous and extra hazardous, which are less combustible, and are insured at lower rates, which is an inconsistency not to be presumed or inferred. My inference, from the manner in which the clause relating to gunpowder is printed, and from the fact that it is not treated as a distinct head or class in this stipulation in the policy, is, that it was considered extra hazardous, but not to be insured under that class at the rate of the other articles and, therefore, to be excluded from any estimate of loss, unless specifically insured.
My conclusion is that the plaintiff had a right, by the terms of the policy, to put gunpowder in his buildings insured; but in case of loss by fire, he is not entitled to compensation for such gunpowder; not having insured it by special agreement. If such is not the proper construction of the policy, then there is no positive exclusion of gunpowder, as it is clearly not included in the paragraph headed "special mem.," and which is referred to in the clause of the policy in question, as "the memorandum of special rates." I place my opinion, however, upon the construction of the policy taken all together, that gunpowder belongs to the class denominated extra hazardous; and that of course, the buildings were privileged to contain it.
I am, therefore, of opinion that a new trial be denied.
"Reports of cases argued and determined in the Supreme Court of Alabama During the November term 1889" Vol.LXXXIX by Jno. W. Shepherd ("Alabama Reports"); Vol.89, pgs.341 to 351 (California State Law Library, Sacramento, 1/2004)
DUNCAN v. WILLIAMS; Supreme Court of Alabama; 89 Ala. 341; 7 So. 416; November, 1889, Decided.
APPEAL from the Chancery Court of Mobile. Heard before the Hon. THOS. W. COLEMAN.
The bill in this case was filed on the 6th July, 1888, by Mrs. Martharina Duncan and her husband, against the widow and children, personal representative and heirs of Price Williams, deceased, Albert E. Mudge, and several other persons; and sought to establish and enforce complainant's rights, as sole surviving child and heir at law of her deceased father, John J. Springsteel, in and to a house and lot in the city of Mobile, and an account of the rents and profits; and to this end it sought to impeach and set aside, on the ground of fraud, two decrees of foreclosure rendered by the Chancery court of Mobile, under which the property had been sold. One of these decrees was rendered in 1841, foreclosing a mortgage which said Springsteel had executed to Charles H. Earle, who was his wife's brother; and the other, also rendered in 1841, was under a bill filed by the Planters & Merchants' Bank and Jonathan Hunt, for the foreclosure of a mortgage on the property executed to them by one James F. Roberts, whose title or interest is not involved in the suit.
According to the allegations of the bill, the lot was sold and conveyed to Springsteel by Leonard Fash and wife, "on the 14th August, 1839, by deed not recorded;" but it was further alleged that he had possession, claiming title, "long prior to 27th December, 1837," the date of the mortgage by Roberts to the bank. Springsteel built a dwelling-house on the lot, and continued in possession until his death, which occurred on the 15th February, 1840. After his death, his widow and two children continued in possession, the widow's dower not having been assigned; and one of the children died several years afterwards, during its minority. On the 20th April, 1842, the widow married Albert Mudge, and she afterwards had two children by him, who were made defendants to the bill. It was alleged that the mortgage to Earle, which was given to secure the payment of money borrowed, was in fact paid in full by the widow, a few weeks after her husband's death, with money belonging to his estate; but satisfaction was not entered of record, and the fact of payment was concealed. A few months afterwards, Mudge procured from Earle a power of attorney authorizing him to foreclose the mortgage, and the foreclosure suit was commenced and prosecuted under this power of attorney, by collusion between the widow and Mudge, although they knew the mortgage had been paid and satisfied. The widow made no defense to the suit, and a formal answer was filed for the infants by said Mudge as their guardian ad litem. Fash was also made a defendant to the suit, because there was on record a deed to him from said Springsteel, which appeared to be absolute on its face, but was in fact intended only as a mortgage; and he made no defense, "because he had been repaid, and had re-conveyed to said Springsteel, and had no interest to protect; and because he honestly supposed that the widow, complainant's mother, was doing what was right." Mudge became the purchaser at the sale under the decree of foreclosure, and the sale was confirmed. The bill assailed the validity of these proceedings, on the ground of fraudulent collusion between the widow and Mudge, who were then contemplating marriage, to defeat and destroy the rights of complainant and her infant brother, who was then living; and also on account of errors and irregularities patent on their face: (1) because the suit was commenced within twelve months after the death of Springsteel; (2) because his administrator was not made a party; (3) because process was not properly served on the infant defendants, &c.
As to the other foreclosure suit, under the bill filed by P. & M. Bank and Hunt, for the foreclosure of the mortgage executed by Roberts, it was alleged that the proceedings were conducted under some arrangement between said Hunt and Mudge, by which the latter was to acquire whatever interest might be sold under the decree; that Hunt became the purchaser at the sale under the decree, and soon afterwards conveyed by quit-claim to Mudge, for a nominal sum; that Springsteel's title had no connection with that of Roberts, but antedated and was superior to it; that this fact was discovered by the plaintiffs in that suit during its pendency, and they therefore dismissed an amended bill which had been filed for the purpose of bringing in Mrs. Springsteel and her children as parties, and they never were made parties.
The bill alleged, also, that two children were born to Mrs. Springsteel after her marriage with Mudge, both of whom were made defendants to the bill; that Mudge died in 1848, having executed his last will and testament, which was duly admitted to probate, and by which he devised the property to his widow for life, with remainder to their two children and complainant in equal shares; that the widow lived until March, 1881, and continued in possession of the property up to the time of her death, but was insane for several years; that she told complainant, "repeatedly and continually, that she expected and desired her to give said Albert E. and Charlotte A., her half-brother and half-sister, an equal share in the property, but always spoke of it as a matter dependent on complainant's own volition; that neither said Mudge nor complainant's mother, his wife, ever claimed openly, or to her knowledge, that said property belonged to said Mudge, and she never had any notice that she was ousted by said Mudge or her mother, but always supposed that the land was her father's, and that her mother was there permissively as dowress and head of the family; and complainant says that her mother kept her father's title-deeds concealed and locked up, and never spoke of them, except to reiterate frequently that the titles were perfect."
The bill alleged, also, that complainant remained on the premises until her mother's death, in spite of opposition from Albert E. Mudge, though she was forced to occupy a kitchen or outhouse on the premises; "that immediately after her mother's death, Albert E. Mudge forcibly, violently and wrongfully took possession of all her mother's and father's papers, and kept them from her, and took possession of all the money and personal property, and employed said Price Williams, a shrewd real-estate agent of large experience and familiarity with property and titles in Mobile, to force her out of possession, and together they drove her out by threats and notices to quit, representing that she had no interest in the property except under the will of Albert Mudge, and that the rents must be applied to the payment of debts." It was alleged, also, that complainant then employed an attorney to investigate and establish her title to the property, but, as no recorded deeds could be found, no litigation was begun; that in May and August, 1883, Albert E. Mudge and his sister sold and conveyed their respective interests in the property to said Williams, for the price of $250 and $275 respectively, and in July, 1883, complainant was induced by his threats and representations to sell and convey her interest to him, at the price of $350; that the property was at that time worth $2,000, or more, and said Williams was familiar with the true state of the title, though complainant had not then discovered the facts.
As to the discovery of the facts on which the complainant based her claim to relief, the bill alleged that, on June 12th, 1888, an attorney called on her in the interest of Mrs. Williams, who, as executrix and trustee under the will of Price Williams, was negotiating a sale of a portion of the property, "and asked for her father's title-deeds to said land, saying that he must have had a deed, but he could not find it recorded; that she replied, that she always thought so too, but never could find the deeds, and would have gone to law for the property if she could have found them; that this re-aroused her determination to find the deeds, and convinced her that they must have once existed, and she told the attorney that she would look further among papers for them;" that she remembered an old trunk, which had belonged to Albert E. Mudge, and which he, on leaving the State, had delivered to his sister, who, on her subsequent removal from the State, had placed it for safe-keeping in the possession of the complainant; that Mudge had frequently written, asking her to send the trunk to him, and she had not sent it because she supposed it contained "only old rubbish," and was not willing to pay the express charges; that the trunk was very heavy, and double-locked, but she succeeded in breaking it open, and found a package of papers inclosed in an envelope, which contained a receipt by Earle acknowledging payment of the mortgage debt, dated about two months before the bill for foreclosure was filed in his name, a conveyance from said Fash to Springsteel for the property, and other papers in relation to it, and a memorandum in her mother's handwriting, which stated their importance and the necessity of preserving them; and that an indorsement on one of the papers spoke of another deed as inclosed, which was not found.
On these allegations, the bill prayed, (1) that complainant's right and title to the property, as sole heir of her father, be declared, established and enforced; (2) that the decrees of foreclosure, the sales made under them, and the decrees confirming them, be set aside and annulled; (3) that the deeds to Price Williams, and the conveyances to other parties claiming under him with notice, be also set aside and cancelled; (4) that an account of rents and profits be taken, and (5) for other and further relief under the general prayer. The chancellor dismissed the bill on demurrer, for want of equity, and his decree is now assigned as error.
(MAD: Counsels' arguments omitted here)
[Opinion] MCCLELLAN, J. -- There are apparently two decrees of the Chancery Court, which stand in the way of the relief sought by the present bill. Each of these decrees was rendered in the year 1841; each of them purported to foreclose a mortgage on the lands in controversy; each ordered a sale; under each a sale was had and confirmed, and a deed executed; and whatever title passed under either of them, is now held by the defendants below, appellees here. The bill in this case, which was filed July 6th, 1888, more than forty-six years after the enrollment of said decrees and the sales under them, can, of course, be maintained at this late day only upon the grounds of fraud in the procurement and rendition of the decrees, and that the facts constituting the fraud have been discovered within one year next before the institution of the suit. -- Code, Sec. 2630. It may be admitted, for all the purposes of this appeal, that the bill sufficiently charges fraud, and knowledge of it on the part of the respondents, to have entitled the complainant to the relief prayed, had the cause of action not passed under the ban of the statute of limitations; and proceeding upon the case presented with that concession, the pivotal inquiry is, whether the cause of action is brought by appropriate allegation within the exception to the statute above referred to, which, notwithstanding the bar has been perfected, considered apart from the concealment of fraud, allows one year after the discovery of the fraud in which suit may be brought. Does the bill charge, with the precision and directness which the law requires, that the facts relied on as constituting the fraud were discovered only within one year prior to July 6, 1888?
The bill is a very voluminous paper. It alleges transactions which are spread over nearly half a century. It charges the connection with these transactions, at various points along the line of their development, of a great number of people, many of whom are long since dead. It involves all of these people in the fraudulent purposes and practices, the first tangible result of which was the rendition of the decrees in question in 1841, and the last development of which was the effort in 1887 to continue the concealment of the fraud from the complainant. All along throughout these years, covinous intent, resulting in fraudulent acts, is laid against complainant's mother, her step-father, her half brother and sister, disconnected third persons with apparently no interests to subserve in defrauding complainant, and against the persons who now claim the property. Yet, when the effort is made by the pleader to bring her case within the saving exception to the statute -- when it was upon her to aver with precision that the facts constituting the fraud had been discovered within the year -- the requirement is attempted to be met by the averment of one single fact, and this a fact which, at most, only tended to show fraud, from amongst the manifold substantive charges made by the bill.
To state the case more concretely: The bill alleges that John J. Springsteel, the father of the complainant, owned the land in controversy as far back as 1838 or 1839, and up to his death, which occurred in February, 1840; that at the time of his death one Earle held a mortgage on the land, to secure the payment of $1,000; that on April 25, 1840, complainant's mother, the widow of Springsteel, paid off this mortgage with money belonging to the estate, and took a paper from Earle evidencing the fact of payment and satisfaction; that soon after Springsteel's death, one Mudge and Mrs. Springsteel agreed to intermarry, and thereupon they entered into a conspiracy to defraud the complainant, then an infant of tender years, of her patrimony; and in execution of their fraudulent design, said Mudge, with knowledge of the fact that the Earle mortgage had been satisfied, procured from Earle, who was a brother of Mrs. Springsteel, a power of attorney to prosecute a bill to foreclose the satisfied mortgage; that this bill was filed in October, 1840, and prosecuted to decree against Mrs. Springsteel and complainant and her brother; that Mudge, while acting for Earle under the power of attorney in prosecuting the suit, was appointed by the court as guardian ad litem for the infant defendants; that at the foreclosure sale Mudge became the purchaser, and soon after married Mrs. Springsteel, and lived with her on the land up to his death, which occurred five or six years afterwards; that said foreclosure suit proceeded "almost side by side with another bill filed by the Planters & Merchants' Bank and Hunt" to foreclose a mortgage on the land, executed in 1835; that said Mudge had arranged with complainants in this latter suit to acquire any title they should get out of that proceeding; that a decree of foreclosure passed in that case, the land was sold under said decree and bought by Hunt, who subsequently conveyed by quit-claim to Mudge; that Mudge paid nothing, or a nominal sum, for this conveyance, and that whatever he did pay was of funds belonging to the Springsteel estate; that this sale and conveyance passed no title as against complainant, because neither she, nor any one else in possession of the land, was made a party to the proceeding; that Mudge devised the land to complainant's mother for life, with remainder over to her children by Sprignsteel, of whom only complainant was living, and by himself, of whom there were two; that Mudge and his wife fraudulently concealed from complainant the evidence of the satisfaction of the Earle mortgage, and of a re-conveyance of the land to Springsteel by one Fash, to whom it had been conveyed in 1839, by deed absolute in form, to secure the payment of $1,000, and which original conveyance still stood upon the records; that after Mudge's death, this fraudulent concealment was continued by his widow, complainant's mother, and after her death, in 1881, it was in like manner continued by the son and daughter of Mudge -- half brother and sister to complainant -- until in June, 1888, when complainant broke open a heavy and heavily locked express trunk belonging to her half brother, and then for the first time discovered, and came to a knowledge of these long concealed papers, and to a knowledge of the facts constituting the frauds by which the two foreclosure suits had been prosecuted to successful issues, and her land had been sold and acquired by said Mudge; that prior to this, however, Price Williams, Sr., through whom the defendants claim, had, with full knowledge of the frauds which had been practiced upon her, by undue means induced her to sell a one-third undivided interest in the land to him, he inducing her to believe that she had no title, except to that extent, and that under the Mudge will, and he also bought the interest of the Mudge children.
There are very many other allegations in the bill, as to irregularities and errors apparent on the records of the two foreclosure suits, &c., but the averments we have stated are sufficient for a determination as to whether "the facts constituting the fraud" are shown to have been discovered within the year of the bill filed. It appears from the foregoing outline, that this discovery made by complainant embraced two papers, and nothing more. One of these was the Fash deed. This was wholly unimportant in any aspect, for two reasons: first, neither the complainant, nor any other party to the cause, claims through or under Fash; and second, he, it is alleged, was a party to the Earle foreclosure suit, made no defense, being without interest, and the decree in that case, whether fraudulent or not, was notice to the complainant that she had no title to the land superior to that of her father, which was thereby subjected to sale and passed into Mudge, and hence the fact shown by this deed was a fact which must, in legal contemplation, have been known to complainant long before. The other paper found was the receipt of Earle as of April, 1840, evidencing the payment at that time of the mortgage, which was afterwards foreclosed. This receipt is only prima facie evidence of the payment. The payment itself, if conclusively shown, would be only a fact tending to show fraud. The receipt is open to explanation and falsification. But, even if shown to speak the real fact, that fact may be so explained as to deprive it of all probative force in the establishment of the alleged fraud. It is open to proof, notwithstanding the receipt, that the mortgage was not paid, or that the receipt was really intended to evidence the satisfaction of the mortgage by the foreclosure sale of the land, and was incorrectly dated. And, taking the paper as genuine and correct, and conceding the fact to be that the mortgage was then satisfied, it by no means follows that the subsequent foreclosure of the satisfied mortgage by Mudge as attorney for Earle, and Mudge's purchase of the land, was fraudulent. It may well be, that Mudge knew nothing of the alleged satisfaction. Indeed, the presumption of law which obtains under the circumstances shown here is against the imputation of fraudulent knowledge, intent and conduct on his part. In any view of the paper discovered, therefore, it is merely evidence which prima facie is sufficient to establish a fact, which fact, when established, tends to show fraud on the part of Mrs. Stringsteel and Mudge in the foreclosure proceeding. To hold that the recent discovery of mere evidence like this, authorizes the destruction of repose and security, with which the statute of limitations envelops long past transactions, would be the opening up of the most solemn and ancient judgments and decrees upon the discovery of any badge of fraud, or suspicious circumstance, connected with them; and this, though the very element of suspicion and fraud may be the result of long lapse of time, and derive all its power of impeachment from the death of the parties who knew the facts. We can not accede to such a doctrine.
The bill should have gone further, and alleged with accuracy and precision when and how the complainant came to a knowledge of the various facts averred as constituting the fraud of which she complains. To a recovery it was essential to show, not only that the mortgage had been paid, but that Mudge, knowing this fact, had fraudulently conspired and colluded with Mrs. Sprinsteel to cut off complainant's inheritance. It was also necessary to the relief sought, that knowledge of the fraud, and participation in it on the part of the respondents, should be shown. In one aspect of the case, it was also necessary to aver facts constituting the fraud which is charged against the Hunt decree; and admitting, for the sake of argument, that all these facts are alleged, it is nowhere stated in the bill when or how a knowledge of them came to the complainant; and it does not appear but that all these facts, excepting only the prima facie evidence of the payment of Earle's mortgage, were known to the complainant more than one year before bill filed. On this state of averment, the chancellor properly held, that the case presented was without equity as upon a bill praying relief on the ground of fraud, the facts constituting which had been discovered within the period of the exception quoted.
The bill can not be maintained at this late day for the irregularities and errors, however flagrant and fatal if seasonably attacked, apparent on the records of the foreclosure proceedings. In support of the regularity and validity of the decrees, and of the title acquired thereby, almost any fact essential to that end, and certainly any fact necessary to supply the defects pointed out here, whether consistent with or contradictory of the record, will, after the lapse of twenty years, be presumed, to sustain the validity of the proceeding.
So far as the relief prayed, or any collateral advantage, -- as, for instance, the imputation of notice to respondents, -- is claimed on the theory that the complainant had adverse possession of the land up to the time of the alleged ouster after the death of her mother, the position of appellant is untenable. While it is roundly alleged that complainant has been in adverse possession since the death of her father, the facts stated in the bill very clearly negative such possession. It is shown that Mudge entered in 1842, claiming as a purchaser under two foreclosure decrees, one of which, at least, was rendered in a proceeding directly adverse to the complainant; that he remained in possession till his death; that, by his will, a life-estate in the land passed into his widow, who held until her death, when complainant and two others took as tenants in common in remainder, as provided in the will. Under these facts, the occupancy or possession of the complainant with the holder of the legal title could not be adverse and hostile to that title. The possession, on the contrary, is referred to the title, and any right or advantage springing from the possession enured to the benefit of Mudge and those who claim under him.
The bill was without equity in any aspect of its averments, and the decree of the chancellor is affirmed.
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