Open main menu

Boehm v. Engle


1767.


September Term 1767.


Prefent william allen, Chief Juftice.

william coleman,
john lawrence,
thomas willins.
Juftices.


bœhm and shite verʃus andrew engle.

A

CTION on the Cafe for Ł802. The Plaintiffs under a power is the Will of Henry Bolʃter deceafed, had fold at public vendue to the Defendant, a houfe and lot in the city of Philadelphia Ł802., and fhortly after tendered him a Deed for it, which the Defendant refufed to accept, being advifed by council that Bolʃter had no good. Title to the Lot.–Upon which the Plaintiffs brought a fpecial Action on the cafe for the confideration Money.

On the Trial,, in fupport of Bolʃter'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 Bolʃter. The Plaintiffs acknowledged the defect in the Title, in Tucker's conveying his Wife's Eftate without her joining in the Deed, but infifted on fixty Years Poʃʃeʃʃion as giving a good Title under the Statue of 32 H.8. c. 2


The Council for the Defendant denied the extenfion of that Statue, and urged that if the 32 H.8. extended, the Statue of 21 Ja. I.c. 16. lifewife extended, being both made before the Settlement of the Province, but it appears to have been the Opinion of the Legiflature of this Province, that thefe Statutes of Limitations did not extend, by their having made an Act to limit perfonal Actions in the very Words of the Statute of James.[♦] It was likewife contended on the Part of the Defendant, that though the Statute of 32 H.8. fhould be extended, yet this Cafe was not within it ; because 1st The Act was made on a prefumption that there might have been regular Conveyances and loft, but there it appears there was no Conveyance at all from the Wife by Tucker's granting for himfelf and his Wife.–2d. There is no Proof of fixty Years Poʃʃeʃʃion. the Witneffes for the Plaintiff fpeaking only to 44 Years back.–3d. There Act of 32 H.8. does not operate un' efs fixty Years elapfed ʃince Right of Entry accrued, and here Tucker's Wife had no Right of Entry till the Death of her Hufband, which was in 1708 and not fixty Years ago. There was another point made for the Defendant, that in one of the mefne Conveyances, about fixteen Years ago, the Wives of the Grantors had not joined in the Deed, and were now living, and confequently might be limited to Dower.

1767.

For the Plaintiffs it was anfwered, that in 2 Peere Williams 75. and many other cafes, it was fettled that all Acts of Parliament made before the Settlement of the Colony extend, unlefs local in their Nature ; that under this rule the Statute of Wills, Statute of Ufes, and many other Statutes, were always held to extend ; and that the reafon of this Act extended as well as any other. That as to this Cafe not being within the Act, the prefumption fpoken of was not juftified by the Act itfelf, which extended to every Cafe–2d. Though the Witneffes fwear only to forty-four Years poffeffion yet after fuch a length of time it fhould be prefumed the poffeffion had been from the Date of the Deed to Chambers, which was in 1685.–3d. The Rights of Femes Covert are not faved in this Act {except such Fames Convert as were in being at the time of making the Act) and Poffeffion was out of Tucker's Wife from the time of her Hufband's Deed to Chambers.–As to the laft Point it was faid, that it was picked up at the Bar, and objected to at the Time of tendering the Deed ; that it did not ftrictly go to the title, but was only a claim of two old Women for their Lives, which the Jury might take notice of, it they pleafed, by leffening the Damages.

the court were unanimous and clear in their Opinion, that the Act of 32 H. 8 did extend to this Province, and gave it in charge to the Jury accordingly. [♦]

The Verdict of the Jury was unconformable to this opinion, by their finding for the Plaintiffs, having made an allowance for the Lives of the Women in the Damages.