#### Harkins *v.*Doran.

A covenant for maintenance contained an agreement to convey realty in consideration of the maintenance of the covenantee during his life, and also a home for his daughter, and if she did not see fit to live there she was to be maintained by the covenantor wherever she resided, when it should become necessary so to do. Held, that the agreement did not constitute a charge on the land for the support of the daughter, and no action of ejectment would lie therefor by her.

Where the covenantor, in such case, entered into possession under the agreement, it seems that the statute of limitations will run and a good title be acquired by twenty-one years adverse possession.

Oct. 8, 1888.

Error, No. 198, Oct. T., 1888, to C. P. Armstrong Co., to review a judgment on a verdict for defendants in an action of ejectment by Mary Harkins against Isabella Doran, and Hugh Harkins et al., heirs of John Plarkins, deceased, and the administrator of said decedent, at March T., 1888, No. 328. Green and Hand, JJ., absent.

The writ of ejectment was issued Feb. 22, 1888, for ninety-nine acres of land more or less, in North Buffalo township, Armstrong county. A plea of the statute of limitations was filed.

The following facts appeared upon the trial before Neale, P. J.:

Plaintiff gave in evidence a deed by David Hall to Hugh Plarkins, dated Nov. 22, 1822, recorded April 15,1828, for the land in dispute.

Plaintiff also gave in evidence the following agreement, signed by John Harkins and Hugh Harkins, the latter by his mark.

“Article of an agreement made and concluded upon this 18th day of June, 1852, between Hugh Harkins, of North Buffalo township, Armstrong county, Pennsylvania, party of the first part, and John Harkins, his son, of the same place, party of the second part, witness, that, for and in consideration of covenants, hereinafter contained, the said Hugh Harkins doth agree to sell and convey unto the said John Harkins, all the real estate which he, the said Hugh Harkins, owns or in which has any interest in, the deed of the place where the said Hugh now resides, to be made to the said John, by David Hall, he the said Hugh Harkins not having received it yet from said Hall, and for the balance of his interest to other real property, the said Hugh is to give the said John a release deed, when called upon, and also to sell to the said John Harkins all three horses and all the farming utensils. The said John Harkins agrees on his *739part to keep and maintain his said father, in a decent and respectable manner, suitable to his state and condition, and perform all the duties of a kind affectionate son, to the best of his ability, during his father’s life, and, also, to give my daughter, Mary Harkins, a home on the place, and keep two cows for her without charge if she wishes it, and if the said Mary Harkins does not see fit to live with the said John Harkins, the said John Harkins is to maintain decently wherever the said Mary Harkins sees fit to reside, when it becomes necessary so to do.”

A deed from John Harkins to Isabella Doran for a portion of the land in dispute, dated July 13, 1880, was also given in evidence.

It was also shown by witnesses that John Harkins went into ' possession and retained possession until 1886, the date of his death. His father was maintained by him until his death in i860. The daughter remained with him until 1865 or 1867, a short time after his marriage. Since that time she received no support from him. There was no evidence that a deed was ever made to John.

The court below charged the jury in part as follows, by Neale, P.J.:

[“ We see, by the article of agreement, that there was a provision made in that article for that old lady’s support, but that was simply incidental, and was subject to the right by Hugh Harkins, the father, to discharge or change at any time during his life. So, in that respect, we hold that the plaintiff is not directly a party to the proceeding. She is indirectly, of course. She is provided for by the article of agreement.] [8] [John Harkins does not altogether take under this article of agreement. He has held the possession for a great many years, certainly since before the year 1860, which would be some twenty-eight years before this suit was brought, and, under the statute of limitations, we think he has a perfect title independent of the article of agreement. He went in under the article, it is true, but he continued in possession there after the death of his father, and, if he was undisturbed in his right of possession, we think that his right, which he originally acquired under the article of agreement, ripened into a perfect right under the statute of limitations. We therefore say to you, that your verdict will have to be in favor of the defendant in this case.”] [9]

The plaintiff presented the following points, which were refused by the court:

“ 1. The contract of Plugh Harkins with John Harkins being only an agreement to convey, the legal title did not pass from Hugh Harkins to John, and Mary Harkins may maintain this action of ejectment to enforce her rights under said agreement.”

“ 2. Under the evidence in this case, the plaintiff can maintain an action of ejectment.”

*“*3. There is no such evidence of hostile or adverse possession that would defeat the plaintiff’s action under the plea of the statute of limitation.”

*740The defendant presented the following points, which were affirmed by the court:

“ 1. The performance of the covenants mentioned in the agreement between John Harkins and Hugh Harkins, and offered in evidence, was not a condition precedent to the vesting of the title to the lands in dispute in John Harkins.”

“ 2. By the said article of agreement, Hugh Harkins gave up and surrendered to his son, John Harkins, all the title to the lands in dispute on certain terms, and if the jury believe from the evidence that John Harkins kept and performed his covenants with said Hugh Harkins during his life and buried him when he died, all the title to the said land in dispute passed to said John Harkins, and the plaintiff has no title to or interest in the same, and the verdict of the jury must be for the defendants.”

“ 3. John having purchased the land by the article of agreement in evidence, and having gone into possession of the said land in dispute at the date of said article, to-wit: the 18th day of June, 1852, and continued in possession thereof during the whole of his life, and the said land being now held by his heirs and grantees, and covering a period of over twenty-one years’ adverse possession, the title to the said land is complete in the said John Harkins or his heirs and grantees, and the verdict of the jury must be for the defendants.”

“4. Under all the evidence in this case, the verdict of the jury must be for the defendants.”

Verdict and judgment for defendants. Plaintiff then took this writ.

*The assignments of error*specified, 1-7, the answers to the points, quoting them; and, 8 and 9, the parts of the charge above, as indicated, quoting them.

*W. D. Patton,*for plaintiff in error.

Under the circumstances of this case, the plea of the statute of limitations can not be set up. The last case we have been able to find on the question is that of Eichelberger *v.*Gitt, 104 Pa. 64, which was an equitable ejectment to enforce the payment of purchase money. The defendants and their grantors had been in possession for more than twenty-eight years, and it was said the statute of limitation did not apply. “ While holding as purchasers, subject to the payment of purchase money, they cannot acquire a title under the statute.” In that case, the defendant’s first point, which is almost identical with the defendant’s third point in this case, was refused. So, we say, it should have been in our case, for John held as a purchaser. True, he was not to pay money, but he was to give Mary a home or keep her decently, which was equivalent to the payment of money. John Harkins had a right to enter into and continue on this land under the article of agreement, and he will be held to have exercised this right rather than to have held it in defiance of the right of Mary to concurrent *741possession. Thus, on the death of an owner of land, leaving a widow and minor children, and the entry thereon by the widow and second husband, it will be presumed that she entered as the widow and not in hostility to the children: M’Masters *v.*Bell, 2 P. & W. 180. Had it been taxed to her at all times, had she cleared part of it, called it hers and devised it by will to others, it would not show an adverse holding: Hall *v.*Mathias, 4 W. & S. 331. The holding must clearly appear to be adverse and not under an agreement; leasing the property, receiving the rent, erecting fences and buildings is insufficient to show an adverse holding: Velott *v,*Lewis, 102 Pa. 326; Donovan *v.*Driscoll, 93 Pa. 509. So one to whom his father devised a life-estate, who took possession of the land and held it for over forty years, will be presumed to hold it as his tenant and not in hostility to the will: Tulloch *v.*Worrall, 49 Pa. 133. So, also, in Cadwalader *v.*App, 81 Pa. 194, it is said: “ The statute of limitation does not begin to run in favor of one who has entered in subservience to the title of another until the privity between them is severed by some unequivocal act; mere declaration of his intention is insufficient.” Authorities without number are to the same effect.

The next question raised in the court below, was the right of the plaintiff to maintain this action in her own name. No reason or authority was given why she could not. As early as the case of Kennedy *v.*Fury, 1 Dallas, 72, a conveyance was made by A, in trust for B, and B brought an ejectment in his own demise. The court said: “ We have no court of equity here, and therefore unless the cestui que trust could bring an action of ejectment in his own name, he would be without remedy.” In Bear *v.*Whisler, 7 Watts, 144, John Angney made an agreement with Philip Hartman to pay one of his heirs, Catharine Whister, $80. This was a charge upon the land. In an action of ejectment brought by the heir against Bear, the purchaser of real estate, it was held that Mrs. Whistle “ was interested in the condition ánd might enforce its performance by an action of ejectment.” So in Ripple *v.*Ripple, 1 Rawle, 386, Philip Ripple left by will a tract of land to his son, Philip, he to keep and provide for his two eldest daughters, Catharine and Elizabeth. An action of ejectment, brought by Catharine and Elizabeth in their own names, to enforce this provision in their father’s will for their benefit, was sustained. *“A*cestui que trust entitled to the enjoyment of the possession of land may maintain an action of ejectment to recover it in his own name.” Presbyterian Congregation *v.*Johnston, 1 W. & S. 9.

By inspection of the agreement, it will be seen that it contains no words of present grant, but that the agreement was executory on the part of the grantor, being but an agreement to convey. It seems clear to us that the estate did not pass. Is it not the same principle as that of a vendor bringing an action of ejectment against the vendee to enforce the payment of unpaid purchase money ? Hugh Harkins agreed to sell the land, and John agreed, on his part^ *742to pay the purchase money, not in cash, but to pay it first by keeping his father, and, after his death, to pay out a further sum to maintain his sister decently. John Harkins’s heirs and vendees retain possession of the latid and refuse to comply with his contract. Why, therefore, can we not maintain this equitable action in the nature of a bill for specific execution ? Is not his agreement to give Mary a home or maintain her decently a condition precedent to his retaining the legal title just as much as if he had promised to pay his father $1,000 at a future time? In either case it seems to us an equitable action of ejectment would lie. This is the doctrine laid down in the cases of Marlin *v.*Willink, 7 S. & R. 297; Sherman *v.*Dill, 4 Yeates, 295 ; Stouffer *v.*Coleman, 1 Yeates, 393; Moyer *v,*Garrett, 96 Pa. 376.

In the court below, the cases of Krebs *v.*Stroub, 116 Pa. 405 ; Garver *v.*McNulty, 39 Pa. 483, were cited against us, but an ex-' amination of these cases show that they were cases of executed conveyance, and do not, and could not, apply to this case, wherein the contract was executory.

The recital in the agreement of June 18, 1852, that Hugh Harkins had not received his deed from David Hall, was evidently a mistake, for that deed had been recorded as early as April 15,1828, and was in evidence. Hugh Harkins, not finding it among his papers, had evidently forgotten that it had been delivered to him.

*Calvin*Rayburn, for defendant in error,

not heard. — Hugh Harkins, by the agreement, sells and yields to John Harkins, his entire interest in the land. That interest was but an equitable one, as is shown by that part of the agreement which sets forth: “ The deed of the place where the said Hugh now resides to be made to the said John by David Hall, he, the said Hugh Harkins, not having received it yet from said Hall.” This makes the contract an executed one on the part of the grantor, passing the entire title, and an action of ejectment will not lie to enforce any consideration or covenants stipulated therein.

A condition stipulated in a deed of conveyance may be enforced by ejectment, but a consideration, even amounting to a covenant, cannot: Cook *v.*Trimble, 9 Watts, 15 ; Heacock *v.*Fly, 14 Pa. 542.

. In this case, as well as the one above cited, “ the grantor had no more than an equity to convey, and, as all.the title he had passed by the agreement, he could, as the doctrine of equitable lien is out of the question, maintain an action on the principle of Bear *v.*Whisler, 7 Watts, 144, only on the foot of a condition.” “The intent to create a condition must be not only clear but, in a deed, expressed in apt words.” Cook *v.*Trimble, 9 Watts, 15.

“ The land sought to be recovered in this action of ejectment was not conveyed on any condition for the enforcement of which this action will lie.” “ Consideration and condition are essentially different:” Krebs *v.*Stroub, 116 Pa. 405 ; Perry *v.*Scott, 51 Pa. 119.

*743Oct. 29, 1888.

John Harkins, for a period of over twenty-one years, has held continued, open, uninterrupted, notorious and adverse possession of this land — no one disputing his title or demanding from him any rent or produce from said land, or showing or claiming that the full and complete title thereto was not in him — and having thus held and occupied said land, this title would now be complete, without anything else, under the statute of limitations, and the plaintiff’s right to recover is barred: Act of March 26th, 1785, §2, Purd. 1061, pl- 3-

If there ever was any privity of title in said land between John and Mary Harkins, that privity was severed by Mary leaving, as she did, some twenty-three or twenty-four years ago, and never asserting her claim until now, and the statute began to run and is now complete : Cadwallader *v.*App, 81 Pa. 194.

The claim of Mary Harkins is but a personal one against the estate of John Harkins, and, were she permitted to recover in this action, she could recover a debt against his estate, against which the plea of the statute of limitations would be a complete bar upon an action of covenant or assumpsit — and the court did not err in holding that the statute was a bar to the recovery in this action. All the authorities cited by the counsel for the plaintiff, in support of this form of action, were cases where there was a positive condition in the deed expressed by apt words, and do not apply to the facts and circumstances in this case, where John Harkins took the land upon a consideration and not a condition.

Per Curiam,

The covenant of John Harkins, as found in the agreement of June 18th, 1852, between Hugh O. Harkins and himself, for the maintenance of his sister Mary, is personal, and neither gave her a right in the land nor charged her maintenance on it. It follows that, whatever her rights may be, they cannot be enforced by the writ of ejectment.

The judgment is affirmed.