#### McCloskey *v.*McCloskey.

Two brothers purchased, as tenants in common, two adjoining tracts of land, but occupied them separately, each making improvements on the tract on which he resided. One of them purchased the interest of the other at a sheriff’s sale, and made a lease of the mining privileges of the tract occupied by himself, receiving royalties, selling lots, making deeds, etc., more than twenty-one years before suit brought. *Held,*the lease was evidence of ouster, under the circumstances of this case.

*Held, also,*that the evidence of adverse possession was sufficient, there being no hostile acts, and the title being unchallenged for twenty-one years.

Whether an acknowledgment of title sufficient to toll the statute was proved by evidence of money handed by the defendant to the plaintiff was left to the jury. *Held,*that plaintiff had no cause to complain.

The amount of land embraced in a levy, described as too acres, more, or less, was held to embrace some 300 acres.

Oct. 8, 1888.

Error, No. 146, Oct. T., 1887, to C. P. Cambria Co., to review judgment on verdict in ejectment, by the heirs of John McCloskey, deceased, against James McCloskey, at Dec. T. 1885, No. 289. Green and Hand, JJ., absent.

The facts appear by the charge of the court, by Johnston, P. J.:

*704“In 1833 William O’Connell sold to John and James McCloskey the tract of land in dispute, described by bounds as 117 acres. The deed is to them as tenants in common, that is, each one of the two having an undivided half of the whole tract of 117 acres. The plaintiffs have shown this in evidence and have proven the death of John McCloskey, and that the present plaintiffs are his children and heirs at law; and, having done this and read his writ, the counsel for the plaintiff rested, claimingthat under that title the heirs are entitled to recover in this action for one undivided half of the 117 acres described in the writ. This should be your verdict, if there were nothing else in the case. It is a perfect prima facie case for the plaintiffs.

*“*The defendant has, however, alleged several matters in defense of his possession. He has shown here a deed from Philip Noon to these same parties, John and James McCloskey, for a tract adjoining the tract in controversy, it being part of the same original tract, the John Taylor, containing 181 acres. As early as 1837, James McCloskey entered upon the land in dispute; and, from that time until the bringing of this suit, he continued to occupy, use and cultivate these 117 acres; he built upon it and has continued in the undisputed possession of it during all that time. About 1850, John McCloskey took possession of that portion conveyed by Philip Noon and continued to reside upon it up to the time of his death, which occurred in 1885. The possession of John and James was apparently several all the time, that is, each one lived upon and improved his own part. It seems that James McCloskey, who was an unmarried man, was prudent and successful in getting along; and that John afterwards was less fortunate, that he became consequently embarrassed, and judgments were entered against him; and, after his brother, James McCloskey, paying a portion of the judgments, the property was finally sold at sheriff’s sale, and James became the purchaser, thus giving him the title to whatever was embraced in the levy upon John’s property.

“ The defendant asks us to instruct you that, from the great lapse of time — over 40 years — the constant claim of James McCloskey, who was in the use and active owership, and from the constant disclaimers of John McCloskey to this tract, you may presume an amicable division or partition between *them,*or that they held severally to the common line between the O’Connell and the Noon purchases. We can give you no instruction as to the law upon this subject; it is purely a fact for the jury. Under the circumstances, if the evidence should satisfy you that, from the great lapse of time and from the acts of the parties, in short, from all the evidence in the case, there was such partition or division, that would end the case.

[“ What is inexplicable to me, however it may be to this jury, is that John McCloskey, having given his land in levy and being divested of the title to it, sinks out of existence, we may say, as far as this title is concerned, from i860, the time of the sheriff's sale, *705to the day of his death. There is nota syllable of evidence to show any claim at any time by him to the property in dispute from that time forward. Note the evidence of the collectors who have been called here. You heard the testimony of Litzinger, Glass and Hight, all of whom called upon John McCloskey for taxes, and two, at least, of whom he told distinctly that he did notown any land, that James owned the land and they should call upon him; and that, at the same time, he found it difficult to pay the taxes upon his personal property. Taking, then, his silence as well as his words, taking the conduct of James McCloskey in building and improving, and in selling and leasing the minerals in the land, and to what conclusion do these facts point ? You will recollect the testimony of Thos. Bradley who, as early as 1857, before this sheriff’s sale, leased a mineral right from James McCloskey directly under the eye of John Mc-Closkey ; and John McCloskey’s son, Thomas W., worked for him there. Mr. Bradley, who is a very estimable gentleman and a very reliable witness, swears that he paid James McCloskey over $4,000 as royalty on coal from this land. You have in evidence James Mc-Closkey’s laying out of lots and selling them to different parties, his lease of the coal right, his having a brick-yard there, his recent lease to Taylor & McCoy, which perhaps is the immediate cause of the present ejectment, and which was made in the lifetime of John Mc-Closkey and in the presence of his sons. All these and the fact that the neighbors there, who would have some knowledge of the transactions of the brothers, all dealt with him alone as the owner of this land and regarded his title as entirely clear and undoubted, are to be considered by you.] [3] The 117 acres were originally placed upon the assessment list in name of John and James McCloskey; that assessment accorded with their title. After the other purchase, the first tract was assessed to them still in the same manner, with the 18 x acres added and all assessed as one piece, until shortly after this sheriff’s sale, when the name of John was stricken out, and the land was taxed to James McCloskey. From their first settlement on this land, it is not shown that John McCloskey ever paid one dollar of tax upon it; but it appears that James, before and since it was assessed to him, paid the taxes at all times, so far as we have any evidence of their payment. [It is hardly to be conceived that a man owning, and feeling that he owned, a half interest in a tract of land and living right beside it, should thus, during the whole of a middling long lifetime, fail to assert his claim.] [4] [All this and the other evidence in the case which you have heard, it is argued by the counsel for the defendant, warrant you in presuming a division of this property, a separation, either by a common line between the two brothers or otherwise. You have heard all that has been said on the one side and the other upon that question; and, weighing the evidence, taking the whole case into careful consideration, if the evidence and the circumstances in this case impel your minds to the be*706lief that the possession was separate, that would end the case under the statute of limitations.] [5]

“ There is another position claimed by the defendant, which is that this sale, though only for 100 acres, more or less, carried the undivided interest of John McCloskey in both these pieces of land to James McCloskey, not only in the part occupied by John, which is admitted to have been passed by that sheriff’s sale, but also in the part occupied by James. The quantity of acres conveyed at a sheriff’s sale is very rarely the exact quantity contained in the tract, but it should approximate it. To carry both tracts by that sale, the sheriff’s deed and levy would be required to embrace almost 300 acres which would be a great excess. Still, the levy would be presumed to have been given by the defendant in the writ; and the officer would be presumed to have performed his duty; and if these brothers held this land in common, without any line of demarkation between them, each holding the whole of the land, the sheriff would not be at liberty to levy upon a portion. In such a case, the boundaries being adapted to the description, the adjoiners all conforming as much in one case as in the other, the presumption would be that the whole tract passed by this *sale;*and it is quite possible that his belief that it did so was the reason why John Mc-Closkey never, after that sale, made any claim for these *117*acres. That may account for what would otherwise be almost unaccountable. That will be a question for you, upon your oaths, to determine how much land, whether the whole undivided interest in these two pieces or a less quantity, passed to James McCloskey. If the whole of both pieces, then he has the title to it, and that ends the case, regardless of the statute of limitations.

“ The remaining question in the case is the question raised upon the plea of the statute of limitations. Where a man enters upon land, even as a trespasser, defining his boundaries, claiming it against the whole world as his own, though he be a trespasser for twenty years and three hundred and sixty-five days, the moment twenty-one years of that kind of possession is had, what was a trespass before becomes j ust as good a title as any land-office title or any other title that can be obtained in Pennsylvania. This, like other statutes of limitation, is a statute of repose. It is regarded as the interest of the state, of the public, that titles shall be set at rest after a certain period; such a course of action promotes the growth and settlement of the Commonwealth. Very many land titles in Pennsylvania are so held, purely by statute. A man would squat on land, build himself a cabin, define his boundaries, and if the owner presented himself within 21 years, the squatter would find it to his interest to purchase his title. Should his possession not be disputed, after 21 years he would hold it despite the former owner. But there are certain ingredients necessary to constitute a title by the statute of limitations, and they must all concur to make a title of that kind perfect. If any one element is entirely wanting, it is the duty of *707the court to take the case from the jury and decide, as a matter of law, that the possession is not made out. To entitle a man to a verdict under the statute of limitations, the possession must be actual, it must be continuous, it must be adverse, and it must'be hostile and uninterrupted. Any interruption by the possession of the legal owner would toll the statute. A man’s possession must be continuous ; a rambling possession will not do.

“Under the evidence in this case, it will be for you to say whether this defendant has sustained his plea of the statute of limitations. When fully made out, the law regards this as a meritorious defense, but it must be fully made out. That the possession of James McCloskey was actual, can not be doubted. His whole life, since 1837 or 1838, has been spent there; and during all that time he has exercised every act of ownership that any man could exercise over his own land. It has been continuous. He has never been out of the possession of the premises himself for a single day, so far as we have evidence, till within the last year or eighteen months, when he was married; and then, and since that time, the property has been occupied by his brother and his sister; so that, as far as continuous possession is concerned, his title is fully made out. [That it is adverse is apparent, there not being any hostile acts and his title never having been challenged. He held it as his own against the whole world; and, so far as its being adverse is concerned, that element seems to us to be clearly made out.] [6]

“ If, as the plaintiffs allege here, the horses, cattle and sheep of John McCloskey were on these premises occasionally, it would be a question whether they were there under a claim of right on the part of the owner of them or not. If they were there as trespassers or by permission of James McCloskey, that would not affect the title to possession. The facts are for you. Was that a trespass or was it a permissible entry into the woodland of James McCloskey; [and was it exercised by John McCloskey, in contradiction to all his other disclaimers, as a claim of right on his part?] [6]

[“ It has been urged here that the payment of certain money since the date of the making of the coal lease to John McCloskey, and, after his death, to his widow, was an acknowledgment of his right in the premises. That is a question entirely for you, a question of the intention on the part of James McCloskey. If he handed money to these parties, as you have heard from the witnesses, under the idea that they were entitled, as owners of the land, to this money, and before his title by the statute of limitations had matured, it would affect him to that extent. If it was given because he was able to give it, if it was given because he was charitable, or for any other reason than as an acknowledgment of their title, it would not affect this case.] [7] That is a question entirely for your consideration.’’

The plaintiffs presented the following points, among others:

“ 3. The land conveyed by Wm. O’Connell and Philip Noon to *708James and John McCloskey were adjoining tracts, and thereby John and James became tenants in common of the land, as in one body, of the quantity contained in these two deeds, to-wit., as expressed in these two deeds, 298 acres. *Answer:*Affirmed as to the legal title, but if they held and occupied the land as in one body, without regard to any lines between the different purchases, the sheriff’s levy would extend to the whole tract; and a sale thereon would divest the title of John McCloskey to the whole tract; but the manner of their holding is a question for the jury.”

“ 4. If the jury believe, from all the evidence in the case, that James McCloskey lived near the one side and John McCloskey at the other side of this body of land, and each made improvements by clearing and building and received the proceeds of the parts cleared without objection from the other, and that both used the same opening or slip gap in the outside fence near the old brick-yard in letting their respective stocks into and out from the common property at their pleasure, and during the seasons of the year when it was usual to make use of their property in the ordinary way amongst farmers, then there was no ouster or dispossession of John or his heirs; and the verdict should be for the plaintiffs. *Answer:*If John McCloskey asserted his right to pasturage on that portion of the land now in dispute, the point is affirmed; but if it was by permission of James or as a mere trespasser, it would not be so. The whole question is for the jury.”

“ 5. If the jury believe from all the testimony in the case that John McCloskey occupied the house as described in the levy on the writ in the Commonw'ealth for the use against him and others, that Daniel McDermott occupied a house near the forks of the road, and that there was an unoccupied house further up on the road leading to the head of Plane No. 6, on the Allegheny Portage Railroad, and that there was about 25 acres cleared at or near the house occupied by John, and 100 acres, more or less, taken in levy with the adjoiners given next to the part occupied by John, this would satisfy the description in the levy and sheriff’s deed, without embracing the land in controversy in this suit. *Answer:*Either the position taken in this point or that taken by the defendant would satisfy the levy. It is for the jury to ascertain what passed by the levy and sale.”

“ 7. If the jury believe, from all the testimony in the cause, that James McCloskey, after the lease of the coal-right to Taylor and McCoy, gave to John McCloskey, or sent to him in his lifetime, and to his widow, after his death, certain portions of the money received from Taylor & McCoy, or money in the place of that received from Taylor and McCoy, the jury should find this or these acts as an admission by James McCloskey of an existing right of John Mc-Closkey and his heirs in the land in controversy. *Answer:*Affirmed, if the money was given before the statutory period had elapsed and as an acknowledgment of the right of the other party, but not if given from charitable motives. This is for the jury also.”

*709“ 8. The plaintiffs in this cause having filed of record a stipulation in writing that if there should be a verdict and final judgment in their favor that they thereby elected to confirm and ratify the lease of the coal in the land in controversy to Taylor & McCoy, and to accept one-half of the royalty arising thereon from the commencement thereof, the jury should, in considering their verdict, take no notice of the lease to Taylor & McCoy so far as a verdict for the plaintiffs might affect them. *Answer:*This is affirmed, but the leasing to Taylor & McCoy in the lifetime of John McCloskey remains in full force as evidence of claim by the defendant and ouster of the plaintiffs.”

“ 9. If the jury believe from the evidence in the cause that the house occupied by Demetrius A. McCloskey, one of the plaintiffs, was erected on the land in controversy with the consent of John and James McCloskey within the last 10 or 12 years, and has been since occupied by Demetrius A. McCloskey, without objection by James McCloskey, the occupancy of Demetrius would inure equally to his brothers and sisters and benefit them as his co-tenants equally with himself; and the jury should considerthe joint erection of this house by John McCloskey and his sons, in co-operation with James Mc-Closkey, and the manner of its occupancy since by Demetrius as an admission of James McCloskey of the continuation of the rights of John McCloskey, and of his heirs, in the land in controversy. *Answer :*This point as stated we cannot affirm.”

The following offers of evidence, rejected or received, were embodied in the assignments of error:

Rose E. Driscol, called on part of plaintiffs, in rebuttal: “Q. State if you are a daughter of Mary ¡Driscol, a plaintiff in this suit? A. Yes, sir. Q. State what conversation you heard between your mother and James McCloskey, the elder here, and the time, as near as you can? A. It was the 10th of April, as near as I can remember, in 1886; he asked her what she thought of the fracas the boys were having. Q. He asked your mother that? A. Yes, sir; and shé said she didn’t know.

Objected to and written offer made as follows: The plaintiffs’ counsel proposes to prove that the defendant, James McCloskey, came to the house of the witness’s mother-in April, 1886, and asked her what she thought of the fracas the boys were making. He said he had been giving them money all along; that he would build them a house yet. My mother asked him if he had any terms to offer. He said he would make it known sometime again. Objected to as being a mere effort of compromise. Objection sustained, testimony rejected, and exceptions noted, [x]

Margaret McCloskey, called on the part of plaintiffs, in rebuttal: The plaintiffs’ counsel proposes to prove by the witness on the stand matters occurring since the death of John McCloskey; that her father died July 29, 1885 ; that her mother sent for James McCloskey, and uncle came there; mother asked him “ is there anything *710coming to John,” my father; he said there was plenty for her and all the rest and that she would have an income; he turned around to me and said, “ you must have part too.” Objected to as irrelevant to the issue. Objection sustained, evidence rejected, and exception noted. [2]

The defendant offered in evidence the notice given by the plaintiffs to the defendants John McCloskey and others in the execution proceedings of the Commonwealth of Pennsylvania for the use of Rothrockand Christy against John McCloskey, No. 77, Dec. T., 1856, dated Nov. 3, 1857, to accept or refuse to retain the possession and to pay the rental value of the premises fixed thereon by the sheriff’s inquest. Objected to that the paper offered is not signed by John McCloskey nor ratified by him in any way, and that it is not an official paper which proves itself; and that John McCloskey knew nothing of the sheriff’s sale nor the confirmation of the deed at the time. Objection overruled, testimony admitted, and exception noted. [12]

Thomas Bradley, recalled by plaintiffs : “ Q. State whether you were acquainted with James McCloskey? A. Yes, sir. Q. State if you have seen him writing? A. I saw him sign his name. Q. [Putting into the hands of the witness the acceptance notice in the judgment of the Commonwealth for use *v.*John McCloskey.] State, if you please, whether or not this is in the handwriting of John or James McCloskey. [Defendant’s counsel object and ask the purpose of the question.] The plaintiffs’ counsel proposes to show that while the sale is regular upon its face to James McCloskey, yet in point of fact it was fraudulent as to John McCloskey, for the reason that James had undertaken to sign the name of John to the paper without John’s knowledge, and that he thereby brought about a sale of the land without John’s knowledge; also to show that there was a paper to be signed by John whereby he would elect to retain possession of the land but that he did not sign it; it was signed by James and afterwards James became the purchaser at the sale made on this very notice, and therefore it goes beyond an irregularity for want of formality in the proceedings; it is a fraud in the proceedings upon John, that his name was signed by James without his authority to the judgment or the extension, and afterwards James became the purchaser of the land and thereby practiced upon John a fraud. Objected to. Objection sustained, evidence excluded and exception noted. [13]

Defendant offered in evidence the sheriff’s return of Nov. 19 in No. 77, Dec. T., 1856, for the purpose of showing that the land in controversy, in connection with other lands belonging to John McCloskey, was sold to the defendant in this action. Objected to that the levy upon this writ is not the land in controversy in this suit, but refers to other lands adjoining, and is not material or relevant in the suit. By the Court: The objection is overruled and the testimony admitted. It can do the plaintiffs no harm and may have some *711effect upon the question that will arise under the plea of the statute of limitations. Exception. [14]

Defendant offers in evidence common pleas docket, vol. 1, page 274, being the record of the acknowledgment of the deed from Robert P. Linton, sheriff, to James McCloskey. Admitted. Dec. 5, i860, Robert P. Linton, Esq., High Sheriff of Cambria county, appeared in open court and acknowledged his deed to James Mc-Closkey for all the right, title and interest of John McCloskey of, in and to a piece or parcel of land situate in Allegheny township, Cambria county, adjoining lands of James McCloskey, heirs of Peter Shoenberger, deceased, Samuel Lemon and others, containing one hundred acres, more or less, about twenty acres of which are cleared, having thereon erected a two-story log-and stable in occupancy of John McCloskey; a plank house occupied by Daniel McDermitt, and a plank house unoccupied. Sold on venditioni ex-ponas, No. 120, Sept. T., i860, as the property of John McCloskey, for the sum of thirty dollars.

Defendant then offered deed of Robert P. Linton, High Sheriff of Cambria county, to James McCloskey, dated Dec. 5, i860, for 100 acres of land, more or less; acknowledged the same day, being for the land in controversy and other land.

Objected to, that the deed does not cover the land in controversy but is for adjoining land, and is not relevant or material for the purpose offered. Objection overruled, deed admitted, and exception noted. [15]

Verdict for defendant and judgment thereon, whereupon the plaintiff took this writ.

*The assignments of error*specified the action of the court, 1, 2, in rejecting the plaintiffs’ evidence, quoting the bills of exception, as above; 3-7, in charging as in brackets, quoting the extracts, as above; 8-11, 16, the answers to the points, quoting the points and answers; 12, the reception of the defendant’s evidence, quoting the evidence offered and the bill of exception; 13, the rejection of the plaintiffs’ offer of evidence, quoting the bill of exception, as above; 14, the reception of the defendant’s evidence, quoting the offer and bill of exception, as above, but not setting out the evidence in full; 15, the reception of defendant’s evidence, quoting it and the bill of exception as above.

*George M. Reade,*for plaintiff in error.

The admission, by defendant, of title in plaintiffs was evidence. The parties were not negotiating for a compromise, but inquiring respecting their title and ownership, of defendant below; this was admissible. Independent facts, even though in an offer of compromise,are evidence, though concessions for the purpose of a compromise in a treaty would not be so : Sailor *v.*Hertzogg, 2 Pa. 182; Waldridge *v.*Kennison, 1 Esp. 144; Arthur *v.*James, 28 Pa. 236, 237; Marsh *v.*Gold, 2 Pick. *712285, 290; Gerrish *v.*Sweetser, 4 Pick. 374; Murray *v.*Coster, 4 Cowen, 635 ; Dickinson *v.*Dickinson, 9 Mete. 471, 472, 474.

Where the acts, of persons are evidence in a case, their cotemporaneous declarations, which give character to those acts, are also evidence, as part of the res gestae : Halsey *v.*Lehigh Valley R. R., 16 Vroom, 35 : Frome *v.*Dennis, 16 Vroom, 515, 520.

“ If one joint tenant in fee makes a lease for years reserving rent and dieth, the survivor shall have the reversion, but not the rent because he claimed by title paramount.” “ If there be two joint tenants, and each make a several lease of the whole, their several moities shall only pass by each lease :” Littleton, 286; Wills, 1 fol. 1. But, in the case at bar, John McCloskey, in his lifetime, acquiesced in the leases and sales made by James, and the heirs of John since the death of their father ratified the lease to Taylor & McCoy, as well by receiving parts of the royalties, as by a paper of confirmation filed in this case.

An ouster of one tenant in common by another is not presumed from equivocal facts, which may or may not have been designed to operate as an exclusion: Freeman on Co-tenancy and Partition, § 301.

A bare perception of profits will not oust a tenant in common; and, for the statute of limitations to operate as a bar, the possession must be adverse : Morris *v.*Vanderen, 1 Dal. 67.

Nor will receiving rents, making sales, erecting buildings, etc : Nickle *v.*McFarlane, 3 Watts, 165, 166, 167; Hart *v.*Gregg, 10 Watts, 185, 189, 190; Watson *v.*Gregg, 10 Watts, 289; Hall *v.*Mathias, 4 W. & S. 331.

It was error to instruct the jury, that they might infer an ouster from the declarations of John, to the witnesses Litzinger, Glass'and Hight, who had been collectors of taxes, and testified that John referred them to James for the payment of the taxes. Thus “ an acknowledgment by the widow, and one of the co-heirs in possession, that the party claiming was the owner of the premises, and that they held under him, is not sufficient to establish an ouster, by such party, of his co-heirs:” Forward *v.*Deetz, 32 Pa. 69, 73, 74; Tulloch *v.*Worrall, 49 Pa. 133, 140, 141.

The owner’s non-payment of taxes cannot be considered as an abandonment of his title: Hoffman *v.*Bell, 61 Pa. 444, 454.

There was no evidence in the cause, upon which to submit to the jury the question of an amicable partition; nor that James paid over part of the royalties because he was able to do it, or was charitable; nor that John was a mere trespasser in pasturing his stock on the part occupied by James. It is error to submit to the jury matter of which there is no sufficient evidence: Silveus *v.*Porter, 74 Pa. 448, 451; Cauffman *v.*Long, 82 Pa. 72,80; and, besides, the rights of co-tenants extend to and embrace the fences: Gibson *v.*Vaughn, 2 Bailey, 339; 23 Am. Dec. 143.

A tendency to mislead, in the general tenor of the charge, *713though no particular portion of it be clearly erroneous, is ground of reversal: Washington Mut. Ins. Co. *v.*Rosenberger, 3 W. N. C. 16; Reber *v.*Herring, 44 Leg. Int. 301; Parker *v.*Donaldson, 6 W. & S. 132; Whitehill *v.*Gotwalt, 3 P. & W. 313; Harrisburg Bank *v.*Forster, 8 Watts, 304.

The answer of the court to the 8th point of the plaintiffs below, was not a direct and explicit answer to the point, and was therefore plainly an injurious error: Powers *v.*McFerran, 2 S. & R. 44; Fisher *v.*Larick, 3 S. & R. 319; Carpenter *v.*Mayer, 5 Watts, 483; Slaymaker *v.*St. John, 5 Watts, 27; Geiger *v.*Welsh, 1 Rawle, 349; Tenbrooke *v.*Jahke, 77 Pa. 392; Hood *v.*Hood, 2 Grant, 229: Noble *v.*McClintock, 6 W. & S. 58; Greenwood *v.*Shumaker, 82 N. Y. 614, 618.

Section 2 of the Act of Oct. 13, 1840, P. L. 1841, p. 2, Purd. 756, pi. 78, provides for notice to the sheriff of an election to retain the premises at the rental. If John had signed this notice he would not have been in default in the payment of the rentals for six months, and a period of thirty days’ grace before a vend. ex. could issue: Black *v.*Aber, 2 Grant, 206. Plaintiffs were clearly entitled to show that there was fraud practiced upon John by James. Thus, in ejectment, the plaintiff was permitted to prove that, at the sheriff’s sale, the defendant had fraudulently misrepresented the quality and condition of the land so as to enable him to purchase at a low price, which he did. Held, the sale was void and it was not necessary to tender the purchase money paid: Gilbert *v.*Hoffman, 2 Watts, 66. The same rule was applied in ejectment upon a void sheriff’s title in McKennan *v.*Pry, 6 Watts, 137. So, where land was sold by the sheriff to the plaintiff in the execution upon a satisfied judgment, the title was held to be fraudulent and void : Hoffman *v.*Strohecker, 7 Watts, 86, 89. The same rule of law was applied to a sheriff’s sale of personal property in an action of replevin : Gibbs *v.*Neely, 7 Watts, 305. And where the purchaser had paid another bidder $10 to cease bidding, in an ejectment for the land, title was held to be fraudulent and void : Abbey *v.*Dewey, 25 Pa. 413. And “if the party alleging the fraud produce such evidence of the fact as the jury could reasonably and safely rest their conscience upon, it was sufficient:” Ibid. 417; cited and approved in Stewart *v.*Reed, 91 Pa. 287, 289.

As to the answer to the 5th point: If the opinion of the court be requested on a point by one party, and the court in answer say, “ the adverse party has given a certain answer to it, which is also stated,” it is error: Simpson *v.*Wray, 7 S. & R. 336. So, if the charge or answer does not inform the jury what the law is, it is error: Selin *v.*Snyder, 11 S. & R. 319, 324.

“Where there is a joint possession, the mere holding by one of the tenants is not an ouster of his co-tenants; until ouster, the statute of limitations does not begin to run:” Broomall *v.*Mc-Callion, 6 Cent. 715.'

*714S'. S'. Blair, with him *John P.*Linton, for defendant in error.—

An entry upon the whole of the land by one tenant in common, who takes possession as if it had been his own exclusively, and receives the rents, issues and profits thereof, without accounting to his co-tenant for any part thereof, or proof of any demand upon him to do so for twenty-one years, amounts to an actual ouster, and will bar the other tenant in common: Law *v.*Patterson, 1 W. & S. 184 ; Frederick *v.*Gray, 10 S. & R. 182.

Improving lands and receiving the rents, issues and profits thereof are in all cases the highest acts of ownership which can be exercised over them, and the exercise of these acts strongly mark the possession with exclusiveness and hostility: Keyser *v.*Evans, 30 Pa. 507-

Resistance to right of entry, confession of disseisin, selling, leasing or improving the premises, or part of them, constitutes ouster of co-tenant: Tulloch *v*Worrall, 49 Pa. 136.

While the mere reception of the profits and claim of the land will not afford a legal presumption of ouster, yet the. jury may draw the conclusion of an ouster and adverse possession : Susquehanna Coal Co. *v.*Quick, 61 Pa. 328, where the cases are collated.

But, in this case, there was a distinct confession of disseisin or its equivalent. In such case, the statute runs, although the land may not be enclosed: Royer *v.*Benlow, 10 S. & R. 306.

If, as plaintiffs contend, there was a joint possession, the sheriff’s sale passed John’s interest. Our Acts of Assembly forbid any quantity less than a whole tract to be levied on or sold. The debtor cannot complain, for, if the description is not right, it may be corrected: Zeigler *v.*Houtz, 1 W. & S. 540.

Defendant’s title not being always accessible to the plaintiff, more laxity of description is allowed than in deeds and conveyances. When doubtful expressions are employed, the construction should be favorable to the plaintiff to enable him to obtain payment of his debt from the property of his debtor, rather than that he should lose it: Inman *v.*Kutz, 10 Watts, *go;*McCormick *v.*Harvey, 9 Watts, 484.

The quantity of land mentioned in the levy does not affect the question: Zeigler *v*Houtz, above; Swartz *v.*Moore, 5 S. & R. 257.

There was nothing in the excluded offers, embraced in the 1st and 2nd assignments of error, indicating a recognition of title in John. It was nothing but a kind expression of an intention to assist them.

When the sheriff gave notice to John that the plaintiff permitted him to accept, no other answer was given than the notice in evidence, and if James signed John’s name it must have been by John’s consent. The rental was not paid, a vend. ex. was issued, and afterwards an alias vend. ex. and other writs, and no sale was made until i860. Such a state of facts would not be submitted to a jury *715as proof of fraud. If there was any irregularity in it, it might have been corrected, but it cannot affect the title.

Oct. 29, 1888.

Per Curiam,

This case was properly tried and determined in the court below. The only doubt which appears in the contest is whether the sheriff’s sale and deed to James Mc-Closkey left any question which ought to have been submitted to the jury, but, as this doubt was resolved in favor of the plaintiffs in error, they have nothing of which to complain.

The judgment is affirmed.

Note. — Although, from facts referred to in the opinion of the supreme court, it may be doubted if any of the questions raised by the assignments of error were decided, the following point should be stated so that it may be noted in the index and digest:

An offer of evidence, to prov.e a confession of title in one tenant in common by another, was held inadmissible, as an independent fact in an offer of compromise, in an action of ejectment.