John McLean

“ Now, where an act does not necessarily import fraud; where it has more likely been done through a good than a bad motive, fraud should never be presumed. But it is not necessary to decide whether these conveyances were fraudulently made by Ormsby, or not. The important point is, to know whether Gregg and wife had any knowledge of the fraud, if committed, or participated in it. This knowledge, the court charged the jury, was immaterial; as the fraud of Ormsby rendered the deeds void, and, consequently, they could give no colour of title to an adverse possession. ”

“ This conduct was fraudulent on the part of John Ormsby; and it is not material, whether Isaac Gregg and Sidney Gregg were parties to it or not, since no estate can be acquired by a fraudulent grant: covinous conveyance of land is as no conveyance, as against the interest intended to be defrauded. And it must follow, that no act or deed which is fraudulent, can be the foundation of an adverse possession; because, being absolutely void, and not merely voidable, it cannot afford colour of title, and without colour of title, there is nothing by which an adverse possession can be obtained ”

“ To rebut this presumption of the law, an actual ouster must be proved; which, however, may be inferred from circumstances, of which the jury are to judge. They may presume an actual ouster, where one tenant in common enters on the whole, takes the profits and claims the whole exclusively, for twenty-one years. Under such circumstances, his possession becomes adverse, and the act of limitations begins to run. But a bare perception of profits by one tenant in common, is not an ouster of his co-tenant. ”