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fides or mala fides on the part of the grantee under it. The office of such conveyances is to mark the limits of the occupant's claim, and

Bona fides cannot be said to be requisite to adverse possession, although there are some cases in which the idea is intimated that fraud may be received as an answer to the statute, when it is interposed against a legal claim. But it will be found, on examination, that those cases in which such an intimation is contained generally arose under the statute concerning champerty and maintenance, and not when the statute of limitations was in question. Possession has often been held to be adverse under the statute of limitations, when it would not be within the meaning of the statute concerning champerty and maintenance. Jackson v. Andrews, 7 Wend. (N. Y.) 152; Livingston v. The Peru Iron Company, 9 id. 511. After the statutory limit, it is always considered dangerous to open an inquiry upon the bona fides of the defendant's claim. In one case in North Carolina, where the limitation was only seven years, the right to inquire into the good faith of the claim on which the defendant predicated his possession was denied. In that case the defendant, as the plaintiff alleged, had fraudulently obtained a grant from the State, which he knew covered a part of the plaintiff's previous grant; and held seven years' possession under it. The jury were charged, at nisi prius, that no paper writing founded in fraud could operate as color of title in favor of him who was party to the fraud; and the question of such fraud was left to them on the evidence. They finding for the plaintiff, a new trial was granted. The court remarked that the act of limitation which had passed in 1715 was general; and the judge, delivering the opinion of the court, adds: "I would say that the law so construed is politic and wise. On the one hand, it may be said that no mala fide possessor should acquire a right, no matter how long his possession may have continued. Yet, as parol evidence must be gone into for the purpose of proving the mala fides, and it being a thing dependent on knowledge in the possessor, a thing which may be drawn upon him by perjury without a possibility of

contradiction, the object of passing the act would be frustrated. It would tend to render titles insecure." Den v. Legget, 3 Murph. (N. C.) 539. And this is in accordance with the general tenor of all the cases, both English and American. As early as the reign of Queen Elizabeth the English courts recognized the doctrine. A statute had declared that a fine should operate as a bar to all strangers, saving to all persons and their heirs such right as they had, so that they pursued it by action or entry within five years next after proclamations made. It was held that not even infants or femes coverts were excepted, but all limited to the five years, because the statute did not except them in words. It is added: "Whosoever considers that this act was made for the general tranquillity and quiet of inheritance throughout the realm, which are more to be favored than the nonage of an infant in a case which rarely happens, will not think this a hard or rigid construction; and although sometimes a case happens for which there is no remedy, yet that does by no means impeach the reasonableness or justice of the law, seeing the great number of people who are provided for by it." It is then shown that there might be several successive infancies, and added: "Then the right would come to be tried when it is out of the memory of any man living, and yet in such a dark case a jury would be under the necessity of giving a verdict; and such darkness and ignorance would be the means of introducing perjury and many other mischiefs which the makers of the act intended to prevent by removing the cause of them, viz. by limiting a certain time, which they did not intend should be exceeeded, although some particular persons might suffer for it. Stowel v. Lord Zouch, Plowden, 358, 371; Maddock v. Bond, 1 Irish T. R. 332, 340. Those cases cited from the courts of North Carolina and the English Exchequer, arose under statutes of short limitation, and the strict doctrine laid down is much more appropri ate in cases of long than in short limitation; and in a case in the English Court

they are admitted in evidence, not necessarily to prove title, but merely to indicate the extent of an occupant's claim, and as a defence under

of Chancery, the Master of the Rolls, Sir THOMAS PLUMER, speaking of a bar in twenty years by adverse possession, uses this strong language: "The question is never a question as to the title belonging to the plaintiff or defendant: time shuts out the inquiry into the title, except only to ascertain that the possession has been de facto adverse to the claimant; whether amounting strictly to a disseisin, abatement, or intrusion, is of no consequence, provided it has been adverse; that is, inconsistent with the title of the claimant. The defendant in possession has a right to stand on the defensive, and throw upon the plaintiff the burden of getting over the preliminary plea in bar by showing a title to sue; that is, by proving that he has made his entry or filed his bill within twenty years. The question respects the plaintiff's right to the remedy, not the defendant's title to the estate. A tortious act can never be the foundation of a legal, any more than of an equitable title. It is no more favored by a court of law than a court of equity, considered nakedly by itself; but the statute bar arises from other principles, admitting the title, if it could be inquired into, to be clearly in favor of the plaintiff and against the defendant, still the question is, whether he has prosecuted that title in time. The quiet and repose of the kingdom, the mischief arising from stale demands, the laches and neglect of the rightful holder, and all the other principles of public policy take away the remedy notwithstanding the title veri domini, and the tortious holding of the posTo advert to the merits is to shift the question from the real subject of inquiry. The case never arrives at that point; it is stopped in limine, equally in the courts of equity as of law. The title is changed in both by the operation of a public law upon public principles without regard to the original private right. If the negligent owner has forever forfeited by his laches his right to any remedy to recover, he has in effect lost his title to recover. The defendant keeps possession without the possibility of being ever dis


And in another part


turbed by any one." of the same case, the same learned Master of the Rolls, adverting to the rule at law, said, that at law "the lapse of twenty years affords a substantive insuperable plea in bar. It is the fixed limit to the remedy; the tempus constitutum. day beyond is as much too late as one hundred years. This is the peremptory, inflexible rule at law, fixed by positive statutes, if there has been adverse possession and no disability or fraud. No plea of poverty, ignorance, or mistake can be of any avail. However clear and indisputable the title if the merits could be inquired into, however demonstratively tortious and wrongful the adverse possession, the fact of such possession and the time preclude all investigation of the title. The door of justice is closed. The claimant cannot be heard to show his title. It is a decisive answer to him that he comes too late. That alone is the bar. His title remains, but he has lost his remedy. The statute is founded upon the wisest policy, and is consonant to the municipal law of every country. It stands upon the general principle of public utility. Interest reipublico ut sit finis litium is a favorite and universal maxim. The public have a great interest in having a known limit fixed by law to litigation, for the quiet of the com. munity, and that there may be certain fixed periods, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands after the witnesses of the facts are dead, and the evidence of title lost." Cholmondely v. Clinton, 2 J. & W. 1, 139, 140, 155. The bill was dismissed; the plaintiff appealed to the House of Lords, and the decree was affirmed. The case was finally disposed of in 1821. It was considered, and was treated by the court, as one of the highest importance; it was decided by the court, upon a full review of

the statute of limitations in connection with proof of the requisite period of occupancy.1 In Louisiana, the statute makes a distinction between a person who enters in good faith and a just title and one who does not. In the former case possession is acquired in ten years, but lands are prescribed for in thirty years without any need of good faith or title. In most of the other States the statute is silent upon this point, and indeed in most of them the entire doctrine relative to constructive possession is the outgrowth of judicial decisions.

SEC. 260. Executory Contracts, &c., Possession under. When an instrument is executed to a person which on its face shows that the entry is not under a claim of title in himself, but that it is in another, it follows as a necessary consequence that it does not afford color of title, and that no length of possession under it can ripen into an adverse title; and under this rule it follows that a possession and claim of land under an executory contract of purchase is not such an adverse possession as will render a deed from the true owner void for champerty or maintenance; nor is it such an adverse possession as, if continued for the requisite period, will bar an entry within the statute of limitations; and especially it is in no sense adverse as to the one with whom the contract is made.2

To constitute an adverse possession, it must not only be hostile in its inception, but the possessor must claim the entire title; for if it be subservient to, and admits the existence of, a higher title, it is not adverse to that title. But where a contract. is made for the sale of land upon the performance of certain conditions, and the purchaser enters

all the cases which were then to be found in the books, and it certainly gives a most just and clear view of the general policy of the statute of limitations and the nature of adverse possession. So it may be safely affirmed that in all cases, unless a statute intervenes and establishes a different doctrine, a possession to be adverse need only to be under color or claim of title, that is, inconsistent with the title of the claimant who is out of possession. It is inconsistency, or such a claim as puts the plaintiff at defiance, no matter how wrongful, or with what degree of known wrong in the possessor, or how defective the title under which the possession is claimed. Northrup v. Wright, 7 Hill (N. Y.), 476; Bogardus v. Trinity Church, 4 Sandf. (N. Y.) Ch. 633, 712, 738. It is the very office of the statute of limitations to mature a possession, in itself wrongful, if accompanied by even a pretence of title, into a legal right. It should be stated, however, that in some of the States, as in Georgia, it was

provided by statute that no possession will be considered adverse unless evidenced by written evidence of title, and any forged or fraudulent title will not be evidence of adverse possession. But this is contrary to the general rule, and where no statute exists to the contrary, the doctrine is to the effect before stated. Tyler on Ejectment, 861.

1 Finlay v. Cook, 54 Barb. (N. Y.) 9.

2 Jackson v. Johnson, 5 Cow. (N. Y.) 74; Proprietors of No. Six v. M'Farland, 12 Mass. 325; Higginbotham v. Fishback, 1 A. K. Mar. (Ky.) 506; Wilkinson v. Nichols, 1 B. Mon. (Ky.) 36; Richardson v. Broughton, 2 N. & McC. (S. C.) 417; Fowke v. Darnall, 5 Litt. (Ky.) 318; Chiles v. Bridge, Litt. Sel. Cas. (Ky.) 423; Kirk v. Smith, 9 Wheat. (U. S.) 288; Jackson v. Hotchkiss, 6 Cow. (N. Y.) 401. 8 Botts v. Shield, 3 Litt. (Ky.) 84; Proprietors of Township No. Six v. M'Farland, 12 Mass. 327; Knox v. Hook, id. 331.

into possession under the contract, his possession from the time of entry is adverse to all except his vendor,1 and it seems now to be well settled that, after the performance by him of all the conditions of the contract, he from that time holds adversely to the vendor, and full performance is treated as a sale, and the party in possession may acquire a good title as against the vendor by the requisite period of occupancy.2 But an entry cannot become adverse where it is made upon a condition to be performed by the person entering until it is performed. Thus, where a person goes into possession of land under an agreement to exchange, and to pay a balance thereon, a conveyance to be made when such balance is paid, the possession cannot become adverse until such balance is paid. Thus, in a Vermont case, the intestate and A. verbally madean exchange of lands, whereby A. was to have the demanded premises. if he paid the difference in value between them and the land for which they were exchanged. A. went into possession of the premises under the contract, and occupied them for more than fifteen years, claiming no title thereto except by virtue of the contract, and had them set to him in the list, and paid the taxes thereon. A. never paid the differ ence, and no deeds of the lands were ever executed, and finally A.. surrendered the premises to the intestate, and retook possession of the land he let him have. It was held that A. acquired no title to the premises by possession, and that, after such surrender, he had no interest.

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2 Ridgeway v. Holliday, 59 Mo. 444; Clapp v. Browningham, 9 Cow. (N. Y.) 930; Briggs v. Prosser, 14 Wend. (N. Y.) 228; Ex parte Department of Public Parks, 73 N. Y. 560; La Frombois v. Jackson, ante; Vrooman v. Shepherd, 14 Barb. N. Y.) 441; Fain v. Garthright, 5 Ga. 6; Brown v. King, 5 Met. (Mass.) 173; Catlin v. Delano, 38 Conn. 262; Slark v. Starr, 1 Sawyer (U. S. C. C.), 15; McCall v. Neely, 3 Watts (Penn.), 72; Hunter v. Parsons, 2 Bailey (S. C.), 59; Bank v. Smyers, 2 Strobh. (S. C.) 24; Fowke v. Beek, 1 Speers (S. C.), 291. Any possession which is accompanied by the recognition of a superior title still existing cannot be adverse. Griswold v. Butler, 3 Conn. 246. But where a person enters under an agreement to purchase, whether by parol or otherwise, and pays for the land, or takes a deed which is defective, the possession from that time, prima facie becomes adverse. So. School Dist. v. Blakeslee, 13 Conn. 235; French v. Pearce, VOL. II.-12


8 id. 439; Bryan v. Atwater, 5 Day (Conn.),.
181. In such a case, after the requisite
statutory period the jury may presume a
conveyance. Maltonner v. Dimmick, 4.
Barb. (N. Y.) 566. And a specific per-
formance of such a contract will not be
denied, even though thirty years have
elapsed since the right to have it matured.
Somerville v. Trueman, 4 H. & McH.
(Md.) 43; Ripley v. Yale, 18 Vt. 220;
Appleby v. Obert, 1 Harr. (Del.) 336;
Ellison v. Cathcart, 1 McMull. (S. C.) 5;.
Woods v. Dille, 11 Ohio, 455; Pendergast
v. Gullatt, 10 Ga. 218; Magee v. Magee,
37 Miss. 138; Drew v. Towle, 31 N. H.
531; McQueen v. Ques, 36 Ala. 308; Lan-
der v. Rounseville, 12 Tex. 195; Paxson
v. Bailey, 17 Ga. 600. But while the con-
tract is unperformed on the part of the
vendee, and he is in possession, he is treated
as tenant at will to the vendor, and not as
a disseisor. Brown v. King, ante; Stam-
per v. Griffin, 20 Ga. 312; Van Blarcom
v. Frike, 26 N. J. L. 351; Judger v.
Barnes, 1 Heisk. (Tenn.) 570; Ormond v.
Martin, 1 Ala. Sel. Cas. 526.

8 Adams v. Fullam, 47 Vt. 558.

therein which could be taken on a debt existing before the surrender. The fact that a vendee under a contract to purchase, who went into possession under it, abandons the possession of the land, and subsequently goes into possession under a lease from another, will not make his possession adverse to his vendor. His second entry and possession relates back to, and continues the possession under, the original possession, and will not create a new and adverse possession. This is also the rule as to all permissive entries upon land, as under a license, &c., so long as the license remains unrevoked, there can be no adverse occupancy, but possession continued after the license has expired may become ad-. verse. And the same rule holds as to any permissive entry. So long as the occupation is under such permission, the possession cannot be adverse; but when the permission is withdrawn, or terminates by efflux of time, or the occupant disclaims, and gives notice of such disclaimer to the person under whom he entered, he may hold adversely. The

1 Pratt v. Canfield, 67 Mo. 50.

2 Babcock v. Utter, 32 How. Pr. (N. Y.) 439; Luce v. Carley, 24 Wend. (N. Y.) 451; Farrish v. Coon, 40 Cal. 33.

8 See post, sec. 265, Landlord and Tenant; White v. Hapeman, 43 Mich. 267; Thompson v. Felton, 54 Cal. 547. It is indispensable to a claim of title by adverse possession that it should have been under a claim of title; but a possession originally permissive will never become adverse. Adams v. Guice, 30 Miss. 397. And it is also necessary that the possession should be held by the claimant, or some one in privity with him; if it is really held by a person with whom the claimant resides, the possession is not adverse. Thus, where a father colorably sold to his son certain lands, of which, after his death, the widow, as head of the family (she being administratrix), held possession, it was held that her possession, although the son resided with her, could not be treated as the possession of the son, so as to render it available to him under the statute, as against the intestate's creditors. Snodgrass v. Andrews, 30 Miss. 472. Evidence that an alministrator entered into the possession of land of his intestate, upon a sale under a license, at which the land was struck off to himself, that he considered himself the owner, had the land surveyed and the lines around it marked, let a neighbor mow over a part of it, and cut three or four pine timber trees upon it, during an occupation of about three years, is not evidence of that

open, notorious, and exclusive possession, marked by definite boundaries, which is necessary to render it adverse to the title of the legal owner. Livingston v. Pendergast, 34 N. H. 544. And it may be said that the possession by an administrator of the estate of the intestate, continued for a long time after the period limited by law for closing the administration and distributing the property, does not, by the mere lapse of time, change the original character of the possession, and make it adverse against those entitled to distribution, or create any right or title in the administrator under the statute. Harriet v. Swan, 18 Ark. 495. The administrator of an estate, administered as solvent, at the sale under his license, bid off the land himself, entered upon and kept possession of it about three years, without deed or writing, except a memorandum of the sale, signed by the auctioneer, considering himself the owner, and exercising acts of ownership. By agreement between himself, the legal guardian of the heirs, and the widow, their mother, with the consent of her husband, she having contracted a second marriage, the administrator, by a deed in his private capacity, and not as administrator, conveyed the land to the infant heirs, in consideration of the indebtedness of the estate to the mother, for the support of the infant children under seven years of age, and of a sum which had been agreed to be paid to her by the administrator, with the consent of the legal guar

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