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rule that to make an entry adverse it must be hostile in its inception,1 is subject to the exception that a party so entering may disclaim, and from the time when notice of such disclaimer is brought home to the person under whom he entered his possession becomes adverse, but that he takes nothing by his previous occupancy. An entry under a

dian in lieu of dower; it being intended and understood that the deed given to the infants should be for the use of the mother, and that the land should belong to her. The mother and her husband, with the infant heirs, as part of their family, entered after the conveyance from the administrator, occupied the land, claiming it as hers, built a house upon it, and exercised ownership during the life of the husband, and the widow subsequently, during the minority of the heirs. It was held that the deed from the administrator was to be considered as confirming the title of the heirs, and not as adverse to it, and that the mother could not be permitted to set up her supposed equitable title under it as cestui que trust, as color of title, to qualify the possession so as to render it adverse to the title of the infants as heirs-at-law. Livingston v. Pendergast, 34 N. H. 544.

1 McGee v. Morgan, 1 A. K. Mar. (Ky.) 62; Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jackson v. Parker, 3 Johns. Cas. (N. Y.) 124; Kirk v. Smith, 9 Wheat. (U.S.) 241; Jackson v. Birner, 48 Ill. 108.

2 Hamilton v. Wright, 30 Iowa, 486; Huls v. Buntin, 47 Ill. 397. An entry by one man on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim or color of right adverse to the legal title, it is an ouster; otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character. The doctrine of adverse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is in favor of possession in subordination to the title of the true owner. An entry adverse to the lawful owner is not to be presumed, but must be proved. And, to make the possession of a party a bar in the action of ejectment, strict proof is necessary that it was hostile in its inception. Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jackson v. Sharp, 9

id. 163; Jackson v. Parker, 3 Johns. Cas. (N. Y.) 124; Guy v. Moffitt, 2 Bibb (Ky.), 507; McGee v. Morgan, 1 A. K. Mar. (Ky.) 62. Where a party occupied land as the tenant of the owner until the death of the latter, and after that held possession in right of his wife, who was an heir of the deceased owner, during which he acquired the interest of several of the other heirs, he always recognizing their claims, it was held that his possession after the death of the owner was not adverse to the remaining heirs, but in consonance with their rights. Busch v. Huston, 75 Ill. 373. In Kille v. Ege, 79 Penn. St.15, it appeared that in 1815 E. conveyed unimproved land, known as the "Cox Tract," in trust for the wife of his son and her heirs, and died soon afterwards. At the time of the conveyance, and before, the son occupied an adjoining iron-works of his father, known as "Mt. Holly Estate;" this was adjudged to him in partition. He coaled, cut timber, &c., on the "Cox Tract" for more than twenty-one years. The "Mt. Holly Estate" was sold by the sheriff in 1836 as the property of the son; the trust deed was not recorded until June, 1848. The wife died in December, 1848, and the son in 1858. No claim for the "Cox tract" was made by her heirs till they brought ejectment in 1872 against parties claiming under the sheriff's sale, and alleging that the "Cox traet" was part of the "Mt. Holly Estate." It was held, 1st, That the heirs could recover. 2d, That the record of the deed, showing that it was executed and acknowledged, raised the legal presumption that it had been delivered. 3d, That E. being the owner of the land, and having by the deed of trust separated the "Cox tract" from the "Mt. Holly Estate," evidence of possession of the "Cox tract" by the son, in connection with that estate before the deed, was immaterial to establish adverse holding by him. 4th, That the "Cox tract," not being described in the proceedings in

parol gift of certain lands, the extent of which is definitely fixed, is

partition as part of the "Mt. Holly Estate," neither the son, nor those claiming under him, took any title to it, by the adjudication to him of that estate. 5th, That the possession of the son during the life of his wife was not adverse, and that the statute did not run; and that the evidence in the case did not show a continuous possession after the sheriff's sale.

Bedell v.

The quality and extent of the right acquired by possession of lands depends upon the claim accompanying it. To be adverse so as to ripen into a title when long enough continued, must be accompanied by a claim of title in fee. A claim simply of an unexpired term for years is not in hostility, but in accord, with the true title. Therefore, in an action of ejectment, where defendant claimed under a conveyance purporting to grant the unexpired term of an assessment lease, — held, that possession thereunder, however long continued, did not give title; and that, upon proof of the rightful title in plaintiff, it devolved upon defendant to show the validity of the lease and his right of possession under it; and that, in the absence of such proof, plaintiff was entitled to recover. Shaw, 59 N. Y. 46. The adverse possession of a tenant is notice to all the world that he can maintain whatsoever title he has against all the world. So held as to a railroad company's possession of a strip of land over which its trains were running daily, as against the claim of a party whose grantor had more than twenty years previously quitclaimed the same to the company's corporate predecessor; the correctness of a recorded plat being in issue. Jeffersonville, &c. R. R. Co. v. Oyler, 60 Ind. 383. Where lands of a married woman are sold by her husband, the possession of the grantee does not become adverse to the wife until the marriage is terminated. Stephens v. McCormick, 5 Bush (Ky.), 181.

One of the cardinal rules which apply to acts of limitation generally, and which has been recognized in the courts of England, and in all others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversary; and it cannot be adversary un

less it is hostile to the true title. Said CHIEF JUSTICE MARSHALL: "To allow a different construction would be to make the statute of limitations a statute for the encouragement of fraud — a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such construction." Kirk v. Smith, 9 Wheat. (U. S.) 241, 288. And it has recently been held by the Supreme Court of Illinois that an adverse possession sufficient to defeat the legal title, where there is no paper title, must be hostile in its inception, and is not to be made out by inference, but by clear and positive proof.. And further, that the possession must be such as to show clearly that the party claims the land as his own, openly and exclusively. Jackson v. Birner, 48 Ill. 128.

It has been held that a possession taken under a grant from the French Canadian government, before the conquest of Canada by the British, of land in the State of New York, cannot be deemed a possession in hostility to any private or individual right, and must be considered as held in subordination to title conveyed by a patent of the State. Jackson v. Waters, 12 Johns. (N. Y.) 365; Jackson v. Ingraham, 4 id. 163.

Where the party did not originally enter into the possession of the land under a title hostile to the title of the owner, it will be intended that he entered under his title. Jackson v. Thomas, 16 Johns. (N. Y.) 292. But, as it has been before intimated, if a man enters on land, without claim or color of title, and no privity exists between him and the real owner, he may afterward acquire such a title to the land as the law will, prima facie, consider a good title, and from that moment his possession becomes adverse. Although the possession of the party was not originally either hostile or in subservience to the true title, from the moment he acquired a colorable title, and claimed under it, that moment his possession became hostile to the title of the true claimant. SPENCER, C. J., said: "The principle, however, that the possession must in its inception be adverse, and continue so, is not well understood. In those cases in which that

adverse to the donor, and ripens into a title after the lapse of the

observation occurs, nothing had happened to change the character of the first possession, and that was considered as denoting quo animo the possession was held after the first entry." Jackson v. Thomas, ante; Jackson v. Frost, 5 Cow. (N. Y.) 346. In all cases, however, where a party is in possession of lands in privity with the rightful owner, nothing short of an open and explicit disavowal and disclaimer of a holding under that title, and assertion of title in himself, brought home to the owner, will satisfy the law. Short of this the party will still be regarded as holding in subserviency to the rightful title. Floyd v. Mintsey, 7 Rich. (S. C.) 181. There are authorities maintaining the doctrine that a party in possession of lands confessedly in subordination to the title of the owner is incapable in law of imparting, by any act of his own, an adverse character to his possession; and that, in order to deny or dispute the title, he must first surrender the possession, and place the owner in the condition in which he stood before the possession was taken under him. This doctrine was supposed to govern the rights of trustee and cestui que trust, landlord and tenant, vendor and vendee, tenants in common, and the like, and that no lapse of time would lay a foundation for a statute bar to the right of entry by reason of an adverse possession between parties standing in this relation, or any others of like privity. The law, however, has been settled otherwise. The trustee may disavow and disclaim his trust; the tenant the title of his landlord after the expiration of his lease; the vendee the title of his vendor after breach of the contract; and the tenant in common the title of his co-tenant; and drive the respective owners and claimants to their action within the period of the statute of limitations. The only distinction between this class of cases and those in which no privity between the parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the title, and

assertion of an adverse right, and to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute of limitations. Otherwise the grossest injustice might be practised; for, without such notice, the owner of the land might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations. The statute, therefore, does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding, or the want of knowledge on the part of the owner. If he then neglect to enforce his rights by action within the period fixed by the statute, the loss, as in every other case of the kind, is attributable to his own laches, and not to the law.

In an action of ejectment brought in the Circuit Court of the United States for the eastern district of Pennsylvania, to recover land situated in that State, in which the question of adverse possession was directly involved, the judge charged the jury that "a trustee of any description may disavow and disclaim his trust, though it is in the utmost bad faith, or in violation of his express agreement, from which time his pos session of lands, money, or chattels, held under an original trust, becomes adverse, so as to bar an action of account after six years, or an ejectment in twenty-one years after notice of the disavowal, disclaimer, and adverse possession is given to the person entitled to the benefit of the execution of the trust. That notice of the disclaimer puts the true owner under the same obligation to reclaim the possession within the fixed period, as if no trust had ever existed; and it matters not whether the trust began by the voluntary act of the trustee, or the law made him a trustee against his will, as the result of his situation or conduct;" and the Supreme Court of the United States, on writ of error, sustained the charge of the judge. Zeller v.

requisite statutory period. There are cases in which a contrary doc

Eckert, 4 How. (U. S.) 289. This doctrine, however, cannot be said to interfere, in the least, with the rule that a possession to be adverse must be hostile in its inception. In those cases last referred to the party may be said to have held possession under different claims, at different dates, the last of which was hostile, and hence adverse, and the first was in subservience to the true title, and not adverse.

Where one makes a contract to have a deed, though he enters into possession of the land described by it, he is not in a situation to hold adversely, until the condition upon which he contracts to have his deed is fulfilled; for the simple reason that such a possession is not hostile in its inception. To illustrate: One Dyer made a contract for land with the agent of the proprietors in 1792, and entered under it. In 1794 he received his deed. In 1796 he sold a part of it to the defendant. It appeared that he took possession, under his contract, of land which the deed did not cover, and the defendant sought to retain it, on the ground of adverse possession. The possession taken under Dyer's contract was held not to be adverse, on several grounds. But, among others, the court say, the agreement made by Dyer with the agent "did not put him in a situation to commence holding adversely, until he performed the condition. The land still belonged to the proprietor of the township. Whether he ever would perform was contingent. He entered on the lot, it is true, but it was necessarily subject to the right of turning him off, if he neglected to make full payment. The possession, therefore, when taken, had not the characteristics to constitute it adverse. It was not hostile in its inception." Jackson v. Camp, 1 Cow. (N. Y.) 605. A possession and claim of land, under an executory contract of purchase, is in no sense adverse, as to the one with whom the contract is made. But it seems that, when one enters under a contract for a deed with one party, and afterward takes a deed from another party, his possession from this time is adverse to the first vendee, and, if continued the statutory period, will bar his entry. Jackson v. Johnson, 5 Cow. (N. Y.) 74; Jackson

v. Bard, 4 Johns. (N. Y.) 231. After performance of a contract of purchase, and an equitable title to a deed of the premises acquired, there is no good reason why the vendee's possession may not become adverse, Briggs v. Prosser, 14 Wend. (N. Y.) 228.

Graham v. Craig, 81 Penn. St. 465; School District v. Blakeslee, ante; Summer v. Stephens, 6 Met. (Mass.) 337; Moore v. Webb, 2 B. Mon. (Ky.) 282; Outcalt v. Ludlow, 32 N. J. L. 231; Steel v. Johnson, 4 Allen (Mass.), 425. In Clark v. Gilbert, 39 Conn. 94, this question was directly passed upon, and the rule as stated in the text was sustained. BUTLER, J., in passing upon the question, said: "Much has been said about an open, notorious possession, but such expressions are not applicable to a case like this. Possession taken under a parol gift is adverse in the donee against the donor, and if continued for fifteen years perfects the title of the donee as against the donor. The donor in such cases not only knows that the possession is adverse, but intends it to be, and there is no occasion for any notoriety. Notoriety is only important where the adverse character of the possession is to be brought home to the owner by presumption.

Of course where it is shown that he had actual knowledge that the possession was under claim of a title, and therefore adverse, openness and notoriety are unimportant, for no other person has any legal interest in the question, or right to be informed by notoriety or otherwise. So long as Henry W. Gilbert knew that his niece was holding the premises as her own, under a gift from him, and would acquire a complete title at the end of fifteen years, she was not bound to make claim of right, or proclaim the character of her possession, until it was denied by him, or some agent of his authorized to make the denial. No act or declaration of his or of his agent came to her knowledge which required her to speak. I think there can be no doubt, therefore, that there was a gift to her, and possession delivered her pursuant to the gift; that possession was continued adversely for more than fifteen years, and that neither the husband nor the donor,

trine is held; but the weight of authority, as well as common sense and the principles applicable to adverse possession, seem to support the rule as stated, because a person entering under such circumstances enters as owner, and occupies under a claim of ownership, and every attribute requisite to acquire a title by adverse possession exists.


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SEC. 261. Mixed Possession. — The rule is, that where there is a mixed possession, that is, where there are two or more persons in possession, each under a separate conveyance or color of title, possession will be treated as being in him who has the better title, upon the ground that the seisin is in him who has the best title, and, as all cannot be seised, the possession follows the title. The rule is well

nor any authorized agent of his, so interrupted or disturbed that possession as to prevent the acquisition by her of a complete title. The act of authorizing a well to be dug and pipes to be laid in the land is of little importance. It was the act of an agent who had no special authority to interfere with the possession of this property, and certainly a general authority, upon the facts found, would not authorize it. The same may be said in respect to the taxes. As there was no conveyance of the property on record, the assessors naturally continued to put it into the list of H. W. Gilbert, and the taxes were paid by his agent. The fact that he soon discontinued paying the taxes is a much more significant fact for the petitioner. This view of the principles involved is sustained by all the decisions involving the questions which have been found. The general principle that a husband, occupying the property of the wife with her or solely, is presumed to be occupying in subordination to her title is generally recognized. See 2 Selden, 342, and cases there cited.

"There have been two cases analogous to this decided in our sister States during the last ten years. The first was the case of Steel v. Johnson, 4 Allen (Mass.), 425, decided in 1862. In that case the father gave to his daughter, who was a married woman, some real estate, and put her in possession of it, and she continued to hold possession for more than twenty years, and it was holden that by operation of law she thereby became vested with a complete title to the estate, which neither the father nor his grantees during his life, nor his heirs-at-law after his death, could successfully contest.

"Another analogous case which arose in New Jersey and was decided in 1867, was that of Outcalt v. Ludlow, 32 N. J. L. 251. In that case a father gave a house and lot to a married daughter, and put her and her husband in possession, and they occupied until the statute of limitations had run against the father. Upon the question whether she or her husband was entitled to claim title acquired by such possession, it was holden, first, that a possession so entered into in right of the wife could not be taken advantage of by the husband to the prejudice of his wife, for his possession was only through her, and he could not, by any act of his own against his wife, change it into a possession adverse to her. Second, that if she was permitted by the father to hold possession of the property as hers, and by lapse of time such adverse possession ripened into a title, that title was hers."

1 Watson v. Tindal, 24 Ga. 494; Jackson v. Rogers, 1 Johns. (N. Y.) Cas. 36.

2 PARSONS, C. J., in Langdon v. Potter, 3 Mass. 219; Gilman v. Wilson, 10 id. 151; Cushman v. Blanchard, 3 Me. 266; Bellis v. Bellis, 122 Mass. 414; Crispin v. Hannovan, 50 Mo. 536. When two persons are in possession of land at the same time, under different claims of right, he has the seisin in whom the legal title is vested. Winter v. Stevens, 9 Allen (Mass.), 526. If the holders of two hostile titles to the same tract of land are each in the occupation of a small portion within the exterior boundaries of the tract, the constructive possession follows the true title, and the statute of limitations does not run in favor of the holder of the invalid title, except as to his actual possession. If one

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