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for a lease, or under a contract for the purchase of the premises, or under any arrangement which operates as a recognition of the landlord's title, and as holding under, or in subserviency to it.1 When the estate which the landlord held vests in the lessee, whether by purchase from the lessor or by purchase under valid legal proceedings, the tenant may set up this title in defence to any action brought against him by the lessor, either to recover possession of the premises, or to recover after-accruing rent; 2 and indeed in all cases it is competent for the tenant to show that the landlord's title has terminated, as, that the premises have been sold under foreclosure proceedings, under execution, or for taxes,5 or indeed that the title of the landlord has, from any cause, expired. So a tenant is not estopped when he has been induced to take a lease from the landlord by his fraud or mis


1 Dubois v. Mitchell, 3 Dana (Ky.), 336; Love v. Edmoston, 1 Ired. (N. C.) L. 152.

2 Ryder v. Manzell, 66 Me. 197; Shields v. Lozear, 34 N. J. L. 496, 3 Am. Rep. 256.

3 And it is competent for him to show that they were sold upon a mortgage given to himself, and that he became the purchaser at such sale, or that the condition upon which the mortgage to him was given is broken, Shields v. Lozear, ante; Pope . Biggs, 9 B. & C. 245; Watson v. Lane, 11 Exch. 769; or where his title has been extinguished in any manner subsequent to the making of the lease, Camp v. Camp, 5 Conn. 291; Jackson v. Rowland, 6 Wend. (N. Y.) 666; Wheelock v. Warschaner, 12 id. 309; Randolph v. Carlton, 8 Ala. 606; McDevitt v. Sullivan, 8 Cal. 592; Deuatch v. Newsom, 3 Ohio, 57; Walls v. Mason, 5 Ill. 84; Lawrence v. Miller, 1 Sandf. (N. Y.) 516; Tilghman v. Little, 13 Ill. 239; Ryress v. Farwell, 9 Barb. (N. Y.) 615; Kinney v. Doe, 8 Blackf. (Ind.) 350; Hoag v. Hoag, 35 N.Y. 469; Casey v. Gregory, 13 B. Mon. (Ky.) 346; Gregory v. Crab, 2 id. 234; Homer v. Leeds, 25 N. J. L. 106; Hintz v. Thomas, 7 Md. 346; Giles v. Ebsworth, 10 id. 333; Howell v. Ashmore, 22 N. J. L. 261; Wolf v. Johnson, 30 Miss. 513; England v. Slade, 4 Johns. (N. Y.) 682; Russell v. Allard, 18 N. H. 222; Purtz v. Cuester, 41 Mo. 447. After a judgment of eviction against the tenant, he may, without the landlord's consent, attorn to the successful party, although he has not actually been evicted, Moffat v. Strong, 9 Bos. (N. Y.


Sup. Ct.) 57; Lunsford v. Turner, 5 J. J Mar. (Ky.) 104; Foster v. Morris, 3 A. K. Mar. (Ky.) 609; or he may show that the premises have been sold under a mortgage, execution, or for taxes, Shields v. Lozear, 34 N. J. L. 496; Doe v. Ashmore, 261. And if the sale is subsequently set aside, he may dispute the title of the purchasers and attorn to his original landlord.


Miller v. Williams, 15 Gratt. (Va.) This is upon the principle that if one in possession, under claim of title, is, by fraud or mistake, induced to believe that another has a better title, and thereupon to take a lease from him, the tenant will not be estopped. Alderson v. Miller, 16 Gratt. (Va.) 279.

4 Doe v. Ashmore, 22 N. J. L. 162. And he may set up the title of the purchaser under execution against the landlord in any action brought by the landlord, for matters accruing or occurring after such sale. Lancashire v. Mason, 75 N. C. 455.

And if the lessee buys in the whole or a part of the lessor's title at a tax or execution sale, or by private purchase, it is a proportionate defence to a suit for rent or ejectment. Nellis v. Lathrop, 22 Wend. (N. Y.) 121; Elliott v. Smith, 23 Penn. St. 131; George v. Putney, 4 Cush. ́ (Mass.) 358; Bettison v Budd, 17 Ark. 546; Carnley v. Stanfield, 10 Tex. 546. But if the tenant contracted to pay the taxes, he cannot set up a tax title against the landlord. Caruthers v. Weaver, 7 Kan. 110.

6 Doe v. Seaton, 2 Cr. M. & R. 728.

representation,1 or under a misapprehension or mistake.


Neither is

he estopped from setting up a paramount title in another, where he has been evicted, or a judgment of eviction has been obtained against him, nor when the payment of rent by him was merely gratuitous.* The estoppel only exists during his tenancy, express or implied. After that is ended, whether by surrender or otherwise, he may set up title in himself or in a third person," and, as a tenant for years holding over after his term is treated as holding upon the terms of the former lease, he remains subject to the estoppel.

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SEC. 266. Co-tenants. Prima facie, the possession of one tenant in common is the possession of all,' consequently acts done upon the common property by one co-tenant, which if done by a stranger to the title would amount to a disseisin, are susceptible of explanation consistently with the true title; and mere acts of ownership exercised by one co-tenant are not, of themselves, necessarily acts of disseisin, nor do they warrant a presumption of ouster. But if one tenant in common enters upon the whole land, and takes the entire profits, claiming and holding exclusively for the full statutory period, an actual ouster of his co-tenants may be presumed. But the mere pernancy of the profits for that period, of itself, does not amount to conclusive evidence of an ouster, 10 because that is susceptible of explanation consist

1 Glein v. Rise, 6 Watts (Penn.), 44; Swift v. Dean, 11 Vt. 323; Baskin v. Seechrist, 6 Penn. St. 154.



trary. Berthold v. Fox, 13 Minn. 501; Owen v. Morton, 24 Cal. 373; Small v. Clifford, 28 Me. 213; White v. Wilkinson,

2 Schultz v. Elliott, 11 Humph. (Tenn.) 2 Grant (Penn.), 249; Buckmaster v.

8 Moffat v. Strong, 9 Bos. (N. Y. Sup. Ct.) 57; Foster v. Morris, 3 A. K. Mar. (Ky.) 609; Fletcher v. McFarlane, 12 Mass. 43; Allen v. Thayer, 17 id. 299.

Shelton v. Carnal, 16 Ala. 148.

5 Page v. Kinsman, 43 N. H. 328; Carpenter v. Thompson, 3 id. 204. If there is no tenancy, there is no estoppel. Hughes v. Clarksville, 6 Pet. (U. S.) 369; Foust v. Trice, 8 Jones (N. C.) L. 290; Head v. Head, 7 id. 620.

6 Stoops v. Delain, 16 Mo. 162; Longfellow v. Longfellow, 54 Me. 240; Wilson v. James, 79 N. C. 349; Wood's Landlord and Tenant, 368 et seq.

7 Peaceable v. Reed, 1 East, 568; Doe v. Hellings, 11 id. 49; Atkyns v. Horde, 1 Burr. 111; Ewer v. Lowell, 9 Gray (Mass.), 76; Higbee v. Rice, 5 Mass. 351; Whiting v. Dewey, 15 Pick. (Mass.) 428; Jackson v. Brink, 5 Cow. (N. Y.) 484; Strong v. Cotter, 13 Minn. 82; Story v. Saunders, 8 Humph. (Tenn.) 863. The possession of one tenant in common is never presumed to be adverse, but the con

Needham, 22 Vt. 617; Challefaux v. Ducharme, 4 Wis. 554; Cunningham v. Robertson, 1 Swan (Tenn.), 138; Van Bibber v. Frazer, 17 Md. 136. But from a long period of exclusive occupation disseisin may be presumed. Purcell v. Wilson, 4 Gratt. (Va.) 16.

8 Parker v. Locks & Canals, 3 Met. (Mass.) 9; Bolton v. Hamilton, 2 W. & S. (Penn.) 294; Calhoun v. Cook, 9 Penn. St. 226; Brown v. McCoy, 2 W. & S. (Penn.) 307, note; Phillips v. Gregg, 10 Watts (Penn.), 158; Hart v. Gregg, 10 id. 185; Keyser v. Evans, 30 Penn. St. 507; Forward v. Dietz, 32 id. 69.

9 Frederick v. Grey, 10 S. & R. (Penn.) 182; Susquehanna, &c. R. R. Co. v. Quick, 61 Penn. St. 328; Rider v. Maul, 46 id. 376; Mehaffy v. Dobbs, 9 Watts (Penn.), 363; Workman v. Guthrie, 29 Penn. St. 495; Law v. Patterson, 1 W. & S. (Penn.) 184; Cummings v. Wyman, 10 Mass. 464.

10 Higbee r. Rice, 5 Mass. 351; Bolton v. Hamilton, 2 W. & S. (Penn.) 294; Calhoun v. Cook, ante. But pernancy of the

ently with his rights as co-tenant. In order to set the statute in motion in his favor, he must absolutely deny the title of his co-tenants,1 or by other notorious acts indicate his intention to claim and hold the estate exclusively. There must not only be an exclusive possession, but the possession must be under a claim of title to the whole estate, either brought home to the knowledge of the other tenant, or so notorious that his knowledge of such adverse claim can be presumed. And the evidence must be much stronger than would be required to establish a title by possession by a stranger. What constitutes an actual ouster is a mixed question of law and fact. If one co-tenant goes into possession of the entire estate under a notorious claim of title to the whole, and resists or denies the right of his co-tenant to enter, and persistently and notoriously excludes him from the enjoyment of the premise, this is an ouster. So, too, if one co-tenant erects a building upon the estate without the knowledge or consent of the other, and occupies it exclusively, and does, upon the estate, acts such as clearly and unequivocally indicate a claim of exclusive ownership, this is an ouster of his co-tenant. So it has been held that the erection of a dam upon the sole estate of one tenant, which floods the lands of the joint estate, is an ouster. But a mere cutting of trees and converting them to his own use, or cutting the grass and removing fences, the plowing up of crops, the removal of fixtures,1o or, indeed, the doing of any acts which may be referred to his right, are not regarded as amounting to an actual expulsion, or as an ouster." So, if one defendant executes a mortgage of the entire estate, or a deed of his interest, it is not an ouster.1 13 But a conveyance by one of the entire estate,1 or devising 5 Bennett v. Clemence, 6 Allen (Mass.),



profits for a long period, as forty years, is evidence from which an adverse claim may be inferred. Chambers v. Pleak, 6 Dana (Ky.), 426.

1 Kathau v. Rockwell, 16 Hun (N. Y.), 96.

2 Van Bibber v. Frazer, 17 Md. 136; Andres v. Andres, 9 Ired. (N. C.) 214; Forward v. Dietz, 32 Penn. St. 39; Crane v. Robinson, 21 Conn. 379; Larman v. Hoey, 13 B. Mon. (Ky.) 436; Colburn v. Mason, 25 Me. 434; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177; Abercrombie v. Baldwin, 15 Ala. 363; Peck v. Ward, 18 Penn. St. 506; Meredith v. Andres, 7 Ired. (N. C.) 5; Johnson v. Tuolumne, 18 Ala. 50; Newall v. Woodruff, 30 Conn. 492.

8 Barrett v. Coburn, 3 Met. (Ky.) 510; Newell v. Woodruff, 30 Conn. 492.

4 Thomas v. Pickering, 13 Me. 337; Forward v. Dietz, 32 Penn. St. 69.

14 Marcy v. Marcy, 6 Met. (Mass.) 360; Kittredge v. Locks & Canals, 17 Pick.




Jones v. Wetherbee, 4 Strob. (S. C.)

7 Wait v. Richardson, 33 Vt. 190.
8 Booth v. Adams, 11 Vt. 156.

9 Harman v. Gardiner, Hemp. (S. C.)


10 Gibson v. Vaughn, 2 Bailey (S. C.), 389; McPherson v. Seguine, 3 Dev. (N.C.) 153.

11 Booth v. Adams, ante.

12 Wilson v. Callinshaw, 13 Penn. St. 276; Harman v. Hannah, 9 Gratt. (Va.) 146.

18 Porter v. Hill, 9 Mass. 34; Roberts v. Morgan, 30 Vt. 319. Where one tenant does an act amounting to a destruction of a portion of the estate, or a serious injury thereto, his co-tenant may have an action on the case against him therefor, but can

(Mass.) 246; Bigelow v. Jones, 10 id. 161.


it by will,' or, indeed, any act which clearly indicates an intention on his part to usurp the entire estate to himself, is an ouster; 2 and the question as to whether his acts accrue to the benefit of the joint estate, or as an ouster and disseisin of the others, is a question for the jury.

SEC. 267. What Possession will sustain Constructive Possession. In all cases, in order to entitle a person to the benefit of the doctrine of constructive possession who claims under a color of title, there must be an entry upon, and an actual possession of, some part of the land covered by his title, with the palpable intention to claim and hold the land as his own; and an actual possession of adjoining land will have no effect to entitle a person to the benefits of a constructive possession.5 There must in all cases be an actual entry upon the land animo clamandi possessionem, and a visible, notorious, distinct, and hostile possession of a part of it, continued for the entire statutory period. The kind of

not maintain trespass, Anders v. Meredith, 4 D. & B. (N. C.) 199; Odiorne v. Lyford, 9 N. H. 502; Gt. Falls Co. v. Worcester, 15 id. 412; Cowles v. Garrett, 30 Ala. 341; Gunther v. Pettijohn, 6 Ired. (N. C.) 388; as for the erection of a dam on his own estate which floods the joint estate, Jones v. Wetherbee, 4 Strob. (S. C.) 50; Odiorne v. Lyford, ante; Gt. Falls Co. v. Worcester, ante; Hutchinson v. Chase, 39 Me. 508; or for diverting water from a mill owned by two in common, Pillsbury v. Moore, 44

Me. 144.


1 Miller v. Miller, 60 Penn. St. 16.
2 Cummings v. Wyman, 10 Mass.

3 Lefavour v. Homan, 3 Allen (Mass.), 354; Parker v. Locks & Canals, ante; Cummings v. Wyman, ante.

4 Altemus

v. Campbell, 9 Watts (Peun.), 28. An adverse possession of land cannot be extended by construction beyond the limits of the land actually covered by the conveyance. Pope v. Hanmer, 74 N. Y. 240; Enfield v. Day, 7 N. H. 457; Hale v. Gliddon, 10 id. 397. As to any lands outside the limits of the conveyance, an actual possession must be shown, Pope v. Hanmer, ante; even though the occupant went into the possession of a wrong lot and improved it under a mistake, Hale v. Gliddon, ante; Johnson v. Lloyd (N. Y.), MSS. case cited in Pope v. Hanmer, ante.

5 Hale v. Gliddon, ante; Pope v. Hanmer, ante; Johnson v. Lloyd, ante; Tritt v. Roberts, 64 Ga. 156; Peyton v. Barton, 53 Tex. 298; Davidson v. Beatty, 3 H. &

MeH. (Md.) 621. A., the owner of a tract of land, sold the western half to B., by metes and bounds. The whole tract was subsequently sold under a void judgment for taxes, and C. became the purchaser. He placed a tenant on the eastern half, claiming the whole tract by virtue of the who remained in possession seven years, tax sale. There was no visible open possession of the western half by C. It was held that the statute did not bar the right of B., and that the constructive possession of B. was not disturbed by C.'s occupation of the eastern half.

Stewart v. Harris,
9 Humph. (Tenn.) 714. The occupation of
pine land by annually making turpentine
oust a constructive possession by one
on it is such an actual possession as will
claiming merely under a superior paper
title. Bynum v. Carter, 4 Ired. (N. C.)
310. Where a party is in actual posses-
sion, and has a right to possession under
a legal title which is not adverse, but
claims the possession under another title
which is adverse, the possession will not
in law be deemed adverse. Nichols v.
Reynolds, 1 R. I. 30. In Tritt v. Roberts,
64 Ga. 156, it was held that possession of
deed with other distinct lots, could not be
a part of one lot, embraced in the same
extended by construction to the other lots,
unless the deed was on record, and that
prescription as to such other lots would
only begin to run from the date of the

v. Campbell, 10 Johns. (N. Y.) 477; Ew-
Stanley v. White, 14 East, 332; Doe
ing v. Burnett, 11 Pet. (U. S.) 41; De Lany

possession which will be sufficient must depend largely upon the character of the land, the locality, and the purposes to which it can be put. Thus, an entry upon woodland by a person holding a deed, and clearing off a part of it, with an intention of soon making other improvements, has been held sufficient.1 In Maine, the doctrine was asserted





v. Mulcher, 47 Iowa, 445; Scott v. Delany, possession is based upon a written title, 87 Ill. 146. which may be valid or invalid. The person having the valid title is always, in law, in the constructive possession of the land, unless he has been disseised. But a person claiming land under a defective conveyance must have actual possession of part of the land, and that gives constructive possession of other land contained in the conveyance. In other words, he must have a written conveyance of land, and he must enter into actual possession of a part thereof, claiming the whole, and then he may, under certain circumstances, have constructive possession of the whole. Constructive possession arises in no other way than this. But the definition I have given is not yet complete. The part not actually possessed must be for use with, or subservient to, that actually possessed, and have some necessary connection therewith." As illustrative of the latter rule, he continues : "One may purchase and take a conveyance of land for a farm, and have actual possession of but a small part thereof, and the balance unenclosed may be kept for future improvement, and for firewood, and fencing and building timber, and he will have constructive possession of such unenclosed land. But such constructive possession will extend only to such land as is used in connection with the improved land actually possessed, and to only so much as is reasonable and proper for that purpose according to the custom of the country." The rule here stated is admitted to be flexible, and the qualification that so much may be covered constructively, as is admissible "by the custom of the country," gives to it the quality of a general rule. To illustrate his meaning in this respect, and to show that the quantity of land to be embraced under a constructive possession is largely dependent upon the uses to which the land is applied, and the section of country in which it is situated, he says: "If these defendants had built upon these lands a saw-mill, and

1 Scott v. Delany, 87 Ill. 146. In the case of Thompson v. Burhaus, 79 N. Y. 97, it was held that a person who enters into possession of a large tract of land,in this case 6,300 acres,- which is divided into quarter-sections, and takes actual possession of one section, does not thereby acquire constructive possession of any other section; and that a mere entry by him upon another section, and erecting thereon a shanty, and cutting timber upon a small portion of it, in this case about a fourth of an acre, with no intent or attempt to improve any portion of the land claimed, gave him no title except to the portion of the lot so actually occupied. "That there was any actual possession of the land recovered," said EARLE, J., cannot be well claimed. It was not enclosed. No part of it had ever been cultivated or improved; whatever was done upon it was to take value from it, not to put value into it. It does not appear, even, that any one ever lived in the shanty, and no one representing the plaintiff was upon the land at the time of the alleged entry of the defendants, or for some time before. Payment of taxes, surveying, and assertion of right do not constitute possession. They merely show a claim of title; and whenever it is important to show that, they are material. Going upon land from time to time and cutting logs thereon does not give possession. Such acts are mere trespasses upon the land against the true owner, whoever he may be. One may gain actual possession of land by fencing it, or by cultivating and improving it, or by building upon it; and then he will have so much as he has fenced, or cultivated and improved, or built upon, with some land around and necessary for the buildings. Actual possession, possessio pedis, can mean no more. In commenting upon the plaintiff's claim that he had possession constructively, he said: "Constructive

2 Robinson v. Sweet, 3 Me. 315.

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