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a crib. The next three years, and until the fall of 1852, he did not cultivate the land, though he had some ploughs in the corn crib a part of the time. He never, during this time, resided on the land; but in the fall of 1852 he married, built a house, and moved upon the land. It was held that this was not such a continuous possession as to constitute a title good under the statute, dating from the period of the first entry. So where a person goes into adverse possession, but subsequently, before the statute has run in his favor, under threats from the owner that he would commence legal proceedings against him, he is induced to surrender possession, such surrender breaks the continuity of his possession, and should he go into possession again, the owner having entered in the mean time, the time of his previous possession would go for nothing.1 A mere removal from the land, without any intention of abandoning the possession, or the claim to the land, is not necessarily a waiver of a previous adverse possession. In a Missis
1 Shaffer v. Lowry, 25 Penn. St. 252; Pederick v. Searle, 2 S. & R. (Penn.) 240. Every element in the definition of what constitutes a title by adverse possession must exist; otherwise the possession will not confer title, under the statute of limitations. If there be one element more distinctly material than another in conferring title, where all are so, it is the existence of a continuous adverse possession for the requisite statutory period. If there is a breach in the continuity of the possession, no title is gained under the statute. A recovery in ejectment by one having the better title, and the attorning of the defendant's tenant to the plaintiff, under the pressure of a writ of habere facias possessionem, is sufficient to break the continuity of the possession. It is not necessary, in such a case, that the defendant's tenant should be actually evicted, before accepting a lease from the plaintiff. The surrender is equally involuntary, where the attornment is the alternative of actual ouster. It is the duty of the court to see that there is evidence to go to the jury on all the points necessary to make title by the statute; and it is therefore proper to instruct the jury that an interruption in the plaintiff's possession for a year would be a bar to his claim of title under the statute. The fact of possession is for the jury, but the kind and length of that possession, to be effectual, is a matter of law for the court. The payment of taxes
by the party evicted, under a recovery in ejectment, is not sufficient to preserve the continuity of his possession. Groft v. Weakland, 34 Penn. St. 304. Where the owner of a house put lumber and other materials on an adjoining lot whilst building his house; erected steps on the lot for access to his house; used it in going in and out of his house, and for drying clothes: held, not a sufficient possession to give title under the statute of limitations. Brolaskey v. McClain, 61 Penn. St. 146.
2 Harper v. Tapley, 35 Miss. 506. A short and reasonable time between outgoing and incoming of persons whose continuous possession in succession is necessary does not break the adverse possession, De la Vega v. Butler, 47 Tex. 529; nor does a temporary absence from the premises for a special purpose. Cunningham v. Patten, 6 Penn. St. 355; Sailor v. Hertzog, 10 id. 296. But an abandonment of the premises, for however short a period, although with the animus revertendi, will destroy the continuity. Susquehanna, &c. R. R. Co. v. Quick, 68 Penn. St. 189. An adverse possession, to be effectual, must be continuous. Where, in an action to recover land, it appeared that the plaintiff. under color of title, had made occasional entries upon the land, at long intervals, for the purpose, at one time, of cutting timber, at another, of making bricks, &c.: held, that the plaintiff was not entitled to recover. Williams v. Wallace, 78 N. C. 354.
sippi case, the possessor cleared, cultivated, and used the land adversely to, and with the full knowledge of, the alleged owner, and without any attempt on his part to assert his title. The fence was accidentally burned, and prevented the active occupation of the premises, and rendered them unfit for use during several years; but there was no evidence tending to show an abandonment of the adverse possession, except that non-user. It was held that the statute did not cease to run during such non-user, and that the possessor's title was perfect. The question as to whether there has been such an abandonment of possession as to break the continuity thereof depends upon the question whether the premises were vacant for such a length of time and under such circumstances that the constructive possession of the owner can be said to have reasserted itself; and in a case 2 where the defendant's grantor vacated the premises a short time before the latter took possession, and it did not appear that during such time he exercised any control or ownership over the land, it was held that the possession was not continuous, and that the defendant could not avail himself of the possession of his grantor. It is well settled that a possession which can ripen into a title must not only be notorious, but continued without entry or action by the legal owner for the full statutory period; and, as indicated by the cases already cited, a person who enters upon premises and commits trespasses and then leaves, without keeping up the indicia of claim and ownership, does not destroy the effect of the constructive possession of the legal owner, but stands rather in the light of a trespasser than of an occupier under a claim of title.* Not only must the possession be continuous, but it must continue as to the same premises. In other words, the locality of the possession must remain the same throughout the entire period. But when the statute has once run in favor of the occupant, the title acquired is indefeasible, and is not affected by a subsequent neglect to keep up possession, and neither the legal owner nor a purchaser from him without notice of such adverse title acquire any rights, legal or equitable, from such neglect." But in Georgia it has been held that if, after having held possession for the statutory period, the occupant voluntarily abandons the possession of the premises, the presumption arises that his holding was not adverse. The benefits of a constructive possession may be lost, where
1 Ford v. Wilson, 35 Miss. 490. 2 Legarden v. Carpenter, 36 Miss. 504. & Hood v. Hood, 2 Grant's Cas. (Penn.) 229; Andrews v. Mulford, 1 Hayw. (N. C.) 320; Park v. Cochran, 1 id. 180; Wickliffe v. Ensor, 9 B. Mon. (Ky.) 253; Taylor v. Burnside, 1 Gratt. (Va.) 165; Merriam v. Hays, 19 Ga. 294; Melvin v. Proprietors, &c., 5 Met. (Mass.) 15; Christy v. Alford, 17 How. (U. S.) 701; Moore v. Collinshaw, 10 Penn. St. 224.
a person, before the statute has run in his favor, sells the part of the land which he actually occupied, and retains the balance. In that case, his possession of the part sold goes for nothing, as to the part occupied, and the grantee does not succeed to it.1
SEC. 270. How the Continuity of the Possession may be broken. -The continuity of possession may be broken by an entry of the legal owner, by an abandonment of the possession by the occupant, by a subsequent recognition of the owner's title, or an acknowledgment made before the statute has run in his favor that he has and claims no title to the lands occupied.
First, an entry by the legal owner upon the land breaks the continuity of an adverse possession, when it is made openly with the intention of asserting his claim thereto, and is accompanied with acts upon the land which characterize the assertion of title or ownership; 2 and a mere naked entry, which is made for the purpose of ascertaining whether or not there is any adverse occupancy, is not sufficient to break or interrupt the possession. The entry must be made openly, with the purpose of asserting his claim thereto, and must be accompanied by acts of ownership which characterize and effectuate the claim; and an
1 Chandler v. Rushing, 38 Tex. 591. But if a person has written evidence of title, and the premises are occupied by a tenant, and he subsequently sells an undivided half of the land to the tenant, who remains in possession of his half as owner, and of the other half as tenant, the tenant's possession is treated as the possession of the landlord, and preserves his possession.
Hanks v. Phillips, 39 Ga. 550.
2 Henderson v. Griffin, 3 Pet. (U. S.) 151. But the entry must be made by the owner. To perfect the bar of the statute of limitations, the possession must be uninterrupted; yet the interruption of mere trespassers, if unknown, will not affect the possession; but if known, and repeated without legal proceedings being instituted, it is said they become legitima interrup tiones, and are converted into adverse assertions of right, which, if not promptly and effectually litigated, defeat the claim of rightful prescription. If, therefore, a testator is expelled by a proceeding for a forcible entry and detainer, &c., promptly instituted, the statute may not be impeded in its course; but if the possession was preceded by a peaceable entry under a claim of right, the statute will be arrested in its progress, though the party entered upon regains the possession by the success
ful prosecution of an action of ejectment or
8 Bowen v. Guild, 130 Mass. 121.
entry upon land and cutting wood or timber therefrom, or to plough, to sow, or to reap or gather the crops thereon, would be such acts. Thus, where an owner of land which was in the adverse occupancy of another went thereon with a purchaser to show him the land and to ascertain the quantity, quality, and value of the wood thereon, accompanied by the subsequent execution of a deed to the person so entering with him, was held a sufficient entry to break the continuity of the adverse occupant's possession; and where an entry was made upon land by the owner, and a deed of the premises was there by him delivered to a purchaser, it was held that the disseisin was so far purged by the entry as to give operation to, the deed, although the grantee knew that the land was claimed adversely. The rule relative to entries under these statutes is well expressed by PARK, J. "When," says he, "a party is once dispossessed, it is not every entry upon the premises without permission that would disturb the adverse possession. He may tread upon his own soil, and still be as much out of the possession of it there as elsewhere. He must assert his claim to the land, perform some act which would reinstate him in possession, before he can regain what he has lost. It is evident, therefore, that an entry by stealth, under circumstances that go to show that the party claimed no right to enter, or an entry for other purposes than those connected with a right to enter, would not be sufficient to break the continuity of exclusive possession in another." Of course, the bringing of an action of ejectment and a recovery therein, accompanied by an entry, breaks the continuity of possession. An entry made by the legal owner, with a “high hand" and forcibly, does not defeat the continuity of the possession of an adverse occupant, if he subsequently regains possession by an action for forcible entry and detainer." In some of the States, by statute, no entry is sufficient to toll the statute, unless it is followed by an action within one year from the time it was made;"
1 Brickett v. Spofford, 14 Gray (Mass.), any portion of the statutory period. In a 514.
2 Oakes v. Marcy, 10 Pick. (Mass.) 195; Knox v. Jenks, 7 Mass..488.
3 Warner v. Bull, 13 Met. (Mass.) 1. 4 Burrows v. Gallup, 32 Conn. 493. An entry upon land in the possession of another, in order to work a legal interruption of such possession, must be made under such circumstances as to enable the party in possession, by the use of reasonable diligence, to ascertain the right and claim of the party making the entry. Wing v. Hall, 47 Vt. 182. A claim based on adverse constructive possession under a tax-deed for the three years limited by the statute, may be avoided by the owner's proof of actual use and occupation for
contest between such tax claimant and the original owner, the latter may establish such occupation by proof of his rental of the land to neighboring farmers to mine, in open, visible cuts, for lead ore, in the winter, and of his being obligated by local custom to hold the diggings for them respectively during the summer. Wilson v. Henry, 35 Wis. 241.
5 Groft v. Weakland, 34 Penn. St. 304. But the statute is not suspended by an unsuccessful action of ejectment not leading to a change of possession. Workman v. Guthrie, 29 Penn. St. 495; Kennedy v. Reynolds, 27 Ala. 364.
6 Cary v. Edmunds, 71 Mo. 523.
7 Appendix, New York, § 367; North
and in Texas "peaceable possession" is defined to be that which is continuous, and not interrupted by action.1 In Massachusetts and Michigan,' an entry must be followed by possession for one year, or by an action brought within one year from the time entry was made. In Kentucky, Virginia, and West Virginia, no continual claim upon or near real property preserves the right to bring an action therefor. After a party has been evicted under a recovery in ejectment, the continuity of his possession is destroyed, and he cannot keep it up by the payment of taxes on the land, or the assertion of any other claim thereto. Instances may arise where the facts are not controverted, where the question as to whether the possession has been interrupted by entry is properly a question of law for the court, but generally it is a question for the jury in view of all the circumstances."
Second, the continuity of possession may also be broken by an acknowledgment by the occupant of the owner's title, before the statute has run in his favor, but not after it has run. In Georgia it has been held that such an acknowledgment made by a tenant in possession, either before or after the statutory period has elapsed, prevents the running of the statute against the owner of the fee." The ground upon which these cases proceed is, that such an admission rebuts the allegation of adverse possession; but where the possession is shown to have been adverse in fact, and the bar to have become complete before an acknowledgment of title in the legal owner is made, it can have no such effect, especially if it is by parol. A parol acknowledgment of title made while the statute is running must be such as to show that the occupant no longer intends to hold adversely, 10 and must refer to the title set up by the occu
2 Appendix, Massachusetts, § 8; Michigan, § 8.
3 Appendix, Kentucky. Appendix, Virginia.
5 Appendix, West Virginia.
6 Groft v. Weakland, 34 Penn. St. 304. 7 Stevens v. Taft, 11 Gray (Mass.), 33; O'Hara v. Richardson, 46 Penn. St. 385; Groft v. Weakland, 34 id. 304; Jackson v. Joy, 9 Johns. (N. Y.) 102; Beverly v. Burke, 9 Ga. 440; Van Gorden v. Jackson, 5 Johns. (N. Y.) 440; Jackson v. Wood, 12 id. 242; Fishar v. Prosser, Cowp. 217; Mayor of Hull v. Horner, id. 102; Peaceable v. Reed, 1 East, 568.
Bradford v. Guthrie, 4 Brewst. (Penn.) 351; London v. Lyman, 1 Phila. (Penn.)
465. In Bell v. Hartley, 4 W. & S. 32, an acknowledgment made twenty-one years before ejectment was brought was held not admissible.
Long v. Young, 28 Ga. 130; Cook v. Long, 27 id. 280.
10 Sailor v. Hertzog, 4 Whart. (Penn.) 259; Ingersoll v. Lewis, 11 Penn. St. 212; Moore v. Collinshaw, 10 id. 224. In Ley v. Potter, 3 H. & N. 101, it appeared that in 1818 the plaintiff and the defendant's grandfather became seised as tenants in common of a meadow. The meadow was then in the possession of the defendant's grandfather, who had previously held it under a lease. The plaintiff's father became possessed in 1826, and so continued till his death in 1836. In 1837, Newton, who was proved to be a land agent, who received the defendant's rents and managed his property, wrote the following letter to the plaintiff's agent: “Sir,— Mr. P. (the defendant), is now in