possession.57 A few courts apparently require continuous formal transfers to make privity, and hold that successive possessions cannot be connected by delivery of more than the tract actually described in deeds between the parties, although more is intended to pass and possession may be actually taken by the grantee.58 According to the great weight of authority, however, if possession is transferred as to all, including the land outside the limits described, tacking is allowed.59

"If each grantee succeeds to the possession of his grantor, there is such privity between the occupants that their several possessions are referred to and regarded as continuous."

It is said that

"the privity required is a continuous possession by mutual consent, so that the possession of the true owner shall not constructively intervene." 60

The courts have been somewhat put to it for an explanation of the doctrine that an oral agreement and delivery of possession, ordinarily not sufficient to transfer title to land, are sufficient to make "privity of estate." The theory advanced by the Wisconsin court is that privity is purely a question of continuity of physical possession, and has no relation to the transfer of title or claim of title. In Illinois Steel Co. v. Paczocha 61 the court remarks,

"It is said that there must be privity between the successive occupants, but this does not at all mean that there must be a privity of title.. The privity between successive occupants required for the statute of limitations is privity merely of that physical possession, and is not dependent upon any claim, or attempted transfer, of any other interest or title in the land."

57 Peoples Water Co. v. Anderson, 170 Cal. 683, 151 Pac. 127 (1915); Tuggle v. Southern Ry. Co., 204 S. W. 857 (Tenn. 1918).

58 Evans v. Welch, 29 Colo. 355, 68 Pac. 776, 779 (1902); Vicksburg, etc. Ry. Co. v. Le Rosen, 52 La. Ann. 192, 203, 26 So. 854 (1899); Messer v. Hibernia, etc. Soc., 149 Cal. 122, 124, 84 Pac. 835, 837 (1906); 29 HARV. L. REV. 790.

59 Rich v. Naffziger, 255 Ill. 98, 99 N. E. 341 (1912); Gildea v. Warren, 173 Mich. 28; 138 N. W. 232, 233 (1912); Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028 (1901); Bugner v. Chicago T. & T. Co., 280 Ill. 620, 637, 117 N. E. 711 (1917); Crawford v. Viking Co., 84 Kan. 203; 114 Pac. 240 (1911); 35 L. R. A. (N. s.) 498, note.

60 Shedd v. Alexander, 270 Ill. 117, 126, 110 N. E. 327 (1915); Illinois Steel Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534 (1900).

61 139 Wis. 23, 28, 35, 119 N. W. 550 (1909).

This theory is believed to be erroneous. Privity of estate means succession to the possessory title. Suppose the adverse possessor, A. has previously sold and conveyed his possessory title to B, who fails to enter, and then delivers possession to C by oral agreement. Centers and holds for the balance of the period. There is privity of physical possession, but not privity of estate between A and C, except as to a new adverse possession which A may have initiated since his grant to B.

Oral, tacking is allowed because the inchoate prescriptive title may be transferred by the possessor by mere delivery. If he abandons or conveys to B he has nothing to transfer. But the grantor can hardly set up the possession, which he has abandoned by delivery, as a title in an action of ejectment against his grantee.62 An oral agreement of transfer would be valid as against third parties at least, even if questionable under the statute of frauds as between the immediate parties to the grant.63

In tacking constructive adverse possessions under color of title, it has been held in New York that there must be a regular deed or formal conveyance from holder to holder. It is argued that a void deed will not place the successor in the predecessor's shoes as to such claim of title. "Every adverse possession is a wrong amounting to an inchoate right." To make continuity of estate with the prior constructive adverse possession, it is essential that this inchoate title pass along the line by conveyance, as there is no corporeal seisin which can be transferred by livery. It has, however, been held by certain other courts, that a formal deed under seal is not necessary to tack constructive possessions. If there is some written instrument, and a colorable transfer, so that the latter claimant shall apparently hold by right of the former, this will be sufficient. It is the legislative and judicial policy to favor those claims of title that are evidenced by written instruments of transfer, both as to the period within which they will be quieted and as

62 Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027 (1904); 18 HARV. L. REV. 62; Innis v. Miller, 10 Mart. (La.) 289 (1821).

63 McNeely v. Langan, 22 Ohio St. 32 (1871); Cunningham v. Patton, 6 Pa. St. 355, 357 (1847).

64 Simpson v.

Downing, 23 Wend. (N. Y.) 315, 316 (1840).

65 Kendrick v. Latham, 25 Fla. 819, 6 So. 871, 875 (1889); Crispen v. Hannavan. 50 Mo. 536, 549 (1872); Watts v. Parker, 27 Ill. 224 (1862); Barger v. Hobbs, 67 Ill. 592, 597 (1873).

to the tangible acts of ownership which will amount to adverse possession. Delivery of actual possession of part of the land held under color of title may well be considered constructive delivery of possession of the entire tract described, even though the deed of conveyance be without a seal or scroll or be otherwise defective. It is the very purpose of the doctrine of adverse possession to cure technical defects in the evidence of title.

The underlying theory of title by adverse possession is put to the acid test by the problem presented when one disseisor or converter, B, has been, in turn, dispossessed by another wrongdoer, C. The question is whether the successive adverse holdings have a different effect on the right of the original owner, A, than where the holdings connect by means of a transfer. A few courts and writers looking at the owner's continuous laches rather than at the possessor's consistent claim of title, have discarded or condemned the requirement of privity for acquiring title by adverse possession. For them it should be enough to show that the owner has been continuously kept out of possession for the statutory period. Thus Dean Ames, in his well-known essay on the nature of ownership,66 says,

"C, although a disseisor, and therefore not in privity with B, may tack the time of B's adverse possession to his own to make out the statutory period against A. This tacking is allowed in England, Canada, and in several of our States." 9967

Dean Ames argues that the widespread opinion to the contrary must be deemed erroneous.

"The laches of the original owner who remains continuously dispossessed throughout the statutory period, is the same, and should be

66 LECTURES ON LEGAL HIST. 204; 3 HARV. L. REV. 318, 321.

67 He cites the following cases: Doe v. Carter, 9 Q. B. 863 (1847); Willis v. Howe, [1893] 2 Ch. 545, 553; Kipp ". Synod, 33 Up. Can. Q. B. 220 (1873); Fanning v. Wilcox, 3 Day (Conn.) 258 (1808); Smith v. Chapin, 31 Conn. 530 (1863), (semble); Shannon v. Kinny, 1 A. K. Marsh. (Ky.) 3 (1817); Hord v. Walton, 2 A. K. Marsh. (Ky.) 620 (1820); Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028 (1901); Fitzrandolph v. Norman, 2 Tayl. (N. C.) 131 (1817). (Presumption of grant from state though no privity.) Candler v. Lunsford, 4 Dev. & B. (N. C.), 407 (1839). (Presumption of grant, though no connection proved.) Davis v. McArthur, 78 N. C. 357 (1877); Cowles v. Hall, 90 N. C. 330 (1883); 1 Dart, VENDOR AND PURCHASER, 6 ed., 464; POLLOCK AND WRIGHT, POSSESSION, 23. See also Salter v. Clarke 4 S. R. (N. S. W.) 280, 21 W. N. (N. S. W.) 71 (1904).

attended with the same consequences to him, whether the adverse possession be held continuously by one or several persons, and whether subsequent possessors do or do not stand in privity with their predecessors." In Illinois Steel Co. v. Budzisz,68 Marshall, J., discusses with his usual elaboration the requisites of adverse possession, and declares that the letter of the statute only calls for the disseisin or exclusion of the true owner for twenty years, but by judicial construction the requirement that successive possessions be connected by privity has been super-added. It is commonly said to be the reason for the requirement of privity that the possession of the disseised owner revives between successive disseisins, and the continuity of possession between the adverse claimants is thereby broken.69 This reason, however, seems unsound and fictitious.70 The real reason for the requirement, if any, would seem to be that the new entry gives rise to a new right of action against each occupant, rather than that when the first disseisor is interrupted, the interruption, though but for a moment, permits the seisin of the true owner to revest by operation of law." The vital question would seem to be not how long has the owner been out of possession and failed to sue, but, on the other hand, how long has the defendant by himself and his predecessors asserted a consistent claim of title. Privity of estate might, then, be explained as one aspect of the requirement of claim of title, viz., that the holding must be under the same claim of title. In order to be regarded as the same cause of action, it must be connected, consistent, and continuous.

If there is a series of independent holdings, one is no evidence in support of the rightfulness of the others. Each is a different claim of title, and new ground of action. The trespasser cannot go further back for the origin of his title than the day of his entry into possession. It is believed that there is very little authority for dispensing with the requirement of privity, and that the cases cited for this by Dean Ames do not go to the full extent supposed. In Doe v. Barnard 72 it is apparently held that you can tack under

68 106 Wis. 499, 507, 514, 82 N. W. 534 (1900).

69 10 COL. L. REV. 761; 3 VA. L. REV. 637; 2 CORPUS JURIS, 85; Vermont Marble Co. v. Eastman, 101 Atl. 151, 164 (Vt.) (1917).

70 Wishart v. McKnight, 178 Mass. 356, 59 N. E. 757 (1901).

71 Sherin v. Brackett, 36 Minn. 152, 13 N. W. 551 (1886); AIGLER'S CASES ON TITLES, 35, note.

72 13 Q. B. 945 (1849).

the English statute, 3 & 4 William IV, without privity, so as to use the prior possession as a shield, but not to use it as a sword. The result of that case, and the companion one of Doe v. Carter,73 would seem to be that the widow, while in possession, could bring trespass against, or resist ejectment by, the true owner, but being ousted could not sue in ejectment against a stranger, because she was not in privity with the prior possession of her husband, but showed title to his possession to be in her son. Apparently under this theory the rightful owner may be barred, although the last holder has neither acquired the statutory title nor possession good against third parties. The true owner cannot eject the last trespasser in possession, but if the tables are turned the last trespasser cannot eject former owner if put out by him.

In Groom v. Blake 74 the case of Doe v. Carter is stated and criticized and the anomaly is pointed out in this doctrine that property should become quasi-derelict without a rightful owner under the operation of the statute. If the statute does run against the true owner, it will enure to the benefit of the first rather than of the last or the intermediate trespasser. Doe v. Barnard is overruled by Asher v. Whitlock in so far as it holds that a defendant may justify interference with the possession of another by evidence of an outstanding title under which he does not claim.

In Willis v. Earl Howe 75 Kay, L. J., expressed the opinion that

"a continuous adverse possession for the statutory period, though by a succession of persons not claiming under another, does, in my opinion, bar the true owner."

But in Dixon v. Gayfere,76 Romilly, M. R., held that as between successive trespassers the law could not ascribe a title to any one of them, neither to the first nor to the last nor to any intermediate holder, and that the trespassers could not tack possessions which were not continuous." If the statute does run against the true

See Johnson v. Brock, [1907] 2 Ch. 533, 535, 538; LightwooD, TIME LIMIT ON ACTIONS, 120, 124; BANNING, LIMITATION OF ACTIONS, 3 ed., 87, 88; 1 DART. V. & P., 7 ed., 473, 474; 19 HALSBURY'S LAWS OF ENGLAND, "Limitations on Actions," 158, 8322.