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SUFFICIENCY OF ENTRY AND OUSTER.

707

occupancy is replete with the essential elements of an adverse possession, then the statute of limitations begins to run.'

§ 10. Sufficiency of the Entry and Ouster.-The entry being made, the ouster of the real owner follows as a matter of course or as a legal consequence of the entry, for there can not be two possessions, actual or constructive, of the same premises at the same time. But what will be sufficient as an entry to oust the real owner, depends upon a variety of considerations, such as the previous relations of the parties, whether they are strangers or in some privity with one another, the nature of the soil and the uses for which it is suited, the actual or constructive possession of the real owner, and the character of the entry, as made under a mere naked claim, or under color of title. The entry and ouster may be either actual, as by a physical invasion and a forcible expulsion of the occupant, or constructive, as where one holding the possession under the real owner disavows his right by some disloyal act. The principal essentials of the entry sufficient to set the statute of limitations in motion are: (1) its sufficiently open and notorious character for the purpose of giving the real owner actual or constructive notice of the fact, and (2) its hostility, sufficient to give him notice of its character. Such notice or knowledge, or the means by which such knowledge may be attained, must be brought home to the real owner or person who was possessed of the land; for the statute proceeds on the ground that he, knowing that a cause of action exists in his favor for the intrusion, yet acquiesces in it, and does not attempt to regain the possession of his land in the mode provided by law. A clandestine entry or possession will not set the statute in motion, because the owner of the land can not be said to have acquiesced in the wrongful entry or possession. The owner will not be condemned to lose his land because he has failed to sue for its recovery, when he had no notice that it was held or claimed adversely; but the statute cuts off his remedy only when he has neglected to commence his action beyond the period assigned for it.2

§ 11. Disabilities Under the Statute.-Where the legis lature has made no exceptions to the statute of limitations, 2 Thompson v. Pioche, 44 Calif. 508.

Thomas v. Marshfield, 13 Pick. (Mass.) 250; Robinson v. Lake, 14 Iowa, 421, 424; Bradley v. West, 60 Mo. 41.

courts have no power to do so, no matter how meritorious the occasion for such exceptions may be.' A party can only avail himself of the disabilities existing when the right of action first accrues; therefore, where a plaintiff is under the disability of infancy only when her right of action first accrues, and afterward marries before she becomes of full age, her coverture is not available as a disability within the statute. The disability of infancy alone can be taken into account to avoid the effect of the statute. The period of infancy only and not that of her coverture can be added to the time allowed her for bringing the action. Successive or cumulative disabilities are not within the policy or settled and sound construction of the statute.'

Insanity of disseizee.

In ejectment, the issue being as to the mental condition of plaintiff's ancestor during a period of years in which defendant occupied the premises adversely, the court charged that if the ancestor was so mentally diseased during that period as to be unable to understand and assert his rights—to know that he was the owner of the land, and that defendant was in possession and asserting rights, and that such possession might eventually destroy his ownership-plaintiffs would be entitled to recover, notwithstanding defendant's adverse possession: Held, that the instruction was unexceptionable. Warlick v. Plonk, 103 N. C. 81; 9 S. E. Rep. 190 (1889).

Running of statute against insane persons.

Code Ga. § 2686, provides that no prescription works against the rights of an insane person so long as the insanity continues; but he has a like number of years after the disability is removed to assert his claim against the person prescribing. Id. § 2687, provides that, on the removal of a disability a prior possession may be added or tacked to the subsequent possession to make out the prescription: Held, that title by prescription might be asserted against one setting up the disability of insanity where such person was not continuously insane, and different lucid intervals amounted to the period of prescription. Verdery v. Savannah, F. & W. Ry. Co., 82 Ga. 675; 9 S. E. Rep. 1133 (1889).

Infancy.

In trespass to try title it appeared that the husband and father of plaintiffs had received a deed thereof from his brother, the defendant's grantor, in 1858, but died in 1867, without ever having been in possession; that just

1 Demorest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129; Somersett Co. v. Veght, 44 N. J. L. 513; Van Stanwyck v. Washburn, 59 Wis. 483; 48 Am. Rep. 534; Lewis v. Lewis, 7 Ired. L. (N. C.) 73; Thompson v. Egbert, 17 N. J. L. 462; De Mill v. Moffatt, 49 Mich. 125; 13 N. W. Rep. 387.

Cozzens v. Farnam, 30 Ohio St. 491; 27 Am. Rep. 473; Parmelee v. McGinty, 52 Miss. 482; see Bunce v. Walcott, 4 Day (Conn.), 298; Demorest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129.

SUBSEQUENT DISABILITIES DO NOT ATTACH.

709

before his death his brother had written to him to come back, and make a home on that place; that his brother had told others that he was to have the place in return for money which the brother had used, that was coming to him from their grandfather's estate, and had testified in a suit, in which his creditors had seized personal property, that his brother owned the land conveyed by the deed, in which was included the property in question; that the brother never repudiated his title till after his death, when, in 1871, he verbally sold the premises to his son, the defendant, no deed, however, being made until 1875. Held, that the possession of defendant's grantor was not adverse to the husband and father of plaintiffs, and that the statute did not begin to run against them until the conveyance to defendant in 1871; and, though the right of the widow was barred, that of the daughter, because of her infancy, was not affected. Nichols v. Nichols, 79 Tex. 332; 15 S. W. Rep. 272 (1891).

12. Different Disabilities Existing at the Same Time. -Supervenient or cumulative disabilities never arrest or prolong the bar of the statute, and the period of the bar should not be extended by tacking it to the time allowed for bringing suit after the removal of one disability when the party has already had its full benefit.' If several disabilities exist when the right or cause of action accrues, the statute does not begin to run until the party has survived them all. If subsequent disabilities were to be regarded, a right of action might be saved for centuries, and the statute rendered incapable of accomplishing the important purposes for which it was created."

$13. Subsequent Disabilities Do Not Attach.-It is a well settled rule of law that when the statute of limitations lawfully commences to run against the person or persons entitled to the possession of lands, the adverse possession of the occupant begins, and the progress of the statute is not arrested by any devolution of ownership in the estate, or by any disability of the persons entitled to the possession occurring after the statute has begun to run.*

1 Demorest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129; Riggs v. Fuller, 54 Ala. 149; Cozzens v. Farnum, 30 Ohio St. 496; 27 Am. Rep. 473; Nuttler v. De Rochemont, 46 N. H. 81.

59 Pa. 297; Wilson v. Betts, 4 Denio (N. Y.), 201.

3

Dugan v. Gittings, 3 Gill (Md.) 138; 43 Am. Dec. 315; Demorest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129: see Thompson v. Smith, 7 S. & R. (Pa.) 210.

?Jackson V. Johnson, 5 Cow. (N. Y.) 74; 15 Am. Dec. 445; Demorest v. Wynkoop, 3 John. Ch. (N. Y.) 129; 4 De Mill v. Moffott, 49 Mich. 125; Thorp v. Raymond, 57 U. S. (16 13 N. W. Rep. 387 (1882); Smith v. How.) 247; Weddle v. Robertson, 6 Hill, 1 Wils. 134; Cotterell v. Dutton, Watts (Pa.), 486; Henry v. Carson, 4 Taunt. 826; Rhodes v. Smithurst,

$14. When the Statute Begins to Run.-The statute of limitations begins to run the moment the possession of the lands in question becomes adverse. This, of course, depends upon the ouster or disseizin of the real owner, and is sometimes, when the ouster is constructive, a difficult question to determine with certainty.'

Illustrations.

Adverse possession will begin to run in favor of a purchaser at administrator's sale as against the heirs, as soon as he takes possession under his title, although the administration has not fully terminated. Mitchell v. Campbell, 19 Or. 198; 24 Pac. Rep. 455.

The owner of a tract of land divided it into thirty-nine lots of about five acres each, and sold part of them to the plaintiffs, in 1858. In 1867 he sold the remaining lots to the defendant, and assigned to him tax sale certificates against plaintiff's lots. The entire tract was then uninclosed and unimproved. In the spring of 1867 the defendant had a surveyor run the exterior lines of the whole tract. He built a shanty, and cleared three acres around it, and made a brush fence along the south line of the tract. Prior to August 1, 1868, he cleared two acres more, and made a brush fence along the north and part of the east side, where it connected with a neighbor's fence. A lake on the west furnished a natural barrier on that side. The shanty and the clearing were on defendant's own lots. Prior to his entry there had been a traveled road through the tract, which the public continued to use during 1867 and 1868, and some subsequent years. Where the road crossed the brush fence the gaps were open a part of the time, and at other times they were closed by bars. In ejectment brought August 1, 1888, held, that there was evidence to support a finding that the adverse

4 Mees. & W. 42; 6 Mees. & W. 351; Eager v. Com., 4 Mass. 182; Peck v. Randell, 1 Johns. (N. Y.) 165; Demorest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129; Jackson v. Wheat, 18 Johns. (N. Y.) 40; Dillard v. Philson, 5 Strobh. (S. C.) 213; Byrd v. Byrd, 28 Miss. 144; Seawell v. Bunch, 6 Jones, Law (N. C.), 197; Tracy v. Atherton, 36 Vt. 503; Reimer v. Stuber, 20 Pa. St. 458; Stephens v. McCormick, 5 Bush (Ky.), 181; Ruff v. Bull, 7 Harr. & J. (Md.) 14; Pinckney v. Runage, 31 N. J. Law, 21; Lewis v. Barksdale, 2 Brock (U. S. C. C.) 436; Walden v. Gratz, 1 Wheat. (U. S.) 292; Mercer v. Selden, 1 How. (U. S.) 37; Hogan v. Kurtz, 94 U. S. 773; Beeker v. Van Valkenburgh, 29 Barb. (N. Y.) 324; Allis v.

Moore, 2 Allen (Mass.), 306; Carrier v. Gale, 3 Allen (Mass.), 328; Keil v. Healey, 84 Ill. 104; Cozzens v. Farnam, 30 Ohio St. 491; 27 Am. Rep. 473.

'Statutes of limitations only take place from the time the right of action accrues; and if there be fraud, from the time of its discovery. Jones v. Conoway et al., Ex'rs, etc., 3 Yeates (Pa.), 109. "The court, very properly, charged that, if the sale was fraudulent, the act began to run against the devisees of Cornelius Murphy, or those who represented them, only from the time the fraud became known to the person then having title." Gibson, J., in Riddle v. Murphy, 7 Serg. & R. (Pa.) 235.

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possession of the defendant commenced prior to August 1, 1868. Wood v. Springer, 45 Minn. 299; 47 N. W. Rep. 811 (1891).

A, under verbal contract to purchase certain land, executed two notes therefor, and took possession October 28, 1868. The notes were never paid, and no deed was made. December 25, 1868, he conveyed the premises and possession to B. The latter died in 1870, and the land descended to his widow and daughter as sole heirs. In 1887 the grantor of A died, leaving the land by will to plaintiffs, who sued in ejectment October 10, 1888. Held, that the possession did not become adverse until the date of B's taking possession, and defendants had not gained title by twenty years' prescription. Timmons v. Kidwell (Ill.), 27 N. E. Rep. 756; Am. Dig. 1891, 45. A vendee of unoccupied lands who goes into possession under a contract to purchase is in privity with his vendor, and is entitled to have the time he held under the contract added to that after receiving his deed, in determining whether colorable title has matured into a perfect title by possession. Brown v. Brown, 106 N. C. 451; 11 S. E. Rep. 647.

Adverse possession by the grantee of a judgment debtor runs against the judgment creditor, who afterward obtains a sheriff's deed, from the time of the grant, and is not limited to the time when the sheriff's deed was given. Garvin v. Garvin, 31 S. C. 581; 10 S. E. Rep. 507 (1890).

One who purchases land by parol contract, receives possession, and afterward pays the purchase money, is presumed to have adverse possession from the date of payment: but the presumption may be overcome by showing a subsequent recognition of the vendor's title. Newsome v. Snow (Ala.), 8 So. Rep. 377; Am. Dig. 1891, 44.

Where the purchaser at a judicial sale has paid the price in full, but has not received a deed, and the heirs of the former owner at whose instance the sale was made, remain in possession, the statute of limitations does not begin to run against such purchaser until the heirs in possession distinctly assert a claim adverse to him. Whitlock v. Johnson (Va.), 12 S. E. Rep. 614; Am. Dig. 1891, 45.

Where a railroad takes possession of land bought, its possession becomes adverse to that of the seller upon the performance of the consideration, namely, the building of the spur track. East Tennessee, V. & G. Ry. Co. v. Davis (Ala.), 8 So. Rep. 349; Am. Dig. 1891, 44.

From the time a person obtains a patent from the State, the statute of limitations will run in favor of one in possession, and claiming adversely, against the patentee, and all claiming under him. Wilhoit v. Tubbs, 83 Cal. 279; 23 Pac. Rep. 386.

Where plaintiff's immediate grantor testifies that he at no time claimed title to the land, the time the land was owned by said grantor should be omitted from the computation of the time; and, as plaintiff himself had been in possession of the land for only two years, the predecessors of his immediate grantor must have had adverse possession for ten years to enable plaintiff to recover. Brown v. Chicago, B. & K. C. Ry. Co., 101 Mo. 484; 14 S. W. Rep. 719 (1890).

As to public lands: The right of a holder of a certificate of purchase of land from the United States to maintain ejectment therefor in the Federal courts against a defendant in possession, ejectment being in those courts an action at law, accrues, so as to set the statute of limitations in motion against him, only when the patent is issued, as the legal title until that time

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