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question as to the existence of the acts and circumstances. relied upon to establish the ouster, is a question of fact for the determination of the jury under proper instructions from the


$79. The Doctrine of Adverse Possession to be Taken Strictly Tenants in Common.-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 other courts where the English rules have been adopted, is, that possession, to give title, must be adverse, and it can not be adverse unless it is hostile to the true title. An entry by a party made on the land of another is, or is not, an ouster of the legal possession according to the intention with which it is done; if made under a 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 defines the entry and fixes its character. The doctrine of adverse possession is to be taken strictly, and is to be made out by clear and positive proof, every presumption of law being 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. The evidence to sustain an ouster by a co-tenant must be still stronger, because of the peculiar relations of the parties.'


$80. Ouster of Tenants in Common.-To constitute an ouster of a co-tenant the law requires an actual, continued, open and notorious, distinct, exclusive and hostile possession, and knowledge of such possession must be brought home to

'Ewing v. Burnett, 11 Pet. (U. S.) 41; Highstone v. Burdette, 54 Mich. 329; Clark v. Crego, 47 Barb. (N. Y.) 599; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 177; Washburn v. Cutter, 17 Minn. 361; Carpentier v. Mendenhall, 28 Cal. 484; Horman v. James, 7 S. & M. (Miss.) 111; Johnson v. Gorham, 38 Conn. 513; Cummings v. Wyman, 10 Mass. 465; Blackmore v. Gregg, 2 W. & S. (Pa.) 182.

360; Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jackson v. Sharp, 9 Johns. (N. Y.) 163; Jackson v. Parker, 3 Johns. Cas. (N. Y.) 124; Guy v. Moffitt, 2 Bibb, 507; McGee v. Morgan, 1 Marsh. 62: Culver v. Rhodes, 87 N. Y. 348; Prescott v. Nevers, 4 Mason (U. S.), 330; Hart v. Gregg, 10 Watts (Penn.), 185.

3 Forward v. Deetz, 32 Pa. St. 72: Bailey v. Trammell, 27 Tex. 328:

Marcy v. Marcy, 6 Met. (Mass.) Barrett v. Coburn, 3 Met. (Ky.) 518.

the party to be bound thereby.' Here the ouster is a question of fact to be determined by a jury from the circumstances of the case in evidence, under proper instructions from the court.

§ 81. Sufficiency of the Evidence. The evidence to sustain an ouster by a tenant in common of his co-tenant should be stronger than is required to sustain an ordinary adverse possession. It must be clear enough to make the intention to hold adversely manifest, and must palpably display such intention.*

§ 82. Notice to the Real Owner.-In order that the possession in such cases be adverse we have seen that knowledge of the hostile acts relied upon to make it so must be brought home to the real owner; but if the hostile character of the possession is so openly manifested that the observation of the real owner, as a man reasonably careful of his interests, would be sufficient to discover it, he will be deemed to have had notice. For example, the making of lasting and valuable improvements and paying taxes upon the premises, the receiving of the rents and profits and not offering to account for the same, and the like, are circumstances which have been held to indicate a holding adverse to the real owner and the effect upon him is in law the same as if notice had been actually communicated to him. The open and notorious character of the possession is sufficient to charge him with actual notice."

Zeller v. Eckert, 4 How. (U. S.) 295; Barr v. Gratz, 4 Wheat. (U. S.) 213; McClung v. Ross, 5 Wheat. (U. S.) 124; Culver v. Rhodes, 87 N. Y. 348; Warfield v. Lindell, 38 Mo. 581; Hall v. Stevens, 9 Met. (Mass.) 418; Challefoux v. Ducharme, 8 Wis. 287; Long v. Mast, 11 Pa. St. 189; Florence v. Hopkins, 46 N. Y. 182; Campbell v. Laclede, etc., Co., 84 Mo. 352.

28 Calif. 484; Blackmore v. Gregg, 2 W. & S.(Pa.) 182; Harman v. James, 7 S. & M. (Miss.) 111; Purcell v. Wilson, 4 Gratt. (Va.) 16.

3 Forward v. Deetz, 32 Pa. St. 72: Bailey v. Trammel, 27 Tex. 328; Barrett v. Coburn, 3 Met. (Ky.) 513.

Culver v. Rhodes, 87 N. Y. 348: Marcy v. Marcy, 6 Met. (Mass.) 360; Hart v. Gregg, 10 Watts (Pa.) 185; Prescott v. Nevers, 4 Mason (U. S.) 330.


2 Ewing v. Burnett, 11 Pet. (U. S.) 41; Highstone v. Burdette, 54 Mich. 329; Washburn v. Cutter, 17 Minn. Unger v. Mooney, 63 Calif. 586; 361; Johnson v. Gorham, 38 Conn. 49 Am. Rep. 100; Laraway v. Larue, 513; Gill v. Fauntleroy, 8 B. Mon. 63 Iowa, 407; see Culver v. Rhodes, 86 (Ky.) 177; Clark v. Crego, 47 Barb. N. Y. 348; Moore v. Antill, 53 Iowa, (N. Y.) 599; Cummings v. Wyman, 612; Samuel v. Borrowscale, 1(4 10 Mass. 465; Taylor v. Hill, 10 Leigh Mass. 207; Virgin v. Land, 32 Ga. (Va.), 457; Carpentier v. Mendenhall, 572: Key v. Jennings, C6 Mo. 356;




To constitute a disseizin of a mortgagee by a mortgagor, or those claiming under him, it must be made known to the mortgagee that the mortgagor or his grantees make some claim adverse to the mortgagee. Holmes v. Turner's Falls Lumber Co., 150 Mass. 535; 23 N. E. Rep. 305 (1890).

Where one enters in subordination to the title of the owner of land, and thereafter leases from one holding adversely to the real owner, in such a notorious manner as to give notice of the character of his possession, it is sufficient to set the statute of limitations in action. Davis v. Hurst (Tex.), 14 S. W. Rep. 610; Am. Dig. 1891, 45.

When one enters into possession under a contract of sale, his holding can not be adverse unless its hostility has been manifested by unequivocal acts brought expressly, or by legal implication, to the vendor's knowledge. Kerns v. Dean, 77 Cal. 555; 19 Pac. Rep. 817.

A widow, who, after her husband's death, remains in possession of land which he admittedly held subject to a certain lien, is presumed to hold as he did, in the absence of an express disclaimer or an express hostile occupancy, with the knowledge of the lien claimant. Oury v. Saunders, 77 Tex. 278; 13 S. W. Rep. 1030 (1890).

Where, by a decree quieting title, and the deed made in pursuance of it, all title and right of possession in defendant was transferred to complainant, no retention of possession by defendant was adverse to the title conveyed, and he could set up no title based upon that possession until he had first given notice of his intention to claim adversely. Woolworth v. Root, 40 Fed. Rep. 723 (1890).

Evidence that a lessee executed a quit-claim deed of his interest, and at the same time assigned the lease, subject to the rents and covenants therein contained, warrants the inference that all he intended to convey was his term under the lease; and the fact that he resumed possession of the premises without any reconveyance is not conclusive evidence that he intended then to assert an absolute title to the land, but it must be presumed, in the absence of other proof, that his possession was under the lease, and not adverse. Doherty v. Matsell, 119 N. Y. 646; 23 N. E. Rep. 994 (1890).

To rebut the presumption that a lessee or his assigns are holding under the lessor, and to initiate an adverse possession, a surrender of possession, or something equivalent thereto. must be made to the lessor, and knowledge of the adverse claim brought to him. Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263; 19 N. E. Rep. 800 (1889).

A purchaser at an invalid sale, on foreclosure of a recorded mortgage, having held open and exclusive possession until the expiration of the time to foreclose the mortgage, or to redeem the premises, an action by a devisee of the mortgagor, not a party to the foreclosure, is barred, though he had no actual notice of the mortgage, nor of the adverse possession. Jellison v. Halloran, 44 Minn. 199; 46 N. W. Rep. 332 (1830).

In an action for partition it appeared that defendant and her predecessors

Moore v. Thompson, 69 N. C. 120;
Wilson v. Williams, 52 Miss. 488;
Alexander v. Polk, 39 Miss. 737; Her-
bert v. Hanrick, 16 Ala. 581; Talbut

v. Singleton, 42 Calif. 395; Wing v. Hall, 47 Vt. 182; Bracken V. Jones, 63 Tex. 184.

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in the title, who had taken possession of the premises in 1861, claiming in good faith under a deed, had from that time on exercised acts of exclusive ownership; had collected the rents, dispossessed tenants, and paid taxes: all of which facts were known to and acquiesced in by plaintiff, who claimed under a deed from one of defendant's predecessors, executed in 1859. Held, that the action was barred. McTeague v. McTeague, 52 Hun, 611; 5 N. Y. Sup. 130 (1889).

§ 83. What Acts Will Amount to Constructive Notice.— Building sheds upon the premises, quarrying rock, erecting lime kilns, cutting wood,' taking possession under a deed duly recorded, or under a title bond, as to a purchaser from the obligor,' actual possession of the land with the exercise of the usual acts and dominion over it,' and using by a railroad of its roadbed by running trains, etc., have been held to be constructive notice to the real owner of the lands that they are being held in adverse possession. But it has been held in Vermont that the question as to whether open occupancy operates as notice to the real owner that such occupancy is adverse depends on the nature and circumstances of the possession."

§ 84. What is Not Constructive Notice.-Posting a notice declaring an intention to hold the property, and similar acts, have been held not to amount to constructive notice within the meaning of the law."

$85. Adverse Possession as Between Heirs and Creditors.--In general the entry of one heir will inure to the benefit of all, and if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the right of the other heirs. But it is as clear, that one heir may disseize his coheirs, and hold an adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may, afterward, by disseizin of his co-heirs, acquire an exclusive possession upon which the statute will run. An ouster or disseizin is not, indeed, to be presumed from the mere fact of sole possession, but it may be proved by such

1 Moore v. Thompson, 69 N. C. 120. 2 Forest v. Jackson, 56 N. H. 357. 3 Spitter v. Scofield, 43 Iowa, 571. 4 Talbert v. Singleton, 42 Calif. 395. Jeffersonville R. Co. v. Cyler, 60 Ind. 383.


Wing v. Hall, 47 Vt. 182; Plimpton v. Converse, 42 Vt. 712; 44 Vt. 158.

'Lynde v. Williams, 68 Mo. 360.

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possession, accompanied with a notorious claim of an exclusive right. And if such exclusive possession will run against the heirs, it will, by parity of reason, run against the creditors.

For the heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by descent from their ancestor, and take the profits to their own use during their possession; and the most that can be said is, that they hold consistently with the right of the creditors. The creditors, in short, have but a lien on the land, which may be enforced through the instrumentality of the administrator acting under the order of the court.'

"Deeds conveying the whole property of a person making them, to a woman with whom he cohabited, without any proof of valuable consideration paid by her, she not having means to make such purchases, will be presumed to be void, as against creditors. The statute of limitations does not run in such cases." Buist v. Smyth, Adm'r, etc., 2 Eq. Rep. (Desaussure) 214.

§ 86. Husband and Wife.-It has been held that while the marriage relation exists, neither the husband nor the wife can hold the lands of the other in adverse possession,* and it seems also that neither can hold lands in adverse possession against the grantees of the other during the existence of the relation of husband and wife.' Where the husband rents land and moves upon it in subordination to the owner's title, the wife can not, during coverture, claim the premises adversely to the owner so as to set up the bar of the statute of limitations.*


Between husband and wife: Land having been deeded to a husband the grantor afterward conveyed it to the wife. Both deeds were duly recorded when made, and the husband and wife lived on the land as a home, the husband cultivating it, and selling the crops in his own name. The wife all the time claimed the land as her own and the husband acquiesced therein. This possession having continued for over ten years after the deed to the wife, a judgment was recovered against the husband and execution levied on the land. Held, in a suit by the wife to enjoin its sale, that, though the purchase money may have been paid by the husband, the wife

1 Story, J., in Ricard v. Williams, 7 Wheat. (U. S.) 121 (1822).

Veal v. Robinson, 70 Ga. 809; Hendricks v. Rassan, 53 Mich. 575; First Nat. Bank v. Guerra, 61 Calif. 169; Bell v. Bell, 37 Ala. 536; see Clark v. Gilbert, 39 Conn. 94.

3 Vandervoort v. Gould, 36 N. Y. 639; Stephens v. McCormick, 5 Bush. (Ky.) 181.

Frink v. Alsip, 49 Calif. 103.

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