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When it shall appear that there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no other, will be deemed to have been held adversely; and for the purpose of constituting an adverse possession, by a person claiming title, not founded upon a written instrument, judgment or decree, land will be deemed to have been possessed and occupied in the following cases only: first, where it has been protected by a substantial inclosure; and second, where it has been usually cultivated or improved

Whenever the relation of landlord and tenant shall have existed between any persons, the possession of the tenant will be deemed the possession of the landlord, until the expiration of five years from the expiration of the tenancy, or when there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions will not be made after the periods limited. The right of a person to the possession of any real property will not be impaired or affected by a descent being cast in consequence of the death of a person in possession

of such property.

If a person entitled to commence any action for the recovery of real property, or to make entry or defense, founded on the title to real property, or to rents or services out of the same, be, at the time such title shall first descend or accrue, either within the age of twenty-one years, insane, imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life, or a married woman, the time during which such disability shall continue will not be deemed any portion of the time limited for the commencement of such action or the making of such entry or defense; but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled, who shall die under such disability; but such action cannot be commenced, or entry or defense made after that period; and if, when the cause of action shall accrue against a person, he be out of the state, the action may be commenced within the time limited after his return to the state; and if after the cause of action shall

have accrued he depart the state, the time of his absence will not be part of the time prescribed for the commencement of the action. (Laws of 1861, ch. 12, SS 3–15 and 8 21 as amended by the Laws of 1867, ch. 49.)

It will be observed that the statute of Nevada, in respect to what shall constitute an adverse possession, is similar to that of the state of New York; so that the decisions of the courts under the New York statute may apply to the statute of Nevada.

In the state of Oregon, an action for the recovery of real property, or for the possession thereof, must be commenced within twenty years after the claimant, his ancestor, predecessor or grantor was seised or possessed of the premises. But if the person entitled to the action be an infant, or a married woman, or is insane, imprisoned on a criminal charge, or in execution under sentence as a criminal, for a term less than his natural life, the time during which the disability exists is not reckoned in the time limited. (Gen. Stat. 1864, tit. 2, ch. 1, $ 4.)

In California, the people of the state will not bar any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced, or unless the people, or those from whom they claim, shall have received the rents or profits of such real property, or of some part thereof, within the space of ten years; and no action for the recovery of real property, or for the recovery of the possession thereof, can be maintained, unless it appears that the plaintiff, his ancestor, predecessor or grantor was seised or possessed of the premises in question within five years before the commencement of the action. All of the other provisions of the statute of limitations of California, in respect to such property, are similar to the statute of New York, from which it seems to have been copied, except that the term of limitation is five years; and it will not be inconvenient, perhaps, to refer to the New York statute, as hereinbefore given, for the provisions of the statute of California. There is an additional provision in the California statute, however, permitting a party who claims real estate, or the possession thereof, under a title from the Spanish or Mexican government, or the authorities thereof, to maintain an action therefor, provided the same is commenced within five years from the time such title may have been confirmed by the United States, or the legal authorities thereof. (Wood's Dig. of Cal. Laws, 1860, pp. 45, 46, 47.)

Adverse possession of lands, which will set the statute of limitations in motion, is held to be of two kinds : first, when possession is taken without color of title, but with intent to claim the fee against all comers; and, second, where possession is taken under a claim of title founded on a written instrument, or a judgment of competent jurisdiction. And when the defendant is in the adverse possession of land as a trespasser, without color of title, he is held not to be in a position, before the statute of limitations has run, to contest the title of the true owner, in such a sense as to defeat a former action brought by the true owner, to recover wood cut by him on the land. (Kimball v. Lohmas, 31 Cal. R. 154.)

“Title to land is the means whereby the owner of lands has the just possession of his property.” A party, under the statute of limitations, may acquire an absolute right of possession in lands, as against all the world; such a right as, when ousted, will return him to, and effectually protect him in, his just possession thereof, even against one having the written title. An adverse possession, therefore, confers a substantial title, and it is such a title as entitles the holder to all the remedies to quiet his possession, that are incident to possessions under written titles. And a party who has been in the exclusive adverse possession of lands for a period of time, which, under the statute of limitations, vests him with a title thereto, may maintain an action against a party claiming under a record title, to have said adverse claim determined and adjudged null and void, as against him. (Arrington v. Liscom, 34 Cal. R. 365.)

If the grantor in a deed takes adverse possession of the land granted subsequent to his deed, and holds continuous and adverse possession for five years, the courts hold that he may set up the statute of limitations as a defense in an action of ejectment brought against him by his grantee. (Franklin v. Dorland, 28 Cal. R. 175.)

When R. had been in possession of land more than five years, under a claim of title, while L. and H., and their grantors, during all the time had a perfect title to the land; and they sued C. and others, to recover possession of it, but did not make R. a party, and recovered judgment, and after five years had run, the sheriff

, turned R. out of possession, under a writ of restitution issued

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on the judgment, and placed L. and H. in possession; the court held that the title of R., thus acquired by five years' adverse possession, was not impaired by this entry of L. and H. (Le Roy v. Rogers, 30 Cal. R. 229.)

The statute of limitations does not commence to run with regard to land held under a Mexican or Spanish grant, until a patent for the same has been issued by the government of the United States. But in an action to recover lands where the plaintiff claims title to the demanded premises, derived from a Spanish or Mexican grant, and the defendant has been in five years' adverse possession under a claim of title, he may rest with proof of his five years' adverse possession, and the burden is cast upon the plaintiff of proving that less than five years have expired since the final confirmation of the grant, in order to defeat the defense of the statute of limitations. (Richardson v. Williamson, 24 Cal. R. 289. Reed v. Spicer, 27 ib. 587. Johnson v. Van Dyke, 20 ib. 225.)

An action may be brought and maintained to recover possession of land within the pueblo of San Francisco, by one holding title derived from the pueblo, at any time within five years after the issuance of a patent for the pueblo lands, by the United States. (Davis v. Davis, 26 Cal. R. 23.)

CHAPTER VIII.

THE STATUTE OF LIMITATIONS AS A BAR TO THE ACTION OF EJECTMENT

THE LAWS OF THE SOUTHERN AND SOUTH-WESTERN STATES.

In the state of Virginia, no action for the recovery of lands, tenements or hereditaments, can be maintained, except the same be commenced within fifteen years next after the title or cause of action accrued; and no person or persons who may have any right or title of entry into any lands, tenements or hereditaments, can make any entry but within fifteen years next after such right or title accrued, and such person will be barred from any entry afterward; and no continual or other claim upon or near any land, will preserve any right of making an entry or of bringing an action. But if any person entitled to bring such action or make such entry be under the age of twenty-one years, feme covert, or insane, at the time such right or title accrued, every such person, or the person claiming through him, may bring and maintain such action or make such entry within ten years next after such disabilities removed, or the death of the person so disabled, and not afterward; provided, however, that the time of limitation can in no case be extended beyond thirty years after the right accrued.

It is further provided, that, if the action abate or judgment be given for the plaintiff, and is afterward reversed or arrested, upon a ground which does not preclude a new action for the same cause, a new action or suit may be brought within one year next after such determination of such suit. (Va. Code, 1860, tit. 45, ch. 149, SS 1-4, 18.)

It seems that the inaxim nullum tempus accurrit regi, is recognized in Virginia, and it is therefore held that the statute of limitations does not run against the commonwealth. (Vide Kemp v. Commonwealth, 1 Hen. & Munf. R. 85. Nimmo's Executors v. Commonwealth, 4 ib. 57. Levasser v. Washburn, 11 Grattan's R. 572.) The statute of limitations will not bar a claim when the possession of the defendant was fiduciary; but in such case, however, such possession must have been fiduciary as to the plaintiff or those under whom he claims ; its being fiduciary as to any other person is not sufficient. (Spotswood v. Dandridge, 4 Hen. & Munf. R. 139.) A trustee cannot take advantage of the act of limitation against the claim of the cestui que trust or of persons claiming under him. (Redwood v. Riddeck, 4 Munf. R. 222.)

The courts of Virginia hold to the general rule under their statute of limitations, that possession, to give title, must be adversary; and when the defendant has entered under the plaintiff and acknowledged his title as that under which he holds, it is decided that he cannot controvert it. Thus the lessee is not permitted to dispute the title of the landlord. Having entered under and holding in subserviency to it, it is that which maintains and justifies his possession, and he impeaches his own title by assailing it. When it is sought to make out a title of adverse possession, the Virginia courts hold that the possession, as a general rule, should be adverse in its inception. When the original possession was taken in subordination to the title of another, it has been decided that the tenant could not, by his own act, change the character of his possession. It has, however, been held, that a

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