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will be sufficient, if the true proprietor resides in the state, and twenty years in case he resides abroad.

Besides the thirty, twenty and ten years' prescription with respect to lands, there is another of four years, which runs against the minor after coming of age, as to any real estate alienated by the tutor in cases not provided by law.

For the prescription arising from the ten or twenty years' possession, there must be good faith and apparently good title ; if, therefore, the title be defective with respect to form, there can be no basis for the ten or twenty years' prescription. Any interruption, either natural or legal, suspends prescription. A natural interruption is said to take place, when the possessor is deprived of possession of the thing for more than one year, either by the ancient proprietor or by a third person. A legal interruption takes place, when the possessor has been cited to appear before a court of justice on account of either the property or the possession.

Prescription likewise ceases to run, when the debtor or possessor makes acknowledgment of the right of the person whose title they prescribed.

Husbands and wives cannot prescribe against each other; and minors and persons under interdiction cannot be prescribed against. Married women may be prescribed against, though not separated of property, for all belonging to them and administered by their husbands, saving their recourse against their husbands. But prescription does not take place during marriage, as it respects property alienated which made a part of the dowry, nor in any case during marriage when the action of the wife may be prejudicial to her husband.

Finally, lands not acquirable by alienation cannot be obtained by prescription.

Prescription may be pleaded in any stage of the action, even on an appeal; and creditors, and every other person who may have an interest ifr acquiring an estate by prescription, have a right to plead it, even in case the person claiming such estate should renounce the said right of prescription. (Abstract from the La. Civil Code. 4 Griffith's Annual Law Register, 686.)

By the original code, there was a saving clause in favor of foreigners or citizens of other states in respect to prescription, requiring twenty years instead of ten; but this has been amended

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so that this class of persons now stand on the same footing as residents of the state. (La. Rev. Stat. 1856, p. 82, & 29.)

It has been held by the courts, that possession cannot be pleaded against the public, unless it is immemorial. (Allard v. Lobau, 3 Martin's R. [N. S.] 294.)

Purchasers under the same title, without partition, cannot prescribe against each other, by the lapse of ten years. (Broussard v. Duhamel, 3 Mart. R. [N. S.] 11. And vide Gravier v. Livingston, 6 Mart. R. 410.)

It is a clear principle of law, that a possessor cannot avail himself of prescription against minors. (Calvit v. Innis, 10 Mart. R. 289. And vide Gayoso De Lemnos v. Garcia, 1 Mart. R. [N. S.] 284.) And prescription does not run against the wife in favor of the purchasers of her property, although separated. (Prondhomine v. Dawson, 3 Mart. [N. S.] R. 161.)

In Arkansas, three years' possession of any lands, tenements or hereditaments by any person or persons claiming the same by virtue of any deed, devise, grant or assurance, entitles such person or persons, their heirs or assigns, to keep and hold possession of such quantity of land as is specified and described in such deed, devise, grant or assurance; and the person or persons, their heirs or assigns, so holding or keeping possession as aforesaid, for the time aforesaid, are declared to have a good and indefeasible title in fee simple to such lands, tenements or hereditaments; provided, however, that if the person entitled to bring an action for such lands, tenements or hereditaments is, at the time of the taking of such possession, or the accruing of such action, an infant, feme covert, or non compos mentis, then such person may bring his action at any time within two years after the disability ceases.

All actions for the recovery of real property, or the possession thereof, must be commenced within seven years after the cause of action accrues ; except that any person, under either of the disabilities before mentioned at the time the right of action accrued, may bring his action at any time within three years next after the disability ceases. No entry is valid as a claim, unless an action is brought thereon within one year after the entry was made, and within seven years after the right first accrued. (Dig. Stat. 1858, ch. 106, SS 1, 2, 3, p. 748.)

The old statute of limitations of Arkansas provides, that no action for the recovery of possession of lands should be main.

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tained, unless it appeared that the plaintiff, his ancestor, predecessor or grantor was seised or possessed of them within ten years before the commencement of the action; and it is held, that to bar the plaintiff's claim actual possession must be shown by the defendant; lapse of time and actual possession must unite. The possession must be so open and exclusive as to amount to a disseisin, or an ouster of the plaintiff's possession ; and the acts of the defendant must be plain and unmistakable, and such as prove his intention to use the land as owner. Constructive possession by the plaintiff is sufficient; and if he proves that, then the defendant must prove by sufficient acts that more than the time limited before suit, he took actual possession and continued it adversely, so as to put an end to the constructive possession; and that the latter has not been renewed. (Trapnall v. Burton, 24 Ark. R. 371.)

Finally, in the state of Texas, the statute provides that the person who has right of entry into any real estate, consisting of lands, tenements or hereditaments, must make entry therein within ten years next after this right shall have accrued, and on failure shall be forever barred thereafter. Yet if the person so entitled be under the age of twenty-one years, a feme covert, or insane, or if forcible occupation of the premises, or county containing them, by a public enemy, prevent entry, the time of such disability will not be computed as a part of the period limited. The death of one, dying possessed of such estate without right, will not be such descent to the heir of the decedent as to bar entry of the person entitled at the time of the descent, unless such decedent shall have had five years peaceable possession. Peaceable possession, within the scope of the act, is such as is continuous and not interrupted by adverse suit to recover the estate.

The statute further provides, that every suit to be instituted to recover real estate, as against him, her or them, in possession under title, or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterward; but in this limitation is not to be computed the duration of disability to sue, from minority, coverture, or insanity, of him, her or thein having cause of action. The term “title,” as used in the statute, is defined to be a regular chain of transfer from or under the sove reignty of the soil; and color of title is constituted by consecutive

chain of such transfer down to him, her or them in possession, without being regular.

Five years' peaceable possession of real estate, by a person claiming under a deed or deeds, duly registered, and who has cultivated, used and enjoyed the same, and paid tax thereon during the whole time, is declared to give full title of such land, except as to the state; and ten years' similar possession, without any evidence of title, will give the naked possessor full property, precursive of all other claims, in and to six hundred and forty acres of land, included in the improvement, yet the right of the government is not to be barred; and there is saved to the person or persons having the title and cause of action, the duration or disability to sue from nonage, coverture or insanity. (Oldham & White's Dig., 300, 301.)

Adverse possession taken and held, with the requisites and circumstances specified in the statute, for the time limited in the provision of the statute under which the possessor sets up his right,

, is held to form an effectual bar to the prosecution of any suit or claim as against such possession. But the possession must be actual, with a manifest intention to hold and continue it. (Ilorton v. Crawford, 10 Texas R. 382. Wheeler v. Moody, 9 ib. 372. And vide Mason': Heirs v. McLaughlin, 16 ib. 24. Williamson v. Simpson, Ib. 433. Castro v. Wurzback, 13 ib. 128.)

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CHAPTER IX.

THE NATURE OF THE TITLE OF THE CLAIMANT IN AN ACTION OF

EJECTMENT -THE RULE IN ORDINARY CASES.

The word "title" is used in this chapter in its ordinary signification, as denoting the claimant's legal or actual right to the prop-. erty in dispute. This definition should be borne in mind, for the reason that title to land in the action of ejectment may be established in various ways. In some cases, although the claimant may not, in fact, have title to the land, according to the general acceptation of the term, the circumstances may be such as, that between the parties the title is established. For example, whenever a person has been let into possession by the lessor, or those under whom he claims, the lessee is estopped from disputing the title in the sense indicated, although he may show its subsequent expiration ; and it is only incumbent on the claimant in such cases, to show the manner in which the defendant obtained possession, and that his right to such possession has ceased. The claimant may not, in point of fact, own the land, or have any legal title to it, and yet, as against the defendant, the law assumes that he has a right to the disputed property. (Vide Sullivan v. Stradling, 2 Wils. R. 208. Parker v. Manning, 7 Term R. 539.

Cook v. Loxley, 5 ib. 4. Blake v. Foster, 8 ib. 487. England v. Slade, 4 ib. 682. Hodson v. Sharpe, 10 East's R. 355. Graham v. Peat, 1 ib. 244. Baker v. Mellish, 10 Ves. Jr. R. 544. Gravenor v. Woodhouse, 1 Bing. R. 38. Phillips v. Pearse, 5 Barn. & Cres. R. 433.) These cases chiefly arise where the relationship of landlord and tenant has subsisted between the parties, which will be examined in other chapters ; although the cases are not confined exclusively to those in which the relation of landlord and tenant is involved. The rule of law, that a person coming into possession of lands under the agreement or license of another cannot be permitted to deny the title of the latter, when called upon to surrender, is of almost universal application. Even if he had a valid title at the time, he is deemed to have waived it, and, as between the parties, to have admitted title in the person under whom he entered. For instance, one making a contract to buy land, and taking possession under it, though strictly the relation of landlord and tenant is not thus created, yet the vendee, in ejectment by the vendor against him, is absolutely estopped from either showing title in himself, or setting up an outstanding title in another. The agreement to purchase is an acknowledgment of the title of the vendor, and hence the vendee is not permitted to set up an outstanding title, when called upon to respond in the action of ejectment. (Jackson v. Ayres, 14 Johns. R. 224.) And a claim of title, which cannot be set up by a person while in possession, cannot be set up by another person who comes into possession under him. This doctrine applies to the case of a person who comes into possession, either as an intruder or under one who has so purchased; and in either case he is precluded from questioning the plaintiffs right of possession. (Vide Jackson v. Harder, 4 Johns. R. 202. Jackson v. Bard, Ib. 230. Jackson v. Walker, 7 Cow. R. 637.)

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