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anaccounted for. But here the possession barely exceeded twentyfive
years; and there was at least one very decisive step toward a claim, an actual entry under claim of title within that time. The court was not, therefore, prepared to admit that the judge at nisi prius was bound under such circumstances to leave the question of a bar by adverse possession to the jury; and it was, in fact, held that the possession proved did not amount to an ousier. (Northrop v. Wright, 24 Wend. R. 221.)
In a case decided by the old court of errors of the state of New York, it was substantially held that where one tenant in common has exercised a right over the property held in common, inconsistent with the rights of his co-tenant, for more than twenty years, an actual ouster of the co-tenant may be presumed for the purpose of barring the right by adverse possession; but no such presumption can arise where the right exercised is consistent with the right of the co-tenant. The action in the supreme court was ejectment by two tenants in common to recover two-thirds of certain ore lands in possession of parties representing the remaining one-third, and there was little or no evidence of an ouster except a long possession of the premises by the defendants and those under whom they claimed. The supreme court held that there was no sufficient evidence of an ouster, and the decision was affirmed by the court of errors. The chancellor who delivered the opinion of the court, among other things, said: “In the case under consideration, if either party had opened and worked the ore beds for twenty years, without paying to the other party his or their share of the value of the ore in the ground, or otherwise accounting to him or thein for the same, or acknowledging the rights of the co-tenant, an ouster of the co-tenant, or a release of his or their interest in the ore bed, might be presumed; but if peither party should think fit to open and work the ore bed, or if one of them should work it exclusively, paying the other his share of the value of the ore dug, or admitting his liability to pay for the same, no such presumption of ouster or of a release could possibly arise, as there would be nothing upon which the presumption could be founded.” (Butler v. Phelps, 17 Wend. R. 642, 647.)
The cases are numerous to establish the principle that when one tenant in common has exercised a right over the property held in common wholly inconsistent with the rights of his cotenant for more than the time limited by statute for bringing an action to recover the premises, an actual ouster of his co-tenant may
be presumed for the purpose of barring such right by adverse possession. But if the authorities go no further than this, it is very obvious that a simple holdiny possession of the common property by one of the tenants in common, and the exercise of a right over the same inconsistent with the right of his co-tenant, will never justify the bringing of an action of ejectment against the tenant in possession, for the reason that such possession and exercise of right will not amount to an actual ouster unless the same have continued long enough to constitute the statutory bar by adverse possession, and if so, then the action is barred, and cannot be maintained on that account. It is therefore quite clear that it will not be safe for one tenant in common to bring his action relying upon a long and continued possession by his cotenant as sufficient evidence of ouster. He must always be able to show that he has been actually excluded from the premises or kept out of the possession by his co-tenant; or that the defendant in possession has done some other act amounting to a total denial of his right by such co-tenant. To constitute an ouster, there must be an intention to obtain an adverse possession, and unless that is manifest, or the right of the co-tenant is actually and totally denied, the action of ejectment by one tenant in common against his co-tenant can never be maintained.
Where one takes an absolute conveyance from a tenant in common, conveying in terms the whole estate, and enters into possession under such conveyance, the presumption of law is that he entered in severalty, claiming the whole land adversely to the whole world; but unless, on having notice of the right of the cotenant of his grantor, he actually makes such claim as against him, or does that which is tantamount to such a claim, it will not be sufficient upon which to predicate a claim of ouster for the purposes of ejectment. Such a holding of possession under such a claim, if continued long enough, may be sufficient to found the defense of adverse enjoyment upon; but that alone will not be sufficient to justify the action of ejectment by the co-tenant. It is probable, however, that if one should enter upon land, under a deed in terms conveying the whole in fee executed by one of two or more tenants in common, well knowing the rights of such tenants in common, and then claim the whole land as against all the world, the same would be regarded as an actual ouster of the
tenants out of possession; although even in that case it would be well to demand the possession before bringing the action. (Vide Bogardus v. Trinity Church, 4 Sandf. Ch. R. 633.)
As has been before stated, the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion, because such possession is not adverse to the right of his companion, but in support of their common title; and by paying him his share, he acknowledges him co-tenant. Nor, indeed, is a refusal to pay, of itself, sufficient, without denying his title. But if, upon demand by the co-tenant of his moiety, the other refuses
and denies his. title, saying he claims the whole, and will not pay, and continues in possession, it has been determined by great authority that such posseession is adverse and ouster enough. (Doe v. Prosser, 1 Cowp. R. 218.) And where a person enters generally, without making any declaration of his intention, the law presumes that he enters by his legal title; but if he says that he enters to exclude others having the same title with himself, or if he does an act showing an intention to keep them out, he is an abator, as much as a stranger would be, and his possession is an ouster. (Shumway v. Holbrook, 1 Pick. R. 117.)
So, in an early case in the Massachusetts reports, it appears from the marginal note, as deduced from the opinion of the court, that one tenant in common hindering the entry of another is an ouster. (Gordon v. Pearson, 1 Mass. R. 323.) And where the owner of an undivided part of a parcel of land gave a deed of the whole parcel, and the grantee entered under the deed, and afterward a creditor of the grantee levied upon the whole parcel, and entered under his levy, claiming to be sole owner of the land, it was held, by the supreme judicial court of Massachusetts, that the co-tenant of the maker of the deed was disseised, and, of course, ousted.
. (Bigelow v. Jones, 10 Pick. R. 161. And vide Kittredge v. Locks and Canals, 17 ib. 247. Van Dyck v. Van Beuren, 1 Caines' R. 84.)
Where a tenant in common in possession moves away and leaves the premises vacant, and another takes possession, the latter will be presumed to have entered in subordination to the former title, unl ess the contrary is proved. But where a person enters upon premises as purchaser under a judgment and a claim of right, that
a is a disseisin. (Fosgate v. The Herkimer Manufacturing and IIydraulic Company, 9 Barb. R. 287.)
So, in a later case than Gordon v. Pearson, in the state of Massachusetts, where one of two tenants in common conveyed the half of the land occupied by him, including the demanded premises, to the tenant, with warranty, and the tenant entered, claiming title under the deed, and continued in possession six or seven years, when the other tenant in common claimed of the tenant in possession his share of the demanded premises, and requested the tenant to yield it up. But the tenant refused, and declared that he would stand a law-suit first. The court held this, upon authority, to amount to an ouster, and declared that the co-tenant out of possession could well maintain his writ of entry. And, in the same case, the court decided, that, by pleading nul disseisin, the tenant admits the fact of disseisin, and puts the title in issue. (Marcy v. Marcy, 6 Metc. R. 360.) This last position of the court is probably in accordance with the Massachusett's practice; although nul disseisin is a plea that there was no disseisin, and is a species of the general issue, and therefore usually puts in issue the fact of the ouster. But the case may be regarded as binding authority and of general application.
In a writ of entry, the question being on the fact of ouster by the defendant, and it appearing that he held a deed of the land, as security for a debt, given to him by a third person, who continued in possession, but under no certain agreement as to time or amount of rent, the defendant intending to take the land into his possession whenever he should think proper— this was held to be insufficient evidence of an ouster. (Jordon v. Sylvester, 7 Greenl. R. 337.)
THE EVIDENCE IN THE ACTION OF EJECTMENT THE TITLE OF THE
CLAIMANT, HOW PROVED WHEN NO PRIVITY EXISTS BETWEEN THE PARTIES THE CLAIM BY DESCENT.
In all cases where the title of the real plaintiff in the action of ejectment is controverted under the general issue, or other plea which puts in issue the title of the plaintiff, he must prove that he had the legal estate in the premises claimed, at the time of the demise laid in the declaration.
There are cases in which the title of the claimant in ejectment cannot be controverted by the defendant. These cases will be considered hereafter. In this and the three following chapters the subject of the evidence of the title of the claimant where no privity exists between the parties will be examined.
And first, let us consider the evidence of the title of the claimant, where he claims by descent, as heir at law of the
law of the person last seised. And here it may be affirmed in general terms, that when the party claims by descent, he must prove that the ancestor from whom he derives his title was the person last seised of the lands, and that he, the claimant, is his heir. (Coke on Litt. 11, b. Jenkins v. Pritchard, 2 Wils. R. 45.)
If he claims as collateral heir, he must prove the descent of himself, and the person last seised, from some common ancestor, together with the extinction of all those lines of descent which would claim before him, and it may be laid down as a general proposition that, in all cases of heirs bringing ejectment against the tenant of their ancestor, they are presumed to have succeeded to the estate of their ancestor. An outstanding title must be a present and operative one, otherwise the presumption will be that it has become extinguished, and if the plaintiff show a good title, the presumption of the extinguishment of the outstanding title ought to be liberally indulged. (Vide Brandt v. Livermore, 10 Johns. R. 358. Jackson v. Todd, 6 ib. 257. Jackson v. Hudson, 3 ib. 375.) But it is indispensable to prove that the ancestor was seised.
The seisin of the ancestor may be proved by showing that he was either in the actual possession of the premises at the time of his death, or in the receipt of rent from the terre-tenant; for possession is presumptive evidence of a seisin in fee until the contrary is made to appear. This has been herein before abundantly shown, and the authorities need not be referred to here. (Vide ante, ch. 4.) But this presumption may be rebutted on the part of the defendant; in which case the claimant will be required to produce other evidence of his ancestor's title. The declarations of a deceased occupier of the land in question, that he held as tenant under a particular person, have been admitted as evidence of the seisin of that person. (Peaceable v. Watson, 4 Taunt. R. 16.) But more in respect to the competency of the declarations of deceased persons in another place.