CHAPTER XLVIII.

ADVERSE POSSESSION MUST BE BASED UPON A COLOR AND CLAIM OF

TITLE - WHAT IS COLOR OF TITLE-ILLUSTRATIONS OF THE DOCTRINE.

From the general tenor of the authorities upon the subject, it may be safely affirmed, in the first place, that, to constitute a valid and effectual adverse possession, the possession must have commenced under color and claim of title; that is to say, the possession must have been under color and claim of title; or, as some of the authorities define it: adverse possession is a possession ander color and claim of title. “The principle on which the statute of limitations is predicated is, not that the party in whose favor it is involved has set up an adverse claim for the period specified in the statute, but that such adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action, which having failed to prosecute within the time limited by law, he is presumed to have extinguished or surrendered; a mere claim of title, unaccompanied by adverse possession, gives no right of action to the person against whom it is asserted, and consequently his rights are unaffected by the statute.” (Abeel v. Harris, 11 Gill & Johns. R. 371. And vide Cooper v. Smith, 9 Serg. & Rawle’s R. 26.) The possession, in order to be adverse, must be accompanied with the claim of the fee, which, by construction of law, is deemed prima facie evidence of such an estate. (Jackson v. Porter, 1 Paine's C. C. R. 457.) The statute of limitations is intended, not for the punishment of those who neglect to assert their rights, but for the protection of those who have remained in possession under a title supposed to be good. (McIver v. Rogan, 2 Wheat. R. 25.)

The principle is well settled by authority, that an entry upon land in possession, actual or constructive, of another, in order to operate as an ouster, and give possession to the parties entering, must be accompanied by a clairn of title. When there is no claim of title, the possession cannot be adverse to the true title. Any person in possession of land, with no claim to the premises whatever, must in presumption of law be in possession in amity with, and in subservience to, the true title. (Harvey v. Tyber, 2 Wall.

R. 328. Kincheloe v. Treadwells, 11 Gratt. R. 605. Exing . Burnett, 11 Peter's R. 41, 52. Vide also Green v. Lessee of Neal, 6 ib. 491.)

In testing a defense founded on possession, courts of justice direct their attention to the time during which it has continued, and its character. The latter respects its notoriety, the nature of the occupation, and especially the intention with which it is taken and continued. If it be a naked possession, not accompanied with any claim of right, it will never constitute a bar, but will inure to the advantage of the real owner. It is a possession in his right and for his benefit. The law presumes, till the contrary be shown, that a man in possession without title intends to hold for the true owner; in other words, that he intends to hold honestly so far as he can consistently with holding at all. It is a general rule, that every possession of land has the presumption of right in its faror, and, this being the presumption of law, may be contradicted or destroyed by proof; but, until it is destroyed, the possession is adverse to any other claimant. The presumption which the law thus raises in favor of the actual occupant may be destroyed by proof of his having received a lease, or evidence of his having paid rent, or acknowledged the title set up; or it may be destroyed by showing that the occupant entered without pretending to any claim or right whatever; in which case the law adjudges the possession to be in subservience to the legal owner; for he can derive no benefit from a legal presumption, who, by his own acts, shows that the presumption cannot apply; the fact that no claim of right was made shows that none existed. These are principles so well settled by judicial decisions, that citations are uncalled for. Hence a claim of right is necessary, not because the statute always requires it, but becanse the want of such claim is evidence sufficient to destroy the legal presumption of right. The quo animo a possession is taken or held furnishes the true test of its character. The possession, to be adverse, must be shown to have been hostile in its inception, or that, having been begun in consistency with the rightful title, its character has changed; but there must be ade quate cause for the change, or for imputing it. Where it commences under acknowledgment of the right owner's estate, the possession will retain its original quality through any succession of occupants of the land; and will be presumed to be in subservience to the rightful interest. The strictest proof of hostile

inception of the possession is required. As to the supervening change of possession, that must be proved by an accession of another title, and other circumstances furnishing a motive for exclusive claim. But every possession is adverse, and entitled to the peaceful and benignant operation and protecting safeguard of the statute of limitations, which is not in subservience to the title of another, either by a direct acknowledgment of some kind, or an open or tacit disavowal of right on the part of the occupant; and it is in the latter case only that the law adjudges the possession of one to the benefit of another. (Vide United States v.

( Arredondo, 6 Peters' R. 743. Clark v. Courtney, 5 ib. 354. Bradstreet v. Huntington, Ib. 402. McIver v. Rogan, 2 Wheat. R. 29. Kirk v. Smith, 9 ib. 241, 288. La Frombois v. Jackson, 8 Cow. R. 589. Gittens v. Lowry, 15 Ga. R. 336. Jackson v.

. Potter, 1 Paine's C. C. R. 457. Markley v. Amos, 2 Bailey's R. 603. Ray v. Barker, 1 B. Mon. R. 364. Moore v. Moore, 8 Shepley's R. 350. Lamb v. Foss, Ib. 240. Millay v. Millay, 6 ib. 387. Hamilton v. Paine, 5 ib. 210. Read v. Thompson, 5 Barr's R. 103. Dikeman v. Parrish, 6 ib. 210. Hall v. Stephens, 9 Metc. R. 418. Moore v. Johnston, 2 Spears' R. 288. Rogers v. Hillhouse, 3 Conn. R. 403. Borrets v. Turner, 2 Hayward's R. 114. Armour v. White, Ib. 69. Grant v. Winborne, Ib. 57. Anonymous, Ib. 134. Hatch v. Hatch, Ib. 34. Tasker's Lessee v. Whittington, 1 Harr. & McHenry's R. 151.

But, while adverse possession is a possession urider color and claim of title, and the statute of limitations ripens no possession into title which is unaccompanied with a color of title, it has never been considered as necessary to constitute an adverse possession that there should be a rightful title. As a general rule, where possession is taken under color and claim of title, and continued for the requisite period, it bars an action brought for the recovery of the property; and it is immaterial how defective that title may be, or whether the occupant makes color under a written or parol contract, or even any contract at all. It is well settled that a continued possession for the length of time required by the statute of limitations, under pretense or claim of right, ripens into a right of possession, which will toll an entry; and, whenever the statute of limitations is set up as a defense, the idea of right is excluded. (Jackson v. Wheat, 18 Johns. R. 44. Jackson v. Newton, Ib. 355. Smith v. Lorrilard, 10 ib. 356. Smith v. Burtis, 9 ib. 180. Jack

son v. Woodruff, 1 Cow. R. 276. Jackson y. Camp, Ib. 605.) To constitute an adverse possession of land, an entry under color or claim of title is sufficient; and it is wholly immaterial whether the title afterward turns ont to be valid or invalid. Nor is it material, when the entry is made under a conveyance, whether such conveyance does or does not contain covenants of warranty. And it has been held that, where the sheriff sells lands upon execution, of which land the judgment debtor is in possession claiming under a devise in fee, and the purchaser takes possession under the sheriff's deed and continues in possession for the statutory period to limit an action for its recovery, by himself or his grantees, and there is nothing in the circumstances to induce a belief that the purchaser at such sale knew the judgment debtor had no title the legal inference is that the possession is adverse to the whole world; and, unless something afterward occurs to change the adverse character of the possession, the right of the real owner is barred. And it has also been held that the result will be the same when the entry is under color of a conveyance from the sherif, although such conveyance is not upon its face sufficient to convey the legal title. (Jackson y. Newton, 18 Johns. R. 355.) And the fact that the purchaser from the sheriff is afterward induced to doubt the validity of his title under the sheriff's sale, where he continues in possession under the same, it seems, will not destroy the adverse character of that possession. (Northrop v. Wright, 7 Hill's R. 476.) It has been held by the supreme court of Georgia that a .sheriff's deed is admissible in evidence as color of title, althongh unaccompanied by the execution under which the prop erty was sold. Considering that the sheriff sold without authority, and this is the most that can be presumed from the absence of the fieri faciils, and that consequently the conveyance was void, still the court held, that, if the purchaser took and held possession under the deed, it was good as color of title. (Burkhalter 5.

.

v Edwards, 16 Ga. R. 593.) And it was held in North Carolina that a sheriff's deed which recited the execution under which the sheriff sold the land, and it thus appeared that such execution was tested and signed by the deputy clerk instead of the clerk himself, would inure as color of title, notwithstanding the constitution requires all writs to bear teste and be signed by the clerks of the respective courts. (Den v. Putney, 3 Murph. R. 562.) One who enters into possession of land under a deed purporting to convey

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to him an estate in fee, claiming to be sole and exclusive and absolute owner in fee thereof, may be regarded as holding adverse to all the world. (Bradstreet v. Huntington, 5 Peter's R. 401.) A deed purporting to be executed by virtue of a power of attorney from the owner of the land, which power is not proved, affords sufficient color of title on which to found an adverse possession, if there has been a good constructive possession under it. (Monro v. Merchant, 28 N. Y. R. 9.)

It seems to be well settled by authority, that it is enough that the possession of land be under a claim of title, to clothe it with the character of an adverse holding, and to give it efficacy as a defense, when of sufficient duration to be a bar; and that an invalid or defective title, if believed to be good, will be equally operative with a valid one in giving effect to a possession taken and held under it. To give color of title does not require the aid of a written conveyance or other evidence in writing; but it is only necessary that the entry be made under a bona fide and not a pretended claim of title existing in another. (La Frombois v. Jackson, 8 Cow. R. 589. McCall v. Neely, 3 Watt’s R. 72.) Even if the grantor in deeds be justly chargeable with fraud, but the grantees did not participate in it, and when they received their deeds had no knowledge of it, but accepted the same in good faith, the deeds upon their face purporting to convey a title in fee, and showing the nature and extent of the premises, the supreme court of the United States hold there can be no doubt the deeds give color of title under the statute of limitations. (Gregg v. The Lessee of Sayre, 8 Peter's R. 244.) Indeed, it may be regarded as settled, upon authority, that, however wrongful or fraudulent the possession, or defective the title, an entry under claim of exclusive title, founding such claim upon a written conveyance, accompanied by a continued possession for the requisite period, constitutes an effective adverse possession. Possession by the defendant in an action of ejectment with a claim of title can no more be answered by averring that he knew he was wrong, than could the bar of two years, for example, in slander, by the known falsehood of the libel for which it is prosecuted. So long as a man is in possession of land claiming title, however wrongfully, and with whatever degree of knowledge that he has no right, so long the real owner is out of possession in a constructive as well as an actual sense.

It is of the nature of the statute of limitations