showing the possession to be adverse. (Dillingham v. Brown, 38 Ala. R. 311. Little v. Magguier, 2 Me. R. 176. Brackett, Petitioner, 53 ib. 236. Pillow v. Roberts, 13 How. U. S. R. 472. Herrick v. Doe, 4 Ind. R. 164. Sutton v. McLoud, 26 Ga. R. 638. Bailey v. Doolittle, 24 Ill. R. 577.) And yet, as has been before asserted and shown, a deed void on its face, or disclosing facts which show the person from whom it is acquired had no title, cannot form the basis of an adverse possession. (Moore v. Brown, 11 How. U. S. R. 424. Simmons v. Lane, 25 Ga. R. 178. Marsh v. Weir, 21 Tex. R. 97.) But, to constitute a color of title, there need not be a regular chain of conveyances. If the possession has been taken in such a way as to authorize a belief that the possessor imagined that he was occupying his own property, that will be a color of title. (Sawyer's Lessee v. Shannon, 1 Cooke's R. 356.) The principle is, that possession under a claim of title, with or without deed, is adverse; and this principle applies as well in case of easements, incorporeal hereditaments, and interests in land, as to the title to land itself. (Barker v. Salmon, 2 Metc. R. 32. Brown v. King, 5 ib. 173. Ashley v. Ashley, 4 Gray's R. 197. And vide Kent v. Harcourt, 33 Barb. R. 491, 497.)

CHAPTER XLIX.

ADVERSE POSSESSION MUST BE HOSTILE IN ITS INCEPTION · -IT MUST BE UNDER A CLAIM OF THE ENTIRE TITLE, AND EXCLUSIVE.

Ir may be affirmed, in the second place, that, to constitute a valid and effectual adverse possession, the possession must be hostile in its inception. This principle has been incidentally mentioned before, but it is of sufficient importance to be laid down as a distinct point. No possession can be adverse, except the person in possession holds for himself, to the exclusion of all others, and under a claim of title which is entirely antagonistic to that of the true owner. The claim of title must be adverse to that of the claimant, and not in any manner subservient to the title of the latter. Indeed, it has been declared by high judicial authority, that, whenever an adverse possession is relied on, there must be proof of an actual ouster, and that the presumption of an onster

from circumstances will not be deemed sufficient. An entry by one man on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under 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 guides the entry and fixes its character. The doctrine of adverse possession is to be taken strictly, and not to be made out by inference, but by clear and positive proof. Every presumption is 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. (Brandt v. Ogden, 1 Johns. R. 156. Jackson v. Sharp, 9 ib. 163. Jackson v. Parker, 3 Johns. Cases, 124. Guy v. Moffitt, 2 Bibb's R. 507. McGee v. Morgan, 1 Marsh. R. 62.)

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 others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversary; and it cannot be adversary unless it is hostile to the true title. Said Chief Justice Marshall: "To allow a different construction would be to make the statute of limitations a statute for the encouragement of fraud-a statute to enable one man to steal the title of another by professing to hold under it. No laws admit of such construction." (Kirk v. Smith, 9 Wheat. R. 241, 288.) And it has recently been held by the supreme court of Illinois, that an adverse possession sufficient to defeat the legal title, where there is no paper title, must be hostile in its inception, and is not to be made out by inference, but by clear and positive proof. And further, that the possession must be such as to show clearly that the party claims the land as his own, openly and exclusively. (Jackson v. Birner, 48 Ill. R.)

It has been held that a possession taken under a grant from the French Canadian government, before the conquest of Canada by the British, of land in the state of New York, cannot be deemed a possession in hostility to any private or individual right, and must be considered as held in subordination to title conveyed by a' patent of the state. (Jackson v. Waters, 12 Johns. R. 365. And vide Jackson v. Ingraham, 4 ib. 163.)

Where the party did not originally enter into the possession of the land under a title hostile to the title of the owner, it will be intended that he entered under his title. (Jackson v. Thomas, 16 Johns. R. 292.) But, as it has been before intimated, if a man enters on land, without claim or color of title, and no privity exists between him and the real owner, he may afterward acquire such a title to the land as the law will, prima facie, consider a good title, and from that moment his possession becomes adverse. Although the possession of the party was not originally either hostile or in subservience to the true title, from the moment he acquired a colorable title, and claimed under it, that moment his possession became hostile to the title of the true claimant. Spencer, C. J., said: "The principle, however, that the possession must in its inception be adverse, and continue so, is not well understood. In those cases in which that observation occurs, nothing had happened to change the character of the first possession, and that was considered as denoting quo animo the possession was held after the first entry." (Jackson v. Thomas, supra. And vide Jackson v. Frost, 5 Cow. R. 346.) In all cases, however, where a party is in possession of lands in privity with the rightful owner, nothing short of an open and explicit disavowal and disclaimer of a holding under that title, and assertion of title in himself, brought home to the owner, will satisfy the law. Short of this, the party will still be regarded as holding in subserviency to the rightful title. (Floyd v. Mintsey, 7 Rich. R. 181.) There are authorities maintaining the doctrine, that a party in possession of lands confessedly in subordination to the title of the owner is incapable in law of imparting, by any act of his own, an adverse character to his possession; and that, in order to deny or dispute the title, he must first surrender the possession, and place the owner in the condition in which he stood before the possession was taken under him. This doctrine was supposed to govern the rights of trustee and cestui que trust, landlord and tenant, vendor and vendee, tenants in common, and the like, and that no lapse of time would lay a foundation for a statute bar to the right of entry by reason of an adverse possession between parties standing in this relation, or any others of like privity. The law, however, has been settled otherwise. The trustee may disarow and disclaim his trust; the tenant the title of his landlord after the expiration of his lease; the vendee the title of his vendor

after breach of the contract; and the tenant in common the title of his co-tenant; and drive the respective owners and claimants to their action within the period of the statute of limitations. The only distinction between this class of cases and those in which no privity between the parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the possession. As that was taken and held in subserviency to the title of the real owner, a clear, positive and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to be brought home to the party, are indispensable before any foundation can be laid for the operation of the statute of limitations. Otherwise, the grossest injustice might be practiced; for, without such notice, the owner of the land might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations. The statute, therefore, does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued and notorious, so as to preclude all doubt as to the character of the holding, or the want of knowledge on the part of the owner. If he then neglect to enforce his rights by action within the period fixed by the statute, the loss, as in every other case of the kind, is attributable to his own laches, and not to the law.

In an action of ejectment brought in the circuit court of the United States for the eastern district of Pennsylvania, to recover land situated in that state, in which the question of adverse possession was directly involved, the judge charged the jury, that "a trustee of any description may disavow and disclaim his trust, though it is in the utmost bad faith, or in violation of his express agreement, from which time his possession of lands, money or chattels, held under an original trust, becomes adverse, so as to bar an action of account after six years, or an ejectment in twenty-one years after notice of the disavowal, disclaimer and adverse possession is given to the person entitled to the benefit of the execution of the trust. * * That notice of the dis

*

claimer puts the true owner under the same obligation to reclaim the possession within the fixed period, as if no trust had ever existed; and it matters not whether the trust began by the volun

tary act of the trustee, or the law made him a trustee against his will, as the result of his situation or conduct;" and the supreme court of the United States, on writ of error, sustained the charge of the judge. (Zeller's Lessee v. Eckert, 4 How. U. S. R. 289.) This doctrine, however, cannot be said to interfere, in the least, with the rule that a possession to be adverse must be hostile in its inception. In those cases last referred to, the party may be said to have held possession under different claims, at different dates, the last of which was hostile, and hence adverse, and the first was in subservience to the true title, and not adverse.

Where one makes a contract to have a deed, though he enter into possession of the land described by it, he is not in a situation to hold adversely, until the condition upon which he contracts to have his deed is fulfilled; for the simple reason that such a possession is not hostile in its inception. To illustrate: One Dyer made a contract for land with the agent of the proprietors in 1792, and entered under it. In 1794 he received his deed. In 1796 he sold a part of it to the defendant. It appeared that he took possession, under his contract, of land which the deed did not cover, and the defendant sought to retain it, on the ground of adverse possession. The possession taken under Dyer's contract was held not to be adverse on several grounds. But, among others, the court say, the agreement made by Dyer with the agent "did not put him in a situation to commence holding adversely, until he performed the condition. The land still belonged to the proprie tor of the township. Whether he ever would perform, was contingent. He entered on the lot, it is true, but it was necessarily subject to the right of turning him off, if he neglected to make full payment. The possession, therefore, when taken, had not the characteristics to constitute it adverse. It was not hostile in its inception." (Jackson v. Camp, 1 Cow. R. 605.) A possession and claim of land, under an executory contract of purchase, is in no sense adverse, as to the one with whom the contract is made. But it seems, that, when one enters under a contract for a deed with one party, and afterward takes a deed from another party, his possession from this time is adverse to the first vendee, and, if continued the statutory period, will bar his entry. (Jackson v. Johnson, 5 Cow. R. 74. And vide Jackson v. Bard, 4 Johns. R. 231.) After performance of a contract of purchase, and an equitable title to a deed of the premises acquired, there is no good reason why