recorded deed, his entry and possession are referred to such title; and he is deemed to have seisin of the land co-extensive with the boundaries stated in his deed where there is no open adverse possession of any part of the land so described in any other person." (Prescott v. Nivers, 4 Mason's R. 330. And vide Jackson v. Porter, Paine's C. C. R. 457. Potts v. Gilbert, 3 Wash. C. C. R. 475. Buynum v. Thompson, 3 Ired. R. 578. Fitzrandolph v. Norman, 2 Taylor's R. 131. Johnson v. McMillan, 1 Strob. R. 143. Webb v. Sturtevant, 1 Scam. R. 181. Lovett v. Noble, Ib. 186. Kyle v. Tubbs, 23 Cal. R. 431. Wilbour v. Anderson, 37 Miss. R. 155.) And it is probably not essential that the deed or other instrument under which the land is claimed be registered or recorded, provided the same is good in point of form, purports to convey the legal title, and is properly executed. (Vide Lea v. Polk County Copper Company, 21 How. U. S. R. 493. Dickin son v. Burden, 30 Ill. R. 239. Hanna v. Renfro, 32 Miss. R. 125. Minot v. Brooks, 16 N. H. R. 374.)

The doctrine is well settled, that, where a man enters on land claiming a right and title to the same under color of a conveyance, and acquires a seisin by his entry, his seisin will extend to the whole parcel, within the limits herein before stated; for, in this case, an entry on part is an entry on the whole. But where a man not claiming any right or title under any conveyance or other written instrument enters upon such land, he acquires no seisin but by the ouster of him who was seised; and, to constitute an ouster of him who was seised, the disseisor must have the actual, exclusive occupation of the land, claiming to hold it against him who was seised. At least, this is the doctrine as settled by the courts of a large majority of the states, if it is not recognized in them all.

Says Mr. Angell: "It is very clear that, where there is a mixed possession under a color of title, or a possession at the same time of more persons than one, each claiming under a separate colorable title, the seisin of the estate is in him who has the better title; for, as all cannot be seised, the possession follows the title." (Angell on Lim. 413, 414.) And Chief Justice Parsons, of the Massachusetts supreme judicial court, a long time ago laid down the doctrine, that, “although there may be a concurrent possession, there cannot be a concurrent seisin of land; and, one only being seised, the possession must be adjudged to be in him, because he has the best right." (Laydon v. Potter, 3 Mass. R. 219. And vide Gil

man v..Winslow, 10 ib. 151. Commonwealth v. Studley, Ib. 408. Brimmer v. Proprietors of Long Wharf, 5 Pick. R. 131. Cushman v. Blanchard, 3 Greenl. R. 266.) There would appear to be no clearer principle of reason and justice than this, that where there is a mixed possession the legal seisin is according to the title. Title draws possession to the owner. It remains until he is dispossessed, and then no further than actual dispossession by a trespasser, who cannot acquire a constructive possession, which always remains with the owner. This doctrine is founded in justice and general convenience, and favors right and resists wrong and oppression. (Vide Hammond v. Ridgeley, 5 Harr. & Johns. R. 245. Hall v. Powell, 4 Serg. & Rawle's R. 465. Burns v. Swift, 2 ib. 436. Orbison v. Morrison, 1 Hawkes' R. 468. Dow v. Stephens, 1 Dev. & Batt. R. 5. Davidson's Lessee v. Beatty, 2 Harr. & McHen. R. 621.)

The question has frequently been before the courts as to whether a party can set up an adverse possession to lands occupied by him under a mistake, supposing the same to belong to him, when in point of fact they are outside of his real claim; and the doctrine of the courts evidently is that, where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and, if continued the requisite length of time, will bar the right of the true owner. In one case before the supreme court of New Hampshire, the title to a gore of land lying between the towns of Enfield and Grantham was involved. The proprietors of Enfield, supposing this gore to belong to them, had entered upon a portion of it, claiming the whole, and occupied such portion for more than twenty years; but it turned out that the gore was not embraced in this charter; a person took possession of a lot within the gore, and the proprietors of Enfield brought ejectment against him to recover it. The court charged the jury, that, if the proprietors of Enfield had entered upon, and had peaceable possession of, the gore for more than twenty years, claiming it under their charter, they were entitled to recover, and that an entry into part was in law, for this purpose, an entry into the whole. Upon motion for a new trial, this latter branch of the charge was held to be erroneous; but the

chief justice, who delivered the opinion of the court, expressly conceded, that, to the extent of the actual occupancy of the plaintiffs, an adverse possession was made out. (Enfield v. Day, 7 N. H. R. 457.) And in a subsequent case, before the same distinguished tribunal, the language of the court was still more explicit. There the ancestor of the defendant, in locating the tract conveyed to him, had, by mistake, taken possession of land outside the boundaries contained in his deed. He, however, and the defendant who succeeded him, had actually improved only a part of this excess, inclosing the residue by a brush fence, and occasionally cutting firewood upon it. A verdict was obtained by the defendant as to the whole of the land in controversy, which the court set aside on the ground that he could not hold, by virtue of his adverse possession, beyond the bounds of his actual occupancy and improvement. The court, speaking of the defendant, says: “There is sufficient evidence to show that he held adversely beyond the limits of the one hundred acres (the contents of the deed) claiming title in himself; and twenty years' actual possession will give him a title to the lands thus holden." But the error was in allowing the party to hold the land beyond the limits of his deed and his actual occupancy. (Hale v. Gladden, 10 N. H. R. 397.)

The court of appeals of Kentucky has taken the same view of this question. It was held that a settler, who, in taking possession under his own claim, accidentally and unintentionally intrudes upon the claim of another, acquires thereby no interfering possession outside of his actual close. It was, however, assumed throughout the case, that to the extent of the actual inclosure the possession in such cases must be regarded as adverse; and the same doctrine has been adopted in subsequent cases before the same court. (McKinney v. Kenny, 1 A. K. Marsh. R. 460. And vide Smith v. Morrow, 5 Litt. R. 210. Hunter v. Chrisman, 6 B. Monroe's R. 463.) And the court of appeals of the state of New York has recently recognized the principle of these cases as sound, and expressly adopted the same view of the question of a mistaken possession of land outside of the bounds of the deed, under which the party claims. (Crary v. Goodman, 22 N. H. R. 170.) And the general doctrine of the courts upon the subject is, undoubtedly, in accordance with the rule before stated.

"If a party occupy up to a certain fence because he believes it to be the line, but having no intention to claim up to the fence if

:

it should be beyond the line, an indispensable element of adverse possession is wanting. The intent to claim which is set up is pon the condition that the fence is upon the line, or, if the fence put over the line from mere convenience, the occupation and xercise of ownership are without claim of title, and the possession would not be adverse." (Brown v. Cocknell, 33 Ala. R. 45. Howard v. Reedy, 29 Ga. R. 154.) But, if the division line was actually agreed upon by the adjoining owners, and they actually occupied the lands up to the same for the period of limitation, the rule would be different. (Holton v. Whitney, 30 Vt. R. 410. St. Louis University v. McCune, 28 Mo. R. 481.)

CHAPTER LI.

AN ADVERSE POSSESSION, TO BE EFFECTUAL, MUST BE CONTINUED FOR THE PERIOD PRESCRIBED BY THE STATUTE OF LIMITATIONS - WHAT IS NECESSARY TO THE CONTINUITY OF A POSSESSION.

THE possession of land, in order to be adverse, must not only be under claim or color of title, hostile in its inception to the true title, and marked by definite boundaries, but, to be effectual under the statute of limitations, it must be continued for the whole period prescribed by the statute. An entry upon lands under color or claim of title, if accompanied by the other elements required, may constitute an adverse possession against all the world; but, unless such adverse possession be continued for the whole statutory period, it will not ripen into a title that will bar the entry of the true owner. If the possession, though adverse in its character, become broken, that moment it ceases to be effectual. If there be one element more distinctly material than another in conferring title by adverse possession, when all requisites concur, it is the existence of a continuous adverse possession for the whole period prescribed by the statute of limitations. (Groft v. Weekland, 34 Penn. R. 308.) But the possession will be adverse if had and continued under the claim or color of title, however groundless the supposed title may be. (Ford v. Wilson, 35 Miss. R. 504, 505. Grant v. Fowler, 39 N. H. R. 104. Farrar v. Fessenden, Ib. 281.) The rule has quite recently been declared by the supreme court of the state of

Iowa, that a party, relying upon the bar of the statute of limitations in an action for the recovery of real property, must show that he has held for the statutory period, not only by possession actual, open and adverse, but that it has been maintained as a right resulting from an exclusive property and dominion over the estate, and not subordinate to the will of another, or by an agreement with the true owner of the title; and that it is a material and essential requisite of adverse possession, that the occupancy has been with the intention to claim title. (McNamee v. Moreland, 26 Iowa R. 96. And vide Booth v. Small, 25 ib. 177.)

What constitutes a continuity of possession is not always quite easy to determine, and the question has been attended with much litigation. When the adverse possession is commenced and continued by the same party in person, the question may be settled without difficulty. But, when the continuity is claimed under possessions by different persons, or under different rights, the subject is often complicated and sometimes difficult. It is well settled that the possession need not be by the same person and under the same right; but when it is held by different persons, there are certain pre-requisites important to be understood.

A title to land by prescription is based upon a grant, conclusively presumed from an exclusive adverse possession of the premises for the term provided by the statute of limitations; or the true owner may be barred of his remedy by such adverse possession during the whole of the limited time. The owner, however, must be ousted, and the ouster must continue uninterruptedly for the prescribed period of time. This is the fact which creates the bar. This fact cannot exist if the person having the title takes actual possession in pursuance of his right but for a moment, or the adverse possession is at any time abandoned by the disseisor. The moment the premises become vacant, that moment the owner, by reason of his title, will be regarded in the constructive possession, and the adverse possession of the wrong-doer is at an end. But when a party is once dispossessed it is not every entry upon the premises without permission that will disturb the adverse possession. A man may tread upon his own soil and still be as much out of possession of it there as elsewhere. He must assert his . claim to the land, perform some act that will reinstate him in possession, before he can regain what he has lost. An entry by stealth, under circumstances that go to show that the party claimed no