While it is well settled that where the contract does not specifically require the vendor to furnish a marketable title of record or as shown by the abstract, a title by adverse possession is sufficient.26 Neverthe-

25. Compiled Laws of Michigan, 1915, Sec. 11736 to 11738 inclusive:

Affidavits as to the birth, marriage death, name, residence, identity, and relationship of parties named in deeds, wills, mortgages and other instruments affecting real estate may be recorded in the office of the register of deeds of the county where said real estate is situate.

It shall be the duty of the register of deeds for the county where such affidavit is offered for record to receive the same and cause the same to be recorded in the same manner that deeds are recorded. The register of deeds shall collect the same fees for recording such affidavit as are provided by law for recording deeds.

Such affidavits, whether recorded before or after the passage of this act, may be received in evidence in any civil cause, in all courts of this state and by all boards or officers of the state in all suits or proceedings affecting such real estate and shall be prima facie evidence of the facts and circumstances therein contained.

26. Dupont v. Starring, 42 Mich. 492; Bunce v. Bidwell, 43 Mich. 542: Bernard v. Brown, 112 Mich. 455.

In O'Connor v. Higgins, 113 N. Y. 521, after describing the features of adverse possession shown by the plaintiff, the court said:

"There is no proof nor pretense of any other title to the property, lying either in grant or in claim; less, such a title should be accepted by the vendee with a great deal of caution, as by statute, it is provided that a minor, an innocent person, or one imprisoned or any person claiming under or through persons under such legal disabilities aforesaid, have five years in which to bring an action for the recovery of real estate after such legal disabilities have been removed. Another section of the statute 27 provides that if nor does anything appear to disturb the conclusiveness of the presumption of a valid grant which arises from an exclusive and uninterrupted possession of the property under a claim of title founded on a conveyance, for a period extending far beyond the length of time mentioned in the statute of limitations. Such a presumption will always displace objections based on flaws in the proceedings in which the title has had its source, and protect the title from being injured or affected by their disclosure."

In Forma'n v. Wolf, 29 Alt. 837, the Supreme Court of Maryland says:

"It appears from the record that the appellee has been in the exclusive possession of the property in dispute for over 20 years, and, even if the objection urged by the appellant was tenable, the title of the appellee would be a good and marketable one by adverse possession, under the statute of limitations. It is well settled that a title by adverse possession for over 20 years, where the only persons who could claim were all under no disability, is marketable, and such as a court of equity will compel a purchaser to take."

In Tewksbury v. Howard, 138 Ind. 110, it was claimed that a title obtained by adverse possession is not a marketable one. In answer to this, it was said by the court:

"The principal argument is that the decree quieting title came too late to support this suit, but incidentally it is said that a title by adverse possession is not a marketable title. If a marketable title, it is manifest that the decree so alleged was only in confirmation of the title so held and that the tardiness in procuring it would not defeat the action. Title by adverse possession is as high as any known to the law. * * * A marketable title cannot be said to be more."

In the case of Elder v. McClaskey, 17 C. C. A. 251, 70 Fed. 529, involved a title by adverse possession under the Ohio statute. Of that Mr. Justice Taft said:

"Under the construction put upon this statute by the Supreme Court of Ohio, an open, notorious, exclusive, and adverse possession of land for 21 years, with or without color of title, whether continuous in the first possessor or tolled in persons claiming under him, and whether with or without knowledge of the existence of a better title, confers upon the original possessor, or those claiming under him, an indefeasible title in fee"; citing Paine v. Skinner, 8 Ohio 159, and several other Ohio cases.

27. If at the time when any right of entry, or of action, as aforesaid, the person under the legal disabilities aforesaid shall die during the continuance of the same without the rights of such person having been adjudicated, his heirs, or anyone claiming under him, shall have five years from the date of his death to bring such action even though the statute of limitations has expired.

Another principle which should be borne in mind in relation to titles by adverse possession is that actual possession by a tenant in common, will be presumed to be permissive and not adverse to that of his co-tenants.28 Illustrative of the foregoing, it might happen that a vendor would occupy property for the full period of the statute of limitations, namely, 15 years, and it might still be possible for the rights of persons under such legal disabilities to be asserted against the property for many years thereafter. But see Footnote 29.

The writer recalls of one instance where a suit was brought to foreclose a mortgage and successfully maintained 41 years after the execution and registration of the mortgage where payments had been made and the instrument had thus been kept in force.

In another instance, tried before one of our lower courts, title was successfully asserted on behalf of a person under legal disability which had been occupied by the defendant for a period of 37 years.

shall first accrue or have accrued, the person entitled to such entry or action shall be or shall have been, within the age of twenty-one years, insane, or imprisoned such person, or any one claiming from, by or under him, may make such entry, or bring such action at any time within five years after such disability, shall be or shall have been removed, although the time limited therefor in the first section of this chapter may have expired. Compiled Laws 1915, Section 12315.

28. If the person first entitled to make such entry, or bring such action, shall die, or shall have died during the continuance of any of the disabilities mentioned in the preceding section, and no determination or judgment shall have been had of, or upon the title, right or action, which accrued to him, the entry may be made, or action brought, by his heirs, or any one claiming under him, at any time within five years after his death, although the time limited therefor in the first section of this chapter may have expired. Compiled Laws 1915, Section 12316

29. Corley v. Thompson, 196 Mich 713.

These examples and many others which could be cited indicate the necessity on the part of the vendee of requiring convincing evidence before accepting a title grounded upon adverse possession, that no persons under legal disability are in position to assert claims against the property. The better practice where there is any doubt whatever involved would be to require the vendor to quiet the title before accepting same.