482 Hall v. Stevens, 9 Mete. (Mass.) 418; Long v. Mast 11 Pa. St. 189; Clarke v. Mcclure, 10 Grat. (Va.) 305; Allen v. Allen, 58 Wis. 202, 16 N. W. 610; Gris-wold v. Little, 13 Misc. Rep. 281, 34 N. Y. Supp. 703.
483 Nichols v. Reynolds, 1 R. I. 30; Mhoon v. Cain, 77 Tex. 317, 14 S. W. 24.
484 Christie v. Gage, 71 N. Y. 189; Doe v. Gregory, 2 Adol. & B. 14. But see Doe v. Hull, 2 Dowl. & R. 38.
485 Ante, p. 340.
486 Campau v. Dubois. 39 Mich. 274; Rlckard v. Rickard, 13 Pick. (Mass.) 251; Jackson v. Tibbits, 9 Cow. (N. Y.) 246.
Possession must he Exclusive.
So, also, possession under claim of adverse right must be exclusive, in order to ripen into a title.491 This can never be the case when the possession is joined with that of the owner, for when two persons are thus in possession the seisin, as we have stated, belongs to the one who holds the title.492 So, too, the doctrine of constructive possession under color of title does not apply if the lands which are so claimed are in the actual possession of the owner.493 As has been stated, possession of a joint owner against his co-tenants must be exclusive and adverse to cut off their rights.494
487 T Jackson v. Smith, Is Johna. (N. Y.) 411; King v. Carmlchael, 136 Ind. 20, 35 N. E. 509.
488 Gilchrist v. Mclaughlin, 7 Ired. (N. C) 810; Brown v. Gay, 3 Greenl. (Me.) 126; Brown v. Cockerell, 83 Ala. 38; Grube v. Wells, 34 Iowa, 148; St. Louis University v. Mccune, 28 Mo. 481; Winn v. Abeles, 35 Kan. 85, 10 Pac. 443. And see Crary v. Goodman, 22 N. Y. 170. But the title under which the land is claimed need not be even prima facie good. Sumner v. Stevens, 6 Mete. (Mass.) 337. But possession held under mistake may be adverse. Beckman v. Davidson, 162 Mass. 347, 39 N. E. 38; Wilson v. Hunter, 59 Ark. 626, 28 S. W. 419.
489 a mere offer to purchase has been held to have this effect. Lovell v. Frost, 44 Cal. 471. But see Rowland v. Williams, 23 Or. 515, 32 Pac. 402. Agreeing to vacate for a valuable consideration stops the running of the statute. Eldridge v. Parish, 6 Tex. Civ. App. 35, 25 S. W. 49. And see Dietrick v. Noel, 42 Ohio St 18.
490 Craig v. Cartwright, 65 Tex. 413, 424. For exceptions, see 2 Dembits, Land Tit. 1396. Possession need not be under color of title. Horner v. Reuter, 152 111. 106, 38 N. E. 747.
491 Foulke v. Bond, 41 N. J. Law, 527.
492 Farrar v. Heinrich, 86 Mo. 521; Hunnicutt v. Peyton, 102 U. S. 333.
493 See ante, p. 460. 494 Ante, p. 340.
Possession must be Continuous.
The rights gained by disseisin will in all cases be lost if the possession is interrupted or abandoned before the period prescribed by the statute of limitations has elapsed.495 It is not necessary that during the whole time the disseisor be in actual occupancy of the land, or have his residence on it.496 It is sufficient if the facts are such as to show actual possession in any way.497 Where the disseisin has been by two or more persons jointly, the abandonment of possession by one causes his rights to pass to his co-disseisor.498 When possession is interrupted, the running of the statute of limitations is stopped, and a subsequent return to possession will not avail. The running of the statute will only begin from the date of the return.499 Acquirement of an adverse title is prevented if, before the statutory period has expired, the possession of the disseisor is interrupted by an entry by the owner.500
By the doctrine of tacking it is held that possession during the whole period of limitation need not be by the same person, but the
495 Yelverton v. Hillard, 38 Mich. 355; Sparrow v. Hovey, 44 Mich. 63, G N. W. 93; Brickett v. Spofford, 14 Gray (Mass.) 514; Bliss v. Johnson, 94 N. Y. 235; Moore v. Collishaw, 10 Pa. St. 224; Groft v. Weakiand, 34 Pa. St. 308; Messer v. Reginnitter, 32 Iowa, 312. Possession once established will be presumed to have continued, in the absence of a contrary showing. Marston v. Rowe, 43 Ala. 271.
496 Possession may be held for him by a tenant. Hunton v. Nichols, 55 Tex. 217. The fact that the buildings on the land are vacant from time to time for want of tenants will not necessarily interrupt the adverse holding. Downing v. Mayes, 153 111. 330, 38 N. E. G20; Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Gary v. Woodham, 103 Ala. 421, 15 South. 840. Breaks in an incisure which is relied on to establish adverse possession do not interrupt the running of the estate. Williams v. Rand (Tex. Civ. App.) 30 S. W. 509.
497 Rieman v. Wagner, 74 Md. 478, 22 Atl. 72; Hughs v. Pickering, 14 Pa. St. 297.
498 Congdon v. Morgan, 14 S. C. 587.
499 Byrne v. Lowry, 19 Ga. 27; Susquehanna & W. V. R. & Coal Co. v. Quick, 68 Pa. St. 189; Core v. Faupell, 24 W. Va. 238; Overand v. Menczer, 83 Tex. 122, 18 S. W. 301.
500 Brickett v. Spofford, 14 Gray (Mass.) 514; Burrows v. Gallup, 32 Conn. 493. But see Bowen v. Guild, 130 Mass. 121. Bringing an action is not necessary to stop the running of the statute. Shearer v. Middleton, 88 Mich. 621, 50 N. W. 737.
§ 281) land may be held by a number of persons if they are in privity,501 and the length of their holdings added together to make up the statutory period.502 In some cases, however, this doctrine is denied as to a vendee of the disseisor.503 "Where the rule obtains, its effect is to give a disseisor the right to convey the imperfect title which he has ac quired by his disseisin and adverse holding.504 Not only a grantee has a right to add his possession to that of his grantor in making up the statutory period, but an heir or a devisee may count the time during which the land was held by his ancestor or testator.505 Possession held under a contract of sale may be added to that of the vendor.506 In the same way the possession of several persons as tenants of the disseisor may be sufficient to give an adverse title.507
501 Doswell v. De La Lanza, 20 How. 29, 32; Doe v. Brown, 4 Ind. 143; City and County of San Francisco v. Fulde, 37 Cal. 349; Crispen v. Hanna-van, 50 Mo. 536; Weber v. Anderson, 73 111. 439; Allis v. Field, 89 Wis. 327r 62 N. W. 85; Smith v. Reich, 80 Hun, 287, 30 N. Y. Supp. 167; Hughs V-pickering, 14 Pa. St. 297; Cooper v. Cotton-mills Co., 94 Tenn. 588, 30 S. W. 353; Tucker v. Price (Ky.) 29 S. W. 857. A testator, a person to whom he has devised the land for life, and the remainder-man under his will, are in privity. Haynes v. Boardman. 119 Mass. 414. The existence of privity may be shown by parol evidence. Weber v. Anderson, 73 111. 439.
502 Mcneely v. Langan, 22 Ohio St. 32; Overneld v. Christie, 7 Serg. & R. (Pa.) 173; Smith v. Chapin, 31 Conn. 530; Shannon v. Kinny, 1 A. K. Marsh. (Ky.) 3; Davis v. Mcarthur, 78 N. C. 357; Scales v. Cockrill, 3 Head (Tenn.) 432.
503 Beadle v. Hunter, 3 Strob. (S. C.) 331; King v. Smith, 1 Rice (S. C.) 10. As holding that the vendor must be in possession under color of title to make his deed effectual, see Nelson v. Trigg, 4 Lea (Tenn.) 701.
504 Leonard v. Leonard, 7 Allen (Mass.) 277; City of St. Paul v. Chicago, M. & St. P. R. Co., 45 Minn. 387, 48 N. W. 17; Cooper v. Ord, 60 Mo. 420. But, where the conveyance is void on its face, there can be no tacking, Simpson v. Downing, 23 Wend. (N. Y.) 316; Potts v. Gilbert, 3 Wash. C. C. 475, Fed. Cas. No. 11,347; nor where the second claims adversely to the first, Jackson v. Leonard, 9 Cow. (N. Y.) 653.
505 Williams v. Mcaliley, Cheeves (S. C.) 200; City of St. Paul v. Chicago. M. & St. P. R. Co., 45 Minn. 387, 48 N. W. 17. So a dowress may add her husband's possession to her own. Doe v. Carter, 9 Q. B. 863. Contra, Sawyer v. Kendall, 10 Cush. (Mass.) 241. And see Doe v. Barnard, 13 Q. B. 945.
506 Brown v. Brown, 106 N. C. 451, 11 S. E. 647; Mabary v. Dollarhide, 98 Mo. 198, 11 S. W. 611.
507 Fanning v. Willcox, 3 Day (Conn.) 258.
There must he no gap in any case between the holdings which are to be tacked.508
Against Whom Possession is Adverse.
Disseisin and adverse possession are effectual only against those who are entitled to the possession of land. For this reason the disseisin of the tenant of the particular estate is not a disseisin of the reversioner or remainder-man.509 Where persons hold by the same title, a disseisin of one will act as a disseisin of the other. For instance, the disseisin of a tenant is a disseisin of his landlord, and the disseisin of a mortgagor or of a mortgagee is effectual against the other party.510 So, too, a cestui que trust may be disseised by the ouster of his trustee; but possession by the trustee will not be adverse to the beneficiary without a disavowal by the trustee of the relationship.511 Nor is possession by heirs adverse to the claims of the creditors of the testator.512 In most states the statute of limitations does not begin to run against persons who are under disabilities, such as married women,513 infants,514 and insane persons,515 until
508 Louisville & N. R. Co. v. Philyaw, 88 Ala. 264, 6 South. 837; Warren v. Frederichs, 76 Tex. 647, 13 S. W. 643.
509 Watkins v. Green, 101 Mich. 493, 60 N. W. 44; Doe v. Hull, 2 Dowl. & R. 38; Wells v. Prince, 9 Mass. 508. Cf. Taylor v. Horde, 1 Burrows, 60. The possession of the homestead, to which a dowress was entitled until her dower was assigned, by her assignee, is not adverse to the other heirs. Gosselin v. Smith, 154 111. 74, 39 N. E. 980; Fischer v. Silkmann, 125 Mo. 105, 28 S. W. 435.
510 Poignard v. Smith, 8 Pick. (Mass.) 272.
511 Jones v. Lemon, 26 W. Va. 629. That a cestui que trust does not hold adversely to the trustee, see Jeter v. Davis, 109 N. C. 458, 13 S. E. 908. A mortgagor does not hold adversely to the mortgagee, Ivy v. Yancey, 129 Mo. 501, 31 S. W. 937; nor a mortgagee to the mortgagor, Dunton v. Mccook (Iowa) 61 N. W. 977.
512 Rogers v. Johnson, 125 Mo. 202, 28 S. W. 635.
513 State v. Trontman, 72 N. C. 551; Little v. Downing, 37 N. H. 355; Throckmorton v. Pence, 121 Mo. 50, 25 S. W. 843. But in many states married women are no longer regarded as under disability. See A Dembilz, Land Tit 1358.
514 Jackson v. Moore, 13 Johns. (N. Y.) 513; Swearingen v. Robertson, 39 Wis. 462. The infancy of one co-tenant will not prevent the statute running against the others. Peters v. Jones, 35 Iowa, 512.
515 Edson v. Munsell, 10 Allen (Mass.) 557. To prevent the running of the
§ 281) the disability is removed. But the disability must exist at the time the statute begins to run. Disability occurring after the statute begins to run will not suspend the operation of the statute.516 It is usually provided that a short period shall be given to persons who have been under disability, for bringing their actions after the disability is removed.