The possession which we have been discussing in the last section applies only to the tracts of land which are actually held by the disy. 26, 33 N. E. 822; Murphy v. Doyle, 37 Minn. 113, 33 N. W. 220; Webber v. Clarke, 74 Cal. 11, 15 Pac. 431; Hubbard v. Kiddo, 87 111. 578.
447 Wiggins v. Kirby (Ala.) 17 South. 354; Mission of Immaculate Virgin v. Cronin, 143 N. Y. 524, 38 N. E. 964; Price v. Brown, 101 N. Y. 669, 5 N. K. 434. Adverse possession is not shown by building a shanty which Is never occupied, Wiekliffe v. E nsor, 9 B. Mon. (Ky.) 253; or by gathering seaweed, Trustees of East Hampton v. Kirk, 68 N. Y. 460; or by hauling sand at intervals for 20 years, Strange v. Spaulding (Ky.) 29 S. W. 137. But cutting timber in a well-settled district may be an actual disseisin. Murray v. Hudson, 65 Mich. 670, 32 N. W. Ss9; Horner v. Reuter, 152 111. 106, 38 N. E. 747; Scott v. Delany, 87 111. 146. And cutting hay for 20 years has been held sufficient. Sullivan v. Eddy, 154 111. 199, 40 N. E. 482. And see Whitaker v. Shooting Club, 102 Mich. 454, 60 N. W. 983.
448 Jackson v. Huntington, 5 Pet 402, 439; Ewing v. Burnet, 11 Pet. 41; Clarke v. Mcclure, 10 Grat. (Va.) 305.
449 Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. St. 114, 29 Atl. 402.
450 Trustees of Putnam Free School v. Fisher, 38 Me. 324.
451 Skinner v. Crawford, 54 Iowa, 119, 6 N. W. 144. But see Rowland v. Williams, 23 Or. 515, 33 Pac. 402.
452 Northrop v. Wright, 7 Hill (N. Y.) 476; North v. Hammer, 34 Wis. 425; Mcmillan v. Wehle, 55 Wis. 685, 13 N. W. 694; Moody v. Fleming, 4 Ga. 115.
Seisor, and occupied by him. But by the doctrine of constructive possession under color of title there may be a disseisin and adverse holding of more land than is actually occupied. This occurs when the disseisin is made under a deed or other instrument which purports to convey more land than is occupied by the disseisor. If the deed is recorded, or is otherwise brought to the notice of the owner, the disseisor is held to be in constructive possession of all the land purported to be conveyed by the instrument under which he claims.453 Color of title is anything in writing which serves to define the extent of the disseisor's claim, or it is a writing which, upon its face, professes to pass title, but which in fact does not do it454 The instru ment relied on to give color of title need not be valid. Color of title may be given by a deed,455 an execution sale,456 a decree of court,457 and some cases hold that a quitclaim deed is sufficient,458 though this is denied by others.459 In order to acquire adverse title by constructive possession, claim of title must in all cases be brought to the notice of the owner of the land, either by actual knowledge o through notice implied by law.460 The doctrine of constructive possession does not apply to any land which is actually held by the owner.461 When a deed conveys land to which the grantor has title, and also purports to convey land to which he has no title, if the grantee takes possession of the land rightfully conveyed, he is not in constructive possession of the other tract.462 So, if two separate tracts of land are attempted to be conveyed by a void deed, and possession is taken of only one, adverse possession will not extend to the other tract under color of title.463 The doctrine of color of title makes no difference as to the actual possession required for the part of the land as to which there is a disseisin in fact.464
453 Jackson v. Verniilyea, 6 Cow. (N. Y.) 677; Peoria & P. U. Ry. Co. v Tamplin, 156 111. 285, 40 N. E. 960; Cooper v. Cotton Mills Co., 94 Tenn. 5Ss. 30 S. W. 353; Bon Air Coal, Land & Lumber Co. v. Parks, 94 Tenn. 263, 29 S. W. 130; Baker v. Swan's Lessee, 32 Md. 355; Whitehead v. Foley, 28 Tex. 1. But see, as to wild lands, Jackson v. Woodruff, 1 Cow. (N. Y.) 276.
454 2 Dembitz, Land Tit. 1414; 2 Pingree, Real Prop. § 1168; East Tennessee Iron & Coal Co. v. Wiggin, 15 C. C. A. 510, 68 Fed. 446; Bissing v. Smith, 85 Hun, 564, 33 N. Y. Supp. 123; Millett v. Lagomarsino, 107 Cal. 102, 40 Pac. 25; Studstill v. Willcox, 94 Ga. 690, 20 S. E. 120; Finley v. Hogan, 60 Ark. 499, 30 S. W. 1045. For facts insufficient to establish color of title, see Dubuque v. Coman, 64 Conn. 475, 30 Atl. 777.
455 Welborn v. Anderson, 37 Miss. 155; Checkering v. Failes, 26 111. 508. But see Wright v. Tichenor, 104 Ind. 185, 3 N. E. 853. A defective tax deed gives color of title. Reusens v. Lawson, 91 Va. 226, 21 S. E. 347; Lennig's Ex'rs v. White (Va.) 20 S. E. 831. But see Nye v. Alfter, 127 Mo. 529, 30 S. W. 186.
456 Falls of Neuse Manuf'g Co. v. Brooks, 106 N. C. 107, 11 S. E. 456; Ken-drick v. Latham, 25 Fla. 819, 6 South. 871.
457 Huls v. Buntin, 47 111. 396. That a void judgment is not sufficient under a short statute of limitations, see Latimer v. Logwood (Tex. Civ. App.) 27 S. W. 960.
458 Minot v. Brooks, 16 N. H. 374; Mcdonough v. Jefferson Co., 79 Tex. 535, 15 S W 490.
459 Swift v. Mulkey, 14 Or. 59, 12 Pac. 78.
Possession must be Visible or Notorious.
In order that title may be acquired by adverse possession, it is necessary that the acts of the disseisor be such that the owner will be given notice of the claim to his lands,465 though it is not necessary that he have actual knowledge 466 of such claim, if the acts relied on by the disseisor are such as raise a presumption that the owner must have known of his claim.467 Fencing or occupying the lands is sufficient,468 though having them surveyed would not be.469 Nor is a mere
460 Potts v. Gilbert, 3 Wash. C. O. 475, Fed. Cas. No. 11,347; Ellicott v. pearl', 10 Pet. 412; Ewing's Lessee v. Burnet 11 Pet. 41; Jackson v. Wooduff, 1 Cow. (N. Y.) 276; Little v. Downing, 37 N. H. 355.
461 St Louis, A. & T. H. R. Co. v. Nugent, 152 111. 119, 39 N. E. 263; Word v. Box, 66 Tex. 596, 3 S. W. 93; Trimble v. Smith, 4 Bibb (Ky.) 257. And see Fox v. Hinton, Id. 559. When land is owned by several, possession of part under a deed to the whole does not disseise all. Turner v. Moore, 81 Tex. 206, 16 S. W. 929.