1 See above, pp, 1013 [023. - Ed.

2 See N. Y. Code Civ. Proc, §§ 362-375. - Ed.

sion on the legal owner. But the question is, what is such a vacancy of possession as produces this effect? And when we have seen that the vacancy must be not merely occasional, but the title of the sub- . sequent holder must be unconnected with the title of the previous holder. There must be a want of privity of contract, for, when the subsequent holder enters with the assent and permission of the previous holder, the former has the right to tack one possession to another. That actual possession is not required, is also shown in Porter v. McGinnis, I Barr. 413.

Haynes V. Boardman

119 Massachusetts, 414. - 1875.

Writ of Entry. - Plea nul disseisin. Verdict for demandant. Tenant alleges exceptions which appear below.

Colt, J. - There was evidence tending to show adverse possession of the demanded premises, commencing with the occupation of Mrs. Atwood in 1832, and continued until her death in 1847. She devised all her real estate to Susanna Gage for her life, remainder in fee to the demandant. The possession was continued in Susanna until her death in 1863, and by the demandant until shortly before the commencement of this action. The principal question is whether there was that privity of estate between the testatrix and her devisees which is required to establish title by continuous adverse possession.

It is settled that the disseisin of an heir, devisee or grantee may be tacked to that of an ancestor, devisor or grantor, to create title by adverse possession. Leonard v. Leonard, 7 Allen, 277; Melvin v. Proprietors of Locks and Canals, 5 Met. 15, 32. Such adverse possession continued for twenty years affords a conclusive presumption of grant to the first occupant.

It is claimed that there is no such privity between the life tenant and the remainderman, because the latter in no sense claims under the former. But the answer is, that both claim under the same will by one title. The disseisin, which was commenced by the testatrix, is continued by each in accordance with that title, and is referred by each only to the entry of the testatrix. There has been no loss of possession ; no restoration of the seisin to the true owner; no new entry. The disseisin which commenced with the testatrix has been continuous in her devisees, and establishes her title by lapse of time. It is plainly distinguished from a case of successive entries and new disseisins by different and independent parties. It does not follow, because no act of the life tenant in disparagement of his title, and no disseisin of him, will be permitted to injure the remainderman, that an adverse possession maintained by the tenant, under his title, will not inure to the benefit of the former. The test of title is that there has been no interruption of possession, and no new entry required. If the possession ends before the expiration of the time required to establish the presumption, the seisin of the true owner is restored, and he comes in by right, and not by disseisin, as against all parties.

The other question relates to the effect to be given to the alleged payment of rent to the owner made by tenants of the demandant, and those in privity with him, in occupation of the demanded premises. There was evidence that some of the acts of those who occupied under the testatrix and life tenant were permissive, and the jury were told that the demandant could not have the benefit of such acts, unless they were satisfied that they were under the authority or direction of Atwood or Gage. Full instruction was also given as to what constituted adverse possession. And it cannot be stated as matter of law that the payment of rent, or an admission of title, by a tenant of the demandant or his grantor, without the knowledge of his landlord, would alone operate to interrupt an otherwise continuous adverse occupation.

Exceptions overruled.

c. Exceptions in favor of persons under a disability.

Howell V. Leavitt

95 New York, 617. - 1884.

Finch, J. - In February, 1856, Roberts became the owner of the premises in dispute, having good title thereto, but subject to a purchase-money mortgage of $5,500 given by him to Leech. A few months later Roberts conveyed to Tasker, subject to the $5,500 mortgage, the latter executing also his own mortgage to Roberts for $1,800. Still later in the same year Tasker conveyed to Ephraim Howell, subject to the Leech mortgage of $5,500, but the deed making no reference to the $1,800 mortgage. On the 18th of September, 1857, Roberts filed a complaint for the foreclosure of the $1,800 mortgage, naming Tasker and Howell and wife as defendants, and Mrs. Howell was served November 17th of that year. In the previous month of October, Howell died, although the fact of his death was for some time after unknown. An order of publication was made, and in the end, judgment of foreclosure was rendered; the property was sold to Roberts, the mortgagee, who by the aid of a writ of assistance, put Tasker out and got into possession. At this date, and at the date of the commencement of the foreclosure action, Howell being dead, the title had descended to his five children, who were all infants, the eldest being about fourteen years of age, and the youngest only about one. The possession of Tasker after his deed to Howell must be assumed to have been as tenant under Howell, and upon his death as the tenant of his children, so that Tasker's possession was theirs When he was expelled their possession was taken away. But the judgment of foreclosure did not affect them, for they were in no manner parties to it, and as to them it was an absolute nullity. Possession of their property was taken from them, not only without their consent, but against their will, and by a force which had no right or authority behind it, but was in all respects a trespass. After thus forcing out the true owners. Roberts paid off and discharged the $5,500 mortgage, and then sold the property, and the present defendants are his grantees and seek to defend the ejectment brought by the true owners, who were thus dispossessed by unlawful force, upon the alleged right of Roberts as mortgagee in possession. In most of the cases which have upheld the right of the mortgagee, his possession was obtained with the consent, express or implied, of the owner of the land, although in some of them the mode of acquiring possession did not distinctly appear, and in many the rule is stated quite broadly and with little of restriction or limitation. Van Duyne v.Thayre, 14 Wend. 233; Phyfe v. Riley, 15 Id. 248; Fox v. Life, 24 Id. 164; Olmsted v. Elder, 5 N. Y. 144; Mickles v. Dillaye, 17 Id. 80; Mickles v. Townsend, 18 Id. 575; Chase v. Peck, 21 Id. 581; Waring v. Smyth, 2 Barb. Ch. 135; Pell v. Ulmar, 18 N. Y. 139; Robinson v. Ryan, 25 Id. 320; Winslow v. Clark, 47 Id. 261; Madison Avenue Baptist Church v. 01. Street Baptist Church, 73 Id. 82; Gross v. Welvood, 90 Id. 63S.