The principle has also the sanction of two eminent authors on the law of limitations. Judge Cooley, in his recent work referring to this question, says: "When the period prescribed by statute has once run so as to cut off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been had it been perfected in the owner by grant, or by any species of assurance." The learned author, admitting that there is controversy in regard to the point, has collected in a note the decisions of the highest courts in several of the States sustaining the doctrines stated in the text. Cooley on Const. Lim. (5th ed.) 449.

In the other treatise on this subject, which is of highest authority, it is said: "Asa general doctrine, it has too long been established to be now in the least degree controverted that what the law deems a perfect possession, if continued without interruption during the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee. Independently of positive or statute law, the possession supposes an acquiescence in all persons claiming an adverse interest, and upon this acquiescence is founded the presumption of the existence of some substantial reason, though perhaps not known, for which the claim of an adverse interest was forborne. Not only every legal presumption, but every consideration of public policy, requires that this evidence of right should be taken to be very strong, if not of conclusive force." Angell on Lim., chap. 31, 373. The same learned author seems to treat prescription and adverse possession, so far as this question is concerned, as practically the same thing. Id., chaps, 1, 2.

These authorities, and others that might be cited, show that title to an estate in land may be acquired by one and lost by another by means of adverse possession. This principle has become a rule of property that cannot now be disturbed without grave injury to titles.

There is no serious claim that the plaintiff can recover the share which she took direct from her father, and as to the other two shares the plaintiff's remainders are limited upon her mother's life estate which the defendant has absorbed in its adverse possession, and is not yet terminated, as under the principles above stated she had nothing to convey, and nothing passed to the plaintiff under the deed of October, 1885. Hence, the plaintiff's rights are to be determined in this case in the same way as if the deed had not been executed at all. This point is, we think, decisive of the case, and it is not necessary to examine the questions so ably discussed, whether the conveyance offends against the champerty statutes; whether the defendant is entitled to the rights of a mortgagee in possession, or when, and under what circumstances a defendant in ejectment can protect his possession by an outstanding title in another. The judgment should be affirmed.


Winthrop, V. Benson

31 Maine, 381. - 1850.

Wells, J. - The jury were instructed, that if, in 1847, the agent of the school district, at the request of the defendants, removed said wood-house where it now is, intending to relinquish and give up the land, and the district had subsequently ratified his acts by their conduct or otherwise, of which they were the judges, then such abandonment, notwithstanding the district might before that time have had an open, adverse, exclusive and notorious possession of the land, or some part of it, for more than twenty years, would operate an abandonment of their possession, and a surrender of their claim to the former owners thereof, and the plaintiffs could not recover the said land in this suit.

It is true that a mere possession of land of itself does not necessarily imply a claim of right. The tenant may hold in subjection to the lawful owner, not intending to deny his right or to assert a dominion over the fee. But the terms open, notorious, adverse and exclusive, when applied to the mode in which one holds lands, must be understood as indicating a claim of right. They constitute an appropriate definition of a disseisin, and the acts which they describe, will have that effect if not controlled or explained by other testimony. Little v Libbey, 2 Green. 242; The Proprietors of Kennebec Purchase v. John Springer, 4 Mass. 416. An adverse possession entirely excludes the idea of a holding by consent.

If the plaintiffs have held the premises by a continued disseisin for twenty years, the right of entry by the defendants is taken away, and any action by them to recover the same is barred by limitation. Stat., c. 147, § 1.

A legal title is equally valid when once acquired, whether it be by disseisin or by deed, it vests the fee simple, although the modes of proof when adduced to establish it may differ. Nor is a judgment at law necessary to perfect a title by disseisin any more than one by deed. In either case, when the title is in controversy, it is to be shown by legal proof, and a continued disseisin for twenty years is as effectual for that purpose as a deed duly executed. The title is created by the existence of the facts, and not by the exhibition of them in evidence.

An open, notorious, exclusive and adverse possession for twenty years, would operate to convey a complete title to the plaintiffs, as much so as any written conveyance. And such title is not only an interest in the land, but it is one of the highest character, the absolute dominion over it, and the appropriate mode of conveying it is by deed.