And, first, though there are a few cases which hold that the statutory period of adverse possession, which will bar an action for the recovery of land, may be made up by tacking together the periods of the adverse possesson of several successive holders between whom there is no privity, (see Scales v. Cockrill, 3 Head, 432; Smith v. Chapin, 31 Conn. 530; Davis v. McArthur, 78 N. C. 357), the rule laid down by the great majority of courts and by text-writers, and supported by the weight of authority, and which must be regarded as the true rule, is that privity between successive adverse holders is indispensable. And this upon the principle that unless the successive adverse possessions are connected by privity the disseisin of the real owner resulting from the adverse possession is interrupted, and during the interruption, though but for a moment, the title of the real owner draws to it the seisin or possession. Melvin v. Pro-prietor's, etc., 5 Mete. 15, (38 Am. Dec. 384); Haynes v. Boardman, 119 Mass. 414; McEntire v. Brown, 28 Ind. 347; Jackson v. Leonard, 9 Cow. 653; Wood, Lim. § 271; San Franeisco v. Fulde, 37 Cal. 349; Crispen v. Hannavan, 50 Mo. 536; Shuffleton v. Nelson, 2 Sawy. 540; Ang. Lim. 413, 414; Sedg. & W. Tr. Title Land, §§ 740, 745-747; Riggs v. Fuller, 54 Ala. 141.
Second. The privity spoken of exists between two successive holders when the latter takes under the earlier, as by descent, for instance, a widow under her husband, or a child under its parent, or by will or grant, or by a voluntary transfer of possession. Leonard v. Leonard, 7 Allen, 277; Hamilton v. Wright, 30 Iowa, 480; Jackson v. Moore, 13 John. 513 (7 Am. Dec. 398); McEntire v. Brown, supra; Weber v. Anderson, 73 111. 439; Wood, Lim. § 271; Sedg. & W. Tr. Title Land, §§ 747, 748.
Third. While to operate as a bar, adverse possession must be continuous, continuity will not be interrupted by the possession, during any part of its period, of one who occupies the premises as a tenant of the alleged possessor. In such cases the tenant's possession is that of his landlord. San Francisco v. Fulde, supra; Rayner v. Lee, 20 Mich. 384; Sedg. & W. Tr. Title Land, § 747.
Fourth. Possession, to be adverse, so as to bar an owner's right of action, must be actual, open, continuous, hostile, exclusive, and accompanied by an intention to claim adversely. Sedg. & W. Tr. Title Land, § 731 et seq.
This is all which we deem it necessary to say in this case; for, as there is to be a new trial, we forbear to comment upon the evidence.
Order reversed, and new trial awarded.
b. Forcible entries and detainers.
147 Illinois, 335. - 1893.
Craig, J. - The time for which the premises were leased had expired when Phelps took possession and removed Randolph's cattle, horses and other property from the lot or tract of land, and it is claimed that he had the right to take possession of the property, provided he could do so without a breach of the peace, while, on the other hand, it is claimed that Randolph, being in the lawful possession of the property, was entitled to hold that possession until dispossessed in an action brought for that purpose. The court, on the trial, instructed the jury, in behalf of the plaintiff [Randolph], in substance as follows:
"The jury have nothing to do, in this case, with the question of the ownership of the property in controversy. If they believe, from the evidence, that the plaintiff was in possession of it, claiming the right thereto as tenant of defendant, they should find that he was entitled to retain such possession until deprived of the same by process of law or by his own acts.
'The jury are instructed that forcible entry does not necessarily mean the taking of real estate from the possession of another by breach of the peace. The taking of such property by opening a gate and removing cattle or other stock therefrom, against the will of the one occupying such property, is a forcible entry under the law.
"The jury are instructed that no one, not even the owner, has the right to forcibly take real estate from the possession of another, no matter how justly he may be entitled to it; and if the jury believe, from the evidence, that the defendant forcibly took from the plaintiff the real estate in controversy, against the will of the plaintiff, the jury should find the issue herein for the plaintiff."
The defendant requested the court to give the following instructions:
'A forcible entry, in the law, means an entry with such force and violence as would amount to a breach of the peace. And in this case, if you believe, from the evidence, that the defendant, in entering on the premises in question, did not use force and violence amounting to a breach of the peace, then his entry was not a forcible one, within the meaning of the law.
'You are instructed that if you believe, from the evidence, that the plaintiff, Randolph, on the 30th day of April, or the 3d of May, 1890, rented the premises in question from the defendant for the period of one year from that time, and paid him the sum of $100 as rent for said premises for such year, then it became the duty of the plaintiff to surrender up the possession of said premises to the defendant at the expiration of such year, and in such case the plaintiff would not be entitled to any notice to quit and surrender up such possession to the defendant. And if you further believe, from the evidence, that the plaintiff did not surrender up the possession of said premises at the end of such year, then the defendant had the right to peaceably enter into the possession of said premises, even though they were still occupied by the plaintiff; and in such case, if you believe, from the evidence, that the defendant peaceably entered into possession of said premises and peaceably removed the cattle of plaintiff therefrom, this the law gave him a right to do, and you should, in such case, find the defendant not guilty."