This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
As regards the doctrine referred to, of the presumption of a conveyance based on long continued possession, it has been said, by the United States Supreme Court, that in order to presume a conveyance it is not necessary for the jury to believe that a conveyance was in fact executed, but it is sufficient if the evidence leads to the conclusion that the conveyance might have been executed, and that its existence would be a solution of the difficulties arising from its non execution.7 Such a view has also been indicated by some of the state courts,8 while others merely recognize that long continued possession is a fact, to be considered along with other facts, tending to show that a conveyance was executed, without being in any way conclusive in that regard.9
The cases do not ordinarily specify the length of the period of possession which will be sufficient to justify the presumption of a grant. It would appear, however, that in so far as the presumption is regarded as a rule of law, calling for the finding of a grant without
7. Field, J., in Fletcher v. Fuller, 120 U. S. 534, 30 L. Ed. 759.
8. Kidd v. Browne, - Ala. - , 76 So. 65; Reed v. Money, 115 Ark. 1. 170 S. W. 478; Casey's Lessee v. Inloes, 1 Gill (Md.) 430, 503, 39 Am. Dec. 658; Melvin v. Wad-dell, 75 N. C. 357; Davis v. Mc-arthur, 78 N. C. 357; Williams v. Donnell, 2 Head (Tenn.) 695;. Dunn v. Eaton, 92 Tenn. 743, 23 S. W. 163; Matthews v. Burton, 17 Gratt. (Va.) 312.
9. Nelson v. Weekly, 195 Ala. 1, 70 So. 661; Carter v. Good-son, 114 Ark. 359, 169 S. W. 806; Sumner v. Child, 2 Conn. 607;
Valentine v. Piper, 22 Pick. (Mass.) 85, 33 Am. Dec. 715: Jenkins v. Mcmichael, 21 Pa. Super. Ct. 161; Taylor v. Wat-kins, 26 Tex. 688; Herndon v. Vick, 89 Tex. 469, 35 S. W. 141; Townsend v. Downer's Adm'r, 32 Vt. 183.
Regarded as a mere matter of inference, a grant may be inferred or presumed from other facts, even though the person asserting the grant had never been In possession. Le Blanc v. Jack-son,-tex Civ. App.- 161 S. W 60.
A conveyance from the state may be presumed,13 although the statute of limitations will not ordinarily run against the state.14 A conveyance will not be presumed, it seems, on the part of one who was incapacitated to make a conveyance.15
- Character of possession. Ordinarily at least, the statutes of limitation with reference to land in terms impose no requirement upon the person in wrongful possession as to the character of his possession neces10. Ante, this section, notes 7, 8.
11. Waggener v. Waggener, 3 T. B. Mon. (Ky.) 542; Hunt v. Hunt, 3 Mete. (Mass.) 175, 57 Am. Dec. 130; Kellum v. Corr, 209 N. Y. 486, 103 N. E. 701; Stockdale v. Young, 3 Strob. L. S. C.) 501; Coleman v. Coleman, 71 S. C. 521, 51 S. E. 250; Scales v. Cockrill, 3 Head (Tenn.) 432; Cannon v. Phillips, 2 Sneed (Tenn.) 211.
12. Barclay v. Howell, 6 Pet. (U. S.) 498, 8 L. Ed. 477; Ricard v. Williams, 7 Wheat, 59, 5 L. Ed. 398; Courcier v. Graham, 1 Ohio, 330 Stockdale v. Young, 3 Strob. L. (S. C.) 501.
13. United States v. Chaves, 159 U. S. 452, 40 L. Ed. 215; Carter v. Walker, 186 Ala. 140,
Runs by reason of such wrongful dispossession it would ordinarily be correct to say that the statute runs in favor of a disseisor as against the disseisee. But it also runs under circumstances which did not involve a disseisin at common law, as for instance, when a tenant pur auter vie holds over after the death of cestui que vie,18 or a tenant for years disclaims the title of his landlord.19 On the other hand the statute may not run under circumstances which at common law involved a disseisin. "If a man entereth into land of his own wrong, and take the profits, his words to hold it at the will of the owner cannot qualify his wrong, hut he is a disseisor."20 But the statute of limitations would not run in favor of one so entering and claiming to be tenant at will of the rightful owner, for the reason that his possession lacks the element of adverseness or hostility, which is necessary to the running of the statute. Furthermore the expression "disseisin," like "dispossession,"has reference to a change of occupancy, while the expression "adverse possession " involves the idea of a continuous occupancy without change.
Sary to make the bar effective, and it is merely by reason of the endeavor of the courts adequately to protect the interests of the rightful owner that certain requirements in this regard have become established. The most important of these requirements is that to the effect that the possession must be hostile or "adverse" to the true owner, and so generally has this requirement been recognized, and so important has it been regarded, that the expression "adverse possession" has come to be generally applied to describe that branch of the law which has to do with the construction and application of the statutes of limitation in reference to land. The emphasis thus laid upon the character of the wrongful possession has the unfortunate effect of obscuring the theory on which, as above stated, these statutes appear properly to operate, that is, that, like other statutes of limitation, they bar the remedy of the person rightfully entitled not by reason of any merit in the wrongdoer, but by reason of the demerit of the person who, having a remedy, fails to exercise it within the time named in the statute.
65 So. 170; Tracy v. Norwich etc. R. Co., 39 Conn. 382; Jarboe v. Mcatee, 7 B. Mon. (Ky.) 279; State v. Dickinson, 129 Mich. 221, 88 N. W. 621; Caruth v. Gillispie, 109 Miss. 679, 68 So. 927; Jackson v. Mccall, 10 Johns. (N. Y.) 377; Reed v. Earnhart, 10 Ired. (N. C.) 516; Davis v. Mcarthur, 78 N. C. 357. See Editorial note, 29 Harv. Law Rev. 88.
14. Post, Sec. 510.
15. Hunt v. Hunt, 3 Mete. (Mass.) 175, 37 Am. Dec. 130; Spears v. Oakes, 4 Rich. L. (S. C.) 347; Habersham v. Hopkins, 4 Strob. L. (S. C.) 238, 53 Am. Dec. 676 (deed in breach of trust); Garrett v. Weinberg, 48 S. C. 28; Martin v. State, 10 Humph. (Tenn.) 157; Drewery v. Nelms, 132 Tenn. 254, 177 S. W.
It is occasionally said that the adverse possession which is sufficient to cause the statute of limitations to run is synonymous with disseisin, as recognized at com-moii law, but this is not entirely correct. Disseisin is, properly, "where a man enters into any lands or tenements where his entry is not congeable (i. e. permissible), and ousted him which has the freehold."16 Dis seisin then, as the expression was used in the old hooks, means a wrongful dispossession of one who has a free hold estate in the land. And it was carefully distinguished from a mere trespass, which did not involve any dispossession of the freeholder.17 Since then disseisin, generally speaking, meant the wrongful dispossession of one person by another, and the statute of limitations of dominion over the land as will constitute what the law regards as actual possession of the land.22 This requirement of actual possession by another appears to find sufficient justification in the consideration that unless some other person is in possession there is no one against whom the rightful owner can enforce bis righl of action or entry, and so no one in favor of whom the statute can operate, and also in the consideration that if no person is in possession there is nothing to suggest to the rightful owner the desirability or propriety of asserting his rights in the land.
With other circumstances, be sufficient.26 On the other hand, a merely occasional and sporadic use of the land, an occasional entry to cut timber or grass, or to appropriate other products or profits of the land, does not usually constitute actual possession.27 The question whether, in any particular case, there was an actual possession of the land, is ordinarily one of fact for the jury under the instructions of the court.28
A usual one being that land shall be regarded as possessed by one when it has been protected by him by means of a substantial enclosure, or when it has been "usually cultivated and improved,"29 this latter phrase being construed as equivalent to cultivated and improved as land of a similar character is usually cultivated and improved.30
946; Ferguson v. Prince, 136 Tenn. 543, 190 S. W. 548. 16. Litt, Sec. 279.
17. Co. Litt. 181a. 2 Preston Abstracts, 237.