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 .
24. Ante, Sec. 501, note 30.
25. But it has been decided in New York (Bedell v. Shaw, 59 N. Y. 46; Sanders v. Riedinger, 30 N. Y. App. Div. 277, 51 N. Y. Supp. 937, 164 N. Y. 564, 58 N. E. 1092) that one entering under an invalid "tax lease" did not acquire adverse possession as against the owner, for the reason that he asserted no claim to the fee. See ante, this section, note 20.
26. "If a man enter claiming a particular estate, when in point of fact there is not any such estate, then the disseisin is, of necessity, of the fee; for in things in esse there cannot be a particular estate without a reversion or remainder, and a particular estate cannot be created by claim or entry." 2 Preston, Ab. stracts of Title, 293. But in several Mississippi cases it is decided that if one enters under an invalid lease, made without authority in the name of the county for a term of ninety-nine years, possession by the lessee for the statutory period gives him a right to retain possession until the end of the term. See Brown v. Isaquena County Super visors, 54 Miss. 230; .Jones v. Madison County, 72 Miss. 777. 18 So. 87; Warren County v. Lambkin, 93 .Miss 128, 22 L. R. A. (N.
S.I 920, 46 So. 497. Sec note in 22 Harv. Law Rev. 138.
1984 Real Pbopebty. [Sec. 511
- As vesting title in third person. Reference has before been made to the case of a hostile entry on land under the mistaken impression that it belongs to the government, in which case, by the weight of authority, the statute runs against the rightful owner.27 The question then arises whether the statutory bar operates to vest the title in the person in possession or in the government, and this appears to depend primarily on whether he is to be regarded as holding on behalf of the government, or on his own behalf, the reasonable presumption being that he- holds in his own behalf.28 And even though he takes and holds possession in behalf of the government, a wrongful estate cannot be regarded as vested in the government, for the purpose of being perfected by the statute of limitations, unless the government in some way indicates its assent thereto, the case being in effect that of a disseisin to the use of another, which does not give a freehold to the other until the other agrees.29
- As vesting title in remainderman. Although, as above stated,30 according to the common law authorities, a disseisin has the effect of conferring a fee simple, except in the single case when there previously existed a particular estate, and the disseisor claims such particular estate only, it may occur, according to modern decisions, that the fee simple is conferred on a person other than the person in wrongful possession, by reason of the fact that the person in possession entered under an instrument which purported to give him a life estate only, with remainder in favor of such other. There are several decisions to the effect that if one having no title undertakes to convey or devise particular land to A for life with remainder in fee simple to another, and A
Enters, and the statutory period expires with him in possession, the statute runs in favor not only of A but also of the remainderman named.31 In other words, in such a case, the wrongful estate in fee simple is gained for the remainderman and not for the life tenant. This view has been based upon the theory of estoppel, and the case has been assimilated to that of the estoppel of a tenant to deny the title of the lessor.32 Applying such an analogy, the idea would seem to be that the intended life tenant, having acquired possession by force of the devise or conveyance, as a lessee acquires possession by force of the lease, he, and those in privity with him, are precluded from asserting, as against any person, such as the remainderman, who is in privity with the testator or grantor, that the title in fee was at the time outstanding in another, and was so capable of being acquired by the intended life tenant by force of the statute of limitations. In this country the same result has been held to follow in the case of a convey-ance or devise to one for life with remainder to another in fee simple, when the conveyance or devise was invalid or inoperative as regards the particular prop erty, not by reason of lack of title in the grantor or testator, but for some other reason.33 In England, on the other hand, the estoppel has not been applied in such case as against the intended life tenant, for the reason, apparently, that the asserted remainderman cannot be regarded as in privity with the grantor or testator, and is consequently unable to assert the estoppel.38a The
27. Ante, Sec. 504, note 82.
28. See editorial notes, 14 Harvard Law Rev. 374, 18 Id. 380.
29. Co. Litt. 180b; Viner's Abr.
Disseisin (E) (G); Bacon's Abr. Disseisin (A).
30. Ante, this section, notes 14-18.
31. Board v. Board, L. R. 9 Q. B. 48; Reynolds v. Trawick, -Ala. - , 78 So. 827; Charles v. Pickens, 214 Mo. 212, 24 L. R. A. (N. S.) 1055, 112 S. W 551.
32. Board v. Board, L. R. 9 Q. B. 48, per Blackburn, J.
33. Hanson v. Johnson, 62 Ind. 25, 50 Am. Rep. 199; Anderson v. Rhodes, 12 Rich. Eq. 104. See Brown v. Brown, 82 Tenn. 263, where the will was voidable and not void. Compare 28 Yale Law Journ., p. 234, remarks of Pro fessor Ballantine.
33a. Dalton v. Fitzgerald. (1897), 1 Ch. 87; Paine v Jones. L. R. 18 Eq. 320; Re Stringer'e Estate. 6 Ch. D. 1; In re Ande r son (1905), 2 Ch. 70; In re Ten nent's Estates (1913), 1 Ir. 280.
English view, rather than that asserted in this country, harmonizes with the common law rule that a disseisin does not operate to create a particular estate. In order, however, that the estoppel operate in any case in favor of the person named as remainderman, it would seem to be necessary, as a recent writer has well pointed out,33b that the grantor or testator have been himself in possession, since if he was not in possession, there was nothing which could be regarded as passing by the conveyance or devise, so as to create a privity in the remainderman named.
- As between husband and wife. In case both husband and wife are upon the land belonging to a third person, and the wife alone has color of title, the statute, it appears, will run in her favor rather than in favor of the husband, that is, the possession will be presumed to accord with the color of title.34
- As against bona fide purchaser. One who acquires title by adverse possession for the statutory period may, it has been decided, assert such title as against a bona fide purchaser of the record title, although such adverse possessor had relinquished possession previous to the sale.35 The recording acts protect a bona fide purchaser only as against a prior instrument which might have been, but was not. re-corded,36 and there is no obligation upon one who has acquired title by adverse possession to retain the pos-session in order to charge a subsequent purchaser with notice of his rights. But if one in wrongful possession of land, before the end of the limitation period, obtains a conveyance from the true owner, his possession should thereafter, it seems, be regarded as based on the conveyance, so that, if he fails to record it, a subsequent bona fide purchaser will acquire a superior title although, if the person in possession had not received the conveyance from the true owner, he would, by the running of the statute of limitations, have acquired a title superior to that of the subsequent bona fide purchaser.37 Having obtained a deed from the rightful owner, his possession ceases to he wrongful, and the statute runs only in favor of a wrongful possession.
33b. Article by Professor Henry Winthrop Ballantine, 28 Yale Law Journ. at pp. 224-235. This appears to be recognized by Jessel, M. R. in Re Stringer's Estate, 6 Ch. D. 1.
34. Mcleod v. Bishop, 110 Ala. 640, 20 So. 130; Clark v. Gilbert, 39 Conn. .96; Meraman v. Caldwell, 8 B. Mon. (Ky.) 32; Potter v. Adams, 125 Mo. 118, 46 Am. St. Rep. 478, 28 S. W. 490; Tem-pleton v. Twitty, 88 Tenn. 595, 14 S. W. 435; Holton v. Whitney, 30 Vt. 405; Hatch v. Lusignan,
117 Wis. 428, 94 N. W. 332. And See Collins v. Lynch, 157 Pa. St. 246, 37 Am. St. Rep. 723, 27 Atl. 721.
35. Faloon v. Simhauser, 130 111. 649, 22 N. E. 835; Schall v. Williams Valley R. Co., 35 Pa. St. 191; Macgregor v. Thompson, 7 Tex. Civ. App. 32, 26 S. W. 649; East Texas Land etc. Co. v. Shelby, 17 Tex. Civ. App. 685, 41 S. W. 542; Winters v. Powell, 180 Ala. 425, 61 So. 96 (semble). See Ridgeway v. Holliday, 59 Mo. 444.