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 .
22. Snell v. Harrison, 131 Mo. 495, 52 Am. St. Rep. 642, 32 S. W. 37, overruling Mabary v. Dollarhide, 98 Mo. 204, 14 Am. St. Rep. 639, 11 S. W. 611: Rogers v. Johnson, 259 Mo. 173, 168 S. W. 613; Perry v. Eagle Coal Co., 170 Ky. 824. 186 S. W. 875, apparently overruling Mar-tin v. Hall,. 152 Ky. 677. 153 S. W. 997; Brolaskey v. Mcclain, 61 Pa. St. 166; Wade v. Mc Dougle, 59 W. Va. 113, 52 S. E. 1026.
A like view has been taken as to the effect of a decree for a conveyance (Gower v. Quinlan, 40 Mich. 572) and a decree quieting title (Hintrager v. Smith, 89 Iowa. 270, 56 N. W. 456; Oberein v. Wells, 163 I11. L01, 16 N. E, 294).
23. Kennedy v Reynolds, 27 Ala. 364; Smith v. Hornback, 4 Litt. 233; Jack on v. Haviland, 13 Johns. 229.
And was consequently not conclusive as to the title generally,24 but this consideration has ceased to be effective with the change in the nature of the action. And the view that a change of possession is necessary can be based only on the theory that, in the absence of a change of possession, the running of the statute is not interrupted unless the possession loses its hostile character, and that it does not lose such character merely as a result of the rendition of a judgment in favor of the rightful owner. It is said on the other hand, that the judgment does have the effect of depriving the possession of its adverse character, for the reason that it estops the defendant therein from asserting that he holds under claim of title.25 But conceding that a holding under claim of title is necessary to put the statute in motion,26 it is by no means clear that a judgment in ejectment against the wrongful possessor should properly estop him from the assertion of such a holding. It estops him from asserting title in subsequent litigation, but he is at liberty, it would seem, after the rendition of the judgment, as before, to assert in conversation or otherwise, that he claims title to the property, and having made such assertion, to show, in subsequent litigation, that he did so. The bringing of an action by the true owner to assert his rights, followed by the recovery of a judgment by him, without any actual change of possession, might, it is submitted, be regarded as effective to stop the running of the statute against him, for the reason that in that way he has asserted, in the most conclusive manner possible, his rights in the land. While his failure to assert his rights by either action or entry involves laches on his part, it does not seem that he should be regarded as guilty of laches, and made to suffer accordingly, because, after asserting his rights by an action brought to a successful conclusion, he fails to follow this up by an entry on the land. He has a right to assume, after judgment in his favor, and in the absence of anything to show the contrary, that defendant, in retaining possession, is doing so in his behalf, that is, in accord with the adjudication.27
24. See an excellent editorial note in 9 Columbia Law Rev. at p. 351.
25. 9 Columbia Law Rev. 351.
26. Ante, Sec. 504.
- By cessation of possession. Since the statute runs against the rightful owner only if there is an actual possession of the land by another, it ceases to run upon a cessation of such actual possession, an interruption of the continuity of possession, as it is frequently termed. If such an interruption occurs, and possession is thereafter resumed, the limitation period commences to run only from the time of such resumption.28 Interruption of continuity of possession may result from the cessation by the person in possession of his exercise of arts of possession or ownership over the land,29 but the mere fact that the acts of possession are not continuous, or that the owner does not continue in actual occupancy, does not necessarily show an interruption of the posses-sion, this depending on the character of the acts necessary to constitute actual possession, the intention of the possessor, and the other circumstances of the case.30 Nor is the continuity of possession interrupted
27. See Sanford v. Herron, 161 Mo. 176, 84 Am. St. Rep. 703, 61 S. W. 839.
28. Ross v. Goodwin, 88 Ala. 390, 6 So. 682; Brown v. Hanauer, 48 Ark. 277, 3 S. W. 27; Town-send v. Edwards, 25 Fla. 582. 6 So. 212; Chicago & A. R. Co. v. Keegan, 185 111. 70, 56 N. E. 1088; Steeple v. Downing, 60 Ind. 478; Logan v. Williams, 159 Ky. 412, 167 S. W. 124; Armstrong v. Risteau's Lessee, 5 Ind. 256, 59 Am. Dec. 115; Old South Soc. v. Wainwright, 156 Mass. 115, 30 N. E. 476; Bliss v. Johnson, 94 N. Y. 235; Philipson v. Flynn.
83 Tex. 580, 19 S. W. 136; Hlinois Steel Co. v. Budzisz, 115 Wis. 68, 90 N. W. 1019.
29. Louisville & N. R. Co. v. Philyaw, 88 Ala. 264, 6 So. 837; Sharp v. Johnson, 22 Ark. 79; Clark v. White, 120 Ga. 957, 48 S. E. 357: Downing v. Mays, 153 111. 33, 46 Am. st. Rep. 896, 38 N. E. 620: Nixon v. Porter, 38 Miss. 101: Barrell v. Title Guarantee & Trust Co. 2,7 Ore. 77. 39 Pac. 997: Stephens v. Leach, 19 Pa. st 262; Fitch v Boyer, 51 Tex. 336.
30. Beabley v. Howell, 117 Ala 499. 22 So. 989: Aldrlch Mining by the entry of a third person upon the land, not effecting an ouster of the person previously in possession, such an entry constituting merely a trespass upon such person's possession.31
That the interruption of continuity of possession is the result of overwhelming necessity, such as the submersion of the property,32 sickness,33 or military conditions,34 appears' to be immaterial in this regard, but when the cessation of occupation is temporary merely, the fact that it is obviously the result of such necessity is a consideration tending to show that the legal possession is nevertheless continuing.35
- By cessation of hostility. Since the statute runs against the true owner in favor of one in possession only when such possession is hostile or adverse, it follows that if the possession, although otherwise continuous, ceases to be hostile or adverse, by reason of