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 .
Since the statute of limitations cannot commence to run until there is a right of action in favor of the rightful owner, it follows that the doctrine above referred to, that the repudiation of the tenancy starts the running of the statute, necessarily involves th-assumption that such repudiation gives a right to the landlord to assert a forfeiture of the tenant's estate, and there are quite a number of decisions that it does give such right.81 In a few jurisdictions, however, it appears that a mere oral disclaimer of the tenancy does not give any right of action to the Landlord,82 and in any such jurisdisdiction adopting that view, the repudiation of the tenancy could not start the statute in favor of the tenant, until after the expiration of the term for which the tenancy was created.
(S. C.) 225, 40 Am. Dec. 594; Bryce v. Cayce, 62 S. C. 546, 4C S. E. 948; Duke v. Harper, 6 Yerg. (Tenn.) 280, 27 Am. Dec. 462; Udell v. Peak. 70 Tex. 547, 7 S. W. 786; Stacy v. Bostwick, 48 Vt. 192; Allen v. Paul, 24 Gratt. (Va.) 332; Voss v. King, 33 W. Va. 236, 10 S. E. 402.
79. Wells v. Sheerer, 78 Ala. 142; Cotton v. White, 131 Ark. 273, 199 S. W. 116; Morton v. Lawson, 1 B. Mon. (Ky.) 45; Catlin v. Decker, 38 Conn. 262: Brandon v. Bannon, 38 Pa. 63; Cosgrove v. Franklin, 35 R. I. 527, 87 Atl. 544; Floyd v. Mintsey, 7 Rich. Law (S. Car. i 181; Udell v. Peak, 70 Tex. 547, 7 S. W. 786; Rensens v. Lawson, 91 Va 226, 21 S. E. 347; Swann v. Thayer, 36 W. Va. 46. 14 S. E. 423.
80. Wells v. Sheerer. 78 Ala. 142; Rigg v. Cook, 9 I11. 336, 46 Am. Dec. 462; Farrow v. Edmund-son, 4 B. Mon. (Ky.) 605, 4l Am. Dec. 250; Myers v. Silljacks, 58 Md. 319; Mcclanahan v. Mcclana-han, 258 Mo. 579, 167 S. W. 991.
81 These decisions are cited -Tiffany. Landlord & Tenant, Sec. 192.
82. See Jackson v. Kisselbrack, 10 Johns. ( N. Y) 336, 6 Am. Dec 341; De Lancey v. Ganong, 9 N. v. 9; Bedlow v. N.y. Floating Dry Dock Co.112 N. Y. 263, 287, 2 L. R. A. 629, 19 N. E. 800; Rosseel v. Jarvis, 15 Wis 571, 82 Am. Dec 298; Gale v. Oil Run Petroleum Co. 6 W Va 200; Doe d. Grave v. Weill. 10 Adol. & El. 427; Doe d. Daniels v. Weese, 5 Up Can. Q B 589
Occasionally it has been asserted that, in order that the tenant may start the statute running in his favor, he must not only repudiate the teancy, but must also relinquish the possession acquired under the lease and then reenter.83 This view appears to be based on the theory that by reason of the doctrine that a tenant is estopped or precluded to deny his landlord's title,84 he cannot make his possession adverse by such a denial, but that such doctrine ceases to apply after the tenant has relinquished possession. The doctrine of the estoppel of the tenant to deny the landlord's title has, it is submitted, no bearing whatsoever upon the question. That doctrine precludes the tenant from denying, in certain classes of action, that the lessor had a valid title at the time of the lease, but it does not, and in fact it cannot, preclude him from making such a denial out of court, and there is nothing in the doctrine to prevent him from subsequently showing, in the course of a legal proceeding, that he did make such denial, and that as a result of such denial the title of the lessor was extinguished by the statute of limitations. Furthermore, if this doctrine of estoppel did apply for this purpose, it is most questionable whether it should cease to apply merely because the tenant relinquishes possession,85 unless such relinquishment is accepted by the landlord, so as to effect a surrender by operation of law,86 in which case the former tenant's subsequent entry might well be adverse.
There are occasional decisions to the effect that if one holding under a lease assumes to transfer a fee simple estate in the property, and the transferee takes possession in ignorance of the fact that his transferor had merely a leasehold interest to transfer, the possession of the transferee is adverse to the original landlord, although the latter has no notice to that effect.87 Such decisions do not appear to accord with the well settled rule that the statute does not commence to run by reason of the repudiation of the tenancy unless and until notice of such repudiation is brought home to the landlord. The landlord has a right to assume, until notified of the contrary, that one in possession under a transfer from the lessee is in possession as tenant merely, and while the fact that the transferee is ignorant of the lease shows that there is no recognition by him of the landlord's title, this is no reason for applying as against the landlord a doctrine which has properly no application in the absence of laches on the part of the latter.88 And so, if one holding as tenant at will dies, and his widow-succeeds him in the possession, her possession is presumed, in the absence of any repudiation by her of the tenancy, to be subordinate to the title of the true owner.88a
83. Millett v. Lagomarsino, 107 Cal. 102, 40 Pac. 25; Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576; Whiting v. Edmunds, 94 N. Y. 309; Dasher v. Ellis, 102 Ga. 830, 30 S. E. 544; Flannery v.
Hightower, 97 Ga. 592, 25 S. E. 371. See 2 Columbia Law Rev. 52, 9 Id. 451.
84. Ante, Sec. 57.
85. Ante, Sec. 57 (d).
86. Ante, Sec. 431.
If the tenant under a lease holds over without the consent of the reversioner, that is, without right, he is not, properly speaking, a tenant of the person whom he wrongfully excludes from possession,89 but nevertheless his possession is, prima facie, not regarded as adverse to the latter.90
87. Macdougall v. Reedy, 71 Ga. 750; Dikeman v. Parrish, 6 Pa. 225, 47 Am. Dec. 455; Town-send v. Boyd, 217 Pa. 386, 12 L. R. A. N. S. 1148, 66 Atl. 1099; Illinois Steel Co. v. Budzisz, 139 Wis. 281, 119 N. W. 935, 121 N. W. 362.
88. See Luce v. Carley, 24 Wend. (N. Y.) 451, 35 Am. Dec. 637; Bedlow v. New York Floating Dry Dock Co., 112 N. V. 263, 287, 2 L. R. A. 629, 19 N. B. 800;