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 .
- (e) Grantor iand grantee. If one who has made a conveyance of land retains possession of the land, his possession is regarded as prima facie in subordination to the title of his grantee, and as consequently not adverse, unless and until he in some way indicates to the latter that he holds in his own behalf.10 v. La Grande Hydraulic Water Co., 20 Ore. 34; Kittaning Academy v. Brown, 41 Pa. St. 269; Raleigh v. Wells, 29 Utah, 217, 110 Am. St. Rep. 689, 81 Pac. 908.
In Cameron v. Chicago, M. & St. P. Ry. Co., 60 Minn. 100, 61 N. W. 814, it was held that the fact that the licensee undertook to transfer the land to another, who took possession, did not start the running of the statute in favor of such other, since it might be assumed that the owner, in not objecting to the lat-ter's presence on the land, in effect regarded him as a licensee. The decision seems open to question, since it does not appear that the transferee in possession regarded himself as a licensee. But see Bond v. O'gara, 177 Mass. 139, 83 Am. St. Rep. 265; 58 N. E. 275, criticized 14 Harv. Law Rev. 374.
13a. See Pollock & Wrighj. Possession 17; Lightwood, Possession of Land, 22; Holmes, The Common Law, 227.
14. Baucum v. George, 65 Ala. 259; Hoskins v. Byler, 53 Ark. 532, 14 S. W. 864; Peabody v. Tarbell, 2 Cush. (Mass.) 226; Combs v. Goldsworthy, 109 Mo. 151, 18 S. W. 1130; Leigh v. Howard, 87 N. J. L. 113, 93 Atl. 680; Martin v. Jackson, 27 Pa. St. 504, 67 Am. Dec. 489; Pea-body v. Leach, 18 Wis. 657.
15. Carney v. Hennessey, 77 Conn. 577, 60 Atl. 129; Whiting's Heirs v. Taylor's Heirs, 8 Dana (Ky.) 403; Martin v. Jackson, 27 Pa. St. 504, 67 Am. Dec. 489; Williams v. Pott, L. R. 12 Eq. 149. As to adverse possession by an agent, holding by one to whom he has leased the land for his principal, see note in 14 Columbia Law Rev. at p. 266.
16. Daniels v. Williams. 177 Ala. 140, 58 So. 419; Stuttgart v. John, 85 Ark. 520, 109 S. W. 541'; Gernon v. Sisson, - (Cal.) 131 Pac. 85; Jay v. Whelchel.
The cases do not clearly explain why the possession of the grantor is thus presumed not to be in his own behalf.17 Obviously, if the grantor retains possession by reason of permission to that effect from the grantee, his possession is not adverse, it being in effect that of a tenant, ordinarily a tenant at will, of the latter,l8 but the desirability of regarding the grantor as a tenant of the grantee, or as otherwise holding in behalf of the latter, in the absence of any evidence to that effect, appears to be open to question.19
78 Ga. 786; Trask v. Success Mining Co., 28 Idaho, 483, 155 Pac. 288; Rowe v. Beckett, 30 Ind. 154, 95 Am. Dec. 676; Iowa Cent. R. Co. v. Homan, 151 Iowa, 404, 131 N. W. 878; Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205; Nugent v. Peterman, 137 Mich. 646, 100 N. W. 895; Collins v. Colleran, 86 Minn. 199, 90 N. W. 364; Robinson v. Reynolds - (Mo.) - , 176 S. W. 3; Cohn v. Plass, 85 N. J. Eq. 153, 95 Atl. 1011; Jackson v. Burton, 1 Wend. (N. Y.) 341; Flesher v. Callahan, 32 Okla. 283, 122 Pac. 489; Gardner v. Wright, 49 Ore. 609, 91 Pac. 286; Pierce v. Barney, 209 Pa. 132, 58 Atl. 152; Lowe v. Turner, 78 S. C. 513, 59 S. E. 529; Virginia Midland R. Co. v. Barbour, 97 Va. 118, 33 S. E. 554; Spaulding v. Collins, 51 Wash. 488, 99 Pac. 306; Schwall-back v. Chicago, M. & St. P. Ry. Co., 69 Wis. 292, 2 Am. St. Rep. 740, 34 N. W. 128.
17. It is occasionally said that the grantor's possession is not adverse, because he is to be regarded as tenant at sufferance of the grantee. See e. g. Daniels v. Williams, 177 Ala. 140, 58 So. 419; Building & Loan Ass'n v. Warren, 101 Ark. 163, 141 S.
W. 765; Mcneil v. Jordan, 28 Kan. 7; Bloomer v. Henderson, 8 Mich. 395. A tenant at sufferance is a wrongful possessor, and he is not properly a tenant of the person whom he deprives of possession. And consequently that one is tenant at sufferance does not appear to be conclusive that his possession is not adverse. In other words, the fact, if it be a fact, that the grantor retaining possession is tenant at sufferance (See 1 Tiffany, Landlord & Ten., Sec. 44) does not in itself show that his possession is not adverse. For instance, if a tenant per autre vie retains ipossession after the death of the cestiu que vie, his possession is usually regarded as adverse to the remainderman [see post Sec. 513(g)], although he is a tenant at sufferance.
18. See Prichard v. Tabor, 104 Ga. 64, 30 S. E. 415; Butler v. Nelson, 72 Iowa, 732, 32 N. W. 399; Hunt v. Comstock, 15 Wend. (N. Y.) 665; Preston v. Hawley, 101 N. Y. 586, 5 N. E. 770, Id., 139 N. Y. 296, 34 N. E. 90G; Cadwallader v. Lovece, 10 Tex. Civ. App. 1, 29 S. W. 666, 917; Hodges v. Gates, 9 Vt. 178.
One who goes into possession of land under a transfer of the land from the owner, whether by wav of gift or otherwise, which is invalid because oral merely, may usually assert the bar of the statute against the owner if his possession continues for the statutory period, since his possession is presumed to be adverse to any right in the owner.20 And generally a grantee's possession is regarded as adverse to the rights of the grantor, whatever be the character of the defects in the grant.21
19. See, in this connection, Knight v. Knight, 178 111. 553, 53 N. E. 306; Waltemeyer v. Baughnian, 63 Md. 200; Smith v. Montes, 11 Tex. 24; Brinkman v. Jones, 44 Wis. 498, 524.
In Arkansas it is said that when the grantor's possession continues unexplained for an unreasonable length of time, the presumption that it is in subordination to the grantee's title is gradually overcome. Tegarden v. Hurst, 123 Ark. 354, 185 S. W. 463. It does not appear whether, if the presumption is thus overcome, the limitation period is to be regarded as beginning to run from the date of the grant or when the presumption is overcome.
20. Gillespie v. Gillespie, 149 Ala. 184, 43 So. 12; Trotter v. Neal, 50 Ark. 340, 7 S. W. 384; New Haven Trust Co. v. Camp, 81 Conn. 539, 71 Atl. 788; Studstill v. Wilcox, 94 Ga. 690, 20 S. E. 120; Stewart v. Duffy. 116 111. 47, 6 N. E. 424; Albright v. Albright, 153 Iowa, 397, 133 N. W. 737; Tippenhauer v. Tippenhauer, - (Ky.) - , 166 S. W. 225; Sumner v. Stevens, 6 Mete. (Mass.) 337; Schafer v. Hauser, 111 Mich. 622, 35 L. R. A. 835, 66 Am. St. Rep. 403, 70 N. W. 136; Sinclair v. Matter, 125 Minn. 484, 147 N. W. 655; Ran-nels v. Rannels, 52 Mo. 109; Davidge v. Talbot, 98 Neb. 816, 154 N. W. 543; Parker v. Kelsey, 82 Ore. 334, 161 Pac. 694; Nulton v. Nulton, 247 Pa. 572, 93 Atl. 630; Bartlett v. Secor, 56 Wis. 520, 14 N. W. 714.