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 .
It has been said that unless the donee's entry into possession is under the honest belief that the land was given him, he Is presumed to be holding under a license, and the possession not to be adverse. Johns v. Johns. 244 Pa. 48, 90 At. 535; O'royle v. Kelley, 249 Pa. 13, 94 Atl. 4ls The idea apparently is that if the person so entering knows that the land was nol legally given him, he is presumed to regard his possession as per missive merely until a valid gift is actually made.'
21. Robinson v. Thornton, 102
- (f) Vendor and vendee. The possession of the vendee of land under an executory contract of sale is presumed to be in subordination to the rights of his vendor so long as the purchase price has not been paid or the contract is otherwise unperformed on his part,22 while, by the weight of authority, so soon as he has completely performed his part of the contract, his possession becomes adverse to the vendor,23 as it does, even before performance by him, if he explicitly repudiates holding under the vendor.24
Cal. 675, 34 Pac. 120; Carmody v. Chicago & A. R. Co., Ill 111. 69; Big Sandy Co. v. Ramey, 162 Ky. 236, 172 S. W. 508; Melvin v. Proprietors of Locks & Canals on Merrimack River, 5 Mete. (Mass.) 15, 38 Am. Dec. 384; Case v. Green, 53 Mich. 615, 19 N. W. 554; Mattison v. Ausmuss, 50 Mo. 551; Nowlin v. Adams, 25 Gratt (Va.) 137; Parkersburg Nat. Bank v. Neal, 28 W. Va. 744.
22. Lewis v. Hawkins, 23 Wall 119; Sample v. Reeder, 107 Ala. 227, 18 So. 214; Perry v. Arka-delphia Lumber Co., 83 Ark. 374, 103 S. W. 724; Woodward v. Hennegan, 128 Cal. 293, 60 Pac. 769; Spratt v. Livingston, 32 Fla. 507, 22 L. R. A."453; Moore v. Mobley, 123 Ga. 424, 51 S. E. 351; Peabody v. Hewett, 52 Me. 33, 83 Am. Dec. 486; Brown v. King, 5 Mete. (Mass.) 173; Burke v. Douglass, 115 Mich. 197, 73 N. W. 133; Moring v. Abies, 62 Miss. 263, 52 Am. Rep. 186; In re Department of Public Parks, 73 N. Y. 560; Worth v. Wrenn, 144 N. C. 656, 57 S. E. 388; West v. Edwards, 41 Ore. 609, 69 Pac. 992; Moore v. Kelly, 57 Okla. 348, 157 Pac. 81; Mcculloch v.
Nicholson, - Tex. Civ. App - , 162 S. W. 432; William James Sons Co. v. Hutchinson, 79 W. Va. 389, 90 S. E. 1047. The possession of the vendee has been regarded as becoming adverse in case the vendor repudiates the contract, as by conveying to another person. Pearson v. Boyd, 62 Tex. 541.
23. Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174; Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148; New Domain Oil & Gas Co. v. Gaffney Oil Co., 134 Ky. 792, 121 S. W. 699; Grigsby v. Smith, 174 Ky. 819, 192 S. W. 856; Brown v. King, 5 Mete. (Mass.) 173; Moring v. Abies, 62 Miss. 263, 52 Am. Rep. 186; Ogle v. Hignet, 161 Mo. 47, 61 S. W. 596; Lanham v. Bowlby, 86 Neb. 148, 125 N. W. 149; Anderson v. Mccormick, 18 Ore. 301, 22 Pac. 1062; Watts v. Witt, 39 S. C. 356, 17 S. E. 822; Central Pac. Ry. Co. v. Tarpey, - Utah-, 168 Pac. 554; Adams v. Fullam,
43 Vt. 592; Furlong v. Garrett.
44 Wis. 1ll; See Endicott v. Haviland, 220 Mass. 48, 107 N. E. 394.
24. Zeller v. Eckert, 4 How. 295 Sample v. Reeder, 107 Ala 227, 18 So. 214; Pope v. Brassit is not entirely clear why the performance of the vendee's part of the contract should be regarded as ipso facto giving to his possession an adverse character, but it is perhaps based on the view that the vendee is then entitled to possession,25 and that consequently, while previously his possession could be explained only on the theory that he was the tenant of the vendor,26 such tenancy might be regarded as automatically ended by reason of complete performance of the contract by him. There are decisions, however, that even in the case of such complete performance by the vendee, a repudiation of the vendor's title is necessary to start the running of the statute.27 And in support of this view it may be suggested that, whatever change in the relations of the parties may be made by the vendee's performance, in the view of a court of equity, it does not change their relations at law.
Where the vendee under an executory contract of sale transfers his interest to another, who takes possession, the possession of the latter is ordinarily, like-that of the original vendee, not adverse to the vendor,28 provided at least he has notice that his vendor, the field, 110 Ky. 128, 61 S. W. 461: Burke v. Douglass, 115 Mich. 197, 73 N. W. 133; Lanham v. Bowlby, 86 Neb. 148, 125 N. W. 149; Cook v. Knott, 28 Tex. 85; Chapman v. Chapman, 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813.
25. See cases cited, 19 Am. & Eng. Encyc. Law (2d Ed.) 704; 39 Cyclopedia Law & Proc. 1621.
26. See 1 Tiffany, Landl'd & Ten. Sec. 43a.
27. Pope v. Brassfield, 110 Ky. 128, 61 S. W. 5; Roxbury v. Hutson, 37 Me. 42 (Seville); Rodgers v. Beckel, 172 Mich. 544, 138 N. W. 202 (semble); Chapman v. Chapman, 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813; Core v. Faupel, 24 W. Va. 238.
In Briggs v. Prosser, 14 Wend. 227, whether the possession after performance is adverse, was regarded as a question to be d< mined with reference to the facts.
28. Lewis v. Hawkins, 23 Wall. 119; Hannibal, etc., R. Co. v. Miller, 115 Mo. 15S. 21 S. W. 915; Jackson v. Bard, 4 Johns. (N. Y.) 230, 4 Am. Dec. 267; Gillison v. Savannah, etc.. R. Co., 7 S. C. 173. Compare iluntrr v. Parsons, 2 Bailey (S. C.) 59.
Original vendee, claims under an executory contract.29 It has been decided, however, that if the original vendee make a conveyance to another, who takes without notice that his grantor is holding merely under an executory contract of sale, the possession of the grantee is adverse to the original vendor.30 And there are occasional decisions that the mere fact that a purchaser from the original vendee has made full payment to the latter suffices in itself to make such purchaser's possession adverse to the original vendor.31 In any case, the possession of one claiming under the original vendee, like that of the original vendee himself, may become adverse by reason of his repudiation of the claim of the vendor.32