peared that it should be open to a jury to find, that adverse possession began from the determination of the rightful estate of the party.1 Where a feme sole, seised in fee, married, and she and her husband ceased to be in possession or enjoyment of the land, and went to reside at a distance from it; and they both died at times which were not shown to be within forty years from their ceasing to occupy; and the wife's heir at law brought ejectment against the person in possession within twenty years of the husband's death, and within five years of the passing of the statute 3 and 4 Will. IV., but more than forty years after the husband and wife had ceased to occupy, it was held, that the heir at law was barred by the 17th section of that statute, though it did not appear when or how the defendant came into possession. By Lord Denman: "The fact being clear, that, within the terms of 3 and 4 Will. IV., c. 27, s. 3, the plaintiff's mother was dispossessed, or discontinued the possession, or receipt of the rents, above forty years before the action brought, the action is clearly barred by section 17 of the same statute. Some argument was raised on the question whether the possession was adverse or not; but the terms of that clause are unequivocal, and one of its objects was to avoid the necessity of inquiring into facts of so ancient a date." 2 § 418. The mere fact of possession by one claiming no title to the premises, it has appeared, is no disseisin of the rightful owner; and the latter may therefore convey or devise, notwithstanding statutes for the prevention and punishment of champerty, &c.3 But that the deed of a disseisee, during the continuance of the disseisin, is inoperative to convey a title, has, in a very modern case, been declared a familiar principle of the common law, which cannot be controverted. It is inoperative, however, only as against the disseisor, or person holding adversely, and others afterwards coming in under him; and, in respect to all the rest of the world, it is operative, and passes, there 1 Report of Real Property Commissioners, p. 47. 2 Corbyn dem. Branston, 3 Adol. & Ell. R. 63; and 3 Eng. Com. Law R. 30; and 4 Nev. & Man. R. 664. And, for further decisions on this subject, under the important statute of 3 and 4 Will. IV., and the construction given it, see Appendix, from p. xxiii. to p. xxxi. 8 Jackson v. Todd, 2 Caines (N. Y.), R. 153. 4 Parker v. Proprietors of Locks and Canals, 3 Met. (Mass.), R. 98; and see Bradstreet v. Huntingdon, 5 Peters (U. S.), R. 402. fore, the grantor's title. Accordingly, if, after such deed, the person who held adversely voluntarily abandon the possession, the grantee may enter and enjoy the land; or, if a stranger enter, the grantee may bring ejectment, and oust him. But, if the adverse holder continue in possession, after the deed, the grantor is the only person who can sue for the land; and a recovery by him will enure to the benefit of the grantee. It may, indeed, be laid down as a maxim in the law, that a title, which once existed, must continue to reside somewhere; it cannot be annihilated. Such adverse possession will not, however, affect the deed, if it appear that both the grantor and the adverse claimant were under an equitable title to convey. The statute of maintenance was intended for the benefit of adverse claimants; and they can renounce the benefit of it. A, being the owner of a farm, executed a deed to B, intending thereby to convey the whole; but, by means of a mistake in the description, the deed only conveyed about one third of the farm. B took possession, and executed a mortgage, intending that it should cover the whole farm, but which, in fact, contained a description copied from the deed. The mortgage was assigned to D, and foreclosed, he becoming the purchaser. Some time afterwards, D discovered the mistake in the deed and mortgage, and requested A and B to correct it, threatening to file a bill against them if they refused. B said he would abide by whatever A thought proper to do in the matter; whereupon the latter executed to Da quitclaim deed of the whole farm, B being still in possession. It was held, that D acquired a title to the whole farm.2 1 Livingston v. Proseus, 2 Hill (N. Y.), R. 526; Jackson v. Brinckerhoff, 3 Johns. (N. Y.), Cas. 101; Jackson v. Vandenburg, 1 Johns. (N. Y.), R. 159; Williams v. Jackson, 5 id. 489; Jackson v. Leggett, 7 Wend. (N. Y.), R. 377. 2 Cameron v. Irwin, 5 Hill (N. Y.), R. 272. The purchaser of an equity of redemption, sold by the sheriff on execution, obtains by the sale a seisin of the land, unless the mortgagor is disseised at the time of the sale; in which case he obtains only a right of entry; and, in order to maintain a writ of entry, counting upon his own seisin, he must actually enter. Poignard v. Smith, 6 Pick. (Mass.), R. 172. The old cases with regard to maintenance and champerty go further than would now be sustained in courts of equity. Baker v. Whiting, 3 Sumn. (Cir Co.), R. 476. CHAPTER XXXII. COTENANCY. § 419. An estate in joint-tenancy is where lands or tenements are granted to two or persons, to hold in fee-simple, fee-tail, for life, for years, or at will.1 An estate given to a number of persons, without any restriction or explanation, will, at common law, be construed a joint-tenancy; for every part of the grant can take effect only by considering the estate equal in all.2 Joint-tenants are said, in technical language, to be seised, per my et per tout; that is, each of them has the entire possession, as well of every part as of the whole; or, no one can be exclusively seised of one acre, and his companion of another; each having an undivided moiety of the whole, and not the whole of an undivided moiety. The seisin and possession of one joint-tenant, then, being the seisin and possession of the other or others, one can never be disseised by another, without, in the language of the books, an actual ouster. And hence, the mere fact of uninterrupted possession of one joint-tenant, or an uninterrupted possession which implies no expulsion of the other, is not adverse.1 § 420. An estate in common is one which is held by two or more persons by unity of possession, who may acquire their estate by pur 1 2 Black. Com. 179. 2 The distinguishing incident of this estate is the right of survivorship, or jus accrescendi; and, at common law, the entire tenancy or estate, upon the death of any one of the joint-tenants, went to the survivors, and so on to the last survivor, who took an estate of inheritance. This right of survivorship has been abolished in most of the States in this country. Griffith, Ann. Law Reg.; 4 Kent, Com. 359; 1 Swift's Dig. 102; 1 Bouv. Law Dict. 523. 3 1 Litt. 288; 2 Cruise, Dig. 497; Reading v. Rawsterne, 2 Salk. R. 422; Martin v.. Smith, 5 Binn. (Penn.), R. 22. 4 [Brooks v. Towle, 14 N. 248. But a grantee, by conveyance from one of two joint owners of land, after possession taken, holds adversely to the other joint owner. Larman v. Huey, 13 B. Mon. (Ky.), 436.] chase, and hold by several and distinct titles, as well as by title derived at the same time, by the same deed or will. It differs from a joint-tenancy, in which there is both unity of title and unity of time. Like a joint-tenant, a tenant in common can never be disseised but by an actual ouster.1 § 421. An estate in coparcenary is an estate of inheritance in lands which descend from the ancestor to two or more persons, who are called coparceners, or parceners. In England, the term is applied to cases only where land descends to females, for the want of a male heir. In this country, estates generally descend to all the children equally; and whatever there may be of technical distinction between coparcenary and estates in common, may be considered as essentially extinguished in the United States.2 The same general doctrine, therefore, in respect to adverse possession, as between coparceners, applies, that applies as between tenants in common, and as between joint-tenants; and one heir, notwithstanding his entry as heir, may afterwards, by disseisin of his coheirs, acquire an exclusive possession, upon which the statute will run against his coheirs.3 1 See authorities last above cited; and Hoffsetter v. Boonville, 8 Mis. R. 276; Caruthers v. Dunning, 3 Serg. & Rawle (Penn.), R. 381; Doolittle v. Blakesley, 4 Day (Conn.), R. 473; Burnitz' Lessee v. Casey, Cranch (U. S.), R. 457. Devise of a moiety of a tract of land to be taken off the side nearest the testator's brother, and the other moiety to another; the devisees are not tenants in common. Frederick v. Gray, 10 Serg. & Rawle (Penn.), R. 182. If a person purchases land under an agreement that another shall be equally concerned, he will be considered, in equity, as holding for himself and the other as tenants in common. Stewart v. Brown, 2 Serg. & Rawle (Penn.), R. 461. 2 4 Kent, Com. 362; 1 Bouv. Law Dict. 522. 3 Ricard v. Williams, 7 Wheat. (U. S.), R. 59; Iler v. Routh's Heirs, 3 How. (Miss.), R. 276; [Means et al. v. Welles et al. 12 Met. (Mass.), 357; Caperton v. Gregory, 11 Gratt. (Va.), 505]. In New York, under the former practice in ejectment, judgment passed against the casual ejector (John Stiles), unless the tenant came in and entered into the consent rule, by which he was obliged to confess lease, entry, and ouster. If he claimed only an undivided interest in the premises, as coparcener, jointtenant, or tenant in common, he was permitted, on showing that fact to the court, and that there had been no ouster, to enter into a special consent rule, admitting the lessor's title as to the undivided part, and was excused from confessing ouster to the extent of such conceded interest, leaving that question to be litigated on the trial. The Revised Statutes have abolished the consent rule, and it is now provided that it shall not be necessary, on the trial, for the defendant to confess, nor for the plaintiff to prove lease, entry, and ouster, except where the action is brought by one or more tenants in common, or joint-tenants, against their cotenants; in which case, the plaintiff, in addition § 422. Lord Hobart reports it to have been laid down by the Court of Common Pleas, in 12 James, that the entry of one tenant in common might be in three ways: either in the name of herself or her fellow; or generally, which shall always be taken according to right, as being under construction of law, and therefore lawful; or, lastly, entry claiming all expressly, which cannot dispossess her fellow,for her possession is over all lawful, as well before as after such claim, so that there is no possession altered by such claim. Then a sole claim without more can never change the possession; and, without a change of possession, it remains as before. This authority shows that a tenant in common, like a joint tenant, can never be disseised, by his cotenant, but by an actual ouster.2 to other necessary proof, is required to show an actual ouster, or some other act amounting to a total denial of his right as such cotenant. Both from the former practice in ejectment, and from the language of the Revised Statutes, before the plaintiff can now be called upon to prove an ouster, the defendant must make out, on the trial, that he is a cotenant with him of the premises; and it is only when that relation is shown to exist, that proof of ouster becomes necessary. Nor does the fact, that the plaintiff is seeking to recover an undivided interest only, devolve upon him the necessity of this proof; for it by no means follows, that the defendant owns the other portion, or any part of it. The defendant being in the possession and occupation of the whole, the presumption, in the absence of any other proof to the contrary, is, that he holds in hostility to the plaintiff, that he claims title to, and possession of, every part and parcel of the premises. The burden, therefore, lies upon him to make out the fact of a tenancy in common or joint-tenancy. This being done, the presumption of law arises, that he holds in subordination to the right of his cotenant, and that his possession is the possession of both. And hence, in such case, the propriety and necessity of some evidence that he has denied the plaintiff's right, before he shall be subjected to the expenses of a suit. 2 N. Y. Rev. Stat. 306; and opinion of the court, by Nelson, Ch. J., in Sharp v. Ingraham, 4 Hill (N. Y.), R. 116. See also, Siglar v. Van Riper, 10 Wend. (N. Y.), R. 414; Butler v. Phelps, 17 id. 647; Gillett v. Stanley, 1 Hill (N. Y.), R. 121. In England, an action of ejectment, founded on the joint demise by tenants in common, cannot be sustained. Adams on Eject. 186. This rule has been disregarded here, and actions of ejectment founded on the joint demise by tenants in common, have been sustained. The principle on which these cases proceed, is, that the possession of tenants in common is joint, and that they may join in disposing of that interest. The demise alleged in the old action of ejectment was of a possessory interest, and no more; and such right only was recovered. But, although that doctrine may be sound as to the mere right of possession of tenants in common, it has no application to their right of property. They have not, as joint-tenants and coparceners have, a joint right of property. Their freeholds are several, and therefore they could not, at common law, join in real actions. Cole v. Irvin, 6 Hill (N. Y.), R. 634. And see also, Roscoe on Real Actions, 7; Jackson v. Bradt, 2 Caines (N. Y.), R. 169; Malcolm v. Rogers, 5 Cow. (N. Y.), R. 188; Doe v. Butler, 3 Wend. (N. Y.), R. 149. 1 Snales v. Dale, Hob. R. 120. 2 Reading v. Rawsterne, 2 Salk. 422. One tenant in common received all the rents |