trine is held; but the weight of authority, as well as common sense and the principles applicable to adverse possession, seem to support the rule as stated, because a person entering under such circumstances enters as owner, and occupies under a claim of ownership, and every attribute requisite to acquire a title by adverse possession exists. --- the SEC. 261. Mixed Possession. — The rule is, that where there is a mixed possession, that is, where there are two or more persons in possession, each under a separate conveyance or color of title, possession will be treated as being in him who has the better title, upon the ground that the seisin is in him who has the best title, and, as all cannot be seised, the possession follows the title. The rule is well nor any authorized agent of his, so interrupted or disturbed that possession as to prevent the acquisition by her of a complete title. The act of authorizing a well to be dug and pipes to he laid in the land is of little importance. It was the act of an agent who had no special authority to interfere with the possession of this property, and certainly a general authority, upon the facts found, would not authorize it. The same may be said in respect to the taxes. As there was no conveyance of the property on record, the assessors naturally continued to put it into the list of H. W. Gilbert, and the taxes were paid by his agent. The fact that he soon discontinued paying the taxes is a much more significant fact for the petitioner. This view of the principles involved is sustained by all the decisions involving the questions which have been found. The general principle that a husband, occupying the property of the wife with her or solely, is presumed to be occupying in subordination to her title is generally recognized. See 2 Selden, 342, and cases there cited. "There have been two cases analogous to this decided in our sister States during the last ten years. The first was the case of Steel v. Johnson, 4 Allen (Mass.), 425, decided in 1862. In that case the father gave to his daughter, who was a married woman, some real estate, and put her in possession of it, and she continued to hold possession for more than twenty years, and it was holden that by operation of law she thereby became vested with a complete title to the estate, which neither the father nor his grantees during his life, nor his heirs-at-law after his death, could successfully contest. "Another analogous case which arose in New Jersey and was decided in 1867, was that of Outcalt v. Ludlow, 32 N. J. L. 251. In that case a father gave a house and lot to a married daughter, and put her and her husband in possession, and they occupied until the statute of limitations had run against the father. Upon the question whether she or her husband was entitled to claim title acquired by such possession, it was holden, first, that a possession so entered into in right of the wife could not be taken advantage of by the husband to the prejudice of his wife, for his possession was only through her, and he could not, by any act of his own against his wife, change it into a possession adverse to her. Second, that if she was permitted by the father to hold possession of the property as hers, and by lapse of time such adverse possession ripened into a title, that title was hers." 1 Watson v. Tindal, 24 Ga. 494; Jackson v. Rogers, 1 Johns. (N. Y.) Cas. 36. PARSONS, C. J., in Langdon v. Potter, 2 3 Mass. 219; Gilman v. Wilson, 10 id. 151; Cushman v. Blanchard, 3 Me. 266; Bellis v. Bellis, 122 Mass. 414; Crispin v. Hannovan, 50 Mo. 536. When two persons are in possession of land at the same time, under different claims of right, he has the seisin in whom the legal title is vested. Winter v. Stevens, 9 Allen (Mass.), 526. If the holders of two hostile titles to the same tract of land are each in the occupation of a small portion within the exterior boundaries of the tract, the constructive possession follows the true title, and the statute of limitations does not run in favor of the holder of the invalid title, except as to his actual possession. If one 1 settled that title draws to it the possession, and it remains with the owner of the legal title until he is divested of it by an actual, adverse possession; and, while he is in possession of a part of the premises, his possession is entitled to the benefit of the constructive possession, and can only be ousted by, and to the extent of, the actual occupation of a mere intruder.2 Although," says PARSONS, C. J.,3 8 there may be concurrent possession, there cannot be a concurrent seisin of land; and one only being seised, the possession must be adjudged to be in him, because he has the best right.”4 "There would appear to be 66 instrument under which claimant enters, who claims title under a deed to a large 1 Davidson v. Beatty, 2 H. & McH. (Md.) 621; Hammond v. Ridgely, 5 H. & J. (Md.) 245; Dow v. Stephens, 1 D. & B. (N. C.) 5; Hall v. Powell, 4 S. & R. (Penn.) 465; Orbison v. Morrison, 1 Hawks (N. C.), 468; Burns v. Swift, 2 S. & R. (Penn.) 433. 2 Id.; Barr v. Gratz, 4 Wheat. (U. S.) 213; Cushman v. Blanchard, 3 Me. 266. 3 Langdon v. Potter, ante. 4 Livingston v. Peru Iron Co., 9 Wend. (N. Y.) 511; Brimmer v. Propri etors of Long Wharf, 5 Pick. (Mass.) 131. In a case recently before the Supreme Court of the United States, Hunnicutt v. 16 than no clearer principle of reason and justice," said DUNCAN, J.,1 that if the rightful owner is in possession of a part of his tract, by himself or his tenant, he is in the constructive and legal possession and seisin of the whole, unless he is disseised by actual occupation and dispossession. If this were not so, the possession by wrong would be more favored than the rightful possession. . . . In this kind of mixed constructive possession the legal seisin is according to the title. Title draws possession to the owner. It remains until he is dispossessed, and then no further than actual dispossession by a trespasser, who cannot acquire a constructive possession, which always remains with the owner." In Pennsylvania, where, by statute as well as by the courts, much force is given to surveys by a person going into the adverse possession of lands, it is held that in the case of interfering surveys the possession will be adjudged to be in him who has the elder title, and the possession of a person holding a junior survey, unaccompanied by an actual entry upon the interference, takes nothing by construction, and acquires no title in the lands within the interference, following in this respect the rule existing in all cases of mixed possession. But where a person lays a new survey on parts of older surveys, the interior lines of which are not marked, and takes actual possession of a part of the land, and exercises dominion over all, and establishes his lines and pays taxes on the whole, he acquires title thereto. But he will not acquire possession beyond his marked lines, even though embraced within his survey; and if his survey interferes with others, his constructive possession will be broken by the entry of the owner of the warrant upon any part of the land within the bounds of his survey; and if the Peyton, 102 U. S. 333, it was held that the possession of a person who under color of title enters upon vacant lands and holds adversely, is construed to hold so much as is within the boundaries of his title, and to that extent the legal owner is disseised. But, if the legal owner is in actual possession of any part of the land whereon the entry is made, his constructive seisin extends to all not in fact occupied by the intruders. See also, to same effect, Scott v. Elkins, 83 N. C. 424. The rule seems to be well settled that two persons representing separate interests cannot have constructive possession of the same land at the same time, consequently the benefit of constructive possession necessarily and rightfully belongs to the legal owner, and all others are confined to their actual occupancy. Hodges v. Eddy, 38 Vt. 344; Stevens v. Hollister, 18 id. 294; Whittington v. Wright, 9 Ga. 23; Codman v. Winslow, 10 Mass. 146. And the occupation neces 2 Calk v. Lynn, 1 A. K. Mar. (Ky.) 346; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677; Miller v. Shaw, 7 S. & R. (Penn.) 143; Roger v. Benlow, 10 id. 305. 3 Cluggage v. Duncan, 1 S. & R. (Penn.) 116; McArthur v. Veitchen, 77 Penn. St. 62; Washabaugh v. Entriken, 39 id. 513; Altemus v. Trimble, 9 id. 232; O'Hara v. Richardson, 46 id. 385; Beaupland v. McKeen, 28 id. 124; Hole v. Rittenhouse, 25 id. 491. 4 Nearhoff v. Addleman, 31 Penn. St. 279; Heiser v. Riehle, 7 Watts (Penn.), 35; Kite v. Brown, 5 id. 291; Hatch v. Smith, 4 id. 109. 5 Reland v. Eckert, 23 Penn. St. 215. 6 Altemus v. Long, 4 Penn. St. 254. evidence in the case of interfering surveys is equally balanced, the preference is given to the oldest survey.1 2 SEC. 262. Limits upon the Operation of Possession by Construction. -The doctrine of constructive possession under color of title is subject to certain limitations, and cannot be extended to whole townships of land, nor to large tracts of land not taken for the ordinary purposes of cultivation and occupation; nor does it apply unless the lands actually possessed have some necessary connection with the other portion, as by use with it or subservience to it. In the case last cited, which was an action of ejectment to recover five-sixteenths of four thousand acres of land, divided into quarter-sections, the plaintiff, hearing that the defendants intended to enter upon certain lands, caused a shanty without a roof to be erected thereon, also a barn, and cut logs from about a quarter of an acre of the land. The court held that the recov 1 Hull v. Wilson, 11 Penn. St. 515. 2 Chandler v. Spear, 22 Vt. 388; Hunter v. Chrisman, 6 B. Mon. (Ky.) 463. 3 Sharp v. Brandon, 15 Wend. (N. Y.) 397; Chandler v. Spear, ante; Hunter v. Chrisman, ante; People v. Livingston, 8 Barb. (N. Y.) 253. In ejectment, the defence of twenty years' adverse possession, in order to countervail a legal title, must be supported by twenty years' actual occupancy, or a substantial enclosure of the premises by the defendant, or by him and those through whom he derives title. A cultivation of part of the premises for that time, with a claim of title to the whole, will not constitute a defence beyond the portion actually improved. And even where such possession is under a deed or paper title, for a large tract of land (e. g. 783 acres), and only a small part is improved (e. g. 2 acres), with a claim of title to the whole, this will not constitute an adverse possession beyond the actual improvement. And where one takes a deed purporting to describe a tract of land, but which, by a mistake in the description, covers nothing, and the grantee, by occu pation, takes possession of a part, and claims title to the whole of the supposed tract, under the deed, this is an adverse possession only as to the part actually improved. And, accordingly, in Dervient v. Lloyd, decided October term, 1820, but not reported, where the defendant had a deed for Lot 4, but took possession of Lot 5, adjoining, believing it to be Lot 4, and claiming it as such, and improving a part, it was held that his adverse possession did not extend beyond his actual improvements. The doctrine of the constructive adverse possession of lands by the cultivation of part, accompanied by a claim of the whole under a deed, does not apply to large tracts of land not purchased for the purpose of actual cultivation. The doctrine is in general applicable to a single farm or lot of land only, purchased for the purpose of actual cultivation. A constructive adverse possession must be founded on a deed or paper title, though such title need not be a rightful one. Gilliland v. Woodruff, 1 Cow. (N. Y.) 276; Miller v. Dow, 1 Root (Conn.), 412. In Ten Eyck v. Richards, 6 Cow. (N. Y.) 623, the opinion of the court was delivered by SUTHERLAND, J.: "The judge decided correctly upon the subject of adverse possession; that the tract H being a large tract of land subdivided into different lots, the occupancy of any one of the lots would not give a constructive possession, or create an adverse possession of other parts of the tract. Jackson v. Woodruff, 1 Cow. (N. Y.) 276. And as lot number 12, the premises in question, was not actually possessed at the time of the marriage of the lessors of the plaintiff, there was no adverse possession to bar the right of the lessor, Ann Ten Eyck. This question has been repeatedly decided by this court. Indeed, the point was abandoned by the defendant's counsel upon the argument." 4 Thompson v. Burhaus, 79 N. Y. 93. ery must be limited to the land actually occupied, to wit, one quarter of an acre, and that the circumstance that the plaintiff, after the action was commenced, built roads and cut a large quantity of logs upon the lot in dispute, was immaterial upon the question of constructive possession.1 But the doctrine of this case arises under the peculiar statute of New York, and for that reason does not seem to accord with the rule that a possession of a part of premises under a deed purporting to pass the title of land, with definite boundaries, is extended by construction to the whole tract conveyed, except as against the owner of the legal title, who is also in possession,2 unless it is put upon the ground, as it really was, that the land claimed by construction had no necessary connection with the part actually possessed, by use or as being subservient to it.3 A distinction is also made by many of the courts between lands laid out into distinct lots and those which are not, and in the former case it is held that an entry upon and possession of one lot, under a conveyance which embraces several, cannot be extended by construction to other lots not actually occupied. There must necessarily be limitations imposed upon the application of the doctrine of constructive possession, or the consequences might be disastrous; and the tendency of the courts is to hold, as previously stated, that it can only be held to extend to lands taken for the ordinary purposes of cultivation and occupation.* And some of the cases hold that where a person claims the benefit of this doctrine under color of title and by adverse possession of a part of the land, it must be restricted to a single farm or lot for the purposes of ordinary cultivation or improvement." Of course, in those States where the statute provides what shall be the effect of color of title and occupancy of a part, the statute will control; but in New York and the other States before referred to, as fixing the effect of such colorable title, and what shall constitute possession, title by construction, where 1 In this case the court disapproved of the doctrine of Wood v. Banks, 14 N. H. 101, that an entry upon a lot with a view of taking possession of it by spotting the trees around it, is a sufficient possession of land as against one not having a better right to enter upon the land, and held that such acts of themselves, or taken in connection with the acts detailed, could not be held sufficient to extend the plaintiff's possession by construction to such spotted lines. Reversing Thompson v. Burhaus, 15 Hun, 580. Bare possession of land, and exercising arts of ownership over it, is sufficient to put all persons on inquiry as to the occupant's claim. Franklin v. Newsom, 53 Ga. 580; Morgan v. Taylor, 55 id. 224; Havens v. Bliss, 26 N. J. Eq. 363. And this applies to levies upon execution, judgment liens, &c. Morgan v. Taylor, ante. A prior possession, although short of the statutory period, is sufficient against a subsequent adverse possession, and enables the occupant to maintain his claim against everybody except the owner, or those claiming nnder him. Martin v. Bousack, 61 Mo. 556; Adams v. Guerard, 29 Ga. 651. 2 Scott v. Elkins, 83 N. C. 424. 3 People v. Livingston, ante; Wilson v. McEwen, 7 Oreg. 87. 4 Chandler v. Spear, ante. 5 Jackson v. Woodruff, 1 Cow. (N. Y.) 277; Jackson v. Richards, 6 id. 617; Sharp v. Brandon, 15 Wend. (N. Y.) 597. |