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land is divided into distinct lots, is expressly confined to one lot; 1 but where no such division is made, and the land is not in the actual adverse possession of a person who entered before he did, the title would, by force of the statute, embrace all that was described in the conveyance.2

SEC. 263. Possession by Mistake. — The question whether a party can set up an adverse possession where lands have been occupied by him by mistake, has been often before the courts; and the rule has been adopted in some of the States, that where a person takes possession of land, and, through inadvertence or ignorance as to the true line, takes and holds possession of land not covered by his deed, with no intention of claiming or occupying beyond his actual boundaries, such possession will not support a plea of the statute against the real owner, because in such a case the possession lacks an essential requisite, viz. an intention to claim adversely, which is an indispensable ingredient to constitute a disseisin.* This doctrine, however, has been denied in Connecticut; and in all cases if a person under a mistake

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1 Appendix, New York, § 369.

2 Munro v. Merchant, 28 N. Y. 9.

8 Skinner v. Crawford, 54 Iowa, 119; Smith v. Morrow, 5 Litt. (Ky.) 210; M'Kinney v. Kenny, 1 A. K. Mar. (Ky.) 460; Thompson v. Babb, 45 Mo. 384; Brown v. Cockerell, 33 Ala. 45; Howard v. Reedy, 29 Ga. 154; Dow v. McKenny, 64 Me. 138; Robinson v. Kline, 70 N. Y. 147; Hanx v. Battin, 68 Mo. 84; Gruhe v. Wells, 34 Iowa, 148.

4 Ross v. Gould, 5 Me. 204; Brown v. Gay, 3 id. 126.

In Pearce v. French, 8 Conn. 439, the defendant occupied lands not embraced in his deed, under the mistaken idea that they were included in his deed. There was no evidence that he intended to occupy adversely, except such as might be afforded by the fact that he occupied and used them as his own. The court held that he thereby acquired title to the lands by possession; and in commenting upon the doctrine previously stated in the text, HOSMER, C. J., said: "In the case of Brown v. Gay, 3 Me. 126, the question was, whether the tenant was in possession of certain land by disseisin. He owned a lot denominated No. 3, and was in possession of lot No. 4, claiming that it was part of the former lot. He was, therefore, in possession through mistake. This principle was advanced by the court, to wit: 'If the owner of a parcel of land, through

inadvertency or ignorance of the dividing line, includes a part of an adjoining tract within his enclosure, this does not operate a disseisin, so as to prevent the true owner from conveying or passing the same by deed.' If the learned court meant to lay down the position that although the possession was adverse and a disseisin, yet that it was of such a character as not to prevent the owner from transferring the land by deed, the case has no bearing on the one before us. But if it was intended to declare that there was no disseisin at all, by reason of the before-mentioned mistake, I cannot accede to the proposition. There was a possession; it was not under the true owner, but it was under a claim of right; and the rents and profits (if any) were received and appropriated to the possessor's use, without any supposed or assumed accountability. This is a disseisin, by all the cases on the subject, with every mark or indicium of one upon its face. If the possession were incidental to the taking of something off the property, it would be a trespass only. But when the possession is a permanent object, under a claim of right, however mistaken, what can be a disseisin, if this is not? That the possessor meant no wrong, might be very important if he were prosecuted for a crime; for nemo fit reus, nisi mens sit rea. But the motive which induced the taking possession is remotely distant from the

as to the boundaries enters and occupies land not embraced in his title, claiming it as his own for the requisite statutory period, he thereby becomes invested with the title thereto by possession,' although

possession in right under a claim of right, and in no respect tends to qualify or give character to the act. It was adverse possession and disseisin (innocently happening), with the full intention of the mind to possess exclusively, and, by necessary consequence, a seclusion of the owner from the seisin of his property. I agree with the learned court that the intention of the possessor to claim adversely is an essential ingredient. But the person who enters on land believing and claiming it to be his own, does thus enter and possess. The very nature of the act is an assertion of his own title, and the denial of the title of all others. It matters not that the possessor was mistaken, and had he been better informed, would not have entered on the land. This bears on another subject, the moral nature of the action, but it does not point to the inquiry of adverse possession. Of what consequence is it to the person disseised that the disseisor is an honest man? His property is held by another under a claim of right, and he is subjected to the same privation as if the entry were made with full knowledge of its being unjustifiable.

"In the case of Ross v. Gould, 5 Me. 204, it is said, 'A disseisin cannot be committed by mistake, because the intention of the possessor to claim adversely is an essential ingredient in disseisin.' I do not admit the principle. It is as certain that a disseisin may be committed by mistake as that a man may by mistake take possession of land, claiming title, and believing it to be his own. The possession is not the less adverse because the person possessed intentionally, though innocently. But in the moral nature of the act there is undoubtedly a difference when the possessor knowingly enters by wrong.

"I have been the more particular in my observations, for two reasons. The first is, that the evidence of adverse possession, which is of very frequent occurrence, might be placed on grounds clear and stable; the next, from a serious apprehension that in the law of disseisin an

important change is inadvertently attempted. Adopt the rule that an entry and possession under a claim of right, if through mistake, does not constitute an adverse possession, and a new principle is substituted. The inquiry no longer is whether visible possession, with the intent to possess, under a claim of right, and to use and enjoy as one's own, is a disseisin; but from this plain and easy standard of proof we are to depart, and the invisible motives of the mind are to be explored; and the inquiry is to be had whether the possessor of land acted in conformity with his best knowledge and belief. In the case before us, the plaintiff adduced evidence to show that he entered on the land in question, and possessed it more than fifteen years, uninterruptedly and exclusively, under a claim and belief of right, and appropriating to his own use, without account, all the rents and profits. This was adverse possession and disseisin, and gave him title under the law of the State."

1 Ricker v. Hibbard, 73 Me. 300; Abbott v. Abbott, 51 id. 584; Hitchings v. Morrison, 72 id. 331; Wallbrun v. Batten, 68 Mo. 164. In Bunce v. Bidwell, 43 Mich. 542, an error was made in running the division lines between two farms, but the parties relying upon the lines so run occupied up to them for more than twenty years. Afterwards, the true line was run by an oral agreement between the parties. The court held that if the parties occupied up to the erroneous boundary line, supposing it to be the true boundary, and relying upon it, such line could not be disturbed afterwards, and that a mere oral agreement entered into after the statute bar had become complete would not change the rule, as the title of the parties had then become complete. But that if they did not rely upon the first survey, but expected to settle the line by another survey, when convenient, the mere possession for twenty years according to the erroneous line would not give title, and that the question as to intention of the parties and the nature of their possession is for the jury. See White

his entry and possession may have been founded upon a mistake. But where a person enters upon a lot not covered by his title, through mis

v. Hopeman, 43 Mich. 267, as to occupancy under an agreement relative to lines.

The question has frequently been before the courts as to whether a party can set up an adverse possession to lands occupied by him under a mistake, supposing the same to belong to him, when in point of fact they are outside of his real claim; and the doctrine evidently is that, where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and, if continued the requisite length of time, will bar the right of the true owner. In one case before the Supreme Court of New Hampshire, the title to a gore of land lying between the towns of Enfield and Grantham was involved. The proprietors of Enfield, supposing this gore to belong to them, had entered upon a portion of it, claiming the whole, and occupied such portion for more than twenty years. But it turned out that the gore was not embraced in this charter. A person took possession of a lot within the gore, and the proprietors of Enfield brought ejectment against him to recover it. The court charged the jury that, if the proprietors of Enfield had entered upon, and had peaceable possession of, the gore for more than twenty years, claiming it under their charter, they were entitled to recover, and that an entry into part was in law, for this purpose, an entry into the whole. Upon motion for a new trial, this latter branch of the charge was held to be erroneous; but the Chief Justice, who delivered the opinion of the court, expressly conceded that, to the extent of the actual occupancy of the plaintiffs, an adverse possession was made out. Enfield v. Day, 7 N. H. 457. And in a subsequent case, before the same distinguished tribunal, the language of the court was still more explicit. There the ancestor of the defendant, in locating the tract conveyed to him, had by mistake

taken possession of land outside the boundaries contained in his deed. He, however, and the defendant, who succeeded him, had actually improved only a part of this excess, enclosing the residue by a brush fence, and occasionally cutting firewood upon it. A verdict was obtained by the defendant as to the whole of the land in controversy, which the court set aside on the ground that he could not hold, by virtue of his adverse possession, beyond the bounds of his actual occupancy and improvement. The court, speaking of the defendant, says: "There is sufficient evidence to show that he held adversely beyond the limits of the one hundred acres (the contents of the deed), claiming title in himself, and twenty years' actual possession will give him a title to the lands thus holden." But the error was in allowing the party to hold the land beyond the limits of his deed and his actual occupancy. Hale v. Gladden, 10 N. H. 397.

The Court of Appeals of Kentucky has taken the same view of this question. It was held that a settler, who, in taking possession under his own claim, accidentally and unintentionally intrudes upon the claim of another, acquires thereby no interfering possession outside of his actual close. It was, however, assumed throughout the case, that to the extent of the actual enclosure the actual possession in such cases must be regarded as adverse; and the same doctrine has been adopted in subsequent cases before the same court. M'Kinney v. Kenny, 1 A. K. Mar. (Ky.) 460. And see Smith v. Morrow, 5 Litt. (Ky.) 210; Hunter v. Chrisman, 6 B. Mon. (Ky.) 463. And the Court of Appeals of the State of New York recognized the prin ciple of these cases as sound, and took the same view of the question of a mistaken possession of land outside of the bounds of the deed, under which the party claims, although this was a case of champerty and the expressions of the court on adverse possession were obiter. Crary v. Goodman, 22 N. Y. 170. And the general doctrine of the courts upon the subject is, undoubtedly, in accordance with the rule before stated.

take, he takes nothing by construction, and is limited to his actual occupancy.1 To the extent of his actual occupancy, which, in case a substantial fence is erected around it, includes the whole lot, he will hold, unless there is evidence that he did not intend to do so.2

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The rule may be said to be, according to the decided cases, that if a person enters upon land under color of title, and takes possession of lands not embraced therein, with the intention of possessing the whole, he is treated as being in possession of the whole; but if he enters upon a certain part, with the intention of possessing such part only, his possession is confined to that part. But a very important question arises as to whether the intention of the occupant is to be determined from his acts, or from his secret determination in that respect. If the former, then from the fact of exclusive use for the requisite period the adverse character of the occupancy is to be presumed, and the burden is upon the legal owner to show that it was not adverse in fact. If the latter, then the whole matter rests upon the integrity of the occupant. Where adjoining owners enter into possession and actually occupy to erroneous lines, under an agreement that the true lines may be afterwards ascertained, no length of occupancy to wrong lines under such agreement will be adverse, as the occupancy is in recognition of the owner's title. So where, for convenience of cultivation or the protection of his crops or fields, lands of adjoining owners are divided by fences not placed upon the true lines, inasmuch as the occupancy was not adverse in its inception it cannot become so by any length of possession, unless the other owner is notified of an intention to claim adversely. But where two conterminous owners agree upon what shall constitute the true line, and occupy up to it for the requisite statutory period, although it is not the true line, such line becomes established as the true line, and cannot afterwards be disturbed."

SEC. 264. Grantor in Possession. - Where a grantor remains in possession after a conveyance by him, his possession is presumed to be adverse to that of the grantee, where it has continued for a long time after the grant is made, and is inconsistent with its terms, and knowledge of possession by a subsequent purchaser affords some notice of the grantor's rights; and by remaining in possession for the full statu

1 Napier v. Simpson, 1 Tenn. 453.

2 Holton v. Whitney, 30 Vt. 410; St. Louis University v. McConn, 28 Mo. 481; Miner v. Mayor, &c. of New York, 37 N. Y. Superior Ct. 171; Robinson v. Phillips, 1 T. & C. (N. Y.) 151.

3 Bodley v. Cogshill, 3 A. K. Mar. (Ky.) 615; Mode v. Loud, 64 N. C. 433; Bowman v. Bartlett, 3 id. 99; Schneider v. Batsch, 90 Ill. 577. A person who takes possession under a claim without intending to intrude on another, but accidentally

does so, acquires no interfering possession. Smith v. Morrow, ante; M'Kinney. Kenny, ante.

4 White v. Hopeman, 43 Mich. 267; Irvine v. Adler, 43 Cal. 550; Devyn v. Schaefer, 54 N. Y. 446.

Betts v. Brown, 3 Mo. App. 20; McNamara v. Seaton, 82 Ill. 498; Soule v. Barlow, 49 Vt. 329.

Tanner v. Kellogg, 49 Mo. 118. 7 Brinkman v. Jones, 44 Wis. 498.

tory period adversely to the grantee he becomes reinvested with the title.1

SEC. 265. Landlord and Tenant.

It is a well-settled general rule

that a lessee cannot deny the title of his landlord, and this rule applies

rent.

1 Furlong v. Garrett, 44 Wis. 111. 2 Miller v. McBrian, 14 S. & R. (Penn.) 382; Shepard v. Martin, 31 Mo. 492; Cranz v. Croger, 22 Ill. 74; Plumer v. Plumer, 30 N. H. 558; Walden v. Bodley, 14 Pet. (U. S.) 156; Tewksbury v. Magraff, 33 Cal. 237; Cody v. Quarterman, 12 Ga. 386; Atwood v. Mansfield, 33 Ill. 452. And especially is this so in an action for Codman v. Jackson, 14 Mass. 93; Allen v. Chatfield, 8 Minn. 435; Watson v. Alexander, 1 Wash. (Va.) 340; Perkins v. Governor, Minor (Ala.), 352. And if there are two or more lessors, he cannot deny the title of either of them. Wood v. Day, 7 Taunt. 646; Delaney v. Fox, 1 C. B. N. s. 166; Friend v. Eastabrook, 2 W. Bl. 1152; Langford v. Selmes, 3 Kay & J. 220; Beckett v. Bradley, 7 M. & G. 994. The rule not only extends to the lessee, but to his assignee or undertenant. Kluge v. Lachenaur, 12 Ired. (N.C.) L. 180; Blackeney v. Ferguson, 20 Ark. 547; McCrancy v. Ransom, 19 Ala. 430; Lunsford v. Alexander, 4 Dev. & B. (N. C.) L. 40; Millhouse v. Patrick, 6 Rich. (S.C.) $50; Rose v. Davis, 11 Cal. 133. A stranger even, who comes into possession through the tenant, though by a purchase of the land, is subject to the rule. Newman v. Mackin, 21 Miss. 383; Lockwood

Walker, 3 McLean (U. S.), 431; Farley v. Rogers, 1 A. K. Mar. (Ky.) 245; Phillips v. Rothwell, 4 Bibb (Ky.), 33. The rule applies to a mortgagor and mortgagee, trustee and cestui que trust, and generally in all cases where one obtains possession by a recognition of the landlord's title. Willison v. Watkins, 3 Pet. (U. S.) 43. And whether the lease is by deed, in writing or oral, or even though he is in under an agreement for a lease merely, or under a contract of purchase.

Love v. Edmonston, 1 Ired. (N. C.) L. 152; Dubois v. Mitchell, 3 Dana (Ky.), 336; Williams v. Cush, 27 Ga. 507. In an action on a bond conditioned for the payment of the rent of certain premises recited in the condition, to be demised by indenture at

a certain rent, the defendant is estopped from saying that by the indenture a less rent than that mentioned in the condition was reserved. Lainson v. Tremere, 1 Ad. & El. 792. In an ejectment for mines against a member of a mining company, it was held that the defendant was estopped from disputing the title of the lessor of the plaintiff who had leased the mines to the company, of which the lessor was a partner at the time of the action, but not at the time he granted the lease. Francis v. Harvey, 4 M. & W. 331. The lessee may, however, show that his landlord's title has expired. Neave v. Moss, 1 Bing. 363; England v. Slade, 4 T. R. 682; Jackson v. Ramsbotham, 3 M. & S. 516; Strode v. Seaton, 2 C. M. & R. 728; Downes v. Cooper, 2 Q. B. 256; Agar v. Young, 1 Car. & M. 78; Claridge v. Mackenzie, 4 M. & G. 143; Leeming v. Skirrow, 7 Ad. & El. 157. But where a defendant, in an action for use and occupation, had occupied apartments in a house belonging to a wife, and had paid rent to the husband, who subsequently, with the knowledge of the defendant, granted a lease of the whole house to the plaintiff, it was held that, having occupied with notice of the lease, he could not impeach its validity, nor controvert the plaintiff's title. Rennie v. Robinson, 1 Bing. 147. Upon an information to set aside a lease of charity lands, it was held in chancery that the lessees could not dispute the title by setting up an adverse title whilst they retained possession. Att'y-Gen. v. Lord Hotham, 3 Russ. The interest of a tenant for life and a reversioner are the same, and therefore a lessee who has paid rent to the first cannot set up title in another person as an answer to an action by the latter after the death of the former. Colemore v. Whitroe, 1 D. & Ry. 1. A lessee, by executing an indenture of lease, admits a will under which it is recited that the lease was granted. Bringloe v. Goodson, 5 Bing. N. C. 738. A lessee of tolls, under an instrument signed by two persons as trus

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