right to redeem accrued to the children. Then the question arises: Does the statute begin to run against minor children, at the time of foreclosure or after they become of age? In Alexander v. Hill, 7 South. 238, it was held that the statute of limitation, with the mortgagee in possession at a void sale, did not begin to run until the minor had reached majority. In that case the court said that it could conceive of no state of facts which would authorize the presumption that a person not sui juris had a right to ratify and affirm a sale made under the circumstances shown in the bill.

The land in question descended, at the time of the death of B. H. Ellis to his widow, E. V. Ellis, and her children, as tenants in common; they owned the land jointly, with all the rights of co-tenants, and the widow had the additional right to occupy exclusively until her death, or until she married again; hence the same law that governs tenants in common will apply to the appellants. Then, could Mrs. Ellis, who was a co-tenant, build up title in herself? She could not. Can she build up title in Garrett? Not unless her adverse holding was brought home to the other owners, unless they are actually ousted, unless the claim be open and notorious.

Appellees had the right to rely on the possession of Mrs. Ellis, their mother. Her holding was in keeping with their ownership. A tenant in common cannot acquire title adverse to that of the other owner. Wise v. Hyatt, 19 South. 37; Ship v. McKie, 31 South. 197.

Argued orally by J. F. Dean, for appellants, and by M. H. Thompson and W. A. Taylor, for appellees.

MAYES, C. J., delivered the opinion of the court.

A very careful investigation of this case leads to the irresistible conclusion that B. F. Garrett, as mortgagee after condition broken, entered into the actual possession of the land about which this contest is being waged, and was in actual possession and receiving the profits

and rent of the land for a period of more than twenty years before the institution of this suit. We do not deem it necessary to enter into a detailed statement of the facts in this opinion. In reporting the case, the reporter can do that. In addition to being in possession of the land under conditions that were notorious throughout all that neighborhood, renting it out and receiving rents therefor, the parties in possession reciting in their deeds in trust that it was the land of Garrett for years and years; he paid taxes on it and had it assessed to him for over twenty years. All these things corroborate the statement of the witnesses to the effect that Garrett was in possession and receiving the rents, though not conclusive in themselves. This case is absolutely controlled by section 3092 of the Code of 1906, which is as follows, viz.: "When a mortgagee, after condition broken, shall obtain the actual possession or receipts of the profits or rent of land embraced in his mortgage, the mortgagor, or any person claiming through him, may not bring a suit to redeem the mortgage but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given in writing, signed by the mortgagee, or the person claiming through him; and in such case a suit may not be brought but within ten years next after the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given; but such acknowledgment shall be effectual only as against, and to the extent of the interest of the party signing it."

This section contains no saving clause as to minors or other persons whomsoever, and when once it is shown that the mortgagee, after condition broken and without fraud, actually obtains possession of the land, or receipt of the profits or rent of land embraced in his mortgage for the period prescribed by statute, his title is complete.

The statute above quoted is explicit and positive, and gives the mortgagee title when he has obtained actual possession, or when he has been in receipt of the rents. and profits of the land for more than ten years. In short, actual possession is not necessary in order to perfect the title; but even if there has been no actual possession, but there has been a receipt of rents and profits for the period of limitation, the title is complete. It is contended that, even if it is shown that the mother and brother of complainants did surrender the land to the mortgagee, this act of theirs could not prejudice the rights of the other heirs, equally interested in the property, unless acquiesced in by them. We do not think this contention can be sustained under the statute. The statute is purely a statute of limitations, peremptory in its commands, and utterly without indulgence. Such statutes as this, though seemingly harsh at times, yet work out much good in the adjustment of affairs between man and man, and prevent more wrong than they perpetrate. The fact of the possession of the land embraced in the mortgage by the mortgagee after condition broken, or the fact of the receipt by him of profits and rent of the land for a period of ten years, makes this title complete, no matter how or through whom he obtains his possession, or how he obtains the profits or rents, unless, of course, he obtains it through fraud. It will rarely happen that a mortgagee will be allowed to retain possession of land for ten years without disturbance from the owner of same, unless there has been some kind of a transfer of the property to the mortgagee.

The decree of the chancellor is reversed, prayer of cross-bill sustained, and decree entered here canceling the claim of complainants in the original bill as a cloud upon the title of B. F. Garrett, and the title to property Ideclared to be in B. F. Garrett.

So ordered.

98 Miss.]

Brief for appellant.

INGRAM-DAY LUMBER COMPANY V. FRANK HARVEY.

[53 South. 347.]

1. NEGLIGENCE. Logging railroad. Licensee. Assumed risk. A logging railroad used exclusively for hauling logs to a saw mill, not being a common carrier, owes no duty to a party not connected with the road, who rides upon one of its cars without invitation, except not to willfully injure him.

2. ASSUMED RISKS. Same.

Such a person taking passage on such a road is bound with a knowledge of the character of the road and assumes the risk.

APPEAL from the circuit court of Harrison county. HON. W. H. HARDY, Judge.

Suit by Frank Harvey against the Ingram-Day Lumber Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Money & Graham, for appellant.

The court below should have excluded the evidence and directed the jury to find for the appellant; and having failed in that, should have peremptorily instructed the jury to find for the appellant as requested in appellant's first instruction upon the whole evidence.

If this were a case where mere negligence was charged, the appellee could not recover because of his contribu tory negligence in taking his seat and riding on the tank or tender which was being pushed by the engine, and where he remained with his back in the direction the train was going. If appellee had ridden either in the engine cab or on the log cars he would not have been injured, as no one riding in either of these places was hurt, hence he cannot recover. Illinois, etc. R. R. Co. v.

Brown, 77 Miss. 338; Martin v. Kansas, etc. R. R. Co., 77 Miss. 720; Railroad Co. v. Jones, 95 U. S. 439. The appellant was not a common carrier. No fare was demanded of appellee, nor was any paid. The declaration is drawn on the theory that as he was riding on appellant's train for his own pleasure, and on no matters concerning appellant. The evidence showing the custom of appellant's servants to permit others to ride free of charge, discloses that appellee was a mere licensee, and it was upon that theory alone that the case was tried and submitted to a jury.

There can be no recovery upon the second count of the declaration alleging willful, wanton and reckless negligence in regard to the repair and condition of the road bed and track, alleged therein as the proximate cause of the injuries, or that the running of the train over it with the engine and tender reversed. When appellant got on the train the track was in the same condition and the engine and tender and cars were in the same position as they were at the time of the injury; and while the evidence shows clearly that it was no more dangerous to run the engine and tender reversed than forward, so far as jumping the track is concerned, yet even if it were, Harvey accepted the whole situation when he accepted the license, and thereby took upon himself all risk of danger incident to the running of the train. Appellant certainly was under no duty to appellee to keep its track in good repair; nor was appellant bound to run its train in any particular manner. No omission or affirmative act intervened between the time appellant boarded the train and the time of the accident to change the situation in this respect. Illinois, etc. R. R. Co. v. Arnola, 78 Miss. 787; Woolwine v. Railroad Co., 32 Am. St. Rep. 859; McCauley v. Tennessee, etc. R. R. Co. (Ala.), 9 South. 612; Railway Co. v. Sawyer, 46 South. 68; Railway Co. v. Rayley, 157 Fed. (C. C. App.) 532.