were it otherwise.1 So long, for instance, as the possessor declares that he holds in subordination to the better title, the possession will be regarded as held by consent; nor will a continued possession, after such declarations, avail to mature a title under the statute of limitations, until the party has changed the character of his possession, either by express declaration, or by the exercise of acts of ownership inconsistent with a subordinate character.2 If one be owner of a tract of land, and, at the same time, the agent of the owner of an adjoining tract, he cannot avail himself of the statute, to support his title to a part of the land of his principal of which he had taken possession, upon a misapprehension of the new boundary; nor can any one, claiming under such assent, avail himself of his possession. Where parties agreed upon a fence, variant from the true line, avowedly for convenience, and still continued to claim up to the true line, neither party acquires a title, or right of possession, against the other merely by virtue of the fence.

1 Kirk v. Smith, 9 Wheat. (U. S.) 241, 288. [Where a defendant in ejectment sells the property in dispute while the proceedings are pending, a possession by the vendee will not justify the plea of the statute of limitations. Walden et al. v. Bodley's Heirs, 9 How. (U. S.) 34. But where a defendant in execution remains in possession of the land sold, his possession is not necessarily permissive, and he is not estopped from setting up an adverse possession, which, if continued twenty years, will give him a good title. Chalfin v. Malone, 9 B. Mon. (Ky.) 496. And see also Batterton v. Chiles, 12 B. Mon. (Ky.) 348.]

2 Markley v. Amos, 2 Bail. (S. C.) 603; Jackson v. Denison, 4 Wend. (N. Y.) 558. [Ray v. Barker, 1 B. Mon. (Ky.) 364; Moore v. Moore, 8 Shep. (Me.) 350; Read v. Thompson, 5 Barr (Penn.), 103; Moore v. Johnston, 2 Spears (S. C.), 288; Dikeman v. Parrish, 6 Barr (Penn.), 210; Hall et ux. v. Stevens, 9 Met. (Mass.) 418; Millay v. Millay, 6 Shep. (Me.) 387; Lamb v. Foss, 8 Ib. 240. And although the declarations of one in possession of land that he holds in subordination to the legal title cannot affect the right of his grantee, when made after a conveyance, yet they defeat any claim of title acquired by the grantee himself, prior to the conveyance by disseisin. Hamilton v. Paine, 5 Shep. (Me.) 210.]

8 Comegys v. Carley, 3 Watts (Penn.), 280. [But where one enters on land with title, claiming it as his own, and afterwards before seven years (the limited time) expire, undertakes an agency for one holding an elder patent for the same land, and claims to hold under it, without abandoning his own title, or the possession under it, his heir is not estopped to set up his own title and right to possession under it. Ray v. Barker, 1 B. Mon. (Ky.) 364.]

4 Burrell v. Burrell, 11 Mass. 296. But where they have established a line varying from the land described in the deeds, and each party has held and occupied up to his side, claiming to hold accordingly, for twenty years, neither can maintain a possessory action against the other. Ibid. [So if they agree upon a dividing line, and occupy accordingly. Brown v. Cockerell, 33 Ala. 38. If the land is held by a mistake in the division, the statute begins to run only from the time of some unequivocal act indicating a claim to the part held by mistake. Phelps v. Henry, 15 Ark. 297.

And if the respective claimants to a disputed tract agree to submit the matter to arbitration, and that meanwhile the party occupying shall remain in possession, the running of the statute is suspended.

The declarations of a widow in possession of premises, that she held them for her life, and that, after her death, they would go to the heirs of her husband, are admissible evidence to negative the fact of her having twenty years' possession under a claim of right.1 And it has been held, that, if a widow remains in possession of land after her husband's death, and marries again, and she and her husband continue in possession, for more than the time limited for the right of entry, neither she nor he can set up the statute against an ejectment by the children of the first husband. There was a very rigid application of the law, in this respect, in a very modern case, in the Court of King's Bench, in Ireland, in which it was held, that, where on the death of a father intestate, seised of lands in fee, his second son enters without title, such entry is deemed for the use of the eldest son; and the statute, therefore, does not run against such eldest son, the possession of the second son being his possession. The real principle, to be extracted from all the cases, the court said, is, that the possession of the younger brother so entering, is the possession of the heir, who, therefore, cannot be affected by length of time, upon the supposition of a possession adverse to him; and, on this principle, the court found an answer to the argument that the circumstances or motives of the party taking possession ought to be left to the jury; because the question is, not why the one person took possession, but why the other submitted to it; and in the absence of any proof to the contrary, it must be intended that he did so because (as the law intends) it was taken for him.3 The law as to forbidding the set

So if a fence is by mistake extended beyond the true line, it is no adverse possession, there being no intention to claim beyond the true line. St. Louis University v. McCane, 28 Mo. (7 Jones) 481; Howard v. Reedy, 29 Ga. 152; Perkins v. Blood, 36 Vt. 273.] 1 Human v. Pettett, 5 Barn. & Ald. 223. [Calhoun v. Cook, 9 Barr (Penn), 226. And see also Hall v. Matthias, 4 Watts & Ser. (Penn.) 331.]

2 Cook v. Nicholas, 2 Watts & Ser. (Penn.) 27. [And see Hall v. Matthias, 4 Watts & Ser. (Penn.) 331.]

3 Dowdall v. Byrne, Batt. (Irish) 373. The court refer to the section of Littleton, 396, which states such an entry by a younger brother for the benefit of the heir to be an intendment of law, and does not qualify it by any reference as to the motive for taking the possession. The note on that section refers to Gilbert on Tenures, where the doctrine is stated in these words: "When a younger brother enters in this case, he does not enter to get a possession distinct from that of the elder brother, but to

ting up of a right under a permissive possession is stated very emphatically, by the Court of Appeals of South Carolina, that, "where a party claims by the statute, he is required to show at what time he took possession of the land, and how long he has held it; and when a tenant claims to hold adversely, he must show when that intention was made known to the landlord." 1

385. Every presumption, therefore, is to be made in favor of the true owner, and a bare possession is evidence of no more than the fact of present occupation by right; for the law never presumes a wrong.2 The parol declarations of a person in whom the title to land is vested are inadmissible as evidence to defeat that title, it being contrary to the statute of frauds. All the decisions to this effect are highly important, and necessary to be observed in a country like ours, though the doctrine which supports them is among the deep foundations of English law. In respect to the very ancient statute of fines, which is virtually a statute. of limitation, it has been long the settled doctrine of the English courts, that he who has the estate or interest in him cannot be put to his action, entry, or claim; for he has that which the action, entry, or claim would vest in, or give him. From this, says a well-known learned compiler of the English law of real property, it follows

preserve the possessions of the brother in the family that nobody abates." (Gib. on Ten 28.) And in Mr. Watkins's note on the passage, it is observed that the rule upon this subject is so strong, that the entry of a younger brother of the half blood, upon the elder brother, will be an entry for him, and will have the effect of creating a possessio fratris in that elder son, to prevent the descent to the younger brother of the half blood, who had entered upon him, and make the sister of the whole blood the heir. That is, in other words, to say that, by such an entry alone, there is no disseisin, and that the possession cannot be adverse. The court, in the above case, also rely on Page v. Selfby, Bull. N. P. 102; Reading v. Rawsterne, 2 Salk. 423; and Fairclaim v. Shackelton, 5 Burr. 2604.

1 Whaley v. Whaley, 1 Spears (S. C.), 225. See further the following chapters relating to Co-Tenants, Landlord and Tenant, Mortgagor and Mortgagee, and Trustee and Cestui que trust.

Per Mr. Justice Story, in Ricard v. Williams, 7 Wheat. (U. S.) 59. And see, likewise, Smith v. Lorillard, 10 Johns. (N. Y.) 355; Jackson v. Rightmyer, 16 Ib. 325; Blaisdell v. Martin, 9 N. H. 253; Straw v. Jones, Ib. 400; Codman v. Winslow, 10 Mass. 146; Jackson v. Thomas, 16 Johns. (N. Y.) 293; Huntington v. Whaley, 29 Conn. 391; Jones v. Hockman, 12 Iowa (4 With.), 101; Harvey v. Tyler, 2 Wallace (U. S.), 328; Clagett v. Conlee, 16 Iowa, 487.

3 Jackson v. Cary, 16 Johns. (N. Y.) 293; Daniel v. Ellis, 1 Marsh. (Ky.) 60.

4 Per Spencer, J., in Jackson v. Todd, 2 Caines (N. Y.), 153.

5 See ante, Ch. I.

73 Cruise, Dig. 485.

6 Podger's Case, Rep. 104.

that no person can plead the statute of limitations, unless his possession has been adverse to that of the person who claims against him. The term "adverse possession" is familiar, in the modern common law, as denoting disseisin, upon which an adverse title is founded; the old term "disseisin " being expressive of any act, the necessary effect of which is to divest the estate of the former owner.2

386. Much acute and profound reasoning is to be found in the old books respecting the subject of disseisin; and the subject has been learnedly discussed, both by eminent juridical writers, and by judges in numerous cases. Before the use of letters, all property in land passed by a formal act of investiture; for the reason, that, as no one could originally appropriate land to himself but by occupying it, and applying it to his own use, so no one could transfer it but by a ceremonious and notorious surrender of the possession. This was denominated livery of seisin; and, without this methodical procedure, there could be no seisin. Seisin, therefore, in its genuine meaning, denotes the completion of such ceremony of investiture, by which the tenant was admitted into his freehold. Hence, disseisin was depriving, by some means or other, the tenant of his tenure, and usurping his place and feudal relation. At that time, there was a difference between a disseisin and a dispossession. The disseisins of that period were, in some instances, supported as an encouragement to those who performed the services. The services were to be performed annually; and, if the party disseised allowed the disseisor to perform them for a year, and the disseisor died seised, the entry of the heir was taken away, on the principle that he was to lose the feud, unless he performed the services to the lord. In process of time, the assise of novel disseisin was invented; 5 and, after its introduction, the

1 See Reading v. Rawsterne, 2 Ld. Raym. 829.

2 Preston on Abs. of Title, 383. The possession must be so open and exclusive as to amount to a disseisin. Sparhawk v. Bullard, 1 Met. (Mass.) 95.

3 Coke says that seisin signifies, in the common law, possession. Co. Litt. 153 a. Again he says, that seisin is derived from sedendo. “For, until a man have seisin, all is labor et dolor et vexatio spiritus; but, when a man hath seisin, he may sedando et acquiescere. In all suits to recover seisin or possession, he who prosecutes them ought to labor; but, when he hath obtained seisin, he may sedere et accumbere in peace and tranquillity." 6 Rep. 58. . See Frost v. Cloutman, 7 N. H. 15.

4 2 Bac. Abr. 482; Taylor v. Horde, 1 Burr. 107; Green v. Liter, 8 Cranch (U. S.), 229.

5 Co. Litt. 153.

courts, by liberal constructions in furtherance of justice, extended the remedy to every kind of trespass or injury done to real property, whether the trespass or injury come within the exact definition of a disseisin or not. If, by bringing an assise, the party thought proper to admit himself disseised, every thing was called a disseisin for which an assise would lie. It was in reference to this kind of disseisin, as between owner and trespasser, that Littleton wrote; or, in other words, he considered every thing wrong to the possession to be a disseisin. What he means shall be understood by disseisin appears by what he says of seisin, which he considers to be wrongful possession. "A disseisin," he says, "is where one enters intending to usurp the possession, and to oust another of his freehold; and, therefore, 'quærendum est a judice quo animo, hoc fecerit' why he entered and intruded." The inquiry is into the quo animo, or into the intent with which the possession is taken and held, as it appears in evidence. As expressed by the Supreme Court of the United States, "the whole inquiry is reduced to the fact of entering, and the intention to usurp possession; " 2 and, in legal language, the intention guides the entry, and fixes its character.3

387. The distinctions between a disseisin in fact and a disseisin. by election were brought into view and enforced in Atkyns v. Horde; and they have been historically and ingeniously illustrated by Mr. Butler, in a note to his edition of Co. Litt. To constitute an actual disseisin, or one in fact, there must be a tortious entry and an expulsion. The distinction between a disseisin by election, as contra-distinguished from a disseisin in fact, was taken for the benefit of the owner of the land, and to extend to him the easy and desirable remedy by assise, instead of the more tedious. remedy of a writ of entry. Whenever an act is done which of itself works an actual disseisin, it is still taken to be an actual disseisin, as if a tenant for years or at will should enfeoff in fee. On the other hand, those acts which are susceptible of being made dis

1 Co. Litt. 153.

2 Bradstreet v. Huntingdon, 5 Peters (U. S.), 440, in which case the court cite Pawlett v. Clarke, 4 Ib. 504; Blight's Lessee v. Rochester, 7 Wheat. (U. S.) 535; Willison v. Watkins, 3 Peters (U. S.), 53; Barr v. Gratz, 4 Wheat. (U. S.) 213.

3 Ewing v. Burnett, 11 Peters (U. S.), 41. Entry on, and occupation of, open land, in the mistaken belief that the title was in the United States, is adverse to the true owner. Clemens v. Runckel, 34 Mo. 41.

4 1 Burr. 60.