The distinction above mentioned is thus, with much clearness, stated by Parsons, Ch. J., in delivering the opinion of the Supreme Court of Massachusetts: "When a man enters on land, claiming a right and title to the same, and acquires a seisin by his entry, his seisin shall extend to the whole parcel; for, in this case, an entry on part is an entry on the whole. When a man not claiming any right or title to the land, shall enter on it, he acquires no seisin but by the ouster of him who was seised; and, to constitute an ouster of him who was seised, the disseisor must have the actual, exclusive occupation of the land, claiming to hold it against him who was seised."1 Whoever enters under a deed of land in New Hampshire, enters claiming according to his deed; and, if the deed be defective, and nothing pass under it, it may be evidence both of the extent and character of the occupation.2 It has been held, also, in Vermont, that if the defendant prove, that he, or those under whom he derived title, purchased the whole of the lot demanded, under a paper title, and takes possession under such title, he will hold the whole, under the statute of limitations, although the possession be taken by occupying and improving one acre, when the paper title gives several acres. The same construction has been irrevocably settled in South Carolina, since the case of Reid v. Eibert.4 And so the doctrine seems to be considered by the courts in the States generally.5 The rule is the 1 Proprietors of Kennebec Purchase v. Springer, 4 Mass. R. 416; and see also, Higbee v. Rice, 5 id. 344; Sparhawk v. Bullard, 1 Met. (Mass.), R. 95; Poignard v. Smith, 8 Pick. (Mass.), R. 272. 2 Waldron v. Tuttle, 4 N. Hamp. R. 371; Lund v. Parker, 3 id. 49; Riley v. Jameson, id. 23. And see Gibson v. Bailey, 9 id. 168; [Gage v. Gage, 10 Foster (N. H.), 420]. 8 Pearsall v. Thorp, 1 Chip. (Vt.), R. 92. ↑ King v. Smith, 1 Rice (S. C.), R. 14; Reid v. Eibert, reported in a note to 1 N. & M'Cord (S. C.), R. 374. 5 Hawkins v. Robinson, 3 Watts (Penn.), R. 205; McCall v. Neely, id. 70; Hall v. Powell, 4 Serg. & Rawle (Penn.), R. 456; Bell v. Hartley, 4 Watts (Penn.), R. 32; Cheney v. Ringold, 3 H. & Johns. (Md.), R. 87; Lloyd v. Gordon, 2 H. & McHen. (Md.), R. 254; Grant v. Winbourne, 2 Hay. (N. C.), R. 56; Stanley v. Turner, 1 Murph. (N. C.), R. 14'; Bowman v. Bartlett, 3 Marsh. (Ky.), R. 99; [Bowie v. Brake, 3 Duer (N. Y.), 35]. (If a settler in Kentucky, taking possession, under one claim, accidentally intrude, he acquires no interfering possession out of his actual close. Smith v. Morrow, 5 Litt. (Ky.), R. 210; and see also, 1 Marsh. (Ky.), R. 460.) Kincaid v. Louge, 7 Mis. R. 176; Brooks v. Clay, 3 Marsh. (Ky.), R. 260; Ridgley's Lessee v. Ogle, 4 H. & McHen. (Md.), R. 129. [Saxton v. Hunt, Spencer (N. J.), 487; Noyes v. Dyer, 25 Me. (12 Shep.), 468; Waggoner v. Hastings, 5 Barr (Penn.), 300; same if a person, who originally entered without claim, afterwards obtain a colorable title; and from the period when he does obtain it, the adverse possession commences.1 § 402. Where there is no interference of surveys, possession of part is, in law, possession of the whole; but where surveys interfere, the statute has no operation against him who has the best right, except his opponent takes an adverse and exclusive possession.2 An ancient location adjacent to the land demanded, by a description in a deed between third persons, though unaccompanied by any open and notorious possession, will govern the line of the demanded premises; unless the party objecting can prove that the line ought to have been laid out in a different direction.3 A possession of part may be adverse as to the whole, although the occupier does not know that there is an owner; as in the case of the possession of public land sold by the State, and supposed to be vacant, but which, in point of fact, had been sold by the State. Where one entered upon part of a tract of land, under a deed of the whole from one having no title, and afterwards received a deed from the disseisee of a larger part of the same tract, it was held by the court, to be a question for the consideration of the jury, whether the disseisor did not intend thereby to yield and Kite v. Brown, id. 291; Bank of the State v. Smyers, 2 Strobh. (S. C.), 24; Crowell v. Pebee, 10 Vt. 33; Chiles v. Conley, 9 Dana (Ky.), 385; Alston v. Collins, 2 Speers (S. C.), 460; Hubbard v. Austin, 11 Vt. 129; Porter v. McGinnis, 1 Penn. St. 413. But the constructive possession of land arising from title, cannot be extended to that part of it whereof there is an actual adverse possession, whether with or without a paper title. Tredwell v. Reddick, 1 Ired. (N. C.), 56; Stevens v. Hollister, 18 Vt. (3 Washb.), 294. Nor will a subsequent conflicting possession in lands be extended, by construction, beyond the limits of the actual adverse possession, for the purpose of defeating a prior constructive possession. Ralph v. Bagley, 11 Vt. 521.] 1 Jackson v. Thomas, 16 Johns. (N. Y.), R. 293. [There can be no constructive adverse possession against the owner, when there has been no actual possession which he could treat as a trespass, and bring suit for. Steadman v. Hilliard, 3 Rich. (S. C.), 101. And see also, Slice v. Derrick, 2 Rich. (S. C.), 627; Gorndin v. Davis, id. 481.] 2 Burns v. Swift, 2 Serg. & Rawle (Penn.), R. 439; [Altemus v. Trimble, 9 Barr (Penn.), 232; Thompson v. Milford, 7 Watts (Penn.), 442; Fitch v. Mann, 8 Barr (Penn.), 503; Criswell v. Altemus, 7 Watts (Penn.), 566; Taylor v. Cox, 2 B. Mon. (Ky.), 429; Beaupland v. McKeen, 28 Penn. St. 124; Waddle v. Stewart, 4 Sneed (Tenn.), 534; Franklin Acad. v. Hall, 16 B. Mon. (Ky.), 472. And see also, McGowan v. Crooks, 5 Dana (Ky.), 65; Chiles v. Jones, 7 id. 528; Hatch v. Smith, 4 Barr (Penn.), 109.] 3 Sparhawk v. Bullard, 1 Met. (Mass.), R. 95. * Jones v. Porter, 3 Penn. R. 134; Swaney v. McCullock, 3 Watts (Penn.), R. 345. abandon his possessory title to the whole tract, on thus obtaining a perfect title to a large part of it.1 § 403. But the doctrine of the constructive adverse possession of lands, held under color of title, by the cultivation of part, accompanied by a claim of the whole under a deed, it has been considered must be taken with some reference to the nature of the locality of the lands. That the doctrine is strictly applicable to a single lot of land, or to a single farm, there can be no doubt; but in respect to land so held and not purchased with a view of actual cultivation, the case is obviously a different one. The reason and propriety of a distinction between the two cases were attentively considered and thus strongly urged by Woodworth, J., in giving the opinion of the court in Jackson v. Woodruff, in the State of New York.2 "The doctrine of adverse possession, applied to a farm or single lot of land, is, in itself, reasonable and just. In the first place, the quantity of land is small. Possessions, thus taken, under a claim of title, are, generally, for the purpose of cultivation and permanent improvement. It is, generally, necessary to reserve a part for woodland. Good husbandry forbids the actual improvement of the whole. The possessions are usually in the neighborhood of others; the boundaries are marked and defined. Frequent acts of ownership, in parts not cultivated, give notoriety to the possession. Under such circumstances, there is but little danger that a possession of twenty years will be matured against the right owner; if it occasionally happens, it will arise from a want of vigilance and care in him who has title. It is believed, that no wellfounded complaint can be urged against the operation of the principle; but the attempt to apply the same rule to cases where a large tract is conveyed, would be mischievous indeed. Suppose a patent granted to A, for two thousand acres; B, without title, conveys one thousand of the tract to C, who enters under the deed, claiming title, and improves one acre only; this inconsiderable improvement may not be known to the proprietor, or if known, is disregarded for twenty years. Could it be gravely urged, that here was a good adverse possession to the one thousand acres? If it could, I perceive no reason why the deed from B to C might not include the whole patent, and 1 Schwartz v. Kuhn, 1 Fairf. (Me.), R. 274. 2 Jackson v. Woodruff, 1 Cow. (N. Y.), R. 286. after the lapse of twenty years, equally divest the patentee's title to the whole; for there would exist an actual possession of one acre, with a claim of title to all the land comprised in the patent. No such doctrine was ever intended to be sanctioned by the court. If the doctrine contended for prevails, it would sanction this manifest absurdity, that a possession under Platt's deed, which conveyed no title, would, as to its legal effect, be more beneficial than a possession taken under the proprietors of Friswell's patent, where there is not only title, but a good constructive possession, in consequence of the grant, and actual occupancy and improvement of a part." It was decided in this case, that where A held land under a patent, and B held under another patent, of land adjoining; and in the location under their respective patents, A, by mistake in locating, curtailed his patent on the side of B, in consequence of which, B (although he located at first on the true line), afterwards claimed up to A's location, and conveyed a supposed gore between the patents; A was not concluded in an action of ejectment, but might recover against any one claiming a part of the supposed gore under the title of B.1 § 404. As to what constitutes color of title, it seems to be very well agreed, that, if the title under which the party relying on possession claims, and originally entered, be ever so defective, the possession is, notwithstanding, adverse.2 The doctrine of adverse 1 And see Ten Eyck v. Richards, 6 Cow. (N. Y.), R. 623; [Hunter v. Chrisman, 6 B. Mon. (Ky.), 463. In Vermont this doctrine of constructive possession applies only to land taken possession of for the ordinary purposes of cultivation and use, and not to a case where a few acres are taken possession of in an uncultivated township, for the mere purpose of thereby gaining a title to the entire township. Chandler v. Spear, 22 Vt. (7 Washb.), 388. And in this State it has been held, that cutting a road upon land with a view to get timber, or to fell trees in order to clear and cultivate land, constitute, in connection with a written claim of title, a constructive possession of the whole tract described. Spear v. Ralph, 14 Vt. 400]. 2 Jackson v. Todd, 2 Caines (N. Y.), R. 183; Jackson v. Sharp, 9 Johns. (N. Y.), R. 162; Jackson v. Waters, 12 id. 365; Jackson v. Thomas, 16 id. 293; Jackson v. Wheat, 18 id. 40; Jackson v. Newton, id. 365; [Roberts v. Pillow, 1 Hemp. 624. Where one is in possession of land, claiming title under and pursuant to a state of facts which of themselves show the character and extent of his claim, such facts perform sufficiently the office of color of title. Bell v. Longworth, 6 Ind. 273. Color of title is any thing in writing connected with the title, which serves to define the extent of the claim. Wales v. Smith, 19 Geo. 8. And that color may be given without any writing, and may commence in trespass. McLellan v. Kellogg, 17 Ill. 498. And a bonâ fide claim by color of title is not disparaged by the claimant's knowledge that the possession was subjected to very critical disquisition, in a case in the New York Court of Errors, in 1826; and it was held, that, though the possessor claims under written evidence of title, and, on producing that evidence, it prove to be defective, yet the character of his possession, as adverse, is not affected by the defects of his title; and, if the entry be under color of title, the possession will be adverse, however groundless the supposed title may be.1 So it has been held, that, if a grantee enter under a deed not executed in conformity boundary lines are uncertain and the title disputed. Cornelius v. Giberson, 1 Dutch (N. J.), 1]. An adverse possession for the time limited under a claim or color of title, merely void, is a bar to a recovery under an elder title by deed, although the adverse holder may have had notice of the deed. Ewing v. Burnet, 8 Peters (U. S.), R. 41. "A vendee in fee derives his title from the vendor; but his title, though derivative, is adverse to that of the vendor. He enters and holds for himself, and not for the vendor." Such was the doctrine of the Supreme Court of the United States, in Blight's Lessee v. Rochester, 7 Wheat. R. 535. "If this be the correct doctrine of this court," say the court in another case, "and there can be no doubt it is, it seems to follow that, wherever the proof is, that one in possession holds for himself, to the exclusion of all others, the possession so held must be adverse to all others, whatever relation, in point of interest or privity, he may stand in to the others." Bradstreet v. Huntingdon, 5 Peters, R. 440. See also, Willison v. Watkins, 3 id. 53. And a deed, 1 La Frombois v. Jackson, 8 Cow. (N. Y.), R. 589. [A sheriff's deed, without producing the judgment and execution, is sufficient to give color of title. Riggs v. Dooley, 7 B. Mon. (Ky.), 236; Northrop v. Wright, 7 Hill (N. Y.), 476; Hester v. Coats, 22 Geo. 56. And so does a deed from a collector of taxes. Hearick v. Doe, 4 Ind. 164. So does the deed of an attorney who has no authority to convey. Hill v. Wilson, 2 Murphy (N. C.), 14. See also, Farrow v. Edmondson, 4 B. Mon. (Ky.), 605. founded on a void or voidable decree in Chancery gives a colorable title. Singleton, 1 Meigs (Tenn.), 207. And a deed by one tenant in common, of the whole estate in common to a third person. Ross v. Dewham, 4 Dev. & Batt. (N. C.), 54. And a deed by an infant gives a colorable title and possession adverse to the infant. Murray v. Shanklin, 4 Dev. & Batt. (N. C.), 289. So possession of land under a grant from the State, is possession under color of title, and adverse, even where the grant is void for irregularity, if the tenant enters under it in good faith. Moody v. Fleming, 4 Geo. 115. Where A purchases under an execution against B, takes a deed, and, on the same day, conveys to B, though the purchase and conveyance be at the request of B, and no money is paid, B has a colorable title. Rogers v. Mabe, 4 Dev. (N. C.), 180. See also, Dobson v. Erwin, 4 Dev. & Batt. (N. C.), 201; Tubb v. Williams, 7 Humph. (Tenn.), 367. A will gives color of title; but a paper purporting to be a will, which has but one subscribing witness, and which has never been proved as a will, does not. Callender v. Sherman, 5 Ired. (N. C.), 711. But property sold by an intestate to his son, of which the possession is held by the wife, who is administratrix, the son living in the family, is not held by him adversely to the intestate's creditors. Snodgrass v. Andrews, 30 Miss. (1 George), 472. And the sale by an administrator of the land of his solvent intestate under a license of the probate court, gives no color of title unless accompanied by a deed from the administrator. Livingston v. Pendergast, 34 N. H. 544.] |