#### *James Jackson, *ex dem.*Martha Bradstreet, Plaint ff in error, *v.*Henry Huntington, Defendant in error.

*Disseism.*— Election *to stand disseised.*— Adverse *possession.*— Statute *of limitations.*— -Tena/nts *in common.*

Where one having no title, conveys to a third person, who enters under the conveyance, the law holds him to be a disseisor.

That an actual or constructive possession is necessary, at common law, to the transmission of a right to lands, is incontrovertible; it is seen in the English doctrine of an heir’s entering in order to transmit it to his heirs; but whatever be the English doctrine, and of the other states, as to the right of election to stand disseised, it is certain, that the New York courts have denied that right, both as to devises and common-law conveyances, without the aid of a statute repealing the common law.1

This court can only reverse a judgment, when it is shown that the court below has erred ; it cannot proceed upon conjecture of what the court below may have laid down for law; it must be shown, in order to be judged what instructions were in fact given, and what were refused.

Adverse possession is a legal idea, admits of a legal definition, of legal distinctions; and is, therefore, correctly laid down to be a question of law.

Adverse possession may be set up against any title whatsoever, either to make out a title under the statute of limitations, or to show the nullity of a conveyance executed by one out of possession.

The common law generally regards disseism as an act of force, and always as a tortious act; yet out of regard to having a tenant to the praicipe, and one promptly to do service to the lord, it attaches to it a variety of legal rights and incidents.

Rights accruing under acts of limitation are recognised in terms as, *primó*facie, originating in wrong, although among the best protections of right.

If there be a tenancy in common, the law appears to be definitively settled in New York, that the grantee of one tenant in common for the whole, entering under such conveyance, may set up the statute against his co-tenants in common.

Error to the District Court of the Northern District of New York. The plaintiff in error, in 1824, instituted an action of ejectment in the district court of the United States for the northern district of New York, for the recovery of a tract of land, situated in the village of Utica, and the county of Oneida, in the northern district of New York. The cause was tried at January term 1827, and a verdict and judgment were rendered for the defendant. The plaintiff excepted to the opinion of the court on various points of evidence and of law, presented in the course *of the trial, and the court sealed a bill of exceptions. The plaintiff sued out a writ of error to this court. The bill of exceptions stated at large all the evidence and proceedings on the trial of the cause.

The title of the lessor of the plaintiff and that of the defendant, as exhibited in the evidence contained in the bill of exceptions, was as follows : Philip Schuyler purchased Cosby’s manor, sold by the sheriff of the county of Albany for arrears of quit-rent, under a warrant from the chief justice of the state of New York, dated May 7th, 1772. This property was conveyed to Philip Schuyler, by a deed executed by the sheriff of the county of Albany, dated July 20th, 1772.

General John Bradstreet made his last will and testament, on the 23d *259September 1774. The will, after providing for the adjustment of his accounts, he being in the British service, and devising a farm to John Bradstreet Schuyler, son of Colonel Schuyler, and some legacies, proceeded— “ All the rest of my estate, real and personal, I devise and bequeath to my two daughters, equally to be divided between them, as tenants in common, in fee ; but I charge the same with the payment of one hundred pounds sterling *per annum*to their mother, during her life. Notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts, and execute all instruments, which they may conceive to be requisite to the partition of my landed estate, and I devise the same to them as joint-tenants, to be by them sold, at such time and in such manner as they shall think most for the interest of my daughters, to whom the net produce shall be paid, in equal shares, the sum of one hundred pounds sterling *per annum*being first deducted, or a capital to secure the same set apart, for an annuity for my wife, as aforesaid. I order that Doctor Bruce have one hundred pounds for his trouble and for his kindness to me ; my watch I give to Mr. Gould, as a mark of my friendship. I leave funeral expenses to the discretion of my executors, and I appoint for the execution of this my will, the said Colonel Philip Schuyler and William Smith, Esq., of New York.”

Martha Bradstreet, one of the daughters of General Bradstreet, made her will on the 15th of May 1781, and devised to *her mother, Mrs. Mary Bradstreet, the produce and interest of her estate, real and personal, *- during her life ; and after her decease, she devised one equal third of her estate, real and personal, to her sister Elizabeth Livius, her heirs and assigns to be at her disposal, independent of her husband ; one-third part to Samuel Bradstreet and Martha Bradstreet, children of her late brother, Samuel Bradstreet, and to their heirs, with benefit of suvivorship, the produce of ¡such one-third part, and part of the principal, to be applied to their maintenance and education, if necessary. The remaining one-third she gave to her sister Agatha, wife of Charles Du Bellamy, during her life, independent of her husband ; after his death, she surviving, to her in fee, but if she died before her husband, to her children ; but if she survived her husband, and had no children, and should not dispose of the same by will, the same should go to Elizabeth Livius and her heirs. A like devise of the share given to Elizabeth Livius was made in favor of her sister Agatha, if she should die without disposing of her share, and without issue. Sir Charles Gould was appointed sole executor of this will, and authorized to act relative to the estate of the testatrix in America, by the following provision : “ And I do authorize my said executor to sell and dispose of such real estate as I may bo entitled to in North America, or elsewhere, and to execute conveyances for the same, and to place out my moneys upon such securities as he shall deem proper, and in such-manner and form, as to the shares devised to my sister Agatha, and to my nephew and niece, Samuel and Martha, respectively, as shall be conformable to the provisions of the will in respect to each of those shares.” It was in evidence, that Martha Bradstreet, the testatrix, and John and Mary Bradstreet, were deceased.

The will of Elizabeth Livius, deceased, purporting to be executed on the 20th of November 1794, was offered in evidence. The court not considering it duly proved, refused to permit it to be read to the jury, to which opinion *260an exception was taken by the plaintiff. By that will, Mrs. Martha Bradstreet, the lessor of the plaintiff, and the daughter of Samuel Bradstreet, the brother of Mrs. Livius, then deceased, was made her sole heir. The provisions of the will were : *“*I hereby constitute and appoint my dear niece, .. Martha Bradstreet, ’’'daughter of my late brother Samuel Bradstreet, -I major of the fortieth regiment of foot, to be my sole heir, to whatever estate, real or jmrsonal, I may die possessed of, to be paid or delivered unto her, at the age of twenty-one years, or day of marriage, whichever may first happen ; provided, she marries with the consent of my most respected friend, Sir Charles Morgan, Bart., whom I hereby appoint executor of this my last will and testament. But in case she should die before she attain twenty-one years of age, or before .she be married as aforesaid, I then appoint her brother, Samuel Bradstreet, a lieutenant in the 25th regiment of foot, to be my heir, in her place and stead.”

Martha Bradstreet, the devisee and the lessor of the plaintiff, afterwards, with the consent of Sir Charles Morgan, married Matthew Codd, but being divorced from her husband, she resumed her original name. The evidence to prove the assent of Sir Charles Morgan to this marriage was excepted to by the counsel for the defendant, and the exception was sustained. To this ruling of the district court, the plaintiff excepted.

The plaintiff also gave in evidence a map of the whole tract of land conveyed to Philip Schuyler by the sheriff of the county of Albany, in 1772 ; and proved by Mr. John R. Bleecker, who was sworn as a witness, that said map was in the handwriting of his grandfather ; that he, the witness, received it of his own father, Rutger Bleecker, deceased ; arid that he, the witness, held certain parts of said land, under title derived from his said father, who also in his lifetime was in possession of the same, pursuant to a partition deed thereinafter mentioned, and according to the allotments on the said map ; which said map appeared to have been made on the 31st day of August 1780, and was stated to be in pursuance of a survey of said tract.

And there -was also given in evidence, a deed of partition between Philip Schuyler and Rutger Bleecker, dated the 19th day of December, in the year of our Lord 1786, whereby and wherein, lot No. 97, as described on the map, was released by Rutger Bleecker to Philip Schuyler ; and the counsel for the said James Jackson, also gave in evidence and proved, that the premises in question upon the trial of that issue, were part of the lot No. 97.

*On the 16th of May 1794, a deed was executed by Philip Schuyler and others, of which the following is an abstract: “ The parties were Philip Schuyler, of the county of Albany, in the state of New York, Esquire, executor of the last will and testament of John Bradstreet, deceased, and hereinafter mentioned, of the one part, and Agatha Evans, of the city of New York, in the state of New York, widow, one of the daughters of the said John Bradstreet, deceased, and Edward Goold, of the same place, merchant, attorney to Sir Charles Gould, Knight, the only executor of the last will and testament of Martha Bradstreet, deceased, the other daughter of the said John Bradstreet, of the other part.” It recited the will of General John Bradstreet, and that Philip Schuyler, at the time of the making thereof, was seised in trust for the said John Bradstreet of one undivided fourth part of the tract of land *261described in the partition deed executed by himself and Rutger Bieecker (together with other lands) ; the death of William Smith, his co-executor ; and that Agatha Evans, formerly Agatha Du Bellamy, was one of the daughters of John Bradstreet. It also recited the will of Martha Bradstreet, the daughter of John Bradstreet, and the devises in the same of one-third to Samuel and Martha Bradstreet, children of her brother Samuel Bradstreet, deceased, one-third to his sister Agatha, then the wife of Charles Du Bellamy, afterwards Agatha Evans, the wife of Charles John Evans, and the remaining one-third to her sister Elizabeth Livius ; and that partition had been made among the proprietors of the tracts in the manor of Cosby, describing the lots which fell to Schuyler, as trustee of John Bradstreet, and among them lot No. 97 ; and that the same had, with other lots which fell to Schuyler in his own right, been conveyed to him by the deed of partition. The deed stated, that the said Philip Schuyler, “ as well to invest the said Agatha Evans with a legal title to her proportion of the said lands and tenements, devised to her by virtue of the will of the said John Bradstreet and Martha Bradstreet, as to convey the rest and residue thereof to the said Edward Goold, in trust for the said persons who may be entitled to the benefit thereof, under the will of the said Martha Bradstreetand in consideration of ten shillings, &c., had, “by virtue, also, of the power and authority with which he is so as aforesaid invested, and of all *other powers p which he may lawfully claim as executor,” and did “ grant, bargain, sell, alien, release and confirm,” to Mrs. Evans and Edward Goold, and their heirs and assigns, the said lands which fell to the share of the saul Philip Schuyler, as a trustee for the said John Bradstreet (describing them at length, and including lot No. 97), with the reversion and reversions, &c., and all the right, title, &c., in law or equity, &c. (in the usual form) ; to have and to hold, &c., to the said Agatha Evans and Edward Goold, their heirs and assigns, in manner following, viz : Two equal undivided third parts to Mrs. Evans, and the remaining one undivided third to the said Edward Goold, his heirs and assigns ; “ and upon the following trusts — that is to say, to sell the same, from time to time, as may be most expedient, and every or any parcel thereof ; and after deducting the charges of sale, and other contingent expenses attending the said trust, to divide the residue of the money to arise from such sale, to and among the said devisees, Samuel Bradstreet and Martha Bradstreet, and the said Elizabeth Livius, and their heirs, executors and administrators, accoi’ding to their several interests in the estate of the said Martha Bradstreet, by virtue of her ■ will, or to such persons as would be entitled thereto, upon the happening of any of the said contingencies in the said will mentioned,” &c. The deed further contained covenants against Schuyler’s own acts or incumbrances, and for further assurance.

It was in evidence, that Mrs. Martha Bradstreet was twenty-one years of age on the 10th August 1801 ; that she and her husband came to the United States to reside, in 1797, and that she had ever since resided therein. The acts of the legislature of New York, which enable aliens to take and hold lands, were also in evidence.

A deed was given in-evidence by the plaintiff, of the following purport. It was executed on the 22d October 1804, at the city of New York, by Edward Goold to Martha Codd, late Martha Bradstreet, wife of Matthew *262Codd, of Utica, of New York. It recited the conveyance executed by Philip Schuyler, on the 16th of May 1794, Agatha Evans and the said Edward Goold, merchant, and attorney to Sir Charles Gould, the only exec utor of Martha Bradstreet, deceased, a daughter of General Bradstreet, and all the purposes of that indenture ; and that Martha Codd, late Martha ^ , Bradstreet, by the will of "Elizabeth Livius, had, since the execution 408J of the deed from Philip Schuyler, become entitled to all the estate of Elizabeth Livius, conveyed by the deed of Schuyler to Edward Goold, in trust for Sir Charles Gould, as executor of the will of Martha Bradstreet, not sold or conveyed according to the trust; and that Edward Goold having became a bankrupt, had been ordered by chancery to transfer and convey to Martha Codd, all the estate vested in him as trustee, and that he was willing to convey to the said Martha Codd all the estate vested in him as aforesaid, as her trustee, to which she might be entitled under the will of Martha Bradstreet. The deed then proceeded to convey to Martha Codd, her heirs and assigns, all the real estate held by Edward Goold, at the time of his becoming a bankrupt as aforesaid, as trustee as aforesaid for the said Elizabeth Livius, by virtue of the several indentures of release executed by the said Philip Schuyler as aforesaid, and the several wills therein referred to ; and also all the real estate held by him, the said Edward Goold, at the time of his becoming a bankrupt as aforesaid, as trustee for the said Martha Codd, by virtue of the said several indentures and wills above referred to ; to have and to hold unto her, the said Martha Codd, her heirs and assigns, to the only proper use, benefit and behoof of her, the said Martha Codd, her heirs and assigns for ever.

The defendant gave in evidence a deed of indenture, executed by Charles John Evans and Agatha his wife, and Daniel Ludlow and Edward Goold, conveying lot No. 97, the property in controversy, to Stephen Potter. This deed, dated the 24th December 1790, was executed by Charles John Evans, Agatha Evans, Sir Charles Gould, executor of the last will of Martha Bradstreet, by Daniel Ludlow and Edward Goold, his attorneys, in the following words :

“This indenture, made the 24th day of December, in the year of our Lord 1790, between Charles John Evans, now of Brooklyn, in the county of Kings, gentleman, and Agatha his wife, one of r.he daughters and devisees of John Bradstreet, Esquire, deceased, and Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, the other daughter and devisee of the said John Bradstreet, by Daniel Ludlow and Edward Goold, 1 of the city of New York, merchants, his attorneys, of the one part, *and -* Stephen Potter, of Whitestown, Montgomery county, state of New York, of the other part; witnesseth, that the said Charles John Evans and Agatha his wife, and Sir Charles Gould, for and in consideration of the sum of four hundred pounds, lawful money of the state of New York, to them in hand paid by the said Stephen Potter, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, released and confirmed, and by these presents, do clearly and absolutely grant, sell, alien, release and confirm unto the said Stephen Potter, and his heirs and assigns for ever, all that certain lot, piece or parcel of land situate, lying and being in the county of Montgomery, and state of New York, part of a larger tract granted to Joseph *263Worrell and others, by patent dated the 2d day of January, in the year of our Lord 1734, which lot, upon a late division of the said tract, was distinguished by No. 97, and contains 400 acres of land, with the rights, members and appurtenances thereof; and all easements, advantages and hereditaments whatsoever to the same belonging, or in any wise appertaining; and the reversion and reversions, remainder and remainders, rents and services of the same, and all the estate, right, title, interest, property, claim and demand whatsoever, either at law or in equity, of them the said Charles John Evans and Agatha his wife, and Sir Charles Gould, and every of them, of in and to the same, and of in and to every part and parcel thereof, with the appur- ' tenances : To have and to hold the same lot of land, hereditaments and premises, unto the said Stephen Potter, his heirs* and assigns, to the only proper use and behoof of the said Stephen Potter, his heirs and assigns for ever. And the said Charles John Evans, for himself, his heirs, executors and administrators, doth hereby covenant and agree to and with the said Stephen Potter, his heirs and assigns, that he the said Stephen Potter, his heirs and assigns for ever, shall and may peaceably and quietly have, hold and enjoy the said lot of land, hereditaments and premises, free and clear of all incumbrances, titles and charges made by the said John Bradstreet, or any person or persons claiming, or to claim, by, from or under him. And that the said Charles John Evans, and his heirs, the said lot of land, hereditaments and premises, with the appurtenances, to the said *Stephen Potter, his heirs and assigns, against all and every person or persons whomsoever, shall and will warrant and for ever defend, by these presents.”

“ Received on the day of the date of the within indenture, of the within Stephen Potter, the sum of four hundred pounds, being the full consideration money within mentioned. Charles John Evans,

Ludlow & Goold.”

It was proved on the part of the defendant, that Stephen Potter, the grantee, entered upon and took possession of lot No. 97, under this deed, immediately on its execution; claiming to be sole and exclusive owner of the same *;*and continued in such possession until his death, fifteen or sixteen years before the trial; having made large and valuable improvements thereon. That after his decease, his son, with other members of his family, succeeded to and continued in possession of, such parts of the lot as remained unsold by their father, claiming to be owners of the land ; and that being in possession, and so claiming the land, Stephen Potter, the son, conveyed the premises in the ejectment to Henry Huntington, the defendant. No deed was produced, or proved, except by parol, as stated ; and the son of Stephen Potter, and other persons deriving title from his father to parts of the lot, continued in possession of the residue of the lot, claiming the absolute ownership thereof ; and the defendant had ever since been in possession and actual occupancy of the same, claiming the ownership in fee, by virtue of his purchase. But no building had been erected on that part of lot No. 97, for the recovery of which this suit was brought, until since 1824, and at that time, a part of the premises were without fence.

The death of General John Bradstreet, prior to the death of his daughter Martha Bradstreet, and the death of Philip Schuyler, on the 18th of November 1804, were also admitted.

*264The bill of exceptions concluded as follows: “Whereupon, the said counsel for the said James Jackson did then and there insist before the said judge, on the behalf of the said James Jackson, that the said matters so produced and given in evidence, on the part of said James Jackson, as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence, to entitle the said James Jackson to a ^verdict, on the said 1 issue, in this cause. And the said counsel for the said James Jackson also insisted, that the said deed from Charles John Evans and Agatha his wife, and Daniel Ludlow and'Edward Goold, as attorney of Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, deceased, to the said Stephen Potter, for the said lot No. 97, was void; as to all, except the interest of the said Charles John Evans and Agatha his wife, and could not be the foundation of an adverse possession. And the said counsel for the said James Jackson also insisted and objected, that there was no proof of the existence of any power of attorney from the said Sir Charles Gould, the executor of the said last will and testament of the said Martha Bradstreet, to the said Daniel Ludlow and Edward Goold, authorizing them to sell and convey the estate or interest of the said testatrix in the said lot No. 97, nor indeed, of any power of attorney whatever. And the said counsel for the said James Jackson also insisted, that if the deed aforesaid to the said Stephen Potter were valid and sufficient to pass anything more than the rights and interests of the said Charles John Evans and Agatha his wife, yet, that from the recitals in the said deed, the said Stephen Potter had notice that he could only purchase an equitable interest, the rights merely of *oestuis que trust,*and could not, therefore, hold adversely to the said Philip Schuyler, the trustee and executor of the said will of the said John Bradstreet. And the counsel for James Jackson also insisted, that the said Stephen Potter, claiming to hold the same identical title of the lessor of the plaintiff, neither he, nor those claiming under him, could set up his possession as adverse to that title.

“And the counsel for James Jackson did then and there pray the judge to admit and allow the said matters, so produced and given in evidence for the said James Jackson, to be conclusive in favor of the said James Jackson, to entitle him to a verdict in this cause ; and to this the counsel learned in the law for the said Henry Huntington, did then and there insist before the said judge, that the said matters so given in evidence on the part of the said James Jackson, were not sufficient, nor ought to be admitted or allowed, to . entitle *the said James Jackson to a verdict; but that the said mat-J ters so produced and given in evidence on the part of the said Henry Huntington, were sufficient, and ought to be admitted and allowed to bar the said James Jackson of his action aforesaid.

“ And the judge did then and there deliver his opinion to the jury, that although the several matters so produced and given in evidence on the part of the said plaintiff, made out a clear paper title to the equal undivided part claimed of that parcel of the said lot No. 97, which was in the possession of the said defendant, and were, therefore, sufficient in law, to entitle the said plaintiff to recover, .unless such title was defeated by the adverse possession set up on the part of defendant; and that although the above-recited deed from Charles John Evans and Agatha his wife, and Sir Charles Gould, executor of the last will and testament of Martha Bradstreet, deceased by *265Daniel Ludlow and Edward Goold, his attorneys, to Stephen Potter, without further proof of the authority of Daniel Ludlow and Edward Goold to-execute the same, was insufficient of itself to convey a legal title to the undivided share of the premises sought to he recovered in the present action ; yet, that there was nothing appearing upon the face of this deed, nor anything in the circumstances connected with its execution, so far as they had been shown, which in law would.preclude the defendant from availing himself of possession under it, as a bar to the plaintiff’s action ; or prevent the possession of the said Stephen Potter, taken under and in virtue of the said deed, from being considered adverse to the title of the lessor of the plaintiff, and to the title of the said Philip Schuyler, the executor and trustee of the said John Bradstreet; provided, the proof was sufficient in other respects to establish the fact of such adverse possession : and the judge did then and there also further deliver his opinion to the jury, that the effect of an adverse possession in the said Stephen Potter, at the time of the execution of the said above-mentioned and recited deed from the said Philip Schuyler, executor as aforesaid, to the said Agatha Evans and Edward Goold, would be to render the said deed inoperative and void as to the said lot No. 97, and prevent any title from the said Philip.Schuyler to the said Agatha Evans and *Edward Goold, passing by the said deed, in or to the said lot ^ No. 97 : and the said judge did then and there further deliver his *- opinion to the jury, that although it was generally true, that one tenant in common was not permitted to set up his possession as adverse to the title of his co-tenant, yet that one entering into possession of land under a deed for the whole, and claiming the entire interest, would not be thus precluded ; although it should subsequently appear, that such deed conveyed only an undivided share. Whereupon, the said counsel for the said James Jackson did then and there, on the behalf of the said James Jackson, except to the aforesaid opinion of the said judge, and insisted on the said several matters as sufficient to sustain the said action on the part of the said James Jackson.

“ And thereupon, the judge after explaining to the jury what in law constitutes an adverse possession, and submitting to them as a question of fact, whether such a possession had been proved, directed them, with the assent of the counsel on both sides, if they should agree upon their verdict, before the opening of the court next morning, to seal up their verdict. And upon the opening of the court, on the next morning, the jury came in with a sealed verdict in favor of the said Henry Huntington ; but upon being called upon by the clerk, at the request of the counsel for the said James Jackson, severally to answer whether such was their verdict, two of the said jurors dissented therefrom. One of the jurors thereupon stated to the court, that the doubt in his mind was, whether he was bound to decide according to law or according to evidence ; and that it appeared to him, that according to the evidence, the plaintiff ought in justice to have the land. And the judge thereupon replied to the juror, that a juror was certainly not at liberty, in making up his verdict, to disregard the law; that if the law required alteration, it was the province of the legislature to alter it; but that it was the duty of judicial tribunals to administer it as they found it; that it was the province of the judge to decide questions of law, and that the jury were bound to respect such decision ; that the question, whether or not'it r was competent for the defendant to set up the defence of *adverse >- *266possession, under the deed to Stephen Potter, was a question of law, and had been decided against the plaintiff ; that what in law constitutes an adverse possession was also a question of law, and that it was for the jury to say, under the instructions which had already been given to them upon that point, whether such possession had been proved ; that if they believed from the evidence, that such a possession had been established, they were bound to and a verdict in favor of the defendant. Whereupon, the said juror, after some hesitation, assented to the said verdict; and the said counsel for the said James Jackson, did then and there, in behalf of the said James Jackson, except to the opinion of the said judge so declared to the said juror. By the direction of the court, the other juror who dissented was then called upon by the clerk to answer, whether he agreed to the said verdict. But the said juror still persisted in his dissent; and stated, that he entertained the same doubts which had been expressed by his fellow-juror ; whereupon, the said judge directed the said jury to retire and again deliberate upon their verdict. And the said counsel for the said James Jackson did then and there, in behalf of the said James Jackson, except to the said last-mentioned direction of the said judge. And the jury thereupon retired, and after a short absence, returned again into court, with a verdict in favor of the said Henry Huntington. Whereupon, the said jury were again polled, at the request of the counsel for the said James Jackson, and severally assented to the said verdict.”

The points presented for the consideration of the court, on the part of the plaintiff in error were :

1. That Martha Bradstreet, formerly Martha Codd, the lessor of the plaintiff, acquired the equitable interest in and title to the one equal undivided fourth part of the premises in question, by virtue of the respective wills of Martha Bradstreet (one of the two daughters and devisees of General John Bradstreet) and Elizabeth Livius.

2. That the deed from Edward Goold to Martha Codd, (now Martha Bradstreet), the lessor of the plaintiff, by virtue of the decree of the court of chancery of the state of New York, conveyed to her the legal title to the. one equal undivided fourth part, of the premises in question.

*3. That even if the deed from Edward Goold to the lessor of the plaintiff did not convey the legal title, yet, that on the death of Genera]. Philip Schuyler, on the 18th of November 1804, without having executed the will of General John Bradstreet, the legal estate in the whole premises in question vested in the heirs of General John Bradstreet, or in their legal representatives.

4. That the respective wills of Martha Bradstreet (one of the two daughters and devisees of General John Bradstreet) and of Elizabeth Livius (one of the devisees of the said Martha Bradstreet) vested in the lessor of the plaintiff the legal as well as the equitable title to the one equal undivided fourth part of the premises in question.

5. That upon the whole record, the judgment rendered in the court below, in favor of the defendant in the court below, is erroneous, and ought to be reversed.

The case was argued by *Mayer*and *Webster,*for the plaintiff in error ; and by *Storrs*and *Spencer,*for the defendant.

*267*Webster*and Mayer, for the plaintiff in error.

— 1. There is no evidence of an authority being given by Sir Charles Gould to Edward Goold, to convey the land in question ; but even if there were such evidence,- it could not avail ; since Sir Charles Gould’s power to sell could not be delegated. Shep. Touch. 448 ; *Combe’s Case,*9 Co. 656 ; Sugd. Pow. 174-5 ; 1 Com. Dig. 771 ; 4 Johns. Ch. 368 ; 2 Atk. 88 ; 2 Sch. & Lef. 330 ; 3 East 410. A sale under such a power must be strictly pursued, and the power is limited by the object for which it is declared to be created. 8 Wheat. 535 ; 6 Johns. 73.

2. He who acquires the legal title, with notice of the equity of another, becomes trustee for that other ; and the same principle should apply in favor of an equitable tenant in common, where his co-tenant sells his own equitable interest, and the purchaser takes possession of all the land under that title ; the title giving him notice of the other equitable interest. 10 Johns. 490 ; 2 Caines Cas. 327 ; 1 Cranch 100 ; 6 Johns. Ch. 403 ; Sugd. Vend. 487. *It is true, that after the conveyance to Potter, the deed r¡H of Schuyler made Goold trustee for the interest of the plaintiff here ; L but that conveyance could not, by relation, make valid the deed of Goold to Potter, so as to pass the plaintiff’s estate, because the deed to Potter contained no warranty from Goold ; and, moreover, because Goold professed not to pass any beneficial interest of his own by the conveyance, and never had any to pass. 3 Cow. 299.

3. It will not be denied, that where there is a devise of lands, the law casts the freehold on the devisee, without entry. Co. Litt. Ill *a;*and so must be the principle as to equitable estates, to which all the rules of property apply that regulate legal estates. The fee, whether legal or equitable, was, here, in the devisees of John Bradstreet and of Martha Bradstreet. 2 Johns. Ch. 21 ; 8 East 248 ; 16 Ibid. 288.

4. It is manifest, then, when the deed of 1790 from Edward Goold, of the one part, and Evans and wife, grantees, of the other part, was executed, the plaintiff in error had the equitable estate in this land, in common with Agatha Evans ; and that this deed was void as to th:> plaintiff’s share, and availed only to pass Mrs. Evans’s. It was a conveyance operating, by its tenor, to pass the several interests of two equitable tenants in common ; and to be interpreted distributively as to those two estates ; and as if a separate deed had been given for each share. The deed being good only as to Mrs. Evans’s interest, Potter became an equitable co-tenant of the land with the plaintiff ; and the equitable interest so vested in Potter, like that of the plaintiff in error, was protected by the legal estate of Philip Schuyler, the common trustee for both the parties.

5. There is no ground for imputing adverse possession, or saying, that the right of the plaintiff was, in intendment of law, so contested, as to make Edward Goold’s deed to the plaintiff void, either under the common-law principle against conveying mere rights of entry, or under the statute of maintenance. The conveyance was nothing more, in effect, than the release of the trustee to the *cestui que trust:*Edward Goold being the trustee substituted for Schuyler. It was even less obnoxious than the release of a disseisee to a disseisor, which the law allows. Co. Litt. 369 *a.*The statute provided for the lawful possessor getting the release of the pretender ; but the ^common law allows also the converse act. The common law and _ ^ the statute mean only to prevent conveyances, under sales of pre- *- *268tended titles, where there is a transmutation of estate and possession. A court of equity would have compelled the conveyance which has here been made from Goold to the plaintiff. Can that be unlawful, when done voluntarily, which the law would enforce ? The statute of uses executes, too, the possession and legal estate to the use ; and nothing more has in effect been done by this conveyance. But there could have been no adverse possession against which the conveyance militated ; because, Potter being only an equitable owner, the possession of the trustee, who was common to Potter and the plaintiff, was the possession of Potter ; and Potter had no other possession. And the possession of the *cestui que trust*is the possession of the trustee, and is never deemed adverse to the trustee, or those *cestuis que trust*who are shielded by the trustee’s legal estate. 16 East 288 ; 8 Ibid. 248 ; 2 Ves. sen. 481 ; 2 Vent. 329 ; 10 Mod. 149 ; 3 Atk. 728 ; 5 Wheat. 116, 124 ; 13 Johns. 552 ; 2 Meriv. 359 ; Adams Eject. 47 ; Angell on Lim. 74 ; 2 Caines 169 ; 7 Wheat. 159. But Huntington can, in no view, claim the benefit of the adverse possession created by the deed to Potter, because he does not connect this possession by any conveyance with Potter’s right. 3 W. C. C. 479 ; 7 Mass. 384. The production of a conveyance by Huntington was not insisted on in the court below ; it being the duty of the defendant there to sustain his own objection of adverse possession bv competent proof.

6. Wherever a possession can be referred to a right, it will be referred and confined to it. Such is emphatically the case with regard to tenancy in common, where actual ouster must be proved, either by testimony directly to the fact of a literal expulsion, or by acts accompanied by long and quiet possession, raising the presumption unequivocally and irresistibly, that an actual ouster has taken place. 7 Wheat. 105, 109, 120 ; 1 Paine 469; 4 Mason 330 ; 16 East 288 ; 8 Ibid. 248 ; 3 Atk. 728 ; 20 Johns. 306 ; 12 Ibid. 368 ; Co. Litt. 199 5/7 Cranch 471; 7 T. R. 386 ; 5 Burr. 2604. *4181 *^n ^10 caseo:l:' tenants in common, perception of rents and profits is, J *per se,*no evidence of ouster. Co. Litt. 199 5/ 5 Mass¡ 351-2. Nor is it so, even where the tenant in possession levies a fine to himself. 1 East 578 ; 1 Salk. 286. Nor is a conveyance by one tenant in common of the whole interest in the land, an ouster ; 12 Mass. 348 ; 14 Ibid. 434 ; 17 Ibid. 74 ; it being a fixed principle, that there can be no disseisin of an undivided moiety ; that the possession of one co-tenant is the possession of the other ; and that there can be no adverse possession, where it is possible for the law to impute a concurrent possession. 2 Mass. 506 ; 10 Ibid. 464 ; 2 W. Bl. 690 ; Cowp. 217 ; 1 Salk. 391 ; 2 Ibid. 423 ; 1 Atk. 493 ; 1 Esp. 456. The defendant has not the election to consider himself a disseisor ; that is the peculiar privilege of the plaintiff, for the convenience of his remedy. The relation of tenants in common is considered fiduciary ; and the law will not allow one, by a mere accident, as that of getting actual possession, to defeat therightof the passive co-tenant. 5 Johns. Ch. 388 ; 1 McCord Ch. 322, 360.

7. In this case, there can be no presumption of a claim of possession by Potter, under a title distinct from the plaintiff’s, or paramount to it; because the recitals of the deed exhibited by the defendant, acknowledge the plaintiff’s title. Where evidence is expressly offered by a party to one effect, presumptions are not allowed to any other point of fact than that which the party himself has by his evidence prescribed. 2 Har. & Johns, 336 ; 5 Ibid, *269264 ; 11 East 312 ; 2 Str. 1261. No adverse possession can grow on an exhibited title, that is void on the face of it; as is the case here, so far as concerns the part of the plaintiff purported by the deed to Potter to be con- *¡*veyed. 1 Wheat. 105 ; 1 Paine 451 ; 12 Johns. 368. It is not pretended1that the title which may sustain an adverse possession must be a rightful title ; that would be absurd. But the title must be at least *primd facie*good ; and not show the elements of *its own*invalidity. 5 Cow. 346, 484 ; 9 Wheat. 545 ; 1 Mass. 384 ; 2 Ves. sen. 481 ; 1 Paine 480 ; 1 East 511 ; 1 Salk. 286. A claim, to support adverse possession, must, either actually *or constructively, be under a distinct and paramount title. It cannot *r-j.^jg*be inferred, where the defendant derives, by immediate conveyance, L his title out of the present subsisting right of the plaintiff herself ; and in effect exhibits, as here, an inoperative deed, to avail as from that very plaintiff. There is no room, therefore, here for constructive evidence of distinct and paramount claim ; though it is not said, that the only evidence of such claim, in order to raise adverse possession, is a deduction of title or any conveyance whatsoever. 3 W. C. C. 479; 7 Wheat. 120; 18 Johns. 302 ; 16 Ibid. 301 ; 13 Ibid. 537. The allegation of exclusive claim is, by the defendant herself, referred to the title in testimony, and it must be weighed by the worth of that title. The deed to Potter, referring to all the sources of the plaintiff’s title, as the sanctions of that which the deed professes to convey to Potter, is to be regarded, as if all those evidences of title were inserted in the deed, and the references give complete notice to Potter of the plaintiff’s right, and made the deed operate as if her equity had been expressly reserved. As to notice of title and equities outstanding : 4 Johns. Ch. 38 ; 1 Paine 525 ; 8 Wheat. 445, 447.

8. Potter’s acceptance of the deed involves him with the plaintiff’s title, and refers his tenure to it; not on the principle of strict estoppel, but of evidence which will permanently rebut the circumstantial presumption of adverse holding. 10 Johns. 435 ; 10 East 583 ; 2 Stark, Evid. 1192. On the same ground of evidence, no one can claim contrary to a deed he has given. *Jackson v. Stevens,*16 Johns. 110. The deed and 'the recital bind the grantee against averring adverse possession. Com. Dig., Evid. B ; 1 Salk. 286. Any express evidence to show that the party does not claim independently of the rightful title of the plaintiff, repels the presumption of adverse holding ; and the slightest evidence of a recognition of that title will take off that presumption ; such as, at the time of entry, inquiring for the true owner, and seeking to procure a conveyance from him. *Jackson*v. *Sharp,*9 Johns. 161; *Wickham*v. *Conklin,*8 Ibid. 227; *Jackson*v. *Waters*12 Ibid. 368 ; *Smith*v. *Burtis,*9 Ibid. 180.

*9. We have said, that the possession of Potter is to be referred to his right, as shown by his deed, by his own testimony ; which, giving him the undivided moiety of Mrs. Evans, authorized his possession. Where an indenture, as was the deed here, conveys in fact, and rightfully, some estate, its operation shall be confined to that; although it purports to convey a larger estate, Co. Litt. 416 ; and therefore, Potter is even estopped from averring that the deed to him gave him more than Mrs. Evans’s interest, which it could rightfully convey. [*420

10. It should be borne in mind, that the law, in upholding adverse possession, means not to violate any of its principles ; and particularly, not *270that which forbids one from taking advantage of his own wrong ; nor any of those principles which oppose fraud, and an assertion of right on a foundation of mere force. Wherever adverse possession is imputed and made to avail, it is on the presumption of title in the holder, evidenced by a long possession, accompanied by no force or fraud. The so-called repose of titles is consulted and advanced, on no other principles. All the authorities, and the reasoning particularly in 1 Paine 457, sustain this position. A possession begun by force or fraud, it may safely be said, cannot found adverse possession; at least, not until notice of such possession in this adverse character be brought home to the rightful owner. The principles of law just referred to, upon the effect of the acceptance of the deed, and as to evidence of recognition of the true title, proceed on the moral policy of adverse possession, as just stated ; and these views apply to adverse possession in reference to the statute of limitations, and still more forcibly in reference to the statute or common-law principle of maintenance, or buyingmere rights of entry. Hence, the entry upon land, by one having no title is, as a general principle, supposed to be in preservation of the rightful title, and in subordination to the true owner. 7 Wheat 105 ; 6 Johns. 218, 301 ; 2 Sch. *&*Lef. 97 ; 8 Johns. 227 ; 9 Ibid. 107 ; 12 Ibid. 368. And the contrary must be shown by proof, affirmatively and clearly. *Brandt*v. *Ogden,*1 Johns. 158 ; 6 Ibid. 218 ; *Jackson*v. *Parker,*3 Johns. Cas. 124; * -, 4 Mass. 418. Although that proof may be of a presumptive kind, *from -* circumstances raising inferences not contradicted by the evidence in the case, and especially the defendant’s own evidence.

11. As the law will not presume fraud, it will not, in order to sustain a defence, indulge a presumption which implies a fraud. To suppose, that Potter, who, by lawful right, was only a tenant in common, entered adversely and so held, to exelude his co-tenant, would impute a fraud to him. Fraud is no exception to the operation of the statute of limitations, after it has once been discovered by the person against whom it is to act; but the hostile purpose under the fraud must be known, before the statute can begin to apply. The same principle of notice should obtain in case of all adverse possession, where a fraud would be implied, in meditating an exclusive possession. When is this purpose of the defendant to be considered as first notified to this plaintiff ? If the principles of law, as to the presumption attending entries with some or no title, be as we have represented them, the exclusive possessory claim of the defendant, in the state of the evidence in the cause, can be considered as made known only by his taking his objection of adverse possession at the trial below, and as then first notified. Angell on Lim. 127, 135 ; 6 Wheat. 481 ; 2 Sch. & Lef. 223, 307, 607 ; 1 Cox 28 ; 8 Wheat. 445 ; 2 Mass. 506 ; 14 Ibid. 296, 300 ; 1 Johns. 457 ; 1 Burr. 118 ; 2 Johns. Ch. 155, 158, 181; 3 Atk. 654 ; 1 Johns. Ch. 595.

12. The law is also settled, that there can be no adverse possession, especially, by one tenant in common against another, without notice of the claim of that possession. It is not enough, that the one tenant in common does acts, as well as conceives plans, inconsistent with the acknowledgment of a concurrent possessory right in the other tenant; but if those acts conclusively indicate the claim of sole possession, they must, to serve as proof of adverse possession, be brought actually or constructively to the knowledge of the other tenant. Where was the notice here to the plaintiif, that the *271defendant pretended to a higher possessory right than the deed legally imparted ; which was only to the extent of Mrs. Evans’s ii terest? No such notice is implied, by any of the evidence ; and by the record, we, therefore, date this notice of exclusive *claim, from the objection of adverse r*422 possession taken at the trial. The whole application of the rule of L adverse possession, whether under limitation, or the objection of maintenance, is founded on the fact of actual or presumed acquiescence ; and consequently, the possession must be notorious and avowedly adverse. Angell on Lim. 99 ; 6 Mass. 229 ; 7 Ibid. 383 ; 4 Ibid. 416, 418 ; 9 Johns. 163 ; 13 Ibid. 411 ; 3 Johns. Cas. 124. The adverse holder must, for aught that may be shown in evidence, appear, or be presumed, to have reposed on the title he may possibly have ; and not only must the adverse character of the possession be proved, clearly and without doubt, and found by the jury ; but the possession must be marked by definite boundaries, and is confined within the strict limits of truth. 1 Johns. 156 ; 2 Ibid. 230 ; 10 Ibid. 475 ; 12 Ibid. 368 ; 14 Ibid. 405 ; 3 W. C. C. 475 ; 10 Mass. 93 ; 4 Wheat. 213 ; Angell on Lim. 75. All these authorities show, that the mere fact of a sole possession is not, in itself, a proof of adverse possession, especially, when the defendant does not rely merely on the fact of possession, but rests it on a title which cannot justify a possession adverse to us, since it recognises our right, and professes to be a conveyance of that identical right, but is not effectually so ; though purporting to be immediately from her, through persons assuming the power to act for her. This is the case meant by the books, when it is said, that there can be no adverse possession, where the plaintiff and defendant *“*claim under the same title that is, the same particular and immediate right. It is not pretended, that there cannot be adverse possession, where a defendant exhibits a deed from one, who, so far as he has a right, derives his title from the same source remotely, whence the plaintiff’s is derived. But the present case is like that of *Sinsabaugh*v. *Sears,*in 10 Johns. 435, where a deed was executed bj>two tenants in common, but inoperatively as to one of them ; and adverse possession, it was decided, did not exist against the grantor whose right was attempted, thus ineffectually, to be conveyed. The same principle Avas ruled in *Jackson*v. Hinman, 12 Johns. 293 ; that when the defendant sustains his possession under the particular right in question of the plaintiff himself, and by *eonveyance which failed to operate as to that right; the possession cannot be called adverse, under the statute of limitations, or in reference to any other bar or disability. Till. Adams, Eject. 47-8 ; Bull. N. P. 104 ; 1 McCord Ch. 352, 360 ; 4 Johns. 230 ; 12 East 153 ; 1 Caines 393, 402 ; 9 Johns. 167. Where the younger son enters and dies, the right of entry of the elder is not taken away, but the elder may enter ; because it shall be understood, the younger entered as heir to his father ; that is, acknoAvledging the same title. Co. Litt. 242. [*423

The cases of *Jackson*v. *Smith,*13 Johns. 411, and 4 Mason 326, do not militate against these positions ; for there, the defendant claimed under a deed, asserting under a sole and exclusive title in himself, although, in fact, he was but a tenant in common Avith others ; and in the latter of these cases, too, the defendant’s grantor had, under process of law, acquired *prima facie*the interest of his co-tenant. There was nothing in those cases, as in this, like a recognition, at the time of the deed, of a subsistiug right in the *272plaintiff, and of the very right brought into question by the ejectment; and the effectual conveyance of which was necessary to make the deed itself operative according to its tenor.

The possession, to be adverse, must be shown to have been hostile in its inception, or that, having been begun in consistency with the rightful title, its character has changed ; but there must be adequate cause shown for the change, or for imputing it. Where it commences under acknowledgment of the right owner’s estate, the possession will retain its original quality, through any succession of occupants of the land ; and will be presumed to bo in subservience to the rightful interest. Angell on Lim. 105 ; 1 Caines 394. The strictest proof of hostile inception of the possession is required. 1 Johns. 158 ; 16 Ibid. 301 ; 3 Johns. Ch. 124 ; 8 Johns. 220. As to the supervening change of the possession, and that it must be proved by an accession of another title, and other circumstances furnishing a motive for exclusive claim : 1 Paine 467 ; 7 Wheat. 105 ; 12 Johns. 368.

The circumstance; that the husband of Mrs. Evans gives a general war- , ranfcy the deed to Potter, by no means argues a *denial of the J plaintiff’s right, but rather affirms it; as it supposes a possibility of a superior right to, at least, apart of the estate in the land. It is, at furthest, in effect, no more than a covenant for quiet possession ; while it imports a guarantee that the deed will legally operate to convey the plaintiff’s interest, and thus again recognises a title in her, at the date of the deed. But a warranty cannot enlarge an estate ; and it is commensurate always only with the estate really created. Co. Litt. 385 *a.*So that, even with the warranty, the deed to Potter effectually conveys only the equitable estate of Mr. Evans ; and the warranty is no creation of a wrongful fee, to the prejudice, or rather in denial, of the plaintiff’s right which the' conveyance itself affirms.

The common law never characterizes a possession as adverse against an infant or married woman, when it commences after the accrual of the right of the infant or *feme covert.*They are both favored in cases of descent cast, and discontinuance, and wherever their entry would otherwise be affected. Co. Litt. 245 *b,*246 *a,*248 *a,*327 *a,*327 *b,*337 *a,*864 *b,*388 *a;*and this cumulated exception of infancy and coverture is allowed, wherever the coverture occurs during the infancy. Co. Litt. 246 *b.*The evidence shows all these disabilities in the plaintiff’s case; and consequently, there never was a commencement of adverse possession against her ; at all events, not until her coverture ended in 1817. Certainly, there was none, according to these principles, when the deed was executed by Goold to the plaintiff.

The positions stated bear on adverse possession, considered with reference to the statute of limitations. They apply more cogently as to that possession, in reference to the statute of maintenance, and to the rule of the common law forbidding the conveyance of rights of entry. And it may well be contended, that in the latter instances, there should be an actual disseisin, or an actual conflict of distinct rights and deduced titles, to raise an adverse possession that shall disable the true owner from conveying his interest ; and that mere possession, or possession even under a conveyance, shall not, *per se,*with any circumstances attending it, have the effect of annulling the rightful owner’s conveyance. If the bar of the statute of limitations be considered as set up at the trial below, or comprehended in *273the opinion of *the court, it is contended, that if adverse possession has ever begun against the plaintiff, it cannot have begun to affect her, until the year 1817 ; as she was within the three combined exceptions of alien-age, infancy and coverture, until that period. And such, as to the bar of limitations, must be the conclusion we maintain ; even if the positions asserted by us on the general doctrine of adverse possession be not admitted. Not only was the plaintiff under the disabilities referred to. but it appears that Mrs. Livius, the devisor of the plaintiff, was herself under coverture to the time of her death. Under the statute of limitations, the possession runs only against the particular title in question. 7 Wheat. 59, 118 : 4 Johns. 390.

*Spencer*and *Storrs,*for the defendant.-

— The entry of Stephen Potter, under the deed from Evans and wife and Goold, to Potter, in 1790, was adverse to the legal estate then in Philip Schuyler. Schuyler was then under no disability ; the statute of limitations commenced running, at that time, against him, as the legal owner. The right of entry “ first accrued ” in him (1 Rev. Laws, N. Y. 1813, p. 185), and having run for twenty years, the entry of Schuyler, and all claiming under him, is barred. When the statute once begins to run, no subsequent disability arrests it. 1 Johns. 165 ; 15 Ibid. 169 ; 13 Ibid. 513.

The equitable interest of a *cestui qui trust*cannot be noticed in this action. He has neither *jus in re,*nor *ad rem,*at law. It is of so little regard, that his entry on the land would make him a trespasser on his trustee. If the legal estate is barred, the equitable interest follows the same fate. Co. Litt. 302 *b;*Plowd. 59 *a.*

By the deed of Evans and Goold, in 1790, a wrongful estate in fee was created, and Potter’s entry under it was a disseisin of the legal owner. 2 Preston on Estates 288, 292, 295, 299. Neither Goold nor Evans had any legal estate in the land, and their deed passed nothing. The grantee is not deemed to enter according to any right, as the deed conveyed no right. It was the creation of an entire new fee, by wrong. It purported to convey the whole fee in the land, and not an undivided interest. The covenants are for the whole fee. It was created *and passed to Potter, in defi- r.1¡42g anee of the legal estate then in Schuyler. The covenant for quiet *>-*enjoyment is against all persons ; and besides this, it contains an express covenant against all titles derived from John Bradstreet. The possession has been held in conformity to the deed, as an entire fee ; and Potter has always claimed to hold as the exclusive owner. 13 Johns. 118 ; 9 Ibid. 174; 18 Ibid. 40, 355. The deed of Schuyler, in 1794, to Edward Goold, under which the lessor of the plaintiff claims, was void as to lot No. 97, by reason of the adverse possession then held by Potter. Schuyler had nothing but a naked right of entry, which he could not convey, and the deed passed nothing to Goold. It was within the statutes against champerty and maintenance, and a nullity at common law. If it passed anything to .Goold, as attorney for Sir Charles Gould, it operated as a confirmation of the estate he had before passed as attorney to Potter. 13 Johns. 406, 488.

Potter and his grantees are not estopped by the recitals of the descriptions in his deed, annexed to the names of the grantors — of Agatha Evans, as *“*one of the daughters and devisees of John Bradstreet,” and Sir Charles *274Gould, as *“*executor of the will of Martha Bradstreet, the other daughter and devisee of John Bradstreet.” These recitals will not narrow the effect of the deed. It expressly conveys the whole land, and cannot be reduced by the descriptions annexed to the names of the grantors. Such a recital is not of the nature of an estoppel at law, nor, by way of analogy, an estoppel in evidence, to show that Potter meant to take an undivided interest only. If it was even analogous to an estoppel, the inference is repelled in the same deed ; for it conveys the estate entire, and expressly covenants against all persons whatsoever, in the ordinary form of general warranty. It is this very wrong, of which the lessor of the plaintiff complains, that creates the disseisin of her trustee, from whom she derives her claim. The covenant is to defend the whole fee, and the whole interest in the land, against the legal owner, and against all titles under John Bradstreet. The covenant relates to the prior granting clauses of the deed, and to the *habendum,*which convers it as an entirety ; and the possession has been exclusive _ and co-extensive with the grant. 8 Cow. 168. *The utmost effect of the introductory clause of the deed to Potter, would be to charge him with notice of the wills of John and Martha Bradstreet. But the wills contained nothing to show that these lands were held by Schuyler, in trust for John Bradstreet, and there is nothing in evidence, to show that Potter had any knowledge of that latent trest. In taking his deed, he is to be deemed to have taken it in hostility to Schuyler, as legal owner, in his own right, and for his own use.

But if the recitals are to impute notice to him of the interest of the other *cestuis qui trust,*it would only raise, in equity, a constructive trust in Potter, and the remedy of the lessor of the plaintiff has been barred, even in equity, by lapse of time. Potter would become a trustee by implication only. Direct trusts only are saved from the operation of the statute of limitations ; the rule does not apply to constructive trusts, or to trusts by implication ; these stand in equity like any other equitable claim. If a party is to be constituted a trustee, by a decree founded on the equity of the case, or even on fraud, his possession is adverse; and the remedy is barred in the same time, in equity, as at law. The statute, in such cases, reaches both courts, and is adopted equally in both. Matthews on Presumption, ch. 24 ; 7 Johns, Ch. 90 ; 20 Johns. 576 ; 5 Johns. Ch. 522 ; 2 Sch. & Lef. 633 ; 6 Wheat. 481 ; 1 Ball & Beatty 119 ; 17 Ves. jr. 88 ; 8 Cow. 588: 3 Johns. Ch. 216; 10 Wheat. 152.

The lessor of the plaintiff was, in 1790, under the disability of infancy only. She could not, even in equity, tack to it the subsequent disabilities of coverture; they are not cumulative. 3 Johns. Ch. 129; 5 Cow. 74; 7 Serg. *&*Rawle 109; 3 Conn. 227. She would have been barred in equity, therefore, in 1811, ten years after she became of age in 1801. So, if she was, even at law, a tenant in common with Agatha Evans, in 1790, she is barred in ejectment, by the statute of limitations. But, in fact, she was not tenant in common, as she had no legal estate in the land, in 1790. She can only claim any legal interest, through the deed of 1794 from Schuyler to Goold. She claims, therefore, through the legal owner, whose entry is barred. His conveyance to an infant or *feme covert*would not arrest the running of the *%*_ statute — much less as to Goold. Nor was Agatha Evans *a tenant in 1 common with Schuyler, in any sense. Potter entered, claiming the *275entire title and the exclusive ownership. Such was the proof, and such it is affirmed to be by the the verdict. One tenant in common may oust his co-tenant, and hold in severalty. 5 Wheat. 124. So, he may enter originally in his own right as sole owner, and hold accordingly, adverse to his co-tenant. 9 Johns. 180. If Potter was to be deemed, in fact or in law, a tenant in common, his entry in 1790, claiming the whole fee, and his exclusive adverse possession for forty years, would be evidence of an original ouster; not an ouster at the end of twenty years, but an ouster on his first entry. Cowp. 217 ; 2 Har. & McHen. 160 ; 6 Cow. 632 ; 9 Johns. 180. But Potter neither entered as tenant in common, nor claiming any undivided interest. He entered under a deed for the whole interest in the land — the entire fee — and has held in conformity to it. His possession would not be less adverse, if his deed had been from a tenant in common, if it conveyed the whole fee. His entry takes its character from the conveyance, and it is immaterial, whether his deed, being for the whole interest in the land, was from a tenant in common, or any one else, having title or no title. ' It is the character of the possession, and not the validity of the title, which bars the entry of the owner. It is enough, that it is a colorable and not a naked possession, which inures to the benefit of the true owner. The question is, as to the character of the possession ; and twenty years’ adverse possession gives the positive right of possession in the land, in the action of ejectment. 2 Bl. Com. ch. 13.

It is no answer to the adverse possession, that the defendant holds under the same title, at some anterior stage of it. But in this case, Potter does not, in fact, hold under the same legal title with the lessor of the plaintiff, in any respect. He took no legal interest, on his entry, from any one whom the lessor of the plaintiff admits to have then had any legal title. Goold never had any, and her *co-cestui que trust*conveyed in law' only her own claim, which was not of a legal interest. But an entry under a deed, from one coheir of the whole fee, is a good foundation for an adverse possession. So, of an heir, where there is a devisee, and that too, where the party conveys as heir. 13 Johns. 406. So, of a conveyance as attorney or trustee; 5 Cow. 74 ; of a committee of a *lunatic; 3 Ibid. 229; or guardian of an infant ; 5 Day 181. Tet, in all these cases, the deeds recognise, in some sense, >- the former right of the real owner. A purchaser does not take his possession in subservience to the title of his grantor; he holds for himself, and adversely to his grantor. 18 Johns. 355 ; 7 Wheat. 535 ; 4 Serg. *&*Rawle 215. There is no privity of possession between them. He holds by a claim of right paramount to his grantor, and not subordinate to him. 10 Wheat. 152 ; 4 Pet. 480; 7 Wheat. 535 ; 8 Cow. 544, 590. A contract of sale, without any deed, is a good commencement" of an adverse possession. 10 Johns. 355 ; 6 Cow. 632. The fact of possession, and the *quo animo,*are the true tests in such a case. Hob. 120 ; 3 Serg. *&*Rawle 151, 181. So, an entry under a void deed or grant, is enough to sustain it. *Ridgway's Case,*2 Co. 55. The entry of a younger son, as heir, works a disseisin, and is adverse. Litt. § 396 ; Roll. Abr. 659 ; 8 Johns. 479 ; Ibid. 91 ; 9 Ibid. 55 ; 1 Cow. 205 ; 3 Pet. 43. These cases fully repel the position, that the holding of both parties under the same original title, affects the adverse character of the possession.

The charge of the court below was in conformity to these principles, and *276is well sustained in law ; and the verdict of the jury is conclusive, as to the facts nteessary to constitute the adverse possession. 9 Johns. 102.

The lessor of the plaintiff is entitled to no favor against such a length of possession ; nor on the facts of the case. Sir Charles Gould clearly had power to sell her trust interest, and to expend the proceeds for her education and support. It is to he presumed, that he performed his duty faithfully. He had power to appoint an attorney here, to receive the money, if Schuyler should sell under John Bradstreet’s will. The only technical informality in the defendant’s title is, that Sir Charles Gould could not sell by attorney. There is no pretence, that the money was not paid over to him in 1790. The solution of the whole case is, doubtless, that Schuyler conveyed to Edward Goold, who had made the sales, as attorney for Sir Charles Gould, in confirmation of Edward Goold’s sales, and to enable him to close the sales. *A11 has been done in good faith ; and the lessor of the ^ plaintiff now claims the land against a *bond fide*and innocent purchaser, whose money she keeps. A court of equity would the rather quiet the possession, by deereeing a conveyance to the defendant.

1

 s. p. Webster *v.*Gilman, 1 Story 499 ; Thomas *v.*Perry, Pet. C. C. 49; Longworth v. Close, 1 McLean 282 ; Bowman *v.*Wathen, 2 Id. 376 ; United States Bank *v.*Benning, 4 Or. C. C. 81; Fraser *v.*Hunter, 5 Id. 470; Carroll *v.*Dawson, Id. 514; Dubois *v.*McLean, 4 McLean 486 ; Wakefield *v.*Ross, 5 Mason 16. See Dudley *v.*Brown, 79 N. Y. 390, as to the doctrine of adverse possession to avoid a deed, in that state.

Johnson, Justice,

delivered the opinion of the court. — The principles of law involved in this cause are few and simple, and well established ; and all the difficulties consist in so arranging the facts as to apply the principles correctly ; or rather to determine whether they have been correctly applied in the court below. The plaintiff here was plaintiff there, and the action being ejectment, a remedy rigidly legal, it behoved her to make out a title of the same character. The title made out by the plaintiff consisted :

1. Of a series of documentary and other evidence, received without exception at the trial, which vested in Philip Schuyler an estate, which, to all legal intendment, was an absolute fee-simple in him and his heirs ; without trust or reservation, or any evidence, intrinsic or extrinsic, of his holding it, or any part of it, in a fiduciary capacity.

2. John Bradstreet’s will, dated 23d of September 1774 ; in which he first devises all his estate to his two daughters, in common, in fee ; and then says, *“*notwithstanding the former devise for the benefit of my wife and daughters, I empower my executors to do all acts, and execute all instruments, which they may conceive tobe requisite to the partition of my landed

' estate ; and I devise the same to them as joint-tenants, to be by them sold, at such time, and in such manner, as they shall think most for the benefit of my daughters,” &c.

3. The will of Martha, one of the daughters of John Bradstreet, under which Martha, the present plaintiff, acquires an interest of one-sixth in John Bradstreet’s estate, real and personal. Of this will, Sir Charles Gould is appointed sole executor, with power to sell the lands in America, and apply the proceeds to the use of the plaintiff.

4. A deed from Philip Schuyler, dated May 16th, 1794, by which, reciting that he is executor of John Bradstreet, he conveys the plaintiff’s interest , in the subject in controversy, to * Agatha Evans, widow, the other ■* daughter of John Bradstreet, and Edward Goold, naming him attorney of Sir Charles Gould, in trust to sell and dispose of it, and apply it according to the interest created by the wills of John and Martha Bradstreet. This deed recites that Philip Schuyler was, at the time of making *277John Bradstreet’s will, and from thence to the decease of John Bradstreet, seised in fee, as tenant in common, of and in two equal undivided fourth parts of and in all that parcel or certain tract of land, &c. “ (being the same of which lot 97 is part and parcel), as to one equal undivided fourth part of which said tract of land the said Philip Schuyler was seised in trust for the said John Bradstreet.” This whole fourth part he conveys to Agatha Evans and Edward Goold, to the use of Agatha, as to two-thirds, in fee, and as to the remaining third, to the use of Edward Goold, in trust to sell and apply the proceeds as before stated. The above recital is the only evidence in the cause to show that the conveyance was anything but a mere bounty from Schuyler to these parties. And notwithstanding that recital, it is perfectly clear, that the case makes out the legal estate to have been in him ; that the conveyance is a common-law conveyance, and operates to convey a legal estate to Mrs. Evans and Goold : as to her two-thirds, clearly so ; and as to the remaining third, equally so, since the fee vested in Goold, and the interest of this plaintiff under that deed is a mere equity.

5. That equity was not turned into a common-law right, until 1804, when Goold, who survived Agatha Evans, by a deed, in which he sets out all the facts on which this plaintiff’s equity rested, and among them his character of attorney to Sir Charles Gould, and in compliance with a decree of the court of equity, invests her with the legal estate.

The defence set up is adverse possession in Potter; for the double purpose of avoiding Schuyler’s deed, and to maintain a bar under the statute. And to maintain this defence, a deed is introduced, executed four years prior -to that of Schuyler, by which Agatha Evans, in her own right, and Edward Goold and another, professing to be attorney to Sir Charles Gould, executor of Martha Bradstreet, the elder, convey the lot 97 to Stephen Potter, by words, calculated to vest a legal fee-simple, with a general warranty by Evans, and a special covenant against all claiming under John Bradstreet. But in the actual Estate of the title at that time, in the eye of the common law, this deed conveyed nothing ; there was no seisin, actual or •- constructive ; no legal right to possession ; nor any remedy except in equity for acquiring a legal estate to the parties who executed this deed. The bill of exceptions shows, that the evidence proved in substance, that under this deed, and immediately after its execution, Potter entered ; and from that time, he, and those claiming under him, have held it as sole and exclusive owners against all the world.

It is not questioned, that the plaintiff is, within the saving of the statute, under a continuing disability, unless the statute began to run as against Schuyler, and with equal reason, as against Evans and Goold, Schuyler’s grantees, in which case, it continued to run, so as to bar her.

On this state of facts, the parties below moved for instructions, and the court gave a charge, and the verdict was rendered for the defendant. The questions which the court has to consider are : 1. Whether the plaintiff was entitled to the instruction she prayed ? 2. Whether there was any error in the instruction as given ? The prayer was a general one, that on the case made out, after the whole evidence and argument were gone through, she was entitled to a verdict. This, of course, implies, that she had made out a good title ; and that the defendant had made out no better title or bar. The words of the prayer are, that the matters and things so given in evi*278dence were conclusive to entitle her to a verdict. From which it follows, that if there were a flaw in her title, or that the facts made out a better title in the defendant, or a ba.r to the action, under the statute, the plaintiff was not entitled to this instruction. The charge admits the validity of the plaintiff’s deduction of title, unless interrupted by the invalidity of Schuyler’s deed, resulting from an adverse possession in Potter ; in which case, Edward Goold took nothing, and could transmit nothing to her, by his conveyance in 1804. The defendant’s case, the court puts upon the possession under the statute alone. Now, although the court may have overlooked something in the cause, yet if the consequence is, that the charge is more favorable to . *the plaintiff than it should have been, that is no ground of complaint J on her part. And, individually, I think, there were some very important views of the case overlooked ; views on which I doubt if Lord Coke would have hesitated a moment, to decide the better title to be in Potter, independent of the bar.

1. Then, I care not, for the purposes of my argument, whether the deed of 1790 to Potter, be regarded as the sole deed of Agatha Evans and her husband, or their joint deed, with Edward Goold and Ludlow, attorneys to Sir Charles Gould, or of Sir Charles Gould, executed by his attorneys ; either view leads to the same result. But the correct legal view leads more immediately to it; which is, that whether from the absence of proof of the power of attorney, or from any incapacity to delegate his authority, Sir Charles Gould’s name must be stricken from the deed. It is the deed of Agatha Evans and husband, conveying, in language the most full and unequivocal, the whole land, and the whole fee in the land. There is not a word in it, that can give it the character of a conveyance in severalty, each conveying a distinct interest. And more emphatically so as to Evans, who warrants the whole, and covenants expressly against the plaintiff’s title.

This, then, is, as to the plaintiff’s interest, a conveyance by one having no title, to a third person, who enters under that conveyance. The fact of Potter’s possession is distinctly affirmed ; and whether by actual forcible ouster, or by a peaceable possession acquired by fraud ; the law holds him to be a disseisor. The first alternative makes him so in terms; and the second is an old, but well-settled doctrine. Such is the case in Rolle’s Abridgement, of a husband and wife, joint-tenants in fee; the husband commits treason, and the king seizes the land ; the king cannot be a disseisor, but the lord of whom it was held, upon a false suggestion that it is his proper escheat, is put in possession by the king ; the lord is adjudged a disseisor as to the joint-tenancy of the wife ; and the reason assigned is, *“*that he got possession of the freehold by misrepresentation, by injustice, and falsehood ; that therefore, the possession acquired by it must be looked upon as a possession acquired by violence open and avowed.” 1 Roll. Abr. 658. So, where a guardian in chivalry, having, of course, the possession in ■*4.34.1 assigns dower to one, as wife of the deceased *tenant, who is -* not wife, and she enters; she is a disseisress : and the reason assigned is, that “her possession being acquired by an act of fraud and injustice, the possession acquired by it is tortious.” Bro. tit. Disseisin, 7 ; 1 Roll. Abr. 662. So also, of a possession delivered or permitted under void titles ; as, in the case of two infants, joint-tenants, and one, being under age, releases to the othex-, by which the other holds the whole ; he is a disseisor, *279and the reason assigned is, “ that the title is utterly void.” He was not held to be in of the original estate, although a joint-tenant, hut to have committed a disseisin, against the clear state of positive fact, being considered as entering according to the release ; not according to the state of actual title after the release was executed, which being void, left the title unaltered. Bro. tit. Disseisin, 19. And the same law was ruled in another case of much the same nature, against the notoriety of an actual feoffment; where the invalidity of the title was combined with a breach of duty, as between guardian and ward. It is also laid down, that if A. executes to B., a lease for the lands of C., and B. enters, this is a disseisin by A., and the reason assigned is, that the demise to B. is equivalent to a command to enter the land of C. Bro. tit. Disseisin, *7*; 1 Roll. Abr. 662.

At the date of the deed to Potter, the legal title was in Schuyler, and he only could be legally disseised. It is not necessary to recur to authority, to prove that a release to the disseisor, by the disseisee in fee, is as good a conveyance as can be executed ; or that an absolute conveyance in fee, especially, with words of release, to a disseisor, is a release to the disseisor, or to his feoffee. This last principle is expressly ruled in the case of *Jackson*v. *Smith,*decided in New York courts. 13 Johns. 406.

Here, then, we have a conveyance from Schuyler, the disseisee, to Agatha Evans, the disseisress, operating in favor of Potter, her grantee ; which makes out a common-law conveyance. It is seldom that a case, in our times, savors so much of the black letter ; but the course of decisions in New York renders it unavoidable, and the whole course of this argument has been calculated to involve us in it.

If the conveyance of 1790 to Potter could admit of being *consid- ... ered as only purporting to convey severally the interest of the parties L grantors ; still, we are led to the same result. It must, in that view, be considered as the several conveyance of Sir Charles Gould, by Edward Goold and Ludlow, his attorneys. But then it is in the same character, reciting himself such in his indenture, which he is estopped from contradicting, that he receives the conveyance from Schuyler. From this two consequences follow : 1st. That he receives the release from Schuyler in the same right and character in which he conveyed to Potter ; and therefore, in point of right, as well as form, is the grantee of plaintiff’s interest to Potter, and as such, the release of Schuyler to him is a release to Potter. 2d. That as it is through him that Mrs. Bradstreet makes title, and his deed contains the same recital, exhibiting him in the character of attorney to Sir Charles Gould, she also is estopped from denying him in that character. In this view also, then, Potter would hold a good estate at common law.

It may be objected, that if Schuyler was disseised, so as to invalidate his deed, as to the title of the plaintiff, then he was disseised so as to invalidate the deed to the disseisor. But this is not the law ; for the principle does not operate as between the disseisor and the disseisee, but only as between the disseisee and a stranger. So is the common law ; and so is the New York decision before alluded to, in express terms. *Jackson*v. *Smith,*13 Johns. 406. Besides, if void against her, it is immaterial, whether void, or not, against the defendant; her title, then, breaks off midway. Thus far for my individual views.

It is objected to the charge, as it regards the plaintiff’s title, that it was incorrect, in stating “that the effect of an adverse possession in Potter, at *280the time of the execution of Schuyler’s deed to Evans and Goold, would be to render the deed inoperative and void, and prevent any title from passing under it to Evans and Goold.” If the judge could be considered as having passed upon the sufficiency of the evidence to establish the adverse possession, there might be just grounds of complaint found to this charge ; but that question he expressly leaves to the jury ; and then, it is obvious, that if such be the law of New York, it is idle to go further, and inquire whether . disseisin and adverse possession i:be convertible terms at common law; J or whether either, at this day, should invalidate a transfer of property. That an actual or constructive possession is necessary, at common law, to a transmission of right, is incontrovertible. It is seen in the English doctrine of the necessity of an heir’s entering, in order to transmit to his heirs ; but whatever be the English doctrine and that of other states, as to the right of election to stand disseised or not; it is certain, that the New York courts have denied that right, both as to devises and common-law conveyances, without the aid of a statute repealing the common law. After the case of *Jackson*v. *Demont,*9 Johns. 55, it is in vain to contest the point ; and the principle is established by various other cases. It was then incontrovertible, in that state, that if the jury found an adverse possession (for such is the language of the New York cases ; not actual ouster or disseisin), the conveyance was void : and such was the charge of the judge.

It seems to have been supposed, in the argument, that the judge founded his instructions on this point upon the statutes of maintenance. This, however, is not the fact; for it will be seen in the case of *Jackson*v. *Demont,*that the courts of that state go upon a principle having no relation whatever to the statute of maintenance. They apply to adverse possession the common-law doctrine on the effect of disseisin ; according to which, the deed of one disseised of his freehold, is held to be utterly void. His freehold was then held to h? out of him, to be converted into a right of entry or right of action, and as such, no more the subject of legal transfer at common law, than an ordinary *chose in action.*It being so settled in New York, it is in vain to inquire further ; but, *en passant,*it may be observed, that there are few principles of more ancient or more dignified origin. It is the law of kings, that the fact of possession proves the right of possession ; and the idea is thrown out by Blackstone, that it probably passed down from greater to less, until it extended to every man’s close. There are, however, less questionable reasons for it, to be found in the practice and policy of the feudal and common law.

But the charge is said to be erroneous in those passages which relate to the bar of the statute. There is something unique in the form of this bill of *4.s'7'l exoePti°ns) since, after setting out the facts, it gives us the *arguments -* of counsel, instead of prayers for specific instructions ; and contains but one prayer on each side, each for a general instruction in the party’s favor. So that we have to examine this instruction, as rendered, and reduce it, from generals, into particulars, by reference to the evidence; perhaps, aided by the specific ¡propositions exhibited by the arguments.

The instruction, then, commences by admitting, hypothetically, that the deduction of title to the plaintiff was complete ; and that the deed from Agatha Evans, and Ludlow and Goold, to Potter, was void, as to conveying away the interest of the plaintiffs ; “ yet,” the judge affirms, “ there is *281nothing appearing on the face of this deed *(i. e.,*the deed to Potter), nor anything in the circumstances connected with its execution, so far as they had been shown, which in law would preclude the defendant from availing himself of possession'under it, as a bar to the plaintiff’s action, or prevent the possession of the said Stephen Potter, taken under and in virtue of the said deed, from being considered adverse to the title' of the lessor of the plaintiff, and to the title of the said Philip Schuyler, the executor and trustee of the said John Bradstreet; provided the proof was sufficient in other respects to establish the fact of such adverse possession.” And again, “ that although it was generally true, that one tenant in common was not permitted to set up his possession, as adverse to his co-tenant, yet that one entering into possession of land, under a deed for the whole, and claiming the entire interest, would not be thus precluded ; although it should subsequently appear, that such deed conveyed an undivided share.” It then goes on to state, that the judge, “ after explaining to the jury, what in law constitutes an adverse possession, and submitting to them, as a question of fact, whether such a possession had been proved, directed them,” &c. And finally, the judge instructed the jury, that “the question, whether or not it was competent for the defendant to set up the defence of adverse possession, under the deed to Stephen Potter, was a question of law, and had been decided against the plaintiff ; that what in law constitutes an adverse possession was also a question of law ; and that it was for the jury to say, under the instructions that had already been given to them upon that point, whether such possession had been proved that if they believed from the evidence, that *such a possession had been established, they were bound to find a verdict in favor of the defendant.” >-

Some difficulties were presented in the argument, as to the effect to he given to the words “ after explaining to the jury what in law constitutes an adverse possession But it must always be recollected, that this court can only reverse a judgment when it is shown that the court below has erred. It cannot, then, proceed upon conjecture, as to what the court below may have laid down for law ; it must be shown, in order to be judged, what instructions were in fact given, and what were refused. The passage alluded to can only be held to affirm what it expresses, to wit, “ that the judge instructed the jury as to what in law constitutes an adverse possession.” And in doing so, certainly there was no error — adverse possession is a legal idea, admits of a legal definition, of legal distinctions ; and is, therefore, correctly laid down to be a question of law. The whole argument in this case proves it.

The whole purport of this part of the charge then, reduced to its elements with reference to the points in argument, is this : 1. That adverse possession is a question of law, on which the court has a right to instruct the jury. 2. That the fact of adverse possession, in its legal sense, was a question for the jury. 8. That the defendant in this case was not precluded from setting up an adverse possession ; whether we regard him in the character of one holding under a void deed, or of a trustee, or *eestui qui trust,*or of a tenant in common, or of one holding the same, or by the same title. Or, in more unequivocal terms, that an adverse possession, where it actually exists, may be set up. against any title whatsoever ; either to make out a title under *282the act of limitations, or to show the nullity of a conveyance executed by one out of possession.

On the first two of these propositions there can be no doubt, and none has been expressed ; and as to the third, it is equally clear, that desseisin or adverse possession, as a fact, is always a possible thing,- and may occur wherever force may be applied. The common law, generally speaking, regards it as an act of force, and always as a tortious act; and yet out of regard to having a tenant to the *praecipe*and one promptly to do service *439] to the lord, ^attaches to it a variety of legal rights and incidents. Rights accruing under acts of limitations are recognised, in terms, as *primé facie*originating in wrong, although really among the best protections of right; and if any one who can commit a disseisin may claim under an adverse possession, it is not- easy to preclude any one. An infant, a *feme covert,*a joint tenant in common, a guardian, and even one getting possession by fraud, may be a disseisor. 1 Roll. Abr. 658, 662 ; Bro. tit. Disseisor *7*; Salkeld, Joint Tenant and Tenant in Common. The whole of this doctrine is summed up in very few words as laid down by Lord Coke (1 Inst. 153) and recognised in terms in the case of *Blunden*v. *Baugh,*Cro. Car. 302, in which it underwent very great consideration. Lord Coke says, “a desseisin is when one enters, intending to usurp the possession, and to oust another of his freehold ; and therefore, *qucerendum est djudice quo animo hoc fecerit,*why he entered and intruded.” So, the whole inquiry is reduced to the fact of entering, and the intention to usurp possession. These are the elements of actual disseisin ; and yet we have seen, that one may become a disseisor, though entering peaceably under a void deed, or a void feoffment, or by fraud ; and that the intention to desseise may, under circumstances, be imputed to those who, by a general rule of law, are, in ordinary cases, incapable of willing, or not bound by an exercise of the will. This analogy has been freely extended to adverse possession, and even gone beyond it, as well by the decisions of New York, as will hereafter appear, as by the repeated ruling of this court. In the case of *Pawlet*v. *Clarke,*4 Pet. 504, it is distinctly intimated, that a possession may be adverse, wherever an ouster may be presumed : and also unanimously ruled, that it may be adverse, and maintain a bar under the statute, even where ouster is in terms repelled, and not to be presumed from the very circumstances of the case. The words of the court are, “ 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 possession for himself, and not for the vendor ; such was the doctrine of this court in *Blights Lessee*v. *Rochester, 7*Wheat. *4.401 53®-” ^ be the correct doctrine of this *court, and there can be J 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 others. Such certainly is the view taken of the law, in the reasoning of this court, in the case of *Willison*v. *Watkins,*3 Pet. 53 ; and with express reference to lessors, mortgagors, trustees and tenants in common. In the ease of *McClung*v. *Ross,*the chief justice says, “ that one tenant in common may oust his co-tenant, and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act that can amount to an ouster, or give notice to his co-tenant that his pos*283session is adverse, ought not, we think, to be construed into an adverse possession ; the principles laid down in *Barr*v. *Gratz,*4 Wheat. 213, apply to this case.” This is perfectly consistent with the language of the case of; the *Town of Pawlet;*for the fact tobe determined is, whether the party 1 holds possession for himself or for another ; and this can only be determined by evidence, or circumstances to prove the one or the other. It is the inquiry into the “ *quo animo."*In all these cases, there is no intimation found, that the adverse possession may not be set up ; the only point maintained is, that the “ *quo animo "*must be established, as well as the fact. But in finding the *quo animo,*the jury must, of course, be left to their own view of the effect and sufficiency of the evidence. Actual ouster is clearly not requisite, either to be presumed or proved ; adverse possession may exist without it; and notice, as a fact, may clearly be deduced from circumstances, as well as be positively proved. *a*

The bill of exceptions states, that the defendant proved (that is the word used) that Potter: 1. Entered under his deed, and by virtue thereof : 2. Immediately after the execution thereof : 3. Claiming to be sole and exclusive owner thereof ; and in a subsequent part, it is amplified by the expressions, claiming the absolute ownership, and the ownership in fee. Much of the discussion has turned upon the sufficiency of proof to the effect stated, to sustain the finding of an adverse possession ; and it has been insisted, that it neither supplies the exigency of actual ouster or notice: The only prayer of the plaintiff, it will be recollected, is for a general instruction in *her r¡¡¡ . favor, “ upon the matters so produced and given in evidence in her *- *1***behalf.” The court were, therefore, not called upon by the plaintiff to instruct the jury, upon the competency of this evidence, to sustain a finding of adverse possession ; and accordingly gave none, unless it was incidentally ; and if, therefore, the evidence was insufficient, it could only be the ground of a motion for a new trial; with which we have no concern.

The views which I have taken of the doctrine of adverse possession would not have been necessary, but for the supposed bearing of the instructions actually given by the court upon the verdict; and particularly in relation — 1st. To that part of the bill of exceptions, in which it is said, “ that the court explained to the jury what in law constitutes an adverse possession ;” which, if correctly explained, it is supposed, could not have sanetioned the verdict upon that evidence. But on this, it must be observed, that in a case, where the *quo animo*alone, with which a defendant entered, and held, was the question *;*and the proof was, that he entered and held to be the sole and exclusive owner of the land, and to hold an absolute ownership in fee; if ouster and notice, like other facts, may be presumed from long and undisturbed possession, or other circumstances, it would be difficult to say, that the testimony in this cause was not competent to sustain a finding of an adverse possession. It is impossible, upon this view of the case, to impute to the court any other instruction than what may be covered by the terms of the proof in the case ; that is, that if the judge instructed the jury, “ that one who enters under a deed purporting to convey to him an estate in fee, claiming to be sole and exclusive, and absolute owner in fee thereof, for forty years, may be regarded as holding adverse to all the world it would be difficult to find any legal exception to such a charge; since it is left open to the jury to judge of the sufficiency of the evidence to prove the fact *284of a claiming to be sole and exclusive, and absolute owner, in fee. Notice and actual ouster are among the most direct, and ordinary proofs of such a holding ; and may have been the proved or presumed ground of this verdict.

These views taken of the law of adverse possession were necessary to precede an analysis of the general ^instruction given by the court *442] upon the competency of the bar under the statute. On this instruction, it is necessary to bear in mind, that it is strictly confined to this : 1st. That there is nothing on the face of the deed under which Potter claims, that precludes him from setting up this bar. 2d. That there was nothing in the circumstances connected with its execution, that would preclude him. 3d. That there is nothing in the possession acquired under that deed, to prevent the possession acquired under it from being held adverse to the' lessor of the plaintiff, or to Schuyler ; provided, the proof was sufficient in other respects to establish the fact of adverse possession. There is no affirmation by the court of the sufficiency of that deed to constitute an adverse possession ; or of the sufficiency of the possession acquired under it. But all the court becomes responsible for is, the negative proposition, that there is nothing in the deed, or in the circumstances attending its execution, which precludes the defendant from setting up and proving adverse possession.

Now, it is difficult to see how this proposition can be controverted. If, in the very nature of things, there is no one who may not be actually ousted and actually held out of possession, whether lessor, mortgagor, trustee or tenant in common, as is affirmed in the case of *Willison*v. Watkins, and other cases ; how is it possible, that any deed, or any circumstance, should preclude a resort to proof of absolute adverse possession, where it exists in fact ? The charge of the court amounts to no more than a limited affirmance of that general proposition.

But as the chief difficulty in the cause arises out of that specification under the general proposition which relates particularly to a tenancy in common, we will consider that with due attention. The instruction of the court is, “ that although it is generally true, that one tenant in common was not permitted to set up his possession, as adverse to the title of his co-tenant; yet that one entering into possession of land, under such a deed for the whole, and claiming the entire interest, would not be thus precluded; although it should subsequently appear, that such deed conveyed only an undivided share.” The words *“*thus precluded ” have reference to the same *443] •*terms used in the general instruction, and make this part of it to mean, “ that one tenant in common entering into possession of land under a deed for the whole, and claiming the entire interest, would not be precluded from setting up an adverse possession ; provided, the proof was sufficient in other respects to establish the fact of such adverse possession.” And where is the objection to such an instruction ? If one tenant in common may be disseised by another ; if one tenant in common may set up an adverse possession against his co-tenant, provided he has adequate proof of the fact of its adversary character; it would seem, that this instruction imports no more.

On this part of the case, however, there exists a division of opinion on the construction of the charge : three of the judges thinking that it falls short of the proposition as I have stated it; and two others concurring in my *285view of its construction. In support of the construction, which those who concur with me adopt, I have further to remark :

1. That the court below might very well have withheld this instruction, since, in fact, there is no legal tenancy in common in the case. The action of ejectment deals altogether with legal estates. Mere equities are unknown to it; and yet the tenancy in common set up in this case is altogether destitute of a legal character. At no time, had the plaintiff’s lessor a *scintilla*of right, known to the common law, until she received the deed of 1804. Until that time, the only estate that can be recognised in this form of action was in Schuyler, or in Evans and *Goold;*if not in the defendant *Potter,*as has before been noticed. It surely cannot be contended, that Potter held as tenant in common with Goold, since Goold, either in his own right, as assuming a false character, or in the right of Sir Charles Gould, as having acted in his true one, was one of the grantors under whom, and against whom, Potter entered.

2. There was no tenancy in common, because Potter entered in fact in his own right, under a deed conveying a fee-simple in the entirety. Such it is, as to the act of Evans and wife, and such it purports to be, as to the act of Edward Goold, or of Sir Charles Gould. It has been earnestly insisted, that the entry of Potter under that deed must be presumed to be according to the title actually acquired under it, supposing it *to be void as to r¡!! Sir Charles Gould ; and not according to the estate which it purports *• to convey. But to this there are several answers, and the first alone is conclusive ; to wit, that the evidence expressly repels the presumption. He entered under that deed, as the sole, exclusive, absolute owner in fee ; this is altogether inconsistent with an entry to the use of himself and another. And this seems to be no longer an open question in New York, even on the subject of legal inference. For in the case of *Jackson*v. *Smith,*which was the case where one tenant in common conveyed the whole, and this very point was made ; the court repels the inference in favor of the entry as tenant in common, and declares tire contrary to be the proper inference. And in the case of *Clapp*v. *Bromagham,*9 Cow. 551-3, which was another case of a conveyance of the whole, by one tenant in common, the same doctrine is repeated in terms. That part of this bill of exceptions which relates to the proof, seems to have been nearly copied from the case of *Clapp*v. *Bromagham;*in which the bill of exceptions stated, that the defendant entered as purchaser of the whole, and held as tenant in severalty, claiming to be sole and exclusive owner. Again, although it were the true inference of law, nothing can be clearer, than that it might be repelled by proof, and that the jury might v7ell find the contrary to be the fact; their verdict in this case is equivalent to such a finding; and for aught that we can judicially know, such a finding may have been sustained by proof of ouster, notice, forcible repulsion, leasing and receiving rents ; or any other competent proof of the character of his entry, and the assertion of rights under it.

3. If there was a tenancy in common, the law appears to be definitively settled in New York, that the grantee of one tenant in common for the whole, entering on such conveyance, and holding-as sole owner, may set up the statute against his co-tenants in common. And to this effect we have before us an adjudged case, in which there seems to have been neither an actual ouster, nor actual nor constructive notice to the co-tenants. This is *286the case of *Clapp*v. *Bromagham,*decided in 1827, and before referred to, for another purpose ; in which one of nine tenants in common sold the whole premises to the defendant, who entered and held as his sole and exclusive *445] '‘'property. It is distinctly shown by the court, that the only question in that case was, whether the defendant might set up his possession, to the exclusion of his co-tenants ; and decided, that he might, upon the most elaborate argument and profound examination. In that case, the decision of this court in the ease of *Ricard*v. *Williams,*is cited, 7 Wheat. 60, and recognised as laying down the true principle by which this class of cases must be governed *;*to wit, that in the absence of all controlling circumstances to the contrary, the entry of one having right shall be held to be according to that right; that an ouster or disseisin is not to be presumed from the mere fact of sole possession ; but that *“*it may be proved by such possession,” accompanied by a notorious claim of an exclusive right. This decision, according to our view of it, leaves no scope for speculation.

4. On the subject of this equitable tenancy in common, against which we must again enter our protest as a *novus hospes*in the action of ejectment, it may be further remarked, that if it is to be regarded in our deliberations on the law of the case, it is to be presumed, that it must be treated as if we were sitting in a court of equity ; and then it would certainly be appropriate to examine it in all its equitable aspects. And first, is the deed to Potter to be regarded as the deed of Sir Challes Gould, or is it not ? If not, then, clearly, Potter is not to be affected by any equity which Mrs. Bradstreet might set up against Sir Charles Gould. .If it is to be considered his deed, then other equitable considerations present themselves. It is his deed, executed by his attorney, Edward Goold. But Mrs. Bradstreet also makes title through Edward Goold ; naming himself attorney to Sir Charles Gould, and reciting that as his character in conveying to her. Then, if Potter is to be affected with equitable notice, or equitable duties, as being his substitute ; why is not Mrs. Bradstreet to be similarly affected, in the character of his alienee or substitute ? If so, she is bound to do whatever Potter might in equity have claimed of Edward Goold ; and that is, a conveyance in fee, in severalty, of the land in question. But I repeat, this is involving the action of ejectment in subtleties that are unknown to it.

*ñ- ^ *s insisted} that though the point of tenancy in common be gotten over, there are others in the case that are to be removed : and 1st. That as there is no proof of the power from Sir Charles Gould to Ludlow and Goold, the deed to Potter places him, as to the interest of Mrs. Bradstreet, in the relation of one having no title, or a void title. ■ As to an entry under a void title, that has met with such pointed answers from this court, and the courts of New York, that it can scarcely require a labored examination. The bar of the statute is acknowledged to originate in wrong. In the case of *La Fromboise, 8*Cow. 594, 596, the supreme court of New York say “ that if a party have a deed, he need not produce it; and if, on production, it proves defective, that does not affect the character of the possession.” And when the court of errors come to examine that doctrine, they affirm it in more general and emphatic language. The only case which suggests a doubt as to its applicability, is that of *Jackson*v. *Waters,*12 Johns. 865, decided in the same courts. But though that cage be not shaken by subsequent decisions, it is enough to observe of it, that it had *287its origin in a peculiar policy, or rather in the common-law principle that the king cannot be disseised, or be a disseisor. It was the case of a Canadian grant, conflicting with a New York grant: and the case of *Clapp*v. *Bromagham,*as well as other adjudged cases show, that as between parties to mesne conveyances, the principle ceases to apply. Thus, though the king cannot be a disseisor, his grantee shall be held such ; and the reason given is, “ because he has time and leisure to inquire into the legality of his title which the king is supposed to want leisure for.” Bro. tit. Disseisin, 65.

6. It is further urged, that the bar is set up against the same title, and therefore, incompetent. But this reason has been repeatedly disposed of by this court, and most recently in the ease of the *Town of Pawlet,*in which it is ruled, that it is no objection to setting up a possession as adverse. The passage has been already in part quoted.

7. That the deed of 1790 places Potter either in the relation of Sir Charles Gould, who was trustee to Mrs. Bradstreet, or of Mrs. Bradstreet, who was *cestui qui trust.*But this admits of two answers — either the deed as to her was void, or it *was not. If not, it destroys her interest by an effectual transfer to Potter ; and if it was void, then it could not L create the relation contended for. If the confirmation through the deed of Schuyler is resorted to, then the answer is still more complete ; for that deed expressly recognises the right to sell ; and if it does put Potter upon inquiry, the result is, that he might fairly and honestly acquire a complete title by sale, discharged of her equity, since either Schuyler or Gould might sell, consistently with the trust. So that he may have taken a void title from one or the other ; but the integrity of his conduct in taking it is such, that no principle of equity can make him either trustee or *cestui qui trust,*under either the original or confirmatory deed. He may have been ill advised, in a legal point of view, in taking the one or the other title ; but if there is no immoral act on his pa.it, merely taking a void deed will not make him a trustee ; nor taking an effectual deed from one who has no power to sell, and is expressly charged to sell for the benefit of plaintiff. He is not to be affected by the fraud of the trustee, when he so clearly appears to have acted innocently, and in good faith. If, in taking a title of the whole, from Evans and wife, he has, in fact, taken a void title from them for Mrs. Bradstreet’s interest, he has a right to put himself upon his wrong; and if he has proved an actual adverse possession under it, he has a right to the benefit of his bar. The Evanses never were trustees to Mrs. Bradstreet, either under any of the wills, or under Schuyler’s deed. Edward Goold alone was the trustee for her under the latter ; legally, in his own right; equitably, as attorney to Sir Charles Gould. No fiduciary relation, therefore, is imputable to Potter, as claiming under the Evanses ; because they themselves were never affected with the character of trustees : and not through Goold, because his deed, if good, was absolute against the plaintiff, and if bad, conveyed nothing to Potter. If the attempt is to impute to Potter the relation of trustee, because Schuyler was trustee, and he claims through or under Schuyler ; the answer is, that if his paper title, as it is termed, is the subject to be considered, then he claims from Schuyler, through Evans and Goold ; and as Goold had the legal estate in him, so must Potter have ; and Mrs. Bradstreet must seek *her redress in equity. Against Goold, at law, r>)., ' she certainly could not recover. But even in equity, how would her *- *288right stand ? A sale by Goold was perfectly consistent with the trust for her benefit ; and considering the *bond fide*character of Potter’s purchase, I can see no ground for granting her relief as against him. Notice of her equity, without fraud or collusion, can afford none ; since notice of the right in her trustee to sell, must accompany it, or rather is a part of it. If the subject of inquiry, as it relates to Schuyler, is respecting the maintenance of Potter’s bar, then he need not assert his possession as adverse to Schuyler ; it is enough for his purpose, if adverse to Evans, or Evans and Goold j and that it might well be so held, although he claims under them, has been, as we have seen, distinctly and repeatedly laid down in this court. If it began to run against them, it continued for the necessary length of time. That one may hold adversely to him from whom he purchases, has long been settled both in this court and in the courts of the states of the United States ; the fact of possession and the *quo animo,*being still the legal subjects of inquiry.

8. It has been argued, that whatever may be the rule, in ordinary cases, in this, the proof of notice was indispensable ; since these lands were wild or waste lands, notoriously uninhabited ; and mere possession of which was not enough to put the trustee or co-tenants upon their remedy. To this it may be answered, that for anything appearing in the bill of exceptions, the lands may not have been waste or wild ; and the proof of Potter’s entering immediately, and claiming to be sole and exclusive owner, would seem to repel the fact. But the true answer is the general one, which was before given on the subject of notice, that we know not, but proof of notice, or presumption of notice, may have been the grounds on which the jury found their verdict. As a proof of a “claiming to be sole and exclusive owner,” it was an adequate and natural ground; and certainly, as a fact, may have been inferred from length of possession, and other circumstantial evidence, of the weight of which they must be the judges.

Judgment affirmed, with costs.