#### Den *ex dem. of*Ann Cloud *v.*James Webb and William Miller.

Where four sisters were seised of a tract of land in coparcenary, and three of them, who were sole and of full ag-e, conveyed their shares in fee, and the fourth who was *covert,*and an infant, joined with her husband in a deed conveying- to the same vendee all their interest in the land, to which the *feme*was not privately examined, and the vendee remained in possession of the whole tract and enjoyed all the rents and profits, without claim or demand, forty years, to the husband’s death, and fifteen years after his death, it was held, that admitting the deed of the *feme covert*to be the color of title, the ven-dee and the/eme *covert*were tenants in common, and that his possession was not adverse to her.

Ejectment, tried before his Honor Judge Martin, at Orange, on the spring circuit of 1829. On the trial *318the case was, that *Samuel Mooney*died intestate in the year 1767, seised in fee of the lands described in the plaintiff’s declaration, leaving two sons and four daughters. Both of the sons died seised, and intestate and without issue, whereupon the lands descended upon the four sisters, of which the lessor of the plaintiff was one. In the year 1771 the three sisters of the lessor of the plaintiff conveyed all their estate in the promises to one *Robert Neal.*In the year 1772 the lessor of the plaintiff, having intermarried with *Daniel Cloud,*and being under the age of twenty one years, jointly with her husband executed a deed conveying all their interest in the premises to the said *Neal,*but the lessor of the plaintiff was not privately examined touching her voluntary assent thereto. Under these conveyances *Neal*entered into the whole of the land, and remained in possession until his death in the year 1784, when the lands descended to his son *Ilenry Neal,*who in the year 1824 by deed of bargain and sale conveyed the land to one *Hinton,*who in 1826 by deed of bargain and sale conveyed the same to the defendants ; but *Neal*continued in possession until his death in the year *1826. Daniel Cloud*died in 1812. From the year 1772 until the year 1827, the defendants and those under whom they claim, enjoyed all the rents and profits without any demand for an account, and no claim to the premises was made by the lessor of the plaintiff until the year 1827, except an ineffectual attempt in the year 1805, to obtain a partition of tile lands, by petition filed by *Cloud*and wife against *Ilenry Neal*in the County Court. Between the year 1814 and the year 1824, *Ilenry Neal*executed conveyances for parts of the land to different persons, but remained in uninterrupted possession, and before the year 1824 had taken reconveyances of the whole to himself. His widow remained upon the premises until possession was taken by the defendants.

Martin, Judge, instructed the jury, 1st. That the deed of *Daniel Cloud*and wife was color of title.

2d. That if the defendants were in the actual adverse possession for seven years after the death of *Daniel Cloud,*
      *319the statute of limitations was a bar to the plaintiff’s light.

A verdict was returned for the defendants, and the lessor of the plaintiff appealed.

*Winston,*with whom was *Gaston,*for the plaintiff.—

The second section of the act of 1715, c. 2, relates to possession without title, acquired before the act; though its operation upon the facts of this case would be the same with that of the third section, for the owner of lands cannot enter upon, nor make claim to them, unless he be out of possession.

The possession of one tenant in common is the possession of his companions: his sole actual possession and taking all the profits is not an ouster of them. (Co. *Lit.*199, *b. Fairdaim ex dan. Empson*v. *Shacklelon,*5 *Bur.*2604. 2 *Ld Ray.*829. 6 *Mod.*44. 7 *T. R.*386. *McClung*v. *Ross,*5 *Wheat.*116.) Nor is the entry of one tenant in common claiming the premises as his in severalty, and to hold adversely to all persons, an ouster of his companions. *(Smales*v. *Bale, Hob.*120. 3 *Murph.*164.) Sven a fine, levied by such tenant is not an ouster of his companions, *(Ford*v. *Ld. Grey,*6 *Mod.*44,) though the fine be levied before they have ever actually been upon the land. (1 *East.*568.)

There are some cases and *dicta*in the books contradicting these positions. In the case of the *Earl of Sussex*v. *Temple, Ld. C. J. Holt*is reported to have said, that the sole possession and taking all the profits by one tenant in common, will oust his companions ; this is a mere' *dictum*of that learned judge, - and the contrary thereof was adjudged by him and all the other judges of King’s Bench, a short time afterwards, (2 *Ld. Ray.*829, before cited,) without taking any notice of that *dictum.*No notice is taken of it in *Ford*v. *Ld. Grey,*(6 *Mod.*44,) which was adjudged in the King’s Bench, (2 *Jlnue,') Ld. Holt*still presiding there ; so that it is probable his lordship was misreported in *Ld. Sussex*v. *Temple.*In the caseof *Doeexdem. Mwrphey*v. *Burton,*(JV. *C. T. R.*259,) the court understood the law to be as it is supposed to be laid down by *Holt,*in *Ld. Sussex*v. Temple; but there *320tlie lessors of the plaintiff had conveyed all their estate previously to bringing the action, and even if their deeds had not operated to convey the title in severalty to those under whom the defendants claimed, they would have operated as an estoppel to the lessors of the plaintiff. If that case were decided upon the ground of adverse possession of one tenant in common to the others, I conceive that it is expressly overruled by the succeeding case of *Doe ex dem. Midford*v. *Hardison,*(3 *Murph.*164.) In the case of *Doe*v. *Prosser,*(Cota. 217',') it was decided, that after thirty six years undisturbed possession, and perception of all the profits by one tenant in common without any demand by his co-tenant, the jury might presume an ouster, a partition, a conveyance, or any thing, *(vide the opinion of Wiliest)*to make that possession *adverse,*so that the statute of limitations might run upon it, if it was considered wrongful; or the title in severalty might be taken to have been vested in the defendant by some lawful conveyance. This presumption is made without any reference to, and is not founded on any analogy to any statute of limitation. Upon the same ground, a grant from the sovereign, a common recovery, a release of an equity of redemption, the payment of a bond, are presumed. That the presumption in these cases is independent of the statutes of limitation, is shown conclusively by this; the same number of years founds the presumption in our courts and those of England, tho’ the statutes of limitation of *the two*countries prescribe such widely different periods for making claim or entry, and bringing actions.

But the *dicta*of *Ld. Mansfield,*in *Doe*v. Prosser, (not at all necessary to the decision of that case,) have been adopted by subsequent English judges, and are undoubtedly now the law of that country. Are they to be regarded as rules of decision here? Supposing this court willing to review their judgment in *Doe ex dem. Midford*v. *Hardison,*let us enquire if *Ld. Mansfield’s*opinion can be reconciled with the acknowledged principles *of*our law.

The law adjudges every man to be seised or possessed of land according to his title, not regarding any claim *321be may make to be otherwise seised, either at the time of entering or during the continuance of his possession. If he enter “ where his entry is not congeable,” he is seised in fee, though he may *claim*an estate for life or a term of years only ; if his entry be congeable, his seisin or possession is co-extensive with the estate or interest, by virtue of which he hath right to enter. There is an apparent exception to this rule, to-wit: where one having a right to lands, which can be enforced by action only, not by entry, accepts a conveyance of the same lands from the wrongful possessor and enters, he is seised only of that estate which passed by the conveyance, a tortious and defeasible estate; and is not remitted to his ancient and better estate, because by his own act, he has intei’posed an obstacle to the investigation of the title, thereby adding to that obscurity and uncertainty, on account of which, the law had forbid him to assert his right by an act *in pais,*but enjoined him to apply for remedy to a court of justice. *Xl is a punishment of Ms folly;*but if his entry be not taken away, he *is*remitted. *Smales*v. *Dale, Doe ex*dem. *Midford*v. *Hardison, Ford*v. *Ld. Grey,*& *Peaceable*v. *Read, (1 East.*568,)are striking instances of the truth of this position ; in the first two, the defendants at the time of entering claimed estates in severalty, and declared that they entered in assertion and maintenance of such estates; they insisted upon making themselves wrong-doers; but they were *adjudged*to be seised according to their right and contrary to their claim. In the two last, they claimed in a *court of record*to be seised of tortious estates ; notwithstanding that and the powerful operation of a fine to divest estates, (for a fine is called a feoffment of record, having for that purpose much the same efficacy as a feoffment,) yet as the *land itself -was not actually transferred from the piossession of the conu-sor to the possession of the conus ee, the latter having always continued upon it,*the tenancy in common was not disturbed.

Where a man has an election of two estates, he shall be deprived of his election if it would divest any estate in remainder; and though at the time of entry he *322claim that estate which is inconsistent with the estate in remainder, t!ie law adjudges him to be seised of the estate which will support the remainder. (Co. *Litt. 357, a note. Woodv. Shir by, Cro.Jnc.4-8H. Buncombe*v. *Wing-field, Bob.*254.) The husband of a coparcener enfeoifs A and his heirs and dies *; A conveys her*an estate for life ; she enters claiming to be seised by such conveyance ; she is remitted to her ancient and better estate, because “ such claim is nothing to the purpose.” *{Lilt, sec.*695.) There can be no adverse possession to the true owner without a disseisin. *Littleton*defines a dis-seisin to be *“*where a man entereth into lands and tenements where his entry is not congeable, and putteth out him who hath the freehold.” *{ Sec. 279.)*In *Collier*& *Wife*v. *Poe, (Bev. Eq. Ca.*55,) *this*court held, that the defendant could not by his denial of the title of the plaintiffs, and his claim of an absolute beneficial property in himself, alter the relation existing between him and the plaintiffs, arising from bis possession of the subject of the controversy. If lessee for years bargain and sell the-premises to the bargainee, and his heirs and the bar-gainee enter by virtue of such conveyance, he is possessed of the term as the tenant of the reversioner. If the tenant disclaim in a court of record to hold of his .lord, he forfeits his estate, because be has grossly violated his duty ; but the estate of the reversioner is not divested, because there has been no “ entry where his entry was not congeable, and turning out him who hath the freehold.” and this forfeiture may be waived, and then the relation between the tenant and his lord is restored.

The reason why a feoffment by lessee for years, divests the estate in reversion, is this ; a feoffment operates by *delivery*of the *land*to the feoffee, and the estate attaches to the land as incident thereto. The delivery of the *land*by tenant for years, he not being seised thereof but having only a right of possession, is an *expulsion*of the reversioner ; the tenant usurps the seisin of his lord, and a forcible turning out includes a tortious entry.

By the law of nature,' a man had a property in moveable things, which he had shown an unequivocal intern *323tion to appropriate to his own use, while they remained in his actual presence, and in the land upon which ho stood, of which he could not be deprived without injustice. When men had resolved upon the institution of permanent property, that institution was rendered effectual for the purposes for which it was adopted, by the establishment of this rule, that the possession of the proprietor should continue, whatever distance might intervene between him and his goods, whether moveable or immoveable, until some other person acquired actual possession *in munu*or *sub pede,*under atitle inconsistent with his, and exercised a dominion over them conflicting with the dominion of the proprietor, If the possesssion of this other person be consistent with the title of the proprietor, the possession of the latter is so far from being disturbed, that it is fortified and secured. In conformity with this principle, the possession of the lessee is said to be the possession of the lessor, because it stands with his title ; so of bailor and bailee. Upon the same principle, the possession of one tenant in common is in *affirmance*of the title of his companions ; *it is consistent therewith.*And as it is the duty of the lessee to maintain the seisin of the lessor, arising from the relation between them, as persons having mutual interests in the same subject; so tenants in common having interests so inseparably connected, that the interest of one cannot be injured or endangered, without the like injury or danger to all, it is both the right and the duty of any one who happens to be upon the land, to defend it against all aggression ; their connexion is so intimate, that the one receiving the profits of the land is accountable to his companions for their share, not as a trespasser or an officious intermeddler, but as their bailiff; he is not only in the nature of a trustee to maintain their common title, but a trustee to receive the profits for them. No act of a tenant, while he continues tenant, is permitted by the law to dissolve the connexion between him and his lord, except at the option of the latter : no act of a tenant in common can sever his possession from that of his companions, while the estate in common has existence. *Lord*
      *324
      *Mansfield*admits this, saying, “ one tenant in common, *qua*tenant in common, cannot hold adversely to the 0fjiers.” An estate in severalty is turned to a right by a man’s “ entering into lands or tenements, where his entry is not congeable, and turning out him who hath the freehold.” *(Lilt. sect.*279.) Is there any peculiar infirmity in the constitution of estates held in common, which makes them more easy of destruction, capable of being divested by slighter and more equivocal acts than estates held in severalty? If there be such infirmity, from what does it arise? From the relation existing between them as persons having a community of interests and a community of rights? Because the possession of one is the possession of all? Or, because each is bound to possess the shares of his companions, and receive the profits in trust for them? It has never been supposed that words or an omission to perform a duty, could make a disseisin of an estate in severalty. If a tenant refuse to pay rent and deny his landlord’s title, this is no ouster; nor is a refusal of a bailiff to account with his master. No act can have that effect, however fraudulent and dishonest, however contrary to the requisitions of law and the dictates of conscience, which doth not contain in itself actual or implied force. It must be a wrongful entry and a turning out of him who hath *right;'*words cannot make a trespass, nor can a refusal to pay a debt; can there be a disseisin where there is no trespass?

But admitting the law to be as it was laid down by *Lord Mansfield*in *Doe*v. Prosser, the lessor of the plaintiff is entitled to recover ; nothing less than an express refusal to account for the profits upon demand made, accompanied by a direct denial of the co-tenant’s title, will amount to an ouster ; an ouster cannot be inferred from sole possession and talcing all the profits. (11 *East.*49.)

Secondly, if there he adverse possession, the defendants and those under whom they claim, had no colour of title to the share of the lessor of the plaintiff, for more than seven years before the bringing of this action. The deed from *Daniel*Cloud,to *Robert Neal*recites, that the premises are the fee and inheritance of his wife. In *Doe*
      *325
      *ex dem. Tate's heirs*v. Southard, (3 *Hawks*119,) Judge HeNdersoN defines colour of title to be “a writing upon its face professing to pass title, but which does not do it, either from the want of title in the person making it, or the defective mode of conveyance that is used, and it must not be so plainly and obviously defective, that no man of ordinary capacity could be misled by it.” If there be any rule of our law known to every man of ordinary capacity, it is that a husband can convey no greater es-' tato than for his own life, in lands which are the inheritance of his wife. It was held, in *Hill*v. *Wilson,*(2 *Murph.*14,) that a deed made by one as the attorney of another, he having in truth no authority from that other to convey lands, was colour of title ; but the deed recited, that the person executing it had power and authority to convey in the name of him whose' attorney he professed to be ; and the court looks no farther than the writing to determine whether it be colour of title; any information obtained from extrinsic sources has no bearing upon that question, It is immaterial that the possessor knew at the time of taking possession, that the land belonged to another person. *{Doe on dem. of Riddick et ux.*v. *Legget,*3 *Murph.*539.)

Is the deed of a *feme covert,*without a private examination, co-lour of title, where her cover-ture appears up-its face ? *Qn.*

*Badger, contra.*

HaTiX>, Judge,

after stating the case proceeded:

It must be admitted, that *Robert Neal*and *Henry Meal*have been in possession of the land from the year 1772 until year 1826, under a valid title from the three sisters of *Ann Cloud,,*and perhaps a color of title from *Ann Cloud*herself. But it does not follow, that their possession has been adverse to *Ann Cloud*since her discoverture.

All the title *Daniel Cloud*had in the land, and no more, was by him conveyed to *Robert Meal;*the residue of the estate was in *Ann,*his wife, her deed being inoperative on account of her coverture and infancy. Admitting that deed to be color of title, nothing passed thereby. It could only *as colour of title*give efficacy to an *adverse*possession of seven years. It is therefore all-important to ascertain, whether in tills case there has been a possession adverse to the title of the lessor of the plaintiff.

*326The possession of one tenant in common is the possession of the other.

When *Daniel Cloud*«lied, how did the rights of the parties stand ? *Henry Neal*was in possession of the land, and had title *to three fourths*of it, claiming from *Jinn Cloud's*three sisters. *Jinn Cloud*had title to one fourth of it, but was not in actual possession. She and *Henry Neal*then, were tenants in common ; therefore his possession was her possession. I need not cite authorities to show, that the possession of one tenant in common is the possession of the other. It is for that reason, that the judges have had recourse to ousters by presumption, as in the case of *Fishar*v. *Prosser (Cowp.*217). There the statute of limitation would have been a *bar;*but *Lord Mansfield*considered the possession of one tenant in common to bo the possession of the other, and therefore the statute of limitation did not run. But as there had been a possession of thirty six years, he said an ouster might be presumed from that length of time, and that the statute would run upon a presumed ouster, although in point of fact, it was admitted that no ouster had evcT happened.

It is a question on which the profession has been much divided, whether *an*actual adverse possession *for*seven years, unattended by color of title, was not a bar. That question does not now arise. But it will simplify the the case, to consider it unincumbered by a color of title, merely upon the defendant’s possession *;*because it is the possession, and not the color of title, which grows and ripens into a good title. Then upon the death of *Daniel Cloud,*tire deed as to his wife being a nullity, she had a right of entry, because she hail a right of entry in the year 1771, which was preserved by her intermediate coverture. *(Zouch*v. *Parsons,*3 *Burr.*1805.) Upon the death of her husband in 1812, she was entitled to one fourth part of the land, as • one of the heirs at law of her brother *James. Henry Neal*was at the same time, entitled to three fourths of the land, claiming under the other heirs of *James.*It follows that *Henry Neal*and *Jinn Cloud*were, in 1812, tenants in common of the land in question, and that *Henry Neal,*as such tenant, remained in po ssession from that time, un*327til the year 1826. I think no doubt can be entertained, that his possession was the possession of *Jinn Cloud.*Of " . course, it was not *adverse*to her claim ; and as it was not adverse, it is not a bar, even admitting the deed executed by her to be color of title. Therefore, although there has been color of title, and a possession of more than seven years in JV*eai, and those claiming under him, as that possession was not adverse, the plaintiff’s title is not barred. I think that the case is not affected by the conveyances made by *Henry Neal;*possession did not follow them.

Per Curiam. — Judgment reversed.