Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-13

claim by them. The plaintiffs did not reside in the
vicinity of the land.
Now what is the law upon these facts and the re
lation which these parties sustain to each otherl
Under the force of the decree and the deed from
James Z. Galloway the legal title in this property
was vested in William NJ. MARI merely as a dry
trusteefor the deVsees of Constant Perkins no were
entitled to the absolute beneficial interests as tenants
in common, and it was his duty to dispose of and
convey the estate according to the directions of the
cestui que trusts; indeed we convinced the pur-
pose was, that he should, at ence, convey to each
their respective shares. 1t is obvious therefore
that whatever might be his right against strangers
not expected that he should retain the exclu-
sye possession inOpposition to the equitable owners
and if one or more of them, or their rightful
dees took possession it could not be held to be ad
verse to the trustee inconsistent with the CON-
mon title. In Hill on Trustees, I'D Am. Ed.) 1884
it is laid down rule, that for the same reason
that the possession of the trustee is not usually
bar to the cesLi que trust, the possession Of the
cestii que trust for however long period will not
in general dispace the legal title of the trustee For
the holding in either is not adverse. at law
the ces que trust is regarded as tenant viii to the
trustee and he cannot be elected without previous
demand of possession. Therefore, until this tenancy
| is determined, there be adverse possession
between the parties. However, ifthere be formal
denial disclaimer of tenancy by the ceS que trust
or he continue to deal with the estate in manner
inc onsstant with its subsistence he may doubtless
| desseize the trustee and thus acquire adverse
possession upon which the statute of limitations will
i then operate. 1t must, however, always be very
nice and difficult question to determine whether and
at what time such adverse possession on the part
of the cestli aus trust has been actually acquired.
Duke VS.. Harper, Yer ESQ; Watson VS.. Smiths les
see, 10Do. 476. Here Is another view of the case.
The ury-upon the facts in this record-shouid have
been instructed that to the equitable interests to
which any of defendants may have shown them
| selves entitled, they might presume a conveyance
of the leqd estate from William NJ MARI, the trustee;
to that extent not only defeating the right of the
plaintiffs to recover the defendants with
the legal title as at lG0 to make ther7 tenants in
common with the plaintiffs. According to Hill on
Trustees 374 to $685. in support of just title where
as here, it the duty Of the Trustee to convey
and there is sufficient reason to suppose ne had done
so, the presumption will be made. AS where the
equitable owner had acted dealt with the proper
ty as If the legal estate vested in him. this when
Joined with possession and length of tme-though
it seems by some of the authorities the two latter
alone viii not do-wil be material as evidence to
raise the presumption of conveyance oy the trus
tee And the rule applies fortion where. az here
the legal estate is made of by the trustee himself
to defeat or oppose the title of the cesti que trust
and in such Court Of law. In order to pre-
vent the gross injustice attending the enforcing OF
such claim, win take advantage Of any crcumstan
ces honor in conclusive in order to presume con-
veyance. This presumption, as general rule, will
be made in favor only of the person in whom the
beneficial title is for the time being clearly vested
It will not be made in favor Ct a defendant who
shows no other title to the premises which sought
10 be recovered, than that of mere naked posses
SION And hence the plaintiffs should be affected by
the rule only go far as defendants may show clearly
BENEFICIAL title in themselves, or in some Of them
az any other construction would be to defeat not TO
support, Just title The rule is founded in no re-
sen1blance to the doctrine of presuming grant &c.
upon 20 years possession, but may take effect IN
much shorter time and indeed without regard to
time or possession at all. England VS. Slade I. K.
682 Doe VI Sybourn I. r. 9 Akin q ais vs..
Smith Sneed 304.
James D. Freeland and Pleasant G. Hardin and
the other purchasers in possession then must be
held TO have become tenants in common with the
plaintiffs and this relation must be held to have con-
tnued unless shown, in some way to have been des-
troyed. Among such tenants each has the en-
tire possession, as well of every part as Of
the whole and the possession of one or more IS the
possession of all and there can be no adverse pos
session or disseisin among them but BY an dcttdt
custer. 1t is not to be supposed that these parties
meant to assert an ownership to more than they
were properly entitled to; and their possession viii
be construed to have been consistent with right I'M
less there be demonstration plain thst 1t was claim
ed and held otherwise. That one tenant IN common
may GUST his cotenant and hold IN seyeralty Is not
to be questioned But the sole, silent occupation by
one of the entire property claiming the whole and
taking the whole profits, without an account 10 or
claim by the Others accompanied with no act when
can amount to an custer or give notice TO ms CO.
tenant that his possession is GuNSTseg NC
strued into an adverse possession. And this doc
trne of adverse possession d to be taken strictly
and must be made out by clear and positive proof
| aud not by inference; every presumption beng IN
favor of possession in subOrdinaon to the title OF
| the true owner McClung VS.. Ross. 0 wheat ll6
| 4 Dew. 223 290; Howard U. S. r. GA; Johns r.
1854; Angel on Sim. 81, 49, Sneed219, 2S6 1t does
| not appear that the plaintiffs were refused their
| share of the profits which it seems, without de-
NAL of their title, is insufficient evidence OF an
4 - - il hat
they had made demand of their part and the others
| had refused to pay and denied their title claiming
the whole and still retaining the possession, then
such possession would be adverse and custer
| enough. Angel a. Cowper I'll. Or If some OF the
tenants in common instead of conveying their undl-
vded interests as seems to have been done here had
made deeds of the lchoe tract in seUerdty then the
possesson of their alinees and those claiming under
| them would have been adverse to the right and
title of the plaintiffs. Burton vs. Murphy Tay lors
| N c. Rep 25e; Angill 97-S; Peck, Rep. 392, All;
| Howard u S. R. GA. But all the deeds appear to
be precisely to the reverse. No doubt, so soon as
the plaintiffs had notice of the disavowal of their
| title by the defendants and of the assertion
of the title to the entire tract for themselves their
possession so far as it went beyond their title be-
come wrongful and the plaintiffs might sue Allyn vs.
Mather Con- ia But at what time was this And Is
there any evidence of it for period Of seven years
before the suit? In the in Howard It Is laid
down as the rule that there must be some notorious
ty entering must be brought home to the knowledge
or notice of the other tenants IN common, before the
act of limitations will operate.
lis. however. well settled that the exclusive and
| uninterrupted possession by one tenant in common
of land for great number OF years. say for 70 or
more claiming the same as his own, without any
| account with his co-tenants or claim on their part,
they being under no disability to assert their rights,
becomes evidence of title to such sole possession,
an the jury are authorized to presume release an
custer other thing necessary protect the posses
soP and the action Of eectment by his co-tenants In
such case is barred. This presumption Is an infer
ence of fact to be drawn by the jury to whom the
evidence is to be submitted. 4Dev $3.50; Cowper
| 2I7; Cowen 632; Sneed 279. 1t Is made without
anv reference to our statute of limitations and in
/ no analogy TO It. The contrary is sometimes else
where stated the rule, but it is obvious that with
us it must in many particulars stand independent of
our statute, and so we have held Sneed l76.
Upon the same ground grant from the State re-
lease of our equity of redemption, the payment of
| a bond, &C. are presumed. But it may be rebutted
by the infancy or coyerture OF the plaintiffs or by
the intervention of particular estate. the relation
of the parties other facts showing that the pos
session was not adverse to the owner, but by his
perission indulgence, as his tenant. And thls
Is SO whether the case be within the saving of the
statute of limitations within that class of presump
tons termed disphable, and which rests upon gen.
ersl principles of law unIntuenced by the stat
ute IL Howard. T. S. R.. 800; 3 Hum, 26T; Swan,
.
latter class of cases however there to be this
distinction; that unlike the statute of limitations,
disability may be allowed to cumulate in order to
rebut the presumption and where subsequent
disability of the owner of the estate to sue arsis,
the period of disability Ia to be deducted from the
twenty years. so that the presumption only have
effect by counting the time irrespective of the pc
Rod of disability. Augel on Adv Euj. ll6, III
is. Johns r. 2l0 10 D. Ala: Crouch $50. Watkins
Il vs. Peck Is N. II Rep. 800: Yer. 1913. The pre-
sumption even if it could be said to have com
menced running in the lifetime Of William NJ MARI
had not taken effect because there had been no pos
session for the term of twenty years before his
death and it arrested by the disabilities of hi
deyisees-N. H. Rep. 37T.
As to the statute of Imitation if the tennens il
possession asserted title to the entirety when they
were entitled to undecided interests and this asser
ton was 90 made as to Dust the and disseize the
plaintiffs, theP costenants in common, and give
| cause OF suit the extent and the effect of such
possession must, Of course, be determined by the
natrue of the title papers under which the unbound
ed claim was asserted, and if made without any