Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-12

actual, open, notorious and exclusive
possession thereof, continuously
claiming the whole title thereto in
fee in her own right and without in
terrruption; that for more than 20
years prior to the commencement of
this suit she had kept and was then
maintaining on such land boarding
and rooming house; and that after
this suit was commenced the plain
tiff leased from her a room in such
building, paying therefor the usual
rent. The plaintiff testified that at
the time of the institution of this
suit he was staying in the north part
of Roseburg, but thereafter he OBJ
tanned a room from Mrs. Carter. We
think it satisfactorily appears that
on February 20, 1909. plaintiff was
not and had never been in the actual
possession of any of the real proper
ty of which his aunt had died seized
His possession was only constructive
and depended upon the occupancy of
the defendants as co-tenants who,
however, without any knowledge of
his rights, claimed the fee simple
title thereto in severalty.
The law in force relating to the
partition of real property when this
suit was commenced was as fol-
lows: when several persons hold
(and are in possession of real prop
erty as tenants in common, in which
one or more of them have an estate
of inheritance, or for life or years,
or when several persons hold as ten
ants in common a vested remainder
or reversion in any real property, any
one or more of them may maintain a
suit for the partition of such real
property, according to the respective
rights of the persons interested
therein" This enactment was
amended February %, 1909, by strik-
ing out the words in parenthesis
above noted IL. o. L. sec. 1850 but,
not having an emergency clause, this
act did not take effect until 80 days
form the end of the session at which
the same was passed. Const. Or.
Art. 4, sec. 2S. In constituting the
statute as it existed at the above
mentioned date, it was held that a
plaintiff could not maintain such a
suit unless he was in possession of
the premises; nor would it lie
against a person who was in the ac-
tual possession of the land, holding
adversely to plaintiff; and that in
such case possession must be re-
gained, by action if necessary, be-
fore a suit for partition can be sus-
tanned. Windsor V. Simpkins, 10
Or. III; Sterling V. Sterling, 43 Or.
200; Frye V. Moffet, so Or. 495.
A text writer. adverting to the le-
gal principle thus announced, and
referring to an adiudicated case,
says: "The law upon this subject is
correctly stated in the following ex-
tract from an opinion of the New
York Court of Appeals: Possession
usually follows the legal title when
no adverse possession is shown, and
consequently, when the lands are un-
occupied, the possession will be
deemed to be in those having the
title and when one of several ten
ants in common is in possession, his
possession will, in the absence of any
act Of custer on his part, inure to
the benefit of all. But even the pos
session of one of the tenants in COM
mon may become adverse by acts of
his Amounting to an exclusion of his
cotenants; and if he convey the
whole of the premises to a third
party, and the purchaser takes actual
possession, claiming the whole, it is
certain that the possession of such
purchaser is adverse, and is not the
possession of the former cOtenants of
his grantor. The moment such ad-
verse possession commences, the
holding in common is terminated,
and until the excluded parties regain
their possession by the appropriate
action, | do not see how they can
bring themselves within the provis-
ion OF the statute or the rule of the
common law 1t would be utterly in
congruous to hold, that where eject
ment would lie, the plaintiff has pos
session which would entitle him to
bring partition. The. duration of an
adverse possession is material upon
the trial of the question of title in an
cannot be material in determining
where the possession was at the time
of the commencement of the action.
(Florence V. Hopkins, 46 N. Y. 1867"
Freem Cot. Sec 447.
1t is insisted by plaintiffs counsel.
however, that different conclusion
was reached and the correct rule an
nounced in other decisions by this
court. The cases to which attention
is called will be examined. In An
keny V, Blackiston, Or. 407, ALB,
Mr., Justice Boise, in affirming de-
cree for the partition of land, says
1T is claimed that Thorburn does
not allege possession; he alleges that
he is in constructive possession,
which is sufficient, and this Is sup
ported by the facts alleged" The re-
lation Of co-tenants to each other is
always understood to be friendly
rather than inimical, and the acts of
one respecting the common property
are regarded as being subordination
of the general title, and based on
this postulate, the disputable pre-
sumption is deduced that the entry
of one co-tenant inures to the bene-
tit of all. "The difficulty of deter
mining whether a given state of
facts says noted author, "consti-
tutes an custer of one cotenant by
another may be removed by circum-
stances or declarations from which
the true intent of the party is clearly
manifested. If the intent in tile
mind of the tenant making or resist
Ing an entry is to take or retain the
property as his own and this intent
is so clearly manifested by him as
to be known to the other co-owners,
or as to be noticed by persons of