Opinion
August Term, 1858.
Where the bargainor in a deed remained in possession, without any understanding or permission from the bargainee, and while thus in possession, made a deed to another, and such second bargainee entered and held the land for seven years, claiming it as his own, it was Held that the prior bargainee was barred.
ACTION of EJECTMENT, tried before PERSON, J., at the Fall Term, 1857, of Wilkes Superior Court.
No counsel for the plaintiff.
Mitchell, for defendant.
The lessor of the plaintiff produced a deed from Sarah Wilkie to himself, dated 9th of September, 1839, and another from the said Sarah Wilkie to the defendant, dated the 18th of May, 1843, both of which covered the premises in dispute; he further proved that Sarah Wilkie was in possession of the premises on said 9th day of September, 1839, and continued in possession four or five years thereafter, and that at the time of the service of the declaration, the defendant was in possession, claiming the land under Sarah Wilkie.
The defendant proved that in 1843, he went into the possession of the premises, claiming them as his own, by virtue of the deed made to him by Sarah Wilkie, and that his possession was adverse to the plaintiff, and all other persons, and that this possession was continued for seven years. Upon this, he insisted that the plaintiff's entry was barred, and he called on his Honor so to instruct the jury. This he declined to do, but instructed them that Sarah Wilkie, by continuing in possession, after her deed to Reynolds, became his tenant, and that the defendant by his entry under, and claim from, her, became his tenant also, and, therefore, that the possession was not adverse. Defendant excepted.
Verdict and judgment for plaintiff. Appeal by defendant.
It is a well settled principle that one who obtains possession from another, cannot by any words or act in which the other does not join, make his possession adverse, for the purpose of taking advantage of the statute of limitations. Upon this principle, a particular tenant who holds over after the expiration of his estate, is considered a a tenant at sufferance, to prevent his possession from being adverse. So, one who enters under a contract of purchase, before obtaining a deed, cannot, by mere words, or a mere act of his own, make his possession adverse, because it is not consistent with good faith, and fair dealing.
His Honor fell into error by a misapplication of the principle. Our case is not that of a vendee, who is let into possession before the execution of the deed for title, but of one who, as owner of the land, had been in possession before the execution of the deed, and thereafter, continues to hold possession until he executes a deed to a third person, who, under this deed, as color of title, holds possession for more than seven years. In respect to the possession of Sarah Wilkie, the vendor, under whom both parties claim, we are unable to see any principle of law which prevents it from being adverse to the lessor of the plaintiff. She was not his tenant for years — at will, or at sufferance; nor did she enter under, or obtain possession from him. As far as the case discloses, she continued in possession without any understanding, or permission, on the part of the plaintiff's lessor, notwithstanding the deed which she had executed; the legal effect of which, was give to the plaintiffs lessor the right of possession, but in defiance of which right, she maintained and continued her possession. It would, consequently, seem that this possession was adverse. In Johnson v. Farlow, 13 Ired. Rep. 84, it is said, if the vendor had obtained color of title after the execution of the deed, and continued possession under the new title, thus acquired, for seven years, it would have thereby been ripened into a valid title against the vendee. However this may be, our case goes further, for Sarah Wilkie, while in possession, (in 1843,) executes a deed to the defendant, under which he enters and holds possession for more than seven years. He had color of title, and his possession was adverse, for he was, during all that time, exposed to the action of the lessor of the plaintiff. This is the true test of what constitutes adverse possession, and the rule of law is, where one holds possession and exposes himself to an action, for twenty years, without color of title, or for seven years, with color of title, as between individuals, and supposing the land to have been granted, so as to oust the State, he thereby acquires a good title, and it is held in Langston v. McKinnie, 2 Murph. Rep. 67, that the fact that the color of title is derived from the person under whom the opposing party claims, does not take the case out of the operation of the rule.
We consider these authorities, and the "reason of the thing" conclusive against the opinion of his Honor. But we will add, in accordance with the argument of the defendant's counsel, that the analogies of the law all tend to the same result; for instance: A child holding a slave by a parol gift, cannot by words, or by a mere act of his own, make his possession adverse to that of his father; but if the child makes an absolute conveyance of the slave to a third person, and he holds under that title for more than three years, he is protected; for the reason that, during all that time, he was exposed to the action of the father.
PER CURIAM. Judgment reversed and a venire de novo.