
    ESSEX CIRCUIT,
    APRIL, 1807.
    DEN ex dem. CLARK against LANE.
    IN EJECTMENT,
    Possession of land by a father, and using it as his own after his son arrives at full age, is adverse possession, within the statute of limitations.
    The lessor of the plaintiff, Aaron Clark, claimed the premises in question, under the will of his grandfather, Thomas Clark, dated in September, 1765. The words of the will devising the land to Aaron Clark, described the land thus: “ All the land I purchased from Andrew Hampton, adjoining'the lands of Terril.” It turned out in evidence that the lands which old Thomas Clark purchased of Hampton, lay on both sides of a road; that part which lay on the southwest side of the road adjoined the lands of Terril; the remaining part lay on the northeast side of the road, directly opposite, adjoined other lands of the said Thomas Clark; and that the residue of his lands he had given to Abraham Clark, esquire, his son, the father of Aaron; that on the death of old Thomas Clark, nearly 40 years ago, Abraham Clark went immediately into possession of all the land; his son Aaron, the lessor of the plaintiff, being a minor, about 19 or 20 years of age, living with his father; that on Aaron’s coming of age, he sold the land on the southwest side of the road, adjoining the land of Terril; that Abraham Clark, the father, kept possession of the land on the northeast side of the road, and treated it [*e] as his own; and at his death, about twelve or thirteen years ago, devised it to his son Abraham, under whom the defendant holds.
    It was contended on the part of the lessor of the plaintiff, Aaron Clark, that all the land which his [306] grandfather purchased of Hampton was devised to him; that a road running through it, separating one part from the other, made no difference; that the word all fully denoted the intent of the testator to give him all the land purchased of Hampton.
    
      Mr. M’ Whorter and Mr. I. H. Williamson, the defendant’s counsel, moved for a nonsuit on two grounds—
    -1st. That on a faff construction of the words of the will, the land only on the side of the road adjoining the lands of Terril, could be intended to be devised to the lessor of the plaintiff.
    Pennington, J. — This is a question of intent, proper for the consideration of the jury under the evidence of the cause.
    The second point raised was that the action was barred by the statute of limitations, which, as it applied to this case, was only twenty years; that the defendant, and those under whom he claimed title, had been in the uninterrupted possession for nearly forty years.
    
      Mr. Ogden and Mr. Chetwood, answered
    — That the possession of Abraham Clark, Esq., on the death of old Thomas Clark, he being guardian to his son, must be considered in law as the possession of the lessor of the plaintiff, he being an infant, living with his father; the father, keeping possession after he became of age, could not be considered as holding adversely, but must be view as holding by the consent and approbation of his son, and not tortiously, particularly as he had a lawful possession at beginning; which lawful possession must be considered as continuing.
   Pennington, J.

— Where a mother living on a place descending to her infant son, which infant being under [*e] fourteen years of age, and under the immediate care and protection of the mother, and residing with her on the place, her possession under those circumstances, hath been considered the possession of the son, sufficient to make out a poxsexxio fratris. 8 Wil. 516, Whether this guardianship of the mother, being a guardianship in socage, and of course a guardianship in tenure, made any difference, would be a subject worthy of consideration, if the case turned upon that point. But it appears fully evident, that Abraham Clark did not hold the land on the northeast side of the road as guardian to his son; but from the death of his father, as his own, he considered it as not comprehended in the land devised to Aaron, his son, but that his father’s will, in that respect, only embraced the lands on the southwest side of the road, adjoining the land of Terrill, he occupied and in all respects treated the land in question as his own, and used it with the other part of his farm, to which it was adjoining; and finally devised it away at his death. I therefore consider the possession of Abraham Clark, and those [307] holding under him, as adverse possession; — this being upwards of thirty years uninterrupted, the defendant must be protected by the statute of limitation. The (¡ase is too bald to admit of further litigation; the plaintiff must be called.  