
    *Creigh's Heirs v. Henson.
    (Absent Alcen and Daniel, Js.)
    July Term, 1853,
    Lewisburg.
    Deeds of Trust — Possession by Purchaser from Grantor —Case at Bar. — In May 1816 A conveys to 3 a tract of land in trust to secure a debt to C, which is duly recorded on the same day; and In October of the same year he executes to II a title bond for a part of the land; and" H immediately enters Into possession cultivating- and farming, and claiming it under said bond, and continues thus to hold possession; A during his life time and his family since having resided on the residue of the tract. In 1827 the trustee S sells under the trust and conveys the land to C the purchaser. In 1848 the heirs of O bring ejectment against H for the land in his possession, and there is a special! verdict which does not find an ouster or disclaimer by H. Held:
    1. Same — Same—Nature of the Possession. — That the possession of A after the deed, was as tenant by sufferance, and that the possession by H after his entry, was of the same character; and therefore the statute of limitations is no bar to the action.
    2. Writ of Right — Verdict—Construction of — Case at Bar —The verdict finds that both parties claimed in fee from A; and this is a substantial finding of the seizin of the demandants; or at all events estops the tenant from denying It.
    3. Adversary Possession by Tenant — Quaere—¡lust First Surrender Possession — Qilbre: If a tenant can disclaim holding under his landlord and set up an adverse title without first surrendering possession of the premises. If he may he cannot deny the title under which he entered, or augment the burden of proof on the other side by denying his tenancy.
    This was a writ of right brought in June 1848, in the Circuit court of Greenbrier county, by the heirs of Thomas Creigh against William Henson, for six hundred and five acres of land. The tenant by his plea claimed two hundred acres of the land, and disclaimed title to the residue. There was a special verdict in the case, by which it was found that on the 27th of May 1816 Cut-lip Airy executed a deed of trust to Eewis Stuart to secure a debt to said Thomas Creigh, conveying six hundred and five acres of land embracing *the land in controversy, which deed was duly admitted to record on the day of its date : That thereafter, to wit, on the 16th of October 1816, the said Airy executed to the tenant Henson a title bond for the land in controversy : That on the 13th of May 1819 the said Airy executed another deed of trust to said Stuart to secure another debt to said Thomas Creigh, conveying the said six hundred and five acres of land, which deed was duly admitted to record the day after its date: That on the 23d of April 1827 the said Stuart conveyed the six hundred and five acres of land in fee simple to said Thomas Creigh, by -deed which was duly recorded in the month in which it bears date. That the tenant Henson has been in actual possession of a part of the two hundred acres of laud in controversy, by cultivation and farming, and claiming the whole of it under said title bond ever since its execution. That said Airy during his life time, and his family since, have resided on the residue of the said six hundred and five acres; and that the demandants are the heirs at law of said Thomas Creigh. The title bond and deeds are set out in hasc verba. The deed from the trustee Stuart to Creigh recites that on the 26th of March 1827, he sold the six hundred and five acres in pursuance of the two deeds of trust, and that Creigh became the purchaser. The court below gave judgment on the special verdict for the tenant, and this court awarded a supersedeas to the judgment.
    Price and Reynolds, for the appellants.
    Wm. Smith, for the appellees.
    
      
      Deeds of Trust — Possession by Purchaser from Grantor — Nature of the Possession —See principal case cited in Pitzer v. Burns, 7 W. Va. 74. See also, principal case and Clarke v. McClure, 10 Gratt. 305, cited in Bowie v. Poor School, 75 Va. 304.
    
    
      
       Adversary Possession by Tenant — Need Not Surrender Possession. — In Greekmur v. Creekmur, 75 Va. 435, it was said: “There is a class of cases which hold that a party who enters into possession in acknowledged subserviency !to the title of the true owner, cannot by any act of his impart to his possession an adversary character. Before asserting a title in himself, he must first surrender the premises, and place the owner in the same conditions in which he stood before the possession was taken under his title. A very strong leaning in favor of this doctrine was manifested in the case of Clarke v. McClure, 10 Gratt. 305. Judge Allen said: ‘Where it is sought to make out a title by adverse possession, the possession, as a general rule, should be adverse In its inception.’ A careful consideration of that case, and that of Creigh's Heirs v. Henson, 10 Gratt. 231, will show that •neither of the judges who delivered the opinions of the court were disposed to commit himself unquali-fiedly on the subject. The question may, therefore, he regarded as an open one in this state. Notwithstanding the doubt expressed in these cases, it is now settled, by a great weight of authority, that although a party may enter into the possession in privity with the true owner, he may, without first surrendering it, dissever such relation and claim by adverse title. The trustee may disa’vow his trust, the tenant the title of his landlord after the termination of his lease, and the tenant in common the title of his cotenant. The only distinction between this class of cases and those in which no privity existed, is in' the degree of proof required to establish the adverse character of the possession. The rule now is that where possession is originally taken, or held under the true owner, a clear, positive and continued disclaimer and disavowal of title and the assertion of an adverse right, to be brought home to the knowledge of the party, are indispensable before any foundation can be laid for the operation of the statute of limitations. The statute does not begin to operate until the possession, before in privity with the title of the true owner, becomes tor-tious and wrongful by the disloyal acts of the occupying tenant, which must be open, continued and notorious, so as to preclude every doubt as to the character of the holding or the fact of knowledge on the part of the owner.”
      The rule as laid down in Creekmur v. Creekmur, has been substantially reiterated and approved in Whitlock v. Johnson, 87 Va. 323, 327, 12 S. E. Rep. 614; Reusens v. Lawson, 91 Va. 226, 21 S. E. Rep. 347; Chapman v. Chapman, 91 Va. 397, 21 S. E. Rep. 813; Hulvey v. Hulvey, 92 Va. 182, 23 S. E. Rep. 233; Va. Mid. R. Co. v. Barbour, 97 Va. 121, 33 S. E. Rep. 554.
      See also, monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
      Adversary Possession — Vendee Holding under Equitable Title. — See principal case cited in footnote to Nowlin v. Reynolds, 25 Gratt. 137.
      The principal case is also cited in Taylor v. Philippi, 35 W. Va. 560, 14 S. E. Rep. 132, as one of the many cases which discuss the doctrine of Adversary Possession.
    
   MONCURE, J-,

after stating the case, proceeded :

The possession of a grantor in a deed of trust after the execution of the deed, is not adverse to the title of the trustee, but only as his tenant at will or sufferance. The trustee may eject him without notice ; or, without ^ejecting him, may convey the trust subject to a purchaser, whose tenant at will or sufferance the grantor will then become, and by whom he may in like manner, be ejected without notice. A person who purchases the trust subject, or any part of it, from .the grantor, with notice of the deed of trust or after its due registration, stands in the place of the grantor, and bears the same relation that he does to the trustee and the purchaser from him. These propositions, as general rules of law, will not be denied ; and they would seem to be decisive of this case. But it was contended by the counsel for the defendant that whenever a person in possession holds for himself to the exclusion of all others, the possession, so held must be adverse to all others, whatever relation in point of interest or privity he may stand in to others ; and that the tenant so held possession in this case for a period sufficiently long before the institution of the suit to give him a perfect title against the demandants. The principle is certainly sustained by recent American decisions Which are entitled to great respect. But while it is maintained in these decisions, that a person whose possession, in its commencement, is subordinate to the title of another, may afterwards, without surrendering the possession, disclaim that title, and hold adversely to it; yet this qualification is added to the principle, that knowledge of the disclaimer must be brought home to the party whose title is disclaimed. In the language of the Supreme Court of the United States, in one of the last of these recent decisions, the case of Zeller’s lessee v. Eckert, &c., 4 How. S. C. R. 296, “As” the possession “was originally taken and held in subserviency to the title of the real owner, a clear, positive and continued disclaimer, and disavowal of the title, and assertion of an adverse right, and to be brought home to the party, are indispensable, before any foundation can be laid for the operation of the '^statute. Otherwise the grossest injustice may be practiced ; for without such notice, he might well rely upon the fiduciary relations under, which the possession was originally taken and held, and upon the subordinate character of the possession as the legal result of those relations. The statute therefore, does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued and notorious, so as to preclude all doubt as to the character of the holding or the want of knowledge on the part of the owner.” “The operation of the principle (say the court in Hall v. Dewey, &c., 10 Verm. R. 599), is simply to impose upon the landlord the necessity of protecting his interest after learning the hostile claims of his tenant, by that measure of diligence which the statute of limitations has prescribed. Eor other purposes the original relation between the parties has its legal effect upon their respective rights. The tenant is still restrained from disputing the title under which he entered, nor can he augment the burden of proof upon the other side by denying his tenancy.” — “The rights subsisting between the original parties to such a tenancy, continue to subsist between their grantees.”

The principle, even with the qualification before stated, has never, I believe, been affirmed by this court : nor is it necessary to decide in this case whether it be the law of this state or not. The principle is certainly not law without the qualification ; and conceding it to be so with it, this case does not come within its operation. The special verdict does not find that the demandants or their ancestor had any knowledge of any disclaimer of their title on the part of the tenant. Such knowledge cannot be inferred from the long possession of the tenant. The inference, if it had been proper, should have been found "as a fact by the jury. But it would have been an improper inference even for the jury to make from the mere fact of continued possession by the tenant. His possession commenced as tenant by sufferance ; it so continued after the sale by the trustee; and it should be referred to the same fiduciary relation until it was determined by the will of the legal owner, or at least until the title of the legal owner was disclaimed with his knowledge.

It is unnecessary to enquire whether the jury might have presumed a grant from the lapse of time in this case, as no such grant was found by the verdict. Instead of that, it is expressly found that the tenant claimed the land under the title bond.

It is objected by the counsel for the tenant that the fact of seizin of the demandants is not found by the verdict. But it is found that the demandants and tenant each claim an estate in fee simple in the land in controversy under Cutlip Airy; the former claiming under a deed executed by him with general warranty, shortly before the execution of the title bond under which the tenant claims. This is a substantial finding of sei-zin of the demandants, or at all events estops the tenant from denying it.

I think the judgment should be reversed, and judgment rendered for the demandants.

The other judges concurred in the opinion of Moncure, J.

Judgment reversed, and entered for the appellants.  