
    Dietrick v. Noel.
    Adverse possession oí real estate loses its adverse character when the holder thereof, for a sufficient consideration, agrees with the true owner that suit to recover such possession shall not he brought during the lifetime of each of them.
    Ebeob to the District Court of Pike county.
    Dietrick brought suit against Noel to recover possession of real estate. This involved a question of boundary between their adjacent farms. Plaintiff claimed to the true division line, and defendant sought to defeat recovery by showing ■adverse possession by himself and those under whom he held, for twenty-one years. There is no question here as to the location of the true line, but only as to the character of the possession of Noel and those under whom he held. On this question the bill of exceptions taken on the Dual in the court of common pleas shows that “ evidence having been offered by the defendant tending to prove that the defendant, and those under whom he claims, had been in open, notorious, exclusive and adverse possession of the land in dispute for more than twenty-one years prior to the commencement of this suit, claiming title thereto; and on the part of .the plaintiff, evidence having been offered tending to prove that such possession had not been adverse to the plaintiff and those under whom he claims, for the full period of twenty-one years prior to the commencement of this suit, but that such possession had been held under an acknowledgment of title in one John Merritt, under whom the plaintiff claims; and evidence having been offered tending to prove that a difficulty arose between one James Wallace, under whom the defendant, claims, and John Merritt, under whom the plaintiff claims, Wallace threatening to close up an outlet that Merritt claimed the right to use over the land of Wallace; and Merritt threatening to sue Wallace to ascertain the title to the land, or where the true boundary line was between them, and evidence having been offered tending to show that some time between the years 1849 and 1853, and while said controversy was going on between them, that said Wallace and Merritt agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land in dispute should not be interfered with by any suit by Merritt, and that such arrangement should last as long as either, or both of the parties thereto should live; and it appearing from - the evidence that said Wallace died in the year 1853, and said Merritt in the year 1870, thereupon, after the submission of the cause to the jury and the arguments, the defendant, among other things, asked the court to charge the jury as follows, to wit:
    “If, within twenty-one years before the beginning of this suit, it appears that Wallace (under whom the defendant claims), was in adverse possession of the land in dispute, and a difficulty arose between him and Merritt (under whom the plaintiff claims), Wallace threatening to close up an outlet that Merritt claimed a right to use over the land of Wallace, and Merritt threatening to sue Wallace to ascertain the title to the land, or where the true boundary line was between them, and thereupon the parties agreed, in writing, that the outlet should not be closed by Wallace, and that his possession of the land should not be interfered with by any suit by Merritt, and that the arrangement should last as long as either, or both of the parties should live, such agreement would in no way prevent the running of the statute of limitations in favor of Wallace, just as though no such agreement had been made.”
    Which charge the court refused to give to the jury; to which refusal of the court to charge the jury as requested, the defendant, by his counsel, at the time excepted.
    The jury rendered a verdict in favor of the plaintiff, Die-trick ; Noel filed a motion to set aside the verdict and for a new trial, which was overruled and judgment was entered, and a bill of exceptions was taken. On error the district court reversed the judgment of the court of common pleas; and a petition in error was filed in this court asking fora reversal of the judgment of the district court.
    
      
      O. F. Moore, J. W. Washburn and J. T. Moore, for plaintiff in error,
    cited Angelí on Lim. §§ 384, 413; Wood on Lim. §§ 256, 269; 270 ; Sedgwick and Wait on Trial of Title to Land, §§ 730, 738,744; Hunt v. Guilford, 4 Ohio 310 ; Webber v. Williams College, 23 Pick. 302; Utica Ins. Go. v. Bloodgood, 4 Wend. 652, Gaylor v. Van Loan, 15 Wend. 308 ; Bówe v. Thompson, 15 Abb. Pr. 380 ; Andrea v. Bed-field, 98 U. S. 238.
    
      G. A. Hutchins and Geo. D. Oole, for defendant in error,
    insisted that the agreement between Merritt and Wallace could in no way be construed into either an abandonment of possession, an ouster, or the creation of a tenancy. That an agreement to have the effect of putting a stop to the running of the statute must be made expressly for delay, and must bo founded on a sufficient consideration. A mere equitable es-toppel can never be set up against a statutory bar, even under “ strong equitable considerations.” BanJc of Hartford v. Waterman, 26 Conn. 324; Goodwin v. Inswrance Go., 20 N. H. 73, Ball v. Wyeth, 8 Allen (Mass.) 275; Golemam v. Wal-Tcer, 3 Met. [Ey.] 65 ; Harvey v. Tobey, 15 Peck, 99.
    The agreement in question in no way constituted an agreement for delay in the sense that such agreements affect the running of the statute.
   Follett, J.

Was there error in refusing to give the charge requested by Noel? If the agreement between Merritt and Wallace in any way did prevent the running of the statute of limitations in favor of Wallace, there was no error in the court of common pleas, and there was error in the district court. The written agreement is not set out, but the testimony and charge requested, show that Merritt and Wallace agreed in writing that the outlet should not be closed by Wallace, and that the possession of this land should not be interfered with by any suit by Merritt, as long as either or both of the parties should live.

Wallace agreed that the outlet should not be closed up, but might be used by Merritt; and Merritt agreed that the posses sion of the land should not be interfered with by suit by him, during the lifetime of either one of them; and by fixing a limit they provide for suit when the limit shall be passed.

Had Merritt sued Wallace or his successor in possession, for the possession of .the land, Wallace had secured this agreement to set up in bar : and W allace, only by having this agreement, remained in possession of the land until his death, and transmitted such possession until the death of Merritt. After the death of both, this action was commenced.

Adverse possession must be actual, open, continuous, hostile, and exclusive. The very essence of an adverse possession is, that the holder of it claims the right to his possession, not under, but in opposition to the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner. After the agreement the possession by Wallace was peaceable, because of the agreement. Erom that time forth the adverse character of the possession ceased to be hostile and exclusive, and its continuity was broken.

We will not presume that Wallace intended a sly fraud, but that the agreement was between neighbors and honest farmers. Wallace secured an agreement from Merritt that suit for the possession of this land should be suspended during the lifetime of each, and having accomplished this object he could not avail himself of it to the prejudice of Merritt; no more can Noel to the prejudice of Dietrick.

The running of the statute of limitations may be suspended by the mutual agreement of the parties. See Webber v. Williams College, 23 Pick. 302; 15 Abb. Pr. (N. Y.) 377; Holladay v. Little, 2 Munf. (Va.) 316; Ball v. Wyeth, 8 Allen 275.

So an agreement not to plead the statute of limitations is binding: Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Gaylord v. Van Loan, 15 Wend. 310.

The case of Lovell v. Frost, 44 Cal. 471, was where the party in possession inquired of the true owner, “ whether he would not rent or sell the land to him if it should be allotted to him ” — the true owner in a partition suit then pending; and tbe supreme court of California beld that, “ If a party in possession of land offers to purchase it from the true owner, and this offer is made, not merely to buy an outstanding or adverse claim in order to quiet his possession or protect himself from litigation, the offer is a recognition of the owner’s title, and will stop the running of tbe statute.”

That a party by his agreement may be estopped not only from setting up the statute of limitations, but from claiming his possession to be adverse, was shown by this court in Lessee of Hunt v. Guilford, 4 Ohio, 317. In that case this court said, “ An agreement to submit a question of boundary to arbitration defeats the operation of the statute of limitations ;” and also, that on the trial of the case such an agreement may be evidence proper to show the character and nature of plaintiff’s possession, whether adverse or not.”

In that ease the agreement recognized a claim in dispute, and that the same could be settled by arbitration ; in this case the agreement recognized not only a claim in dispute and that the same could be settled by suit, but agreed that such suit.should be postponed during their lives.

By this agreement Wallace obtained peace and retained the peaceable possession of the land in dispute ; and the hostile and exclusive character of his adverse possession was gone. This agreement changed the adverse character of the possession of Wallace, and stopped the running in his favor of the statute of limitations. t

As this question determines the result of this case, we do not comment on any other.

There was no error in refusing to give to the jury the charge requested, and the distinct court erred in reversing the judgment.

Judgment of the district court reversed, and that of the common fleas affirmed. .  