
    Hubbard and Wood vs. T. Wood’s Lessee.
    
    1 Assurance of Title. Act of 1819, ch. 28. A title by descent, is an assurance of title within the meaning of the act of 1819, ch. 28.
    2. Title. Modes of acquiring. All the modes of acquiring title to real property, known to our law, are reducible to two, viz: descent, where the title is vested in the heir by operation of law, and purchase, which in contradistinction to descent, includes all other methods of acquiring title to land.
    3. Tenants in Common. As affected by statute of limitations. Adverse possession of co-tenant. An actual ouster must he clearly established, in order to give effect to the statute of limitations in favor of one tenant in common against another, as nothing but an actual ouster or what is held its equivalent, can give a tenant in common an exclusive possession.
    A Same. Same. The presumption is against an adverse possession between privies. Therefore the possession of one tenant in common, being consistent with the right of the other, and in support of their common title, the statute of limitations must be strictly construed in favor of the co-tenant not in actual possession.
    5. Same. Evidence of dissiesin. An exclusive adverse possession by one tenant in common of the whole tract of land, or the exclusive receipt of the rents and profits; no demand being made by the other tenant during the period prescribed in the statute of limitations, or if such demand be made it is refused and the title denied, may be evidence of a disseisin or actual ouster.
    FROM RUTHERFORD.
    This action of ejectment was brought by the defendant in error, against tlie plaintiffs in error, in the circuit court of Rutherford, on the 18th day of April, 1850, to recover one-half of a tract of land in said county, claimed by them as tenants in common with the plaintiff in error, Robert Wood, by descent from Thomas Wood, deceased. It appears that Thomas Wood died intestate, in Rutherford county, in the month of June, 1830, the owner of the land in controversy. He had five children, three of whom survived him, the other two leaving children. Robert Wood, one of the defendants in ejectment, and one of the children of Thomas Wood, took possession of the land upon the death of his father, and remained in possession until this suit was brought. The land was levied upon and sold as the property of Robert Wood, and the other defendant in ejectment, John Hubbard, became the purchaser at said Sheriff’s sale on the 3d of June, 1843. Hie purchaser, Hubbard, received the sheriff’s deed, and Robert Wood continued in possession from the date of said sale, as the tenant of Hubbard, accounting to him for rents, until the 8th of April, 1850. It seems that Edmund Wood, the brother of Robert, and father of some of the lessors of the plaintiff, lived for many years in the vicinity of Robert after the latter took possession of the land, and never asserted any claim or interest in the same; and said Edmund was also present at the sheriff’s sale, when the entire tract was sold as the property of Robert, but made no objection to said sale. Robert Wood it seems, had always claimed one-half the land by descent and purchase together, since the death of his father. Hubbard the purchaser, and Robert Wood his tenant, were jointly sued and jointly defended. There was verdict and judgment in the court below, Judge Davidson, presiding, for the plaintiff’s in ejectment for one-half the land, from which defendants appealed in error to this court.
    E. A. Keeble, for the plaintiff in error.
    The errors assigned are:
    1. The court excluded from the consideration of the jury the question, whether or not Robert "Wood, commenced his holding of the land in controversy, previous to the death of his father. The court assumed that he did not.
    2. The court erred in defining to the jury, the effect of one tenant in common holding adversely, under the first section of the statute of 1819. It is insisted, that such holding would operate to vest the legal title to the whole tract. The title cast upon him as one of the heirs, by descent, is an assurcmóe of title to the whole tract of land. Story, et ais. vs. Scmnders and wife, 8 Humph., 667.
    3. After defining adverse possession, the court limits the effect of it to the second section only.
    4. The Court erred in stating that after the sale by the sheriff, Robert Wood’s possession would not protect him against the suit of the plaintiffs.
    The words of the second section, are, that no person or their heirs shall have, sue, or maintain any action or suit, &e., but within seven years next after the title or cause of action has accrued. Statute of 1819, ch. 28 § 2.
    5. The whole of the last clause is erroneous.
    -As to the effect of the statute of limitations, upon the title or right of action of Edmund Wood and his heirs; and as to the estoppel the proof is absolutely conclusive, and for that reason alone the judgment should be reversed.
    J. W. BuRton and Jas. M. A vent, for the defendants in error.
    The only questions in the cause, arise upon the charge of the court, as to the transfer, and coupling the possession, contemplated by the second section of our act of 1819; and as to the doctrine of estoppel.
    1. The possession of a wrong doer cannot be transferred so as to couple the two possessions, and form the bar or protection provided by the second section of the act of 1819. See 1st Swan, 385.
    Unless the defendant could show that Robert Wood held adversely, there would be nothing upon which this question could be raised; it will not be denied, that the possession of one tenant in common is the possession of his co-tenant. ILis possession then, if not adverse, was the possession of the other since the death of his father. The proof is full upon this point. We think it most conclusively shows that Robert Wood did not hold possession at any time, adverse to the lessor’s of the plaintiffs. The court will see that there is ample proof upon this point; its weight and conflict is properly left to the jT-
    2. The charge of the court as to the question of estoppel, is in the words used by this court in the case of Morris vs. Moore <& Ilcmeoelc, 11 Humph., 433. The court is referred also to the case of Washington vs. Oonr-rad, 2 Humph., 562. And to 3 Johnson, case 101. 8 Wendel, 483. 10 Barbour’s R., 432. They decide that, 
      “ admissions and conduct are said to operate as estoppels only when they are designed to influence the conduct of others, and actually have that effect.
    The testimony relied upon to sustain this point, the court will see is this. Edmund Wood, the father of a part of the plaintiffs, lived in Rutherford county up to his death, received perhaps no rents for any portion of the land, and was at the sheriff’s sale of the land, and did not forbid the sale or say anything about it.
    The testimony of a part of the witnesses, is stated by agreement. It is stated in the bill of exceptions, that Robert Wood held possession under Hubbard, and as his tenant after the sheriff’s sale. '
    The charge of the court appears upon all the questions he was requested to charge upon, and only so much of the charge as was necessary to bring the points made below before this court, is embraced in the bill of exceptions. The court was no.t asked to charge further; nor was it desired that more of the charge should appear.
    Theo. G-. Jomes, for the defendants in error.
    A person not in possession at the time of an execution sale, is not estopped from disputing title of purchaser. Kimbrough vs. Benton, et al„ 3 Humph,, 110, 117. As to acquiescence in sale, see Morris vs. Hcmcoch, 11 Humph., 433.
    Possession of wrong doers no privity. See Moffitt vs. McDonald, 11 Humph.
    The case of Chilton vs. Morris, 9 Humph., as to continuity of possession to complete the bar, does not apply to this case.
   McKinney, J.,

delivered the opinion of tire court.

This was an action of ejectment. The plaintiff’s recovered, by the judgment of the court, an undivided moiety of the land sued for, to reverse which judgment, an appeal in error has been prosecuted to this court.

The tract of land described in the declaration, descended to the lessors of the plaintiffs, and the defendant Robert "Wood, jointly, as the heirs at law of Thomas Wood, who died intestate in June, 1880. Upon the death of the intestate, the defendant, Robert Wood, was left in the sole and exclusive actual possession of said tract of land, and this possession was continued until the year 1843, when the entire tract was levied upon and sold at execution sale, as the property of Robert Wood, and was purchased by the other defendant Hubbard, after which Wood became the tenant of the purchaser, and in that character has remained ever since.

This action was commenced on the 18th of April, 1850, against Hubbard and Wood jointly, and they jointly defended the same. The period' of time which elapsed before the commencement of this action, from the death of Thomas Wood, falls short some two months of twenty years; and from the date of the sheriff’s sale is not quite seven years, the sale having been made on the third of June, 1843.

There is some discrepancy in the evidence as to the question, whether or not the possession of Robert Wood, prior to the Sheriff’s sale, was adverse to his co-tenants. But if the charge of the court were free from exceptions, there is no sufficient ground for disturbing the verdict upon the facts of the case as presented in this record. 7

The defense relied upon was the statute of limitations. In his instructions to the jury, his Honor stated the law to he, that the effect of an adverse holding for the period of seven years by the -defendant "Wood against his co-tenants, “ would be to perfect his title under the first section of the act of limitations of 1819, to his own share in all the land, and to protect his possession of the balance of the land against the plaintiff, under the second section of the act.”

It seems to us that this is a mistaken conclusion. We take it to be too clear to admit of any discussion that a title by descant is an “ assurance ” of title within the meaning of the act of 1819.

All the modes of acquiring title to real property known to the law, are reducible to two: descent, where the title is vested in the heirs by operation of law, and purchase, which in contradistinction to descent, includes all other methods of acquiring title to land. 2 Blk. Com., 201.

Tenants in common, like joint tenants, have an unity of possession at least. The seisin and possession of each tenant in common is a seisin and possession, as well of every part as of the whole tract. And the title of each tenant, is a title extending to the whole tract. It must necessarily follow therefore — both the title and possession being entire — that the statute of limitations, if it be applicable at all in the present case, would operate to vest the defendant with an absolute indefeasible title to the whole tract, by virtue of the first section of the act of 1819.

But to give effect to the statute of limitations, in favor of one tenant in common against another, an actual ouster must be clearly established. Nothing but an actual ouster, or what is held to be equivalent, can give a tenant in common an exclusive possession. The seisin and possession of one being the seisin and possession of the other; one can never be disseised by another*, without actual ouster. And the possession of one being consistent with the right of the other, and in support of their common title, the statute of limitations is to receive a strict construction in favor of the co-tenant not in actual possession, as the presumption is against an adverse possession between privies. 2 Bos. & Pul. 542. 5 Burr., 2604.

But an exclusive adverse possession of the whole tract of land or the exclusive receipt of the rents and profits, no demand being made by the other tenant, or if made> refused, and his title denied, may be evidence of a disseisin or actual ouster. And in England in such a case, after the expiration of the period requisite to form the bar of the statute, the jury would be directed to presume an actual ouster, and the right of the co-tenant would be held to be barred by the statute of limitations. Cowper’s R., 217. See Angel on Lim., ch. 32.

Other positions assumed in the charge, which we deem erroneous, are dependent upon, and result from the mistaken view of the court upon the point before stated, and therefore need not be noticed.

Let the judgment be reversed, and the case be remanded for a new trial.  