
    Clark v. Potter.
    1. One who enters upon land, under color of title intending to take possession of the entire tract, no part of which is held adversely at the time of his entry, is deemed to he in possession to the extent of his claim.
    2. Prior to the code of civil procedure, equity followed the law in determining when time would begin to run against the right of a mortgagqr to redeem, and when such right would be barred.
    3. Hence, if the mortgagee, with the knowledge and acquiescence of the mortgagor, takes actual, open and notorious possession of the mortgage premises and holds and controls the same adversely to the rights of the mortgagor to redeem, for twenty-one years, under color of title derived from the mortgage, and from a decree of foreclosure and sale of the same to him, the equity of redemption is barred, although the decree foreclosing the mortgage was null and void.
    4. Where the mortgaged premises is an entire tract, as a farm, part of which only is improved, with a tenement thereon, and the possession to the whole is so far adverse as to create a cause of action in favor of the mortgagor, and cause time to commence running against the right to redeem; the temporary interruption of actual residence on the land, caused by the unlawful and violent acts of strangers in tearing down the house and rendering.the premises untenantable for the time being, will not prevent the statute from continuing to run where there is no adverse entry or offer to redeem, and the mortgagee does not abandon his possession and control, but continues to exercise all such acts of ownership and dominion over the premises, as the nature of the land and its condition will admit of.
    Error to tbe District Court of Lucas county.
    The plaintiffs in error brought an action against the defendants in error in the Court of Common Pleas of Lucas county, on the 28th of July, 1870, praying to be let in to redeem certain lands situate in said county, from the lien of a mortgage bearing date October 1, 1840. The entire tract covered by the mortgage contains one hundred and twenty acres. The case was heard in the common pleas at the February term, 1872, and a decree rendered permitting the plaintiffs to redeem as to forty acres of the tract, but denying the prayer of the petition as to the remaining eighty acres. An appeal was taken to the district court, where, at the April term, 1872, the petition was dismissed. Separate motions for a new trial were filed by the plaintiffs, in which they assigned as the grounds for a new trial, that the finding óf the court was against the law and the evidence. These motions were overruled, to which ruling the plaintiffs respectively excepted. A bill of exceptions, embodying all the testimony given in the case, was taken and filed, and ordered to be made part of the record. The plaintiffs come into this court by petition in error to reverse the judgment of the district court. They file herewith a printed abstract of the entire record, in which the testimony is set out in full.
    The material facts upon which the proceeding below was predicated are as follows: About the first of October, 1840, one William Olney borrowed from the defendant, Nathaniel E. Potter, the sum of ten thousand dollars, for which no obligation or security was taken; not long after the loan was made Nathaniel assigned his claim to the defendant, Christopher E. Potter, who obtained the note of Olney for the debt, and two mortgages on lands situate in the counties of Lucas and Wood, Ohio, as security for its payment. At the time of these transactions all the parties resided in Providence Rhode Island.
    The note given by Olney to Christopher E. Potter is for the sum of ten thousand dollars; it bears date October 1, 1840, and is payable to the order of Christopher E. Potter, in twelve months from date, with interest after the expiration of six months.
    Both the mortgages bear even date with the note, but they were not acknowledged until the second day of November following.
    One of these mortgages is'upon the lands in Lucas county, sought to be redeemed in the action below. The consideration is stated in the following language : “ Know ye, that I, the said William Olney, for and in consideration of the sum of a fart of ten thousand dollars in hand before the ensealing hereof, well and truly paid by ChristoE. Potter,” etc. The condition is as follows : “ Provided, nevertheless, and the condition of this deed is such, that if the said William Olney, or his heirs, executors, administrators, or assigns shall well and truly pay, or cause to be paid to him, the said Christopher E. Potter, or to his assigns, a part of a certain promissory note,” etc., setting forth the note above referred to, “ then this deed to be void.” This mortgage was recorded in Lucas county, on the 24th of November, 1840.
    The other mortgage, which was in the usual form, embraced a large quantity of land situate in Wood county, and was conditioned for the payment of the entire sum of said ten thousand dollars. It was recorded in that county shortly after its execution.
    On the 17th of June, 1841, William Olney, in consideration of five thousand dollars, conveyed the Lucas county lauds to Sterry Clark, of Providence, Rhode Island. This deed was duly recorded, in Lucas county, on the 17th of November, 1841.
    A second mortgage upon the Lucas county lands to secure the same debt of ten thousand dollars, was executed by William Olney to Christopher E. Potter. It bears date October 1, 1840, but was not acknowledged until July 8, 1841, which was subsequent to the conveyance of the lands to Clark. This mortgage was evidently given to correct the imperfection before noticed in the first mortgage, as it purports to be a security for the entire debt; it was recorded in Lucas county, August 20,1841.
    On the 18iA of August, 1841, Sterry Clark, in consideration of twenty-five hundred dollars, conveyed an undivided half of the Lucas county lands to Reuben Parsons, of New York. The wife of Sterry Clark did not join in the execution of this deed. It was duly recorded in Lucas county on the 17th of November, 1841.
    On the 24th of October, 1842, Christopher E. Potter filed a bill in chancery in the Court of Common Pleas of Wood county, against William Olney and Sterry Clark to foreclose the two mortgages given by Olney, bearing date in October, and acknowledged in November, 1840. In this proceeding, no notice is taken of the second mortgage upon the Lncas county lands, acknowledged in July, 1841. Neither the wife of Sterry Clark, nor Reuben Parsons, whose deed for a moiety of the lands had been on record for nearly a year, was made a party to the proceeding.
    The bill sets out that Olney, being seized or pretending to be seized of certain lands situate in the counties of Wood and Lucas, which are described, and being in want of ten thousand dollars, did, on or about the first day of October, 1840, apply to the complainant to lend him that sum, “ to be secured by mortgages upon said premises;” that complainant loaned Olney said sum of ten thousand dollars; that Olney, to secure the repayment of the same, wfith legal interest, '• by his deed duly executed on or about the first day of October,” 1840, conveyed said premises to complainant in fee-simple, subject, nevertheless, to a condition of defeasance on the payment of said sum of ten thousand dollars, October 1, 1841, with interest after the expiration of six months, “ as in and by said deeds of mortgage,” copies of which were therewith filed and made part of the bill, would more fully appear.
    The bill further set forth the conveyance of Olney to Clark; alleged that the claim of complainant was paramount thereto; that no part of said sum of ten thousand dollars had been paid ; prayed an account of the amount due, and that the mortgaged premises might be sold and proceeds applied in satisfaction of the debt.
    Copies of both mortgages were attached to the bill and made exhibits.
    The defendants, Olney and Clark, were brought in by publication.
    At the October term, 1848, of the court, a decree gyro conjcsso was entered.
    The court found that there v;as due the complainant for his mortgage money the sum of twelve thousand one hundred and thirty-seven dollars and eighty-one cents, and adjudged that unless paymeut was made within five days from the rising of the court, the master commissioner of the court proceed to sell the "Wood county lands, and the sheriff of Lucas county proceed to sell the Lucas county lands.
    An order of sale issued to the sheriff of Lucas county on November 6, 1843, upon which he made return January 12, 1844, that he had sold the lands in Lucas county to Christopher E. Potter, on the 16th of December, 1843, for eleven hundred and thirty-four dollars.
    An order of sale issued to the master commissioner of the Wood county court, on November 6, 1843, upon which he made return to the March term, 1844, that he had sold the lands in Wood county to Christopher E. Potter, on the 30th day of January, 1844, for three thousand and thirty-seven dollars,
    An order confirming these sale and directing deeds to be made to the purchaser was entered at the March term, 1844, of the Wood eouuty court.
    In pursuance of the order of confirmation the sheriff of Lucas county executed to Potter a deed of the lands sold by him. It bears date November 28, 1844; it was acknowledged December 4, 1844, and recorded October 24, 1845. A conveyance was also executed by the master commissioner of the Wood county common pleas of the lands sold by him.
    The lands in Lucas county are described in the petition as the south half of southwest quarter of section six, and the northwest quarter of the southwest quarter of the same section, containing one hundred and twenty acres.
    It appears that Olney derived title to these lands by deed from one Messena Eox, dated August 28, 1835.
    It further appears that Eox had acquired title to the west half of the southwest quarter by patent in 1831, and to the southeast quarter of the southwest quarter of said section by patent September 2, 1835, and that Eox’s deed to Olney embraced the whole quarter section, being forty acres more than he owned.-
    
      It further appears that Olney mortgaged the whole southwest quarter to Potter, following, doubtless, the excessive description in Eox’s deed to him.
    The prayer is for the usual account of amount due, if anything, after crediting th'e proceeds arising from the sale of the Wood county lands ($3,039) ; also the rents and profits, and that plaintiffs be permitted to redeem, on payment of amount due, if it be adjudged valid against them, etc.
    The defendants are somewhat numerous, including both the Potters and the purchasers from them, as well as mortgagees of such purchasers, all of whom, except one or two, answer jointly, and put in issue the allegations of the petition.
    It is averred in the answer that these mortgages were made at the same time to secure a single loan of $10,000, in pursuance of a previous agreement to mortgage all these lands in Wood and Lucas counties, and that the scriviner, for convenience of record merely, executed two separate mortgages instead of one, but they were parts of one entire transaction, to secure one debt, and that the Wood county court had therefore jurisdiction to sell the Lucas county lands, as well as those in Wood county.
    It is also alleged, that from the date of the sheriffs deed, in 1844 to 1849, Christopher E. Potter was in the open, notorious, and continuous possession of this one hundred and twenty acres — that in the latter year he sold the same to Nathaniel E. Potter, who, from that time to the commencement of this action, by himself and his grantees, have held like possession; that in 1853 he sold the timber lands, eighty acres, being the south half of the quarter section, to Prentice and Raker; that Prentice sold an undivided half to one Latimer, who died in 1855; that his heirs sold his share to one Williams; that Raker sold to one Eoley, who mortgaged the same to divers persons; that these mortgages were foreclosed and Eoley’s share bid in by one Conahan; that in 1858, fifty-eight acres of this tract was platted into lots and streets, and called “ Williams’ addition to the city of Toledo; ” and that in 1859, by proceedings in partition, these lots and the remaining twenty-two acres were divided between the owners.
    It is further averred that since these numerous sales of town or city lots have been made to bona fide, purchasers, who have taken possession, made improvements, paid taxes, city assessments, etc., that property has largely increased in value, and that during all this time the plaintiffs, or those from whom they claim title, have acquiesced, making no offer to redeem, and asserting no claim until the commencement of this action.
    Eor a second answer, the twenty-one years statute of limitation is pleaded.
    Eor a third, the seven years statute or the act to give greater security to land titles, passed March 22, 1849, is relied on.
    
      Scribner & Hurd, for plaintiffs in error:
    I. The equity doctrine as to laches has no application in a proceeding to redeem mortgaged premises. Such a proceeding is not barred unless an ejectment to recover the possession would be barred; and as a general rule the doctrine is not applied in any case where there -is a statute of limitations in force applicable to it.- Larrowe v. Beam,, 10 Ohio, 498.
    On the subject of the equity doctrine as to laches, see Smith v. Clay, 3 Br. C. C. 640; Elmendorf v. Taylor, 10 Wheat. 152; Cook v. Arnham, 3 P. Wms. 283, 287; Aggas v. Pickerell, 3 Atk. 225; Moore v. Cable, 1_John Ch. 385; Gordon v. Hobart, 2 Sumn. 401; Slee v. Manhattan Co., 1 Paige, 80; Bolinger v. Choteau, 20 Mo. 89; 2 Washburn on Real Property, 169, 170; Angell on Limitations (5th ed.), § 456, n. 2; Robinson v. Fife, 3 Ohio St. 551.
    II. There are certain rules of law connected with the application of the statute of limitations, which should be considered in determining this case.
    1. The statute is to be taken strictly; the evidence to establish title under it must be clear and satisfactory. 
      Irving v. Brownell, 11 Ill. 413; Turney v. Chamberlain, 15 Ill. 271; Groft v. Weakland, 34 Penn. St. 304; Washburn R. P. 124; Angell on Lim., §§ 392, 395.
    2. The law draws to the legal title the constructive possession. To displace this there must be an actual ouster and continued adverse possession. Angeli on Lim. (5th ed.), § 384, and also page 394; Taylo.r on Eject. 900.
    3. Payment of taxes is not evidence of possession. Taylor on Eject. 895; 2 Smith’s L. C. (6th ed.) 638; Ewing v. Burnett, 1 McLean, 266; Stevens v. Rhinelander, 5 Rob. 285; Reed v. Field, 15 Vt. 672.
    4. Mere casual acts of ownership do not constitute adverse possession. Taylor on Eject. 909; Rifener v. Bordman, 53 Penn. St. 313; Young v. Herdie, 55 Penn. St. 172.
    5. The adverse possession must be continuous and unbroken. 2 Smith’s L. C. (6th ed.), 537; Johnson v. Irwin, 3 S. & R. 291; Royer v. Benlow, 10 S. & R. 303; Jackson v. Schoonmaker, 2 Johns. 230; Hoey v. Furnam, 1 Barr, 296; Cornelius v. Gibson, 1 Dutch. 33; Lorber v. Willing, 10 Watts, 141; Parker v. Parker, 1 Allen, 245; West v. Lanier, 9 Humph. 761; Glaney v. Handlette, 39 Me. 451; Stephens v. Leach, 19 Penn. St. 265; Ewing v. Alcorn, 4 Wright, 500; Tyler on Eject. 907-8.
    As to the extent of possession, see Jones v. Chiles, 2 Dana, 25; Ellicott v. Pearl, 10 Pet. 412, 444; Owings v. Gibson, 2 A. K. Marsh. 515; Stewart v. Harris, 9 Humph. 714; West v. Price, 2 J. J. Marsh. 380.
    
      William Baker and Charles Pratt, with whom was C. S. Bradley;
    
    [No perfect copy of the brief of counsel for defendant in error coming to the hands of the reporter, he has only been able to abstract a portion of their argument. — Reporter.]
    The facts of this case clearly bring it within the operation of the act of March 22, 1849, (2 Curwin, 1495), and it is a complete bar, both as against Clark and his heirs and Parsons and his grantee. But whether or not this be so, the general statute of limitations of 1831 applies.
    
      As to the extent of and what may amount to actual possession, see Ellicott v. Pearl, 10 Pet. 412; 2 Smith’s L. C. (6th ed.) 641, 642; Tyler on Eject. 892, 893, 895, 903, 904; Angeli on Lim. 397, 400; Prescott v. Nivers, 4 Mason, 380; Jackson v. Porter, Paine, 457; 3 Iredell, 578; Scammon, 181; Washburn R. P. 137; Gardner v. Gooch, 48 Me. 492; Hardesty v. Glenn, 32 Ill. 64; Fairman v. Beall, 14 Ill. 244; Booth v. Small, 25 Iowa, 178; Angelí on Lim. 367, 400; 19 Ga. 8; 21 How. 493; 30 Ill. 279; 3 Watts, 72; Abell v. Harris, 11 Gill. & F. 371; Noyes v. Dyer, 25 Me. 468; 2 Me. 275; Spear v. Ralph, 14 Vt. 400; Chilsom v. Buttolph, 12 Vt. 231; Royer v. Benlow, 10 Serg. & R. 303; Heiser v. Rieble, 7 Watts, 37; Hopkins v. Robinson, 3 Watts, 205; Proprietor of Kenebeek Purchase v. Springer, 4 Mass. 415; Farrar v. Fessenden, 39 N. H. 269; Byrum v. Carter, 4 Iredell, 310; Murphy v. Springer, 1 Grant’s Cas. 73; Draper v. Short, 25 Miss. 197; Finlay v. Cook, 54 Barb. 9; Hulls v. Brentin, 47 Ill. 396; 43 Ala. 271; Williams v. Dugan, 20 Miss. 186; Ford v. Wilson, 35 Miss. 490.
    Even a void deed may raise color of title, and define the extent and boundary of the possession under it, by the desoription in the deed. Pillows v. Roberts, 13 How. 472; Minot v. Brooks, 16 N. H. 376; 3 Washb. Real P. 139; Wrtght v. Matteson, 18 How. 50, 56; Angeli Lim. 404, 406, 409; Jackson v. Todd, 2 Caines (N. Y.), 183.
    A deed founded on a void decree in chancery gives'colorable title. 1 Meigs, Tenn. 207.
    As to laches: Smith v. Clay, 3 Bro. Ch. 639; 2 Story Eq. § 1520, note; Kane v. Bloodgood, 7 Johns. 93; Bergen v. Bennett, 1 Caine’s Cases, 1; DeCouche v. Sevatia, 3 Johns. 190; Higginbothan v. Burnett, 5 Johns. Ch. 184; Prevost v. Gratz, 6 Wheat. 481; Hughes v. Edwards, 9 Wheat. 489; Willison v. Watkins, 3 Pet. 43; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 413; 2 Hilliard on Mort. 1-30, and cases cited; Cholmondeley v. Clinton, 2 Fac. & W. 1; Tuttle v. Wilson, 10 Ohio, 24.
   Johnson, J.

As the widow of Sterry Clark has died since the judgment below, further consideration of her rights in this action becomes unnecessary.

Upon a careful examination of the record, we think the district court was warranted in finding as facts:

1. -That prior to and at the date of said mortgage, and when the property was sold and conveyed to Potter, and for several years thereafter, the mortgaged premises was owned, held, and occupied as one entire tract of land or farm, about forty acres of which was cleared, with a tenement house, fences, etc., such as is usual with a new farm, in a new country, and the balance wild, timbered land.

2. That Potter took possession, under his purchase, of the entire tract, in good faith, claiming the whole, and for more than twenty-five years exercised exclusive control and dominion; that his possession and claim of ownership was open, notorious, and adverse.

3. That, with -the exception of a temporary suspension, the premises wTere, dui’ing all that period, actually occupied by a tenant, residing on the improved part, but such tenancy was interrupted for some time over a year, caused by the unlawful acts of strangers, who tore dowm the house and carried off the fences, rendering the premises incapable of actual residence.

4. That during the suspension of actual residence, as well as at all other times, Potter and his grantees were in the sole control, paying taxes and assessments, making sales, cutting and selling timber, preventing trespasses, and doing all such acts of ownership as the nature and condition of the property would admit of.

5. That at the time of such sale and conveyance to Potter, or soon thereafter, Olney and his grantees, though not actually served, had, in fact, notice of such foreclosure and sale, and of the subsequent adverse possession of Potter, and acquiesced therein, making no offer to redeem, nor any adverse entry or claim.

6. That, at the time of such sale, the land was worth far less than the amount necessary to redeem, and that by reason of the rapid growth of the city of Toledo, of which it now forms a part, and the improvements made by Olney and his grantees, the value far exceeds the mortgaged debt and interest.

"We are of opinion that the district court did not err in refusing the plaintiffs the relief prayed for.

A majority of the court are strongly inclined to hold that the act of March 22, 1849 (2 Curwen, 1494), 'governed, and that the right to redeem was barred in seven years; but as we are all agreed upon another ground, our decision is not placed on that.

There is an absence of equity in the plaintiff’s claim. It is apparent that it is of recent origin, owing its existence to the enterprise which has been generated by the rapid growth of the city of Toledo, and the consequent spirit of speculation to which that gave rise.

It is clear that the immediate grantees of Olney long ago abandoned all intention of redeeming, if they ever entertained it, and for more than twenty-one years acquiesced in the ownership of the mortgagee and those claiming under him.

It is of the very highest authority that: “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights or acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonably diligeuce. Where these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced; and therefore from the beginning of this jurisdiction there was always a limitation of suit in this court.” Smith v. Clay, 3 Brown Ch. 634; Cholmondeley v. Clinton, 2 Jac. & W. 1; Kane v. Bloodgood, 7 Johns. 93; Bergen v. Bennett, 1 Caines’ Cas. 1; DeCouche v. Sevatia, 3 Johns. 190; Higginbothan v. Burnett, 5 Johns. Ch. 184; Prevost v. Gratz, 6 Wheat. 481; Willison v. Watkins, 3 Pet. 43; Miller v. McIntyre, 6 Pet. 61; Piatt v. Vattier, 9 Pet. 413; 2 Hilliard on Mort. 1-30, and cases cited.

The doctrine of these cases is fully indorsed in Ohio. Tuttle v. Wilson, 10 Ohio, 24; Pendleton v. Galloway, 9 Ohio, 178; Williams v. Presbyterian Church, 1 Ohio St. 478; Robinson v. Fife, 3 Ohio St. 551; Piatt v. Smith’s Fx’r, 12 Ohio St. 561.

Piatt v. Smith’s Ex’rs was, like the present, a bill to redeem, filed by the heirs of Piatt, who bad died insolvent, and whose administrators had declined to redeem and had relinquished the land to the mortgagee. The court says (p. 570): “ The present action was not commenced until twenty-seven years after the time then fixed for the payment of the money; and no tender or offer to pay the money has even as yet been made; but an account is now asked for rents and profits extending back over.a space of more than a quarter of a century. That this is an almost unprecedented delay on the part of the complainants seeking relief in a court of equity must be admitted. How is it explained so as to avoid the objection of gross laches and staleness of claim ?”,

In this case, which was in the nature of a deed and separate defeasance, we may apply the language of the learned judge in that case as peculiarly applicable, substituting only the name of Olney and his grantees for those of Piatt and his heirs.

“No facts are stated or proved, explaining the delinquency of Piatt or his representatives to perform his part of the contract according to its terms. Nor is it either averred or proved that the land was in fact worth as much as the money so to have been paid, to entitle him to a re-conveyance.

“ But even conceding the right to have existed in the grantor after expiration of the time limited by the contract to tender the money due on the note and have a reconveyance of the lands decreed in a court of equity, the assertion of the right must not so long be delayed as to be in conflict with the rule of relief, that the party asking to enforce a contract against another must show himself ready, willing, and prompt in executing the contract on his part, or show some sufficient excuse for his delinquency. Otherwise he will have failed to show such a doing of equity as to justify him in asking relief in a court of equity.”

In Fisher v. Boody, 1 Curtis C. C. 219, it is said: “This distinction between a positive bar from lapse of time and that lying by and acquiescence, which will cause a court of equity to look upon the proofs with some distrust, and to refuse relief unless the delay and acquiescence are satisfactorily accounted for, I consider a most important principle, necessary to be constantly kept in view in wielding the transcendent powers of a court of equity; and it rests upon ample authority, though, in my judgment, it has not been sufficiently regarded.” Prevost v. Gratz, 6 Wheat. 481; Elmendorf v. Taylor, 10 Wheat. 153; Piatt v. Vattier, 9 Peters, 416; Stearns v. Paige, 1 Story, 217; Wagner v. Baird, 7 How. 234; 1 Mad. 99; Lawrence v. Blake, 8 Clark and Pin. 504; Hough v. Richardson, 3 Story, 659.

Where a decree of foreclosure and order of sale was had in 1842, and no further action, save continuances, was had until 1868, meanwhile the mortgagor had been in possession, sold portions of the land to innocent purchasers, who had no actual notice of the pending suit, and who had remained in possession more than twmnty-one years, it was held, that the unexplained delay was §uch as to prevent the enforcement, of the decree against such purchasers. Fox v. Reeder, 28 Ohio St. 181. See also, Hughes v. Edwards, 9 Wheat. 497.

The general rule is, that the right to redemption is barred by the same length of time as the right of entry at law, if the mortgagee is in possession as owner.

To this rule there are some exceptions, as when the mortgagor can bring himself within some one of the disabilities of the statute, such as infancy, etc., or wThere the possession of the mortgagee is referable to an agreement between him and the mortgagor, as in the case of a Welch mortgage, under which the mortgagee is in as a trustee and bound to account.

In such cases the statute does not run. Potter’s possession was not of this character.

It was unmistakably adverse to the right of redemption.

He was occupying and exercising acts of ownership under color of his title acquired by purchase at sheriff’s sale. The proceedings to foreclose, the purchase and possession, the payment of taxes and assessments, the employment of an agent to look after the lands, are all acts adverse to those of the mortgagor, and referable solely to his title as owner under the mortgage.

They are explanatory of Ms title and give character and significance to Ms possession.

"We do not propose to consider the mooted question, whether a less period than twenty-one years, will bar the right of redemption.

It is sufficient to say that if there was such a possession for more than twenty-one years, as would bar ejectment, the district court did not err.

“An entry under a deed gives possession of all vacant land described in the deed, if not in any adverse possession; although there may be no fences or inclosure around the ambit of the tract, and an actual entrance on only a part of it. To constitute actual possession it is not necessary there should be any fence or inclosure of the land.” Ellicott v. Pearl, 10 Peters, 412.

“ One who enters upon land intending to take possession of the entire tract, no part of which is held adversely at the time of entry, is in possession to the extent of his claim.” Langworthy v. Myers, 4 Iowa, 18; Booth v. Small, 25 Iowa, 178; Owing v. Gibson, 2 A. K. Marsh. 460; Little v. Dowling, 37 N. H. 355.

The distinction between an entry and possession under color of title, as in the present case, and such entry and possession without deed or color of title, is clear and well recognized.

In the former case, the possession is by construction held to extend to the boundaries of the deed; in the latter, it must be actual, definite, positive, and notorious, a pedes pos sessio. Ewinq v. Burnett, 11 Peters. 49; Angel on Lim. 398, 402.

In Ewing v. Burnett it is said: “An entry by one man, on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster ; otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character. That the evidence in this ease justified the jury in finding an entry by the defendant on this lot as early as 1804, can not be doubted; nor that he claimed the exclusive right to it, under color of title, from that time till suit brought. There was abundant evidence of the intention with which the first entry was made, as well as of the subsequent acts related by the witnesses to justify the finding, that they were in assertion of a right in himself; so that the only inquiry is as to the nature of the possession kept up. It is well settled, that to constitute an adverse possession, there need not be a fence, building, or other improvements made. 10 Pet. 442; it suffices for the purpose that visible and notorious acts of ownership are exercised over the premises in controversy for twenty-one years, after an entry under claim and color of title. So much, depends on the nature and situation of the property, the uses to which it can be applied, or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule, adapted to all eases. But it may safely be said, that where acts of ownership have been done upon land, lohich from their nature indicate a notorious claim of property in it, and are continued for twenty-one years, with the knowledge of an adverse claimant without interruption, or an adverse entry by him, for twenty-one years; such acts are evidence of an ouster of a former owner, and an actual adverse possession against him.”

The principle upon which the limitation operates, is, that the' adverse claim is accompanied by such an invasion of the rights of the opposite party as to give him a cause of action, which he has failed to prosecute within the time limited by law, and which he is therefore presumed to have surrendered or abandoned.

As the character of the possession depends on the nature and situation of the property, and the uses to which it can be applied, or to which the owner may choose to apply it, it is evident that resort must be had to the usual and ordinary conduct of owners of such land to determine if it is sufficient.

If this possession compoi’ts with the ordinary management of similar lands by their owners, it furnishes satisfactory evidence of adverse occupation.

When the land is partly improved and partly unimproved, an entry, even under a void deed, describing the whole, and acts of ownership under color of title derived from this deed over the whole — such as payment of taxes, preventing trespasses on the unimproved part, and using the improved part —is satisfactory evidence of adverse occupancy, when the opposite party, with knowledge of these acts, makes no claim, but acquiesces for more than twenty-one years. Angeli on Limitations, § 398; Noyes v. Dyer, 25 Me. 468; Kennebeck v. Laboree, 2 Me. 275; Spear v. Ralph, 14 Vt. 400; Chisholm v. Bullolph, 12 Vt. 231; Proprietors v. Springer, 4 Mass. 415.

Counsel for plaintiffs strenuously insist that as to the forty acres not sold in 1853 to Baker and Prentice, there has not been that continued possession requisite.

The deed to the whole tract was executed December 4, 1844. Prior to that, Potter had employed an agent to look after the property, and had paid taxes since 1843.

The improved part, mostly these forty acres, had been continuously occupied by tenants since the spring of 1845 to the winter of 1863-4, when the house was torn down by the neighbors by reason of objectionable tenants to whom it had been sublet, and the material was afterward moved off by the tenant in April, 1864.

About the same time piost of the fencing was stolen for firewood, and the greater part of the cleared land was an open common. It also appears that from the time the house was pulled down, in the winter of 1863-4 to the spring of 1865, no tenant actually resided on the land, although during all that time the mortgagee, through his agent, continued to pay taxes aiid to exercise all other acts of ownership and control that was possible under the circumstances.

No intention was entertained of abandoning the property. No adverse entry or claim was then or at any time made. There was no disseizin or ouster. The acts of a mob and of thieves had made it temporarily ipifit for actual residence.

Surely there is no principle of either law or equity that would make these acts of lawlessness and violence inure to the advantage of the plaintiffs. In such case, when there is no abandonment or ouster, nor any offer to redeem, the plaintiffs’ adverse possession continues, though he has no tenant residing thereon, if he exercises all those acts of adverse claim of which the property is capable. The single fact that during the space of a year no tenant actually resided on the tract, does not operate to break the continuity of possession, when, as in this case, there was no adverse entry by the owner of the legal title or those claiming under an adverse title, and when there were continuous acts of ownership comporting with the condition of the property.

The principle on which the statute is predicated, is not that the party in whose favor it is invoked has set up an adverse claim for the period specified, but that such adverse claim is accompanied by such invasion of the rights of the opposite party as to give him a cause of action. Angelí on Lim., § 390. It is the occupation with an intent to claim against the true owner, which renders the entry and possession adverse.

Where the first possessor died, and his heirs were driven from the actual possession by a public enemy, the possession was considered by the equity of the jus post limmiv as revested in the heirs on the removal of the hostile force. Smith v. Lorillard, 10 Johns. 338.

A continued residence on the land is not necessary, if it has been inclosed and used in such manner as to give publicity to the possession. Making improvements, or receiving rents would be sufficient without evidence. Angell on Lim, § 392.

In Macentile v. Savoy, 17 Serg. & Rawle, 104, it was held, in the case of a dwelling-house in a city, that direct proof of occupancy during the whole period is not necessary, and that the possession continues, although the house may not be occupied during the whole period without intermission.

Judgment of the district court affirmed.  