
    Case 64 — PETITION ORDINARY
    Dec. 14.
    Turner v. Thomas, &c.
    APPEAL PROM ROBERTSON CIRCUIT COURT.
    1. An attornment by a tenant to a stranger, without the consent of the landlord under whom he entered, and not pursuant to or in consequence of the judgment, order, or decree of a court is void; and the holding of a tenant so attorning will he treated as the possession of the person under whom he entered. (Sec. 16, chap. 80, Rey. Stat.; 3 Bush, 72; 17 B. Mon. 18; 2 Dana, 213.)
    2. A PURCHASER BY EXECUTORY CONTRACT IS A QUASI TENANT, and holds the possession, so far as strangers are concerned, for the benefit of his vendor’s title, which he is estopped to deny, and which he can not prejudice by any contract he may make with any other person. (8 B. Mon. 262.)
    3. A DEED TO ONE TO WHOM A TENANT HAD WRONGFULLY ATTORNED, or to one to whom a purchaser by executory contract had wrongfully attorned, is ehampertous.
    
    
      4. The temporary absence of a tenant from a portion of the tract of land, the remainder being all the while actually held—
    
      And the time taken up in ousting an intruder did not amount to a break in the possession.
    5. A POSSESSION WRONGFULLY OBTAINED PENDENTE LITE should be restored, and the parties placed in statu quo.
    
    On dismissing plaintiff’s suit to recover possession and enjoining the defendant from proceeding by writ of forcible entry and detainer to oust him of the possession wrongfully obtained pending the litigation, the chancellor erred by remitting the defendant to his proceeding at law, instead of restoring the possession and placing the parties in statu quo.
    
    A. DUVALL, STEVENSON & O’HARA, and W. P. ROSS por APPELLANT.
    1. The questions involved in this case are: 1. Has the appellant manifested title to the land in contest? 2. Has his right of entry under his title been tolled by adverse possession in the appellees and those under whom they claim?
    2. The appellant derived his title from the heirs of the patentee by direct conveyances made in 1853, which invested him with the title, 'unless these conveyances are void under the champerty law. They were not void unless they were made while the land was held adversely to appellant and his vendors.
    3. Having acquired an equity in the land and a right to take possession, and finding appellees upon it, appellant leased the land to them, and while they were thus his tenants he acquired the legal title.
    By taking the leases appellees ceased to be hostile holders and became appellant’s tenants. (Baley v. Deakins, 5 B. Mon. 159; Barret v. Coburn, 3 Met. 514; Jones v. Chiles, 2 Dana, 25; Patterson v. Hansel, 4 Bush, 654.)
    There can be no such thing as constructive possession in favor of any but the legal title-holder. (Jones v. McCauley, 2 Duv. 14.)
    4. When appellees, the Thomases and Chitsey, accepted the leases from appellant, it was a confession that they had no title, and as they were holding for themselves under their purchases from Throckmorton, they had a right to make such confession, and enter into the leases and become appellant’s tenants. Whatever may have been the hostile character of their possession before accepting the leases, from that time forward their possession was amicable until appellant brought his first suit against them.
    O. S. DEMING on same side.
    1. A possession originally adverse may be converted into a friendly possession by agreement to hold under the person having the right. (Gay v. Mofflt, 2 Bibb, 506; Brandt v. Ogden, 1 Johns. 157; Boling v. Ewing, 3 Dana, 133; Smith v. Morrow, 7 J. J. Mar. 445; Mills v. Bodley, 4 Mon. 248.)
    2. A possession maybe adverse under the statute,of limitations, which is not adverse under the champerty law'. (Castleman v. Combs, 7 Mon. 273.)
    The statute in regard to champerty applies only to sales of land in adverse possession by another at the time of the sale. (Sec. 2, chap. 11, Gen. Stat.; Baley v. Deakins, 5 B. Mon. 161; Chrisman v. Gregory’s heirs, 4 B. Mon. 474.)
    A deed from the true owner of land made while a mere trespasser is in possession is valid. (Carrington v. Goddin, 13 Gratt.; Bowie v. Brake, 3 Duer, 35.)
    When no one is on the land against whom the claimant could bring his action, there is no adverse holding within the meaning of the champerty statute. (Moss v. Scott, 2 Dana, 274; Cardwell v. Sprigg’s heirs, 7 Dana, 37; Norton v. Sanders, 1 Dana, 17; 2 Dana, 272.)
    3. Throckmorton never had any title, and could not have maintained ejectment or forcible entry, because he could not have shown in himself a righx of entry (Botts v. Shields, 3 Litt. 35); and he could not vest his vendees, the appellees, with any better right than he himself had.
    
      4. Where persons claim, as in this case, under the same title, there can be no adverse holding or possession against the right owner so as to toll his right of entry. (Gay v. Moffit, 2 Bibb, 506.)
    5. As appellees entered without title and became appellant’s tenants, they were estopped from denying his title. (Daniel v. Ellis, 1 Mai-. 44; McGee v. Morgan, 1 Mar. 45; Mattox v. Helm, 5 Litt. 185.)
    6. The possession, to bar an adverse entry by time, must be continued and uninterrupted. (Jones v. Chiles, 2 Dana, 25; McGee v. Morgan, 1 Mar. 45; Ludlow’s lessee v. Myers, 3 Johns. 388; Braxdale v. Speed, 1 Mar. 105; Phillips v. Rothwell, 2 Mar. 478; Moss v. Scott, 2 Dana, 272.)
    7. Limitation will not run in favor of a mere constructive possession by a claimant under a junior patent; it will not bar an ejectment unless the adverse possession has been, not only actual, but continuous, so as to furnish a cause of action every day during the whole time fixed by the statute. (Jones v. McCauley’s heirs, 2 Duv. 14; Brandt v. Ogden, 1 Johns. 157; Mills v. Bodley, 4 Mon. 248.)
    8. The champerty laws of this state can not be made to apply to titles like that involved in this case, which were derived from Virginia before Kentucky became a state. (Acts of 1794,1798; 7 Dana, 27; 2 Litt. 394.)
    Appellant, as a purchaser of the legal title to the lands held under the laws of Virginia, is not precluded from prosecuting his suit by reason of any champerty laws of this state.
    By the terms of the compact (sec. 7) in which Virginia consented that Kentucky might become a state, it was stipulated that the citizens of Virginia, having legal or equitable title to land-claims in Kentucky, should have the same protection against limitations and champerty that was guarantied to them by the laws of Virginia. By the statute of Virginia it required fifty years adverse holding to toll or bar the right of entry, and appellant is constitutionally entitled to this protection, and in so far as the limitation or champerty laws of this state deprives him of this guarantied right, they are unconstitutional. (New Jersey v. Wilson, 7 Cranch, 167; Revised Code of Virginia of 1819, vol. 2, p. 488.)
    E. O. PHISTER TOR APPELLEES.
    1. In this action of ejectment Turner could only succeed by the strength of his own title, and not by any -weakness of the title of his adversaries. (Coleman v. Talbot, 2 Bibb, 130; Colston v. McVay, 1 Mar. 185.)
    2. Turner sued appellees in 1854, charging that they were in adverse possession. That suit was dismissed in 1865. This suit was commenced for the same land in 1870, more than fifteen years after the commencement of the first suit. The fifteen years bar was- complete, -and being pleaded, this suit- was properly dismissed on that ground.
    
      3. The deeds of 1853 from Taylor’s heirs to Turner were champertous, because appellees entered in 1848 as purchasers by executory contracts from Throckmorton, and continued in possession from that time, looking to him, and after his death, to his widow and heirs for title, when in 1853 they were induced to attorn to Turner. This attornment was a fraud upon Throckmorton -or his widow and heirs, and void, -and notwithstanding it, the possession should he considered as with- the estate under which appellees entered.
    4. As purchasers by written executory contracts from Throckmorton in 1848, appellees occupied the relation of quasi tenants to Throckmorton (and after his death to his widow and heirs), and were under the obligations of tenants. (Chambers v. Pleak, 6 Dana, 428; Sebastian v. Ford, 6 Dana, 437; Hamilton v. Taylor, Litt. Sel. Cas. 445; Woodruff v. Detheridge, 6 J. J. Mar. 369.)
    6. As appellees did not enter under Turner, he did not acquire possession or. the right to possession by the attornment to him in 1853.
    The principle that a tenant can not dispute the title of his landlord, or contest his right to recover, is not applicable to a case like this; it applies only where the tenant acquired possession from or entered under the alleged landlord. (4 Bibb, 34, 524; 1 Mar. 99, 243, 330; 2 Mar. 243; 3 Mar. 150.)
    The Revised Statutes (section 16, chapter 80) provides, that “the attornment to a stranger shall be void, unless it be with the consent of the landlord,” etc.
    The attornment of 1853 was absolutely void, and gave no right to Turner. (Morgan v. Ballard, 1 Mar. 558; Payne v. Vandever, 17 B. Mon. 14.)
    Turner can not have any relief affirmatively under, or because of the attornment; it is therefore just the same as if there had been no attornment to him, and the adverse possession of appellees was continuous from 1848 to the commencement of this suit in 1870. (6 Dana, '430; 7 J. J. Mar. 250.)
    Possession is by occupation or inclosure, improvement or cultivation. (3 J. J. Mar. 552.)
    6. The court below erred in not causing possession to be restored to a part of the land in controversy which was wrongfully obtained by appellant during the pendency of this suit. The forcible entry proceedings, consolidated with this case, should have been considered as pleadings in this case. (4 Met. 58, 113; 5 Mon. 5.)
    J. A. BUCKLER on same side.
    One who obtains possession under an executory contract can not deny the title of his vendor. (6 Dana, 436; 7 Mon. 104; 2 Mar. 243; 4 J. J. Mar. 397; 1 Dana, 517; 2 Dana, 387.)
    
      So long as the holder of the equity looked to the legal title holder for the legal estate, he must be considered as holding under him, and the length of the possession inures to the benefit of the legal estate as against adverse claimants. (Hawkins v. Page, 4 Mon. 136; 4 Litt. 275.)
    The actual occupancy of the adjoining tracts of lands by the appellees, and claims to the lands in controversy, by well-defined boundaries, gave them constructive actual possession of the lands in controversy. (Griffith v. Dicken, 2 B. Mon. 24.)
    B. G. WILLIS ON SAME SIDE.
    The deed of Woodford Taylor to Turner is not authenticated as required by section 17, chapter 24, Revised Statutes, and therefore is not evidence of title in Turner.
    The deeds of 1853, from Woodford and Thornton Taylor to Turner, were champertous and void. (Sec. 2, chap. 12, Rev. Stat.; 4 J. J. Mar. 641; 17 B. Mon. 685.)
    The attornment in 1853 conferred no possession, or right to possession, on Turner. (1 Dana, 5, 15, 390; 7 J. J. Mar. 232.)
    If the relation of landlord and tenant resulted from the attornment, or existed in 1853 between Turner and appellees, that relation was disclaimed in 1853, and Turner accepted the disclaimer by suing to recover the possession of the land in 1854. (Morton v. Lawson, 1 B. Mon. 48; Willison v. Watkins, 3 Peters, 43.)
   CHIEF JUSTICE LINDSAY

delivered the opinion op the court.

The appellant Addison Turner, who testified in his own behalf, states that the land in controversy was in the occupation and possession, during the year 1853, of one Rutherford Chitsey and William and Sarah Thomas, and that from and after March, 1853, these parties held as his tenants under written contracts of lease. These alleged tenants entered originally as purchasers under executory contracts from one Joseph Throckmorton, and were holding under him and looking to him for title, or else recognizing him as their landlord, at the time they leased from and attorned to Turner. They soon repudiated Turner’s title and returned to their allegiance to that of Throckmorton, and in 1854 Turner instituted his actions against them and others, alleging that they were holding the lands adversely and without right, and seeking to recover the possession.

In the meantime, Joseph Throckmorton died, leaving an infant son who was his sole heir-at-law. His widow afterward intermarried with Walter Case, and by an amended petition filed in 1857, Case and wife and the infant, Hugh R. Throckmorton, were made defendants to the several actions of ejectment pending against Chitsey, Thomas, and others. The parties all defended, denying Turner’s title, and claiming under Joseph Throckmorton, deceased. About 1865 these actions were all dismissed upon rule, but without prejudice to the right of Turner to sue again.

Accordingly in 1870, this action was instituted against the tenants of Case, who was controlling the lands in the right of his wife, and as statutory guardian for the infant Hugh R. Throckmorton. They were made parties upon their own petition, and defended on the several grounds, of want of title in Turner, and of title in themselves under regular conveyances ' from the patentees of the land, and by actual adverse possession under a claim of right for more than fifteen years before the institution of this proceeding.

The cause was transferred to equity and consolidated, with an appeal taken from an inquisition of forcible entry and detainer, taken out by Case against a party claiming to be the tenant of the appellant.

The person who originally owned the land was one Thornton Taylor, a citizen of Virginia. He was imprisoned in that state for debt at some time anterior to the year 1840. In order to be allowed to take the insolvent’s oath, and to procure his release from imprisonment, he surrendered his evidences of title to the sheriff, who assumed to sell and convey the lands to this appellant. The papers executed by Taylor and the sheriff were not such as to pass the legal title to Turner, even if they invested him with an equity which the courts of this state could recognize.

Realizing this fact, Turner, in July, 1853, procured the two sons and heirs-at-law of Taylor, who was then dead, to convey to him by deeds regularly and properly executed, acknowledged, and recorded.

Appellees claim that these deeds were champertous and void, because, they say, that Jos. Throckmorton, by his tenants and by vendees, under executory contracts, who were still looking to him for title, was in the actual adverse possession of the lands at the time of their execution. Turner claims that he was then holding the land by his tenants, Chitsey and Vm. and Jane Thomas.

An attornment by a tenant to a stranger without the consent of the landlord under whom he entered, and not pursuant to or in consequence of the judgment, order, or decree of a court, is void, and the holding of a tenant so attorning will be treated as the possession of the person under whom he entered. (Sec. 16, chap. 80, Rev. Stat.; 2 Stan. 229; 3 Bush, 72; 17 B. Mon. 18.)

As said in this court in the case of Blue v. Sayre (2 Dana, 213), such an attornment is utterly void and ineffectual. The legal character and effect of the relation of landlord and tenant can not be changed by an illegal attornment, or by mere disclaimer, which can not be deemed as amounting to an actual disseisin unless the landlord elect to consider it as a disseisin.”

And this doctrine applies as well in the case of a quasi tenancy resulting from a purchase by executory contract. In such a case the purchaser or quasi tenant holds the possession (so far as strangers are concerned) for the benefit of his vendor’s title, which he is estopped to deny, and which he can not prejudice by any contract he may make with any other person. (Kirk v. Taylor’s heirs, 8 B. Mon. 262.)

It results therefore that in July, 1853, Jos. Throckmorton was in actual adverse possession of the land, claiming to be the true and lawful owner of the title, notwithstanding the wrongful attornments of Chitsey and Thomas, and that the deeds in question are champertous and void.

These conveyances out of the way, the only ground upon which Turner can rely for a recovery is the implied recognition of his title by Jos. Throckmorton, resulting from his assisting in making a survey of the land about the year 1840. At that time Throckmorton was quite a young man, and may not have been, and probably was not, apprised of the facts testified to in this action by a number of witnesses, tending to prove that his father had long asserted some kind of claim to at least a portion of the land in contest. But in ány event the appellant shows that in 1854 Throckmorton’s tenants and vendees were in possession. The weight of the evidence shows that this possession commenced, at least as early as the year 1848, and - it has been practically and substantially continuous since that time.

The temporary absence of a tenant from a portion of the tract, the remainder being all the while actually held, and the time taken up in ousting an intruder, in or about 1862, did not amount to a break in the possession.- The party to whom Case rented failed to comply with his lease by taking possession, immediately upon the vacation of the premises by the preceding tenant, and an unauthorized intruder took possession of the houses, and had to be ousted by legal proceedings, which were promptly resorted to by Case, and the next year the premises were occupied by Case’s tenant. And further than this, the possession of Case during all this time was impliedly recognized by Turner, whose-actions, instituted in 1854, were then pending.

On the original appeal the judgment is affirmed.

Craycroft, one of the original defendants, was in possession as the tenant of Case and wife. After they and the infant, Hugh R. Throckmorton, had petitioned to be made parties to the action, the appellant bought out or compromised with their said tenant, and thus obtained his possession.

Case, as husband and guardian, proceeded to oust appellant, the intruding tenant^ by a writ of forcible entry and detainer. ' Appellant, by an amended petition, sought and procured an order of injunction restraining Case from proceeding to enforce said writ.

Case, by answer, asked the chancellor to restore to him the possession thus fraudulently obtained • pending the litigation, , but when appellant’s petition was dismissed, the chancellor remitted Case to his proceeding at law. This was error. Appellant entered pendente lite. He brought the question of his entry into the cause, and the whole case being before the chancellor, he should have placed the parties in statu quo.

On the cross-appeal the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.  