
    NOVEMBER TERM, 1846.
    James Grafton vs. John S. Grafton, Llewellyn T. Lobdell and Eliza Ann, his wife.
    There is no absolute, unvarying rule as to what will constitute an adverse possession : it must always depend in a great degree upon the circumstances of each case, and is a question of fact rather than of law.
    J. G. took possession of a tract of land in 1813, under an alleged purchase from his brother J. B. G. ; it was the general understanding in the neighborhood, that J. G. held as a purchaser, and that was especially the understanding of the G. family, and the family into which J. B. G. married; J. B. G. died in 1814, and J. G. administered upon his estate ; the estate was insolvent, and paid only about fifty-six cents iii the dollar, and the creditors, though most of them were near relations of J. B. G. and resided in the immediate neighborhood of the transaction at a time when it was of recent date, made no attempt to subject the land to the payment of their claims : held, on a bill, filed in 1840, by the heirs of J. B. G., averring that J. G. pretending to have purchased the land, had sold it to A. G., without any legal authority, while they were minors, that they had recently come of age, and were willing to confirm the sale made by J. G., and praying for a decree against J. G., for the purchase-money ; that the circumstances combined, were sufficient to show an adverse possession of the land by J. G., and that the statute of limitations constituted a good defence to the bill.
    Whether to constitute an adverse possession it is necessary, under our statute, to hold under a color of title, — Queere?
    
    Appeal from the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    On the 12th day of September, 1840, John S. Grafton, Llewellyn T. Lobdell and Eliza Ann Lobdell his wife, filed their bill in the superior court of chancery, against James Grafton, charging that Daniel Grafton, Senior, died, seized and possessed of a tract of about six hundred acres of land, lying in Adams county, near the city of Natchez, which descended to his children and heirs, to wit: Thomas, Daniel, John B., Elizabeth, Mary and James, who being of age, made a division thereof, each taking possession of his part in severalty. That in 1815, shortly after the division John B. Grafton died, leaving complainants, John and Eliza, his only heirs. That James Grafton, the defendant, pretending that he had purchased John B. Grafton’s share, which joined his own, and being at the same time administrator of John B. Grafton’s estate, which he represented as insolvent, took possession of the tract of land received by John B. Grafton, as his share of his father’s estate, and on — day of January, 1817, sold it to A. Campbell, with his own share, which together amounted to one hundred and sixty-three acres, for $2400, one-half of which belonged of right to complainants. That complainants were very young, and a general impression among their friends and relatives, that their father left no property, prevented a guardian being appointed for them, or any investigation of the condition of the property being made. That Campbell has cultivated the land, and wasted the timber, and the land is now worn out, and worth little or nothing. That complainants are willing to confirm the sale to Campbell, on being paid their proportion of the price, received for the same. The bill prayed a discovery, and account, and a decree for one-half the purchase-money received by defendant.
    The answer of James Grafton, stated that Daniel Grafton, senior, died in 1802, seized of the tract of land described in the bill, containing about five hundred and seventy acres; that he left seven children and heirs at law, instead of six, as charged in the bill, among whom, were John B. and respondent; that the heirs by consent employed a surveyor, who divided the land into seven shares, of about eighty-one and a half acres each, the heirs drew lots, and each took immediate possession of his share in severalty; that Sarah Grafton, one of the heirs, died in 1805, leaving her share to respondent; that John B. Grafton, died in August, 1814, instead of 1815, as stated in the bill, and respondent believed the complainants were his only children, and heirs at law. Respondent averred, that in the beginning of the year 1812, John B. Grafton, sold his share of the land to respondent, and received the purchase-money in full; that great confusion and excitement at that time prevailed throughout the country, on account of the war between the United States and Great Britain, and the making of titles was postponed; that a written memorandum of the sale, by John B. Grafton to respondent, however, was made at the time, in which John B. Grafton agreed to make respondent a title to the land, whenever it should be called for; which memorandum respondent had carefully searched for, but could not find, and he believed it was lost or mislaid ; the sale, however, from John B. Grafton to respondent was a matter of notoriety at the time. Respondent stated that he took possession of John B. Grafton’s share immediately after his purchase, and continued in the full and uninterrupted possession and enjoyment thereof, till the time of John B. Grafton’s death, about two years and a half thereafter, and afterwards, until he sold to Anthony Campbell; that in 1813, John B. Grafton was compelled, by high water, to leave his residence on the Mississippi river, and he came to the house of respondent, who was then living on the land he sold to respondent, and staid there some months, without ever once making any claim or pretence of title to any portion of the land; that John B. Grafton, from the time of his sale to respondent, until his death, never exercised any ownership over, nor claimed any right or title whatever to his share, but the same has been held by respondent, adversely to John B. Grafton, and as his own property. Respondent further stated, that, in the beginning of the year 1817, he sold to Anthony Campbell the share of the land given him by his sister Sarah, and the share he purchased from John B. Grafton, the whole containing about one hundred and sixty-three acres, for the sum of twenty-four hundred dollars, payable in three annual instalments of eight hundred dollars each, without interest. Respondent further stated, that, in 1814, he returned from the army on furlough, and, being requested by the other creditors of his then deceased brother, John B. Grafton, and being himself the largest creditor, he administered upon his estate, and immediately returned to the army, leaving his brother Thomas fully authorized to have the property of John B. Grafton’s estate appraised and sold, and the appraisement and sale were made during his absence; that when he got back home, he found the estate insolvent, and had it so declared by the court; that the estate paid a dividend of only about fifty-six cents in the dollar, and had the whole proceeds of the land, purchased from John B. Grafton, been applied to the payment of the debts of the estate, it would have still been insolvent; that a number of the near relatives of John B. Grafton, and among them his father-in-law, and his brother Thomas, were creditors of his estate, and the fact of the sale by John B. Grafton to the respondent, was so well known to all of them, that no attempt was made by any of them, to have his share of the land, subjected to the payment of his debts; and they all received their dividends, without any objection on that ground. Respondent stated that complainant, John S. Grafton, was twenty-five or twenty-six years of age, and Eliza Ann Lobdell, was older than her brother, John S. Grafton. Respondent insisted, that his possession of the land, and that of those claiming under him, had been adverse to the title of John B. Grafton, ever since his purchase in 1812, and that his title and the title of those claiming under him, by the lapse of time had ripened into a full and complete title at law, and in equity, and he relied upon the statute of limitations as a defence.
    Samuel Gustine, a witness, on behalf of the defendant, deposed, that he knew John B. Grafton in his lifetime, and attended him in his last illness, that he died in 1814, and lived at the time of his death, about twelve miles from Natchez, in the Pine Ridge Settlement; deponent and his brother were prac-tising physicians in the families of James, Daniel, and Thomas Grafton; that he did not know of his own knowledge, that James Grafton owned the land on which he resided, but believed him to do so, both from the fact of his residing on it, and from general reputation. About 1813, deponent and his brother bought a tract of land from John B. Grafton, lying in Louisiana, on the Mississippi river, and he knew that John B. Grafton was very much embarrassed at that time, and deponent did not believe that he then owned any part of the Grafton tract, as he and his brother had to pay a judgment or judgments with which the property they purchased was encumbered. That in 1813, John B. Grafton resided on the tract deponent and his brother purchased, and that his removal was owing to high water; that he did not know of any claim or pretence of claim set up by John B. Grafton to the land in question; he did not recollect of any notoriety about the matter, but his impression had long been, that James Grafton owned the Grafton tract of land, and he had an indistinct recollection that he purchased a part of it from some of the heirs. Deponent believed John B. Grafton told him, after he sold out in Louisiana, that he owned no other landed property.
    Caleb Stowers testified, that John B. Grafton died in 1814, and lived, at the time of his death, on Pine Ridge, in Adams county, twelve miles from Natchez. That John Stowers, the father of witness, and the father-in-law of John B. Grafton, purchased the land on which John B. Grafton died, for him to reside on ; and, in consequence of the embarrassments of John B. Grafton, John Stowers took the title to the land in his own name, and, after John B. Grafton’s death, he gave it to his daughter, the widow of John B. Grafton ; that it was rumored in the family, that John B. Grafton had let Daniel, or James Grafton have his share of his father’s estate.
    Allen Grafton corroborated the evidence of the other witnesses, as to the place of John B. Grafton’s residence, and the time of his death; and he further testified, that he understood that James Grafton took possession of the land, as a purchaser from John B. Grafton, but he did not know it of his own knowledge; that after John B. Grafton’s removal from the Mississippi river, on account of the high water, he went to live for a short time at his brother James Grafton’s place, and from thence he removed to Pine Ridge, where he died; that he had frequently heard it stated in conversations amongst the heirs and other relations of the family, that James Grafton had purchased John B. Grafton’s share of his father’s estate.
    This being all the evidence, the chancellor, on the 12th day of June, 1844, rendered a final decree in favor of the complainants, for the sum of three thousand and thirty dollars, to be paid upon their executing to the defendant a release of all their interest in the land. From which decree the defendant appealed to this court.
    
      H. T. Ellett, for appellant.
    The complainants seek to recover the money received by the defendant below on the sale of the land, upon the assumption that they have title to the land. If, therefore, at the time of filing the bill in this case, their right of action for the land was barred at law, then, upon the principle of the statute of limitations, their right to the money is barred in equity.
    This case does not belong to that class of trusts to which the statute of limitations does not apply. The rule is thus stated : “ Direct trusts, such as are created and acknowledged by the parties, are not barred by lapse of time ; but possible, or eventual trusts, which occur where a party took possession in. his own right, and was, prima fade, the owner, but is afterwards converted into a trustee by evidence, are barred,” &c. Fonbl. Eq. 246, and cases cited.
    Wherever there is concurrent jurisdiction of law and equity, the statute maybe pleaded in either court. Kane v. Bloodgood, 7 Johns. Gh. R. 90.
    In this case no “direct trust” was created, but the party is sought to be “converted into a trustee by evidence.” The jurisdiction of law and equity is convenient, for the complainants have the same right to the land at law, as to the money i,n equity.
    This point was not controverted below, and the case turned entirely upon the question whether the facts disclosed an adverse possession in James Grafton, and those claiming under him for twenty years previous to this suit.
    On this subject the chancellor held the following language: “I think, from the testimony in the case, there is no pretext for saying that the defendant entered with claim of right and color of title to the land. . . . A party who relies upon adverse possession as a defence must show that it commenced and continued under some color of title which he at the time believed to be good. It is not necessary that he should show a good indefeasible title, but such a one as would raise the belief that he honestly considered himself entitled to enter under it. And these facts must be made out by clear and positive proof, and not by mere inference. These general principles are believed to be sustained by the following cases: 2 Caines, 183; 9 Johns. 163; 1 lb. 156; 8 lb. 270; 12 lb. 368; 5 Cowen, 346. In this latter case C. J. Savage carried the doctrine to the extent of holding that to constitute an adverse possession the party must show that he entered under “ such a title as the law would prima facie consider a good title.”
    It is very true that the doctrine of adverse possession is to be taken strictly; that it is to be made out not by inference, but by clear and positive proof, — and that the presumption is in favor of possession in subordination to the title of the true owner. The cases cited by the chancellor teach this doctrine, and they teach with equal clearness this proposition, to wit:
    That whenever possession is taken under pretence or claim of a right, which, if it really existed, might, in law, be a good right, such possession will be adverse to all other rights. See the cases above cited. In the case of Jackson v. Waters, 12 Johns. 365, the possession was held not to be adverse, because taken under a grant from a foreign government, which the court said was not a “legitimate source of title.” This case illustrates what is meant by C. J. Savage, in 5 Cowen, 351, where, he says, the title must be “such as the law will prima facie consider a good title.” Not, as the chancellor seemed to think, that the party must actually prove a good prima facie title, but the title which he pretends or claims. to have, must be such, if he explains it, as would be, prima facie, a good title ; that is, derived from a legitimate source.
    The case of Jackson v. Wheat, 18 Johns. 40, gives a clear definition of an adverse possession. The court said, “ that possession under a claim of title by purchase, was sufficient; and that it was not necessary to produce the deed, though called for. That if the deed was lost, or defective, it could not alter the effect of the defendant’s possession. That after a continued possession for twenty years, under a pretence or claim of right, the actual possession ripened into a right of possession, which will toll an entry. That there need not be a rightful title. That whenever this defence’ was set up, the idea of right was excluded, and that the fact of possession, and the quo animo, were the only tests.” See also 9 Johns. 180; 18 lb. 360; 8 Cowen, 589, and 9 Cowen, 530, 553; to the same effect, 2 Hawks, 233. Also, 16 Johns. 293, and 1 Johns. 159; the latter case being strongly in point in this case.
    A right of entry is barred after twenty years. How. & Hutch. 568, sec. 89.
    When the statute begins to run no subsequently intervening disability can prevent it from continuing to run. 1 Johns. 165; 16 lb. 210; 18 lb. 40; 5 Cow. 74; 12 Wend. 602; Ang. on Lim. 146; Ballant. 60, 64, 175, 186; 4 How. 31.
    The question remains, whether James Grafton, and those claiming under him, have had such an adverse possession of the land in controversy, for twenty years before the filing of this bill, which was in 1840.
    The chancellor says, there is no pretext for saying this, and yet the fact is plainly avérred by the complainants themselves, in their bill. They state, that “ James Grafton, pretending to have purchased John B. Grafton’s share, and being administrator of his estate, took possession of said share, and in the beginning of the year 1817, sold it to Anthony Campbell.” The bill also states thjit all the heirs were of age at the division, which had previously been made.
    Here then is a distinct allegation that the appellant took possession of the land under pretence of a purchase from John B. Grafton. Now a purchase from John B. Grafton would have given him a good title in fact. He therefore took possession under pretence and claim of a title, which the law would consider prima facie a good title; and the fact of possession, and the quo animo, both concur to render the possession adverse, and these are the “ only tests.”
    The answer admits that the possession commenced under this pretence of purchase, and avers that such a purchase was in fact made, and the money paid, the evidence of which is lost. It is not necessary to make proof of the purchase. If the possession commenced, and has continued for twenty years, under pretence of it, the law presumes that it was made, and dispenses with the proof. See Davis v. Minor et al. 1 How. 191.
    The bill carefully avoids saying anything positively as to the time when James Grafton’s possession commenced, but insinuates that it was after John B. Grafton’s death. This is implied from the words, “and being administrator of his estate.” The answer denies this, and alleges that the possession commenced before his death, to wit, in 1812. No proof is taken in support of the bill, and the answer should therefore be taken as true.
    An answer responsive to a bill is evidence, and two witnesses, or one witness, with corroborating circumstances, will be required to outweigh an answer asserting a fact responsive to the' bill. Hart v. Ten Eyck, 2 Johns. Ch. R. 62 ; Russell v. Clark's Executors, 7 Cranch, 69; 2 Cond. R. 424; Clark’s Executors v. Van Riemsdyk, 9 Cranch, 153, 3 Cond. R. 325.
    But the depositions of Samuel Gustine, Caleb Stowers, and Allen Grafton, taken on behalf of appellant, fully show that John B. Grafton died in 1814; that James Grafton’s possession commenced in 1811, or 1812, and that he took possession as a purchaser from John B. Grafton, claiming title and holding in his own right.
    The chancellor made another point, as follows, to wit: “ Moreover, all the authorities agree that a claim, based upon such a possession, must be confined to the actual inclosure, or possessiopedis of the tenant, and cannot be extended to the metes and bounds of the tract. Ang. on Lim. 73; 3 Wash. C. C. R. 475.”
    There is no difficulty on this point. The bill alleges that, after the division, James Grafton took possession of John B. Grafton’s share, pretending that he had purchased it. This of course means the whole share, extending to the metes and bounds, the same that he afterwards sold to Campbell, and-which complainants are now seeking to get pay for.
    
      Montgomery and Boyd, for' appellees.
    From the statements in the bill, admissions in the answers, and testimony on file, we think these facts are clearly established.
    1. That John B. Grafton, in his- lifetime, was the owner of about eighty acres of land, part of his father’s estate..
    2. That there were no tenements on the land; but it was part of a plantation, and was cultivated by James Grafton, who owned the adjoining land.
    3. That John B. Grafton died some time in 1814.
    4. That defendant was his administrator, and represented his estate insolvent, and the account of administration is filed, showing a small balance in his hands.
    5. That James Grafton, in 1817, sold the land as his own, together with his share, to A. Campbell, for $2400, being $1200 for John B. Grafton’s tract.
    6. That complainants are the legitimate heirs of John B. Grafto'n. Eliza Ann Lobdell was born December 5, 1811, and John S. Grafton was bom December, 1814, or 1815, and died August, 1841.
    The defendant sets up that he purchased the land of John B. Grafton, in his life time, and had a written agreement for a title, and'that he had paid the purchase-money to John B. Grafton, and held adversely to him in his lifetime.
    The proof on this subject is mere rumor, and no witness has been found willing to say, that either John or James mentioned such contract in the lifetime of John B. The deposition of Allen Grafton is strongest, and we object to that as mere rumor, weaker than ordinary hearsay.
    He states he understood James Grafton went into possession as a purchaser. True, to the sixth interrogatory, he says James held the land as a purchaser, but his answer to the second interrogatory is contradictory of this, and explains that it was mere hearsay. The answer to the seventh amounts to nothing, for it only speaks of family conversations, without so much as giving the time; and if they were worth anything, for aught that appears, they may have occurred aftér James sold to Campbell. He never heard John say he had sold.
    Gustine’s deposition on this point is still more objectionable; he speaks from general reputation alone. I| was his own impression that James owned the land, and purchased from some of the heirs. Has no distinct recollection, but thinks John told him, after selling out in Louisiana, he had no other land.
    Stowers’s deposition is still more unsatisfactory. He speaks of rumors in the family, without date, or names of persons, or any other fact.
    This is all the evidence on this point; and we think it wholly fails to establish, either that the. defendant was a purchaser, or that he held adversely, in the lifetime of the deceased, John B. Grafton.
    The law always presumes the tenant in possession holds in accordance with the legal title; and an adverse possession must be proved. It must be under color of title which is adverse in its character. If the tenant enter under the legal title, with consent of the owner, he is presumed to hold under the legal title; until he manifests clearly that he holds adversely. 9 Johns. 174; IS lb. 40, 355; 3 Johns. Ch. R. 124; 8 Johns. 220; 9 lb. 163; 4 lb. 230; 12 lb. 365; 16 lb. 293; 1 Cow. 276; 5 lb. 74,346; 9 1b. 530.
    The defendant must be considered in the light of a voluntary, self-constituted guardian, or trustee; and as such he is liable to the same extent as a regular guardian. And having executed the trust for the benefit of the heirs of John B. Grafton, rvithout their knowledge at the time, they may affirm it and enforce him to account.' 1 Johns. Ca. 205.
    The manner of sale by a guardian is immaterial; if it be merely a verbal contract, and he receives the money, and the heirs are willing to confirm the sale, the guardian will be ac^ countable. 1 Dana’s R. 367.
    Another ground of relief is, that a court of equity will seek out the party ultimately liable, and subject him to the burden in the first instance. Story’s Eq. Plead. 162, 163; 5 Cranch, 329, 330.
    If the heirs had sued for the land in the first instance, and recovered, the vendee could resort to his vendor for the purchase-money ; either on the warranty in his deed, or for fraud in selling when he knew he had no title. And as he would be ultimately liable, it is but equitable that he should pay it to the heirs, on their affirming the sale.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from the superior court of chancery. The bill states that Daniel Grafton, Jr., the ancestor of both parties, died in the county of Adams, about the year 1802, leaving a tract of five or six hundred acres of land, to descend to his children, six in number; and that the heirs, being all of full age, divided the lands, and each took possession of his portion, in severalty. It alleges the death of John B. Grafton, in 1814, and that the complainants, the appellees, are his heirs at law. It also alleges that the appellant, James Grafton, pretending that he had purchased the share of John B. Grafton, and being, at the same time, administrator of his estate, which he represented to be insolvent, sold the land in 1817, for $1200, to one Anthony Campbell, and that Campbell and those claiming under him, have been in possession ever since. States further, that the complainants were very young at the death of their ancestor; that a general impression prevailed, that his estate was insolvent, and that no investigation of its condition took place, until they arrived at maturity, a few years ago; states that they are willing to confirm the sale, and prays a decree against James Grafton, for the purchase-money, and interest.

The answer admits the death of Daniel Grafton, Jr., and the division of his lands, and that each of the heirs took possession of his share in severalty; and admits the death of John B. Grafton, in August, 1814. States that John B. Grafton sold his share to defendant, in the beginning of the year 1812, and that the purchase-money was paid him in full. States also, that he took, a memorandum in writing of the sale, which has been lost, or mislaid; that he took possession of the land, and retained it quietly up to the time of his sale to Campbell, and that no claim was ever afterwards set up, by John B. Grafton. Admits he administered on the estate in 1814, states it was insolvent, and paid only about fifty-six cents in the dollar. States that many of the creditors were the relatives and friends of John B. Grafton, resided in the neighborhood, and were so well satisfied that defendant had bought the land, that no one attempted to subject it to John B. Grafton’s debts. States complainants have been of age, respectively, five and seven years. Insists that the possession has been adverse since 1812, and insists on the statute of limitations as a defence.

Several depositions were taken, which show that in 1813, John B. Grafton lived in Louisiana, on the Mississippi river ; and that he sold his land there, and left his residence, in consequence of high water. That he then moved to the place on which he died, which had been bought by his father-in-law, who retained the title in himself, because of the embarrassments of John B. Grafton. There was also evidence that James Grafton was in possession of the land before the death of John B. Grafton; and that it was the understanding that James held it under a claim of title as a purchaser from John B. Grafton. There was also proof that John B. Grafton spent a short time at the house of James, after he left the river. The court below decreed in favor of the complainants, from which an appeal is taken to this'court.

The effect of the statute of limitations is the only point which need be considered in the cause. That statute is entitled to the same respect and influence with any other. It was enacted as a protection against claims of long standing, when the evidence of title or of discharge might be lost. 8 Cranch, 74; Ang. on Lim. 28. If the repose of society be the ultimate object of all law and all government, then statutes, which have for their especial aim that end, ought to be regarded as entitled to their full and legitimate weight, and to receive a fair exposition.

If the possession of the appellant commenced in the lifetime of John B. Grafton, and if it was adverse in its character, then the lapse of time before the filing of this bill, ought to protect him. There is no absolute, unvarying rule, as to what will constitute an adverse possession. It must always depend in a great degree upon the circumstances of each case; and is a question of fact, rather than of law. Teller v. Echhert, 4 How. S. C. Rep. 289. Some rules have been laid down to aid in the determination of the question, but they are mere auxiliaries. Of this character are the rules, that the possession must hot be held by violence, that it must not be secret or dubious in its nature, and that it must be under claim or color of title. But after all, the facts of each case must determine with what intention the possession was taken. Ang. on Lim. 72, 88.

From the evidence in this cause we come to the conclusion, that the possession of James Grafton commenced in the lifetime of John B., and was known to him. The evidence that it was the general understanding in the neighborhood that James held as a purchaser, and that this was especially the case in the family of the Graftons, and in that into which John B. Grafton married, may be, and indeed is no evidence of title ; but it is evidence that his possession was notorious, and evidence also of the character of that possession. The creditors of the deceased, who received but little more than half the amount of their claims on the estate,-made no attempt to subject this land, though some of them lived in the immediate neighborhood of the transaction, at a time when it was of recent date. These circumstances, combined, satisfy our minds, that the possession was adverse in its commencement, and so continued. There are no indicia of any trust, especially of those pure, continuing, technical trusts, which alone are protected from the operation of the statute.

It is not necessary, in this case, to determine how far color of title is requisite to protect the possession of the defendant. There is no doubt, that the possession of a mere intruder, is protected to the extent of his actual occupation; whilst one who has color of title, is protected to the extent of the limits of his title. Ang. on Lim. 428. The bill, answer, and proof, in this case, all show that James Grafton was in possession of the share of John B. Grafton, by which we understand the whole share. How far color of title is necessary under our statute, we therefore need not now decide.

On the whole, therefore, we think the decree is erroneous, and direct that it be reversed, and the bill dismissed, with the costs of both courts.

Decree reversed.  