
    William McNeely and Wife v. Thomas Langan.
    The possession necessary to bar an action, for the recovery of real property, need not be continuous for the period of limitatation in any one occupier. It is sufficient that the possession during such period was in the defendant and those under whom he claims; and, as to third persons against whom the possession was held adversely, it is immaterial, if successive transfers of the possession were in fact made, whether such transfers were by will, by deed, or by agreement, either written or verbal.
    Error to the Court of Common' Pleas of Hamilton county, reserved in the District Court.
    The original action was brought by the plaintiffs in error to recover a strip of ground three feet wide, fronting on Longworth street, in the city of Cincinnati.
    The defense relied on was the statute of limitations. The case was submitted to the court upon the following agreed statement of facts:
    
      AGREED STATEMENT OE EACTS.
    Jane McNeely et al.l ^ g2 Q2^
    
    Thomas Langan. J Ham^011 Common Pleas.
    It is hereby agreed between the parties that Stephen Burrows, on the 1st day of January, 1842, leased perpetually to R. G. Masterson the following described premises, to which the said Burrows-had a good title in fee simple, viz: beginning at a point in the south line of Long-worth street as continued, and the east line of a lot of ground lately belonging to the estate of Samuel Still, deceased, extending thence south with said east line eighty feet, more or less, to the north line of a ten-foot alley; thence east along the north line of said alley twenty-three feet; thence north parallel with said Still’s east line aforesaid eighty feet, more or less, to the south line of Longworth street as aforesaid; thence west along the south line of Longworth street twenty-three feet to the beginning. That R. G. Masterson conveyed said lot and leasehold to Joseph More, May 20,1850; said More to E. P. Craneh, April 10, T854; and said Craneh to the defendant, Thomas Langan, August 29, 1860. It is hereby further agreed that said Masterson, on or about May, 1842, built a frame cottage on the west line of said lot and on the land described in the petition. It is further agreed that the plaintiffs are the owners of said land described in their said petition, if the same does not belong to the defendant by occupancy. It is further agreed between the parties that the land de-' scribed in their petition was not conveyed by deed to Masterson, nor by Masterson to More, nor from More to Craneh, nor from Craneh to the defendant,Langan. That the said Masterson, at the time of taking possession under his lease from Burrows, entered into the possession of the premises described in the petition, fenced it in with the other property, built his house partly thereon, so as to occupy these three feet as above stated; and the said Master-son, More, Cranch, and the defendant, Langan, have, by transfer of possession made at the time of the several conveyances above mentioned, remained in continuous possession and actual occupancy of said premises and cottage, including said three feet, from May, 1842, to the present time. That neither the plaintiffs, nor those under whom they claim, nor the defendant, nor those under whom he claims, were aware of any question as to the title to this strip of three feet, nor as to any error made in the orignal location of said cottage and fencing, until October, 1860, when, by a survey then made, it was discovered by the plaintiffs that these three feet were not included in the perpetual lease made to Masterson ; and thereupon the plaintiffs, in the year 1865, made, for the first time, a demand upon the defendant for the possession thereof, which was refused then as it is now, and hence this suit.
    ¥m. Disney,
    
      Attorney for Defendant. S. Clark,
    
      Plaintiffs’ Attorney.
    
    The court found in favor of the defendant, and rendered Judgment accordingly.
    The plaintiffs filed a petition in error in the District Court, asking a reversal of the judgment on the general .grounds that the court erred in allowing the defendant the benefit of the statute of limitation.
    ■ The case was reserved by the District Court for decision by this court.
    
      Stephen Clark, for the plaintiffs in error:
    1. The defendant claims title by adverse possession. This must be open, notorious, continuous, and adverse during the entire period of twenty-one years. Lane v. King, 13 Ohio St. 46; Abrams v. Wiley, 6 Ohio, 164; Walker v. Devlin, 2 Ohio St. 593; Yetzger v. Thomas, 17 Ohio St. 130.
    
      2. The defendant’s possession is deficient in continuity. He can only claim, under the possession of Masterson and the others, by showing a privity of estate between the successive holders, and this he could only do by establishing some such relation as ancestor and heir, grantor and grantee, devisor and devisee; so that the title acquired by disseizin could pass by descent, deed, or devise. Here no such privity exists; each disseizor stands alone, and seizin of the true owner revived at the termination of the possession of each trespasser. Sawyer v. King, 10 Cush. 245; Ward v. Bartholomew, 6 Pick. 410; Malvin v. Proprietors, etc., 5 Met. 15; Ward v. Lusey, 6 Met. 407; Overfield v. Christopher, 7 Serg. & R. 177.
    3. It has been held that the possession of successive trespassers can not be connected even in case of such privity as between grantor and grantee, ancestor and heir, devisor and devisee. King v. Smith, 1 Rice, 11; Beadle v. Hunter, 3 Strobhart, 331, 336; Potts v. Gilbert, 3 Wash. C. C. 479.
    4. Langan’s possession was neither visible, notorious, nor distinct. He never claimed beyond the line of the Burrows lease, and the fact that the cottage extended west of that line was known to no one until 1860. No presumption of acquiescence by the real owner could arise prior to that date; yet his possession must authorize such presumption, or it is not visible, notorious, distinct. Ang. on Lim. 372. Langan’s predecessors never knew they held beyond the Burrows’ lease.
    5. The point in this case was not raised, involved, or argued in Yetzer v. Thoman, 17 Ohio St. 130, and anything said upon it in that case by the court was mere obiter dictum. He also cited 6 Pick. 410; 6 Met. 407, 412; 5 Met. 15-32; 7 Serg. & R. 173; 5 Serg. & R. 254; 1 Watts, 330, 335; 6 Watts, 377; 8 Ohio, 159; 9 Humph. 399, 405; 5 Dana, 394; 5 Barr, 122, 131; 9 Barr, 194; 8 Watts, 713.
    
      William Disney, for defendant in error:
    1. The statute of limitations confers no title; it disables and protects. The defendant claims its protection, and would enforce against the plaintiffs the disability consequent upon their delay. The cause of action accrued in May, 1842; the action was begun October 15, 1868. Neither of the occupants, prior to the defendant, had any title to, estate in, or right of possession of the premises in dispute; each was liable to an ouster by the real owner. In May, 1863, after full twenty-one years had elapsed, the defendant, then in possession, had a right of possession equivalent to a fee simple, because from that date the protection of the statute of limitations secured the possession to him, his heirs and assigns forever. His predecessors had no estate to convey by deed; they simply transferred or surrendered, the one to the other successively, the actual possession of the land and improvements. These possessions thus joined form a continuous adverse possession for more than twenty-six years before suit brought, of all of which the defendant can avail himself. Overfield v. Christie, 7 Serg. & Rawle, 173; McCoy v. Dickinson College, 5 Ib. 254; Mercer v. Watson, 1 Watts, 338; Parker v. Southwick, 6 Ib. 377; Hunt v. Devling, 8 Ib. 703; Scheetz v. Fitzwater, 5 Barr, 131; Moore v. Small, 9 Ib. 196; Ward v. Bartholomew, 6 Pick. 410; Melvin v. Proprietors, etc., 5 Met. 32; Wade v. Lindsey, 6 Ib. 412; Brandt v. Ogden, 1 Johns, 156; Jackson v. Thomas, 16 Ib. 293; Winslow v. Newell, 19 Vt. 169; Adams v. Tiernan, 5 Dana, 394; Chilton v. Wilson, 9 Humph. 405; Payne v. Skinner, 8 Ohio, 159.
    2. The fact that possession was taken and held in ignorance of, or under a mistake as to the true boundary of the property, does not withdraw the case from the operation of the statute of limitations. Yetzer v. Thoman, 17 Ohio St. 130.
   White, J.

By the agreed statement, the court below was warranted in finding the possession to have been sufficiently open, notorious, and adverse to bring it within the operation of the statute of limitations. The question is, whether it was, in a legal sense, continuous.

For the plaintiff in error, it is contended that the continuity of possession was broken by each successive transfer of the premises in controversy; and, consequently, that as neither the defendant nor any one occupier under whom he claims held possession for the period of limitation, the statute is not available as a bar to the action.

There are authorities supporting this view; but we think the better reason, as well as the weight of authority, is against the position. Fanning v. Wilcox, 3 Day, 258; Smith v. Chapin, 31 Conn. 531; Shannon v. Kinny, 1 A. K. Marsh. 3; Chilton v. Wilson’s Heirs, 9 Humph.. 399; Cunningham v. Patton, 6 Barr, 355; Scheetz v. Fitzwater, 5 Ib. 126; Overfield v. Christie, 7 Serg. & R. 173; Johnson v. Nash’s Heirs, 15 Texas, 419; Alexander v. Pendleton, 8 Cranch, 462.

Possession itself is a species of title, of the lowest grade, it is true; yet it is good against all who can not show a better, and by lapse of time may become, under the statute, perfect and indefeasible.

In considering the question before us, it should be observed that, in this state, it is not necessary to the running of the statute that possession be held under color of title. Where there is possession of the requisite character, the question, whether there is color of title or not, is wholly immaterial. Lessee of Paine v. Skinner, 8 Ohio, 167; Yetzer v. Thoman, 17 Ohio St. 130.

The possession must be connected and continuous. But it is admitted that the possession will descend to the heir without interrupting the running of the statute; and we see no good reason why the ancestor may not voluntarily dispose of a possessory interest, which the law, in the absence of such disposition, will transmit to the heir.

The mode adopted for the transfer of the possession may give rise to questions between the parties to the transfer; but, as respects the rights of third persons against whom the possession is held adversely, it seems to us to be immaterial, if successive transfers of possession were in fact made, whether such transfers were effected by will, by deed, or by mere agreement either written or verbal.

Judgment affirmed.  