
    *Williams v. Snidow.
    November, 1832.
    (Absent Cabell,, J.)
    Adversary Possession — What Constitutes — Case at Bar. o. being- seized of land in fee, agrees to sell and convey the same to J. and receives the purchase money, and puts him in possession, but does not make a conveyance to him ; J. agrees to sell and convey the same land to W. and puts him in possession, but W. not paying the purchase money, this contract is rescinded, and W. agrees to give up to J. all his claim to the land ; W. nevertheless, remains in possession, without paying any rent, and without pretence of title ; and while W. is thus in possession, C. conveys the title to J. by deed of bargain and sale : Held, W.'s possession was notan adversary one. and, therefore, C.’s deed to 3. passed the legal title to him, so that 0. cannot maintain a writ of right against W. for the land.
    Writ of right brought by Christian Snidow against Abraham Williams, in the circuit court of Giles, for 196 acres ox land. The pleadings were in the form prescribed by the statute, 1 Rev, Code, ch. 118, p. 463, 4, and the mise joined on the mere right. The jury found a special verdict, stating the following case :
    The land in question was granted by the commonwealth to Christian Snidow, the de-mandant, by grant regularly issued from the land office, dated September 12, 1787, under which the grantee entered, and was seized in fee ; and being so seized, in the year 1796, he covenanted, by articles in writing, to sell and convey the land to John Byars; who, thereupon, received and held the possession, and paid the whole purchase money, but no conveyance was ever executed to him. Byars having thus acquired possession of the land, and a right to demand a conveyance thereof from Christian Snidow, by articles in writing executed in October 1799, covenanted to sell the land to Jacob Snidow, and put him in possession ; and Jacob Snidow paid Byars the whole purchase money, but no conveyance was executed to him, at the time, by either Byars his immediate vendor, or Christian Snidow in whom the legal title yet remained. Jacob Snidow, in 1803, by a verbal contract with Abraham '^Williams, the tenant, agreed to sell him rhe land, and he put him in possession of it, and Williams paid him some part of the purchase money ; but in the year 1807 or 1808, this contract between Jacob Snidow and Williams, was rescinded by them, and the latter gave up to the former all the claim he had to the property ; nevertheless, Williams continued in uninterrupted possession to the present time, exercising in-tire control over the subject, without paying any rent to Jacob Snidow, Christian Snidow, or any other person, though he never pretended any other claim or right than that which he derived from the contract between him and Jacob Snidow made in 1803, and rescinded in 1807-8. Christian Snidow', by deed of bargain and sale, dated in November 1824, conveyed the land to Jacob Snidow, Williams being still the tenant in actual possession, as above, mentioned ; and, not long afterwards, Jacob Snidow demanded the possession of Williams, who refused to give it to him. Whereupon, the writ of right in this case, was sued out in the name of Christian Snidow. And the question referred to the court, was, whether the legal title of the land was in Christian Snidow, the demand-ant? in other words, whether or no his conveyance to Jacob Snidow of November 1824, executed while Williams still held the possession as above mentioned, operated to pass the legal title to Jacob?
    The circuit court gave judgment on the special verdict for the demandant ; and Williams, the tenant, appealed to this court.
    The case was argued by Johnson for the appellant, and Daniel for the appellee. The only question was as to the nature of the possession held by Williams at the time of Christian Snidow’s conveyance to Jacob in November in 1824 — whether that possession was an adversary one, and so prevented the conveyance from operating to pass the legal title? If it was, the legal title remained in Christian Snidow notwithstanding the conveyancfe, and the suit was properly brought in Christian’s name; but if Williams’s possession *was not adversary, then the conveyance passed the legal title to Jacob Snidow, Christian had no right, and the suit should have been brought in Jacob’s name.
    
      
      Adversary Possession What Constitutes. — It is not every possession of land for the period prescribed by the statute that constitutes adversary possession under the law, and will sustain the plea. The possession to be adverse must be actual, exclusive, open and notorious, and be accompanied with a bona fide claim of title against the claim of all other persons, and be continued for the period prescribed by the statutory bar. Drumright v. Hite, 2 Va. Dec. 467, citing the principal case, Greekmur v. Creekmur, 75 Va. 130. and Chapman v. Chapman, 91 Va. 397. 21 S. E. Rep. 813. "Adverse possession Is not the mere holding over against the will of the party from whom you obtain the possession. It is the holding by claim of title, adverse to another's title, that constitutes an adverse possession.” Chapman v. Chapman, 91 Va. 400. 21 S. E. Rep. 813, auoting with approval from the opinion of President TxrcKEB in the principal case.
      So it is well settled that the possession of the purchaser of land, under an executory contract is not adverse to his vendor, although he has paid all the purchase money and used and occupied the land for his own exclusive beneiit. The contract, being executory and made in contemplation of a conveyance by a deed, recognizes the legal title as outstanding, and his possession will be treated as in subordination thereto and not as adverse. Core v. Faupel, 24 W. Va. 244 ; Hudson v. Putney, 14 W. Va. 575, both citing the principal case. To the same effect, see the principal case cited in Clarke v. McClure, 10 Gratt. 310, 311, 314.
      Por a possession not adversary in its commencement will be presumed not to be adversary in its continuance, unless and until the presumption be repelled by proof that the party in possession claimed to hold adversely to the other and with his knowledge. To this effect, the principal case was cited in Layne v. Norris. 16 Gratt. 242, 243 (distinguishing the principal case); Cross v. Cross. 9 Leigh 252.
      See generally, monographic note on "Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
      Conveyance — Necessity of Actual Possession by Grantor. — Actual possession by the grantor is not indispensable to give effect to his deed, for if the possession held by another be of a fiduciary character or if its origin and continuance was such as not to amount to a disseisin except at the election of the owner for the purposes of the remedy, it will not impede the operation of the deed. Early v. Garland, 13 Gratt. 8, citing the principal case; Duvall v. Bibb, 3 Call 362: Tabb v. Baird, 3 Call 475.
      Statute of Pretense Titles - Effect. — To the point that the statute against conveyance of pretense titles merely creates a penalty and does not affect the right, the principal case was cited in Middleton v. Arnolds, 13 Gratt. 491. See also, foot-note to Tabb v. Baird. 3 Gall 475, foot-note to Middleton v. Arnolds, 13 Gratt. 489.
    
   CAER, J.

The only question arising upon this special verdict seems to be, has the jury found an adversary possession in Williams? I think not. His possession certainly commenced legally: it was delivered by Jacob Snidow to him, under his contract of purchase: and the jury find, that, after holding under this purchase for some three or four y'ears, Williams gave up to Jacob Snidow, all claim which he had to the land under the contract, and the contract was then rescinded. Williams’s continuance in possession after this, without claim or pretension, I consider as no possession adversary to the right of Jacob Snidow, but a possession under him; just as if Williams had leased the land from him for years, and at the end of the term, had held over without any agreement. He was, in truth, the tenant of Jacob Snidow, and his possession was Jacob Snidow’s; which so far from being adverse to Christian Snidow, was held under the purchase from his vendee Byars. I think, then, that the deed made by Christian to Jacob Snidow thus in possession under him, was valid and operative; and that, upon the facts found, the fee was in Jacob. It follows that the judgment of the circuit court must be reversed.

BROOKE, J. I am of the same opinion.

TUCKER, P.

The question in this case, is, whether the deed from Christian Snidow to Jacob Snidow operated to pass the legal title to the land in controversy, from Christian to Jacob? If it did, then at ihe time of the commencement of the writ of right, Christian Snidow had no title, and judgment should have been rendered for the tenant.

The judgment of the court below has obviously been given upon the supposition, that the possession of Williams *was such an adverse possession as prevented the operation of the deed of bargain and sale from Christian to Jacob, upon the principle of the cases of Duvall v. Bibb, 3 Call, 362; Tabb v. Baird, Id. 475; Hall v. Hall, Id. 488; Clay v. White, 1 Munf. 162; Bream v. Cooper’s heirs, 5 Munf. 7; Hopkins v. Ward, 6 Munf. 38. I do not think so. The incapacity of a person out of possession, to pass an estate in the land of which another has possession, does not arise out of the statute against pretensed titles, as we are told by judge Roane in Tabb v. Baird: that statute does not declare the deed void, but leaves its effect to be decided by the principles of the law relative to the subject. According to these principles a man cannot give that which he has not; nor can the statute of uses transfer to' the bargainee, a possession which is not in the bargainor; for it onlj' provides that the possession of the bargainor shall be transferred to the bargainee; if he has none, none can be transferred.

It is, however, very justly observed, that this possession maj’ be a statutory possession, and an actual possession is not essential. Thus if A. in actual possession bargains and sells to B., the vendee, before actual entry, has a statutory possession, and may bargain and sell to C. Moreover, it is a familiar principle that the possession of my tenant is my possession. If, therefore, I lease for years, I may nevertheless convey by bargain and sale, and my deed will pass the title. So, if there be a fiduciary possession, it will not impede the operation of the deed; Bibb v. Duval and Tabb v. Baird. So too, I think it clear, that if I put a party in possession, or if a man holds possession under me, such possession will not impede the operation of my deed. For, to give it that effect, there must be an actual adverse possession. Was there such a possession here?

It is found by the verdict, that Williams came into possession by the consent of Jacob Snidow, and indeed under a purchase from him, he having in like manner possession derivatively from Christian Snidow, the patentee, who yet held the legal title. That his possession from the time of i;'his purchase until the rescission of the contract between himself and Jacob Snidow, was an adverse possession, cannot be pretended. He claimed under Christian Snidow derivatively, and not adversely to him; he claimed under his title and not adversely to that title. Until the moment of his refusal to deliver the possession, this state of things continued: he continued in the possession by the permission or sufferance of Jacob Snidow, a privy in title, who held his possession under and not adversely to Christian. Jackson v. Sharp, 9 Johns. Rep. 163. He was strictly a tenant at sufferance; for “an estate at sufferance is where one comes into possession of laud by lawful title, but keeps it afterwards without any title at all;” 2 Blacks. Com. 150. It is not confined to holding over after the determination of a lease for years: even a mortgagor left in possession, is a tenant at sufferance; Patridge v. Bere, 5 Barn. & Ald. 604, 7 Com. Law Rep. 204, S. C. And if a purchaser be let into possession before conveyance of the legal interest, he is a mere tenant at sufferance; Doe v. Sayer, 3 Camp. 8; Right v. Beard, 13 East 210. Here then Williams was, at least after the rescission of the contract, a mere tenant at sufferance. That such a tenant has no adverse possession, it cannot be necessary to establish by reference to authority. It remains, then, to consider, whether his refusal to surrender the possession, changed his character from that of a tenant by sufferance into that of a disseizor? from a rightful possessor into a tortfeasor, against the will of his lord?

That this cannot be, is obvious from various considerations. As the landlord can, at any moment, evict his tenant by sufferance, by entry after demanding possession, his omitting to do so, leaves the tenant still a possession by sufferance. The character of his tenure is not changed until entry. Moreover, even the owner “cannot maintain trespass against a tenant by sufferance, as he might against a stranger; and the reason is, that being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful, unless the *owner of the land, by some public and avowed act, such as an entry is, will declare his continuance to be tortious, or in common language wrongful.” 2 Blacks. Comm. 150. I think, indeed, we shall not err in lay'ing it down as a general proposition, that if a person comes into possession lawfully, his or his heirs subsequent unlawful continuance in possession, will not of itself operate as a disseizin, unless at the election of the party injured. Thus it is that though a tenant at sufferance, who has but a bare possession, cannot by continuance of his possession become a disseizor, yet if the owner thinks it more expedient to suppose or to admit himself to be disseized, and his tenant to have gained a tortious freehold, he may do so, and is then remediable by action. 3 Blacks. Comm. 175, 1 Johns. Ca. 88. Such is the case here as to Williams. When the deed was made, he still held as tenant by sufferance; but when the owner found it necessary to seek his remedy by suit, he was obliged to elect to consider himself disseised, and to consider Williams as in of the freehold, in order to maintain the writ of right, which is only sustainable against the tenant of the freehold. Nor will the refusal to surrender the possession to the rightful owner, operate a dis-seizin against his will. The rightful owner must have been tortiousl3r ousted, either by violence or by some act that the law regards as equivalent in its effect, to constitute a disseizin; for it is an estate gained by wrong and injury. Smith v. Burtis, 6 Johns. Rep. 198. Thus, even a lease for a thousand years made by a tenant at will, is no disseizin except at the election of the owner, Blundel v. Baugh, Cro. Car. 302. And even a bargain and sale by a mere tenant, unaccompanied by livery of seizin, would not operate to divest the seizin of the reversioner; for a particular tenant can only effect this by feoffment, which is therefore called a tortious conveyance, since it can work a disseizin. The rightful conveyances of bargain and sale and lease and release, can never effect this. They only pass what the party lawfully may pass. See on these topics, Co. Litt. 239a, n. 1 ; Taylor v. Horde, 1 Burr. 60, 111, 5 Cruise’s Dig. 371. *Erom these authorities it is clear, that Williams’s refusal worked no disseizin, except at Snidow’s election. But if by his refusal, his possession became adverse, it must have operated a disseizin. E'or, although he who dispossesses a mere tenant for years, may perhaps by disclaiming title to the freehold, avoid the divesting of it, yet it is a universal principle, that he who divests the possession of the tenant of the fee, is a disseizor. Hob. 323, Harg. Co. Litt. 180b, n. 7, 296b, n. 1.

If then there was no disseizin, and by consequence no adverse possession in Williams, the seizin remained in Christian Snidow, until the execution of his deed to Jacob, when it passed to him by the operation of the statute of uses.

It appears to me, that the error in this case has arisen, from a misconception of what an adverse possession means. It is not the mere holding over against the will of the party from whom you obtain the possession. It is the holding by claim of title, adverse to another’s title, that constitutes an adverse possession. Though a mere intruder or squatter, without pretence of title, holds possession of my land, and keeps me out of it, such possession does not amount to an adversary possession within the meaning of the law. Having no pretence of title, he cannot hold by title adverse to my title; and this it is which the law meant to protect. It pays no respect to the wrongful intrusion of a party without a scintilla of title. It requires too, that this adverse possession should be made out not by inference but by clear proof, and makes every presumption in favour of the possession being subordinate to the true owner. Jackson v. Shark, 9 Johns. Rep. 162.

These opinions are sustained by the decisions of some of our most respectable tribunals. Authorities upon such a subject, are naturally more abundant in a newly settled country, where adventurers set dovtfn, very often, upon the land which suits them best, without pretence of title. Judge Spencer, in the case of Jackson v. Todd, 2 Caines 185, remarks, that “it has been adjudged, that mere possession by *a person claiming no title, is no disseizin of the rightful owner, and consequently he may convey or devise, notwithstanding the statute against champerty and maintenance. That to constitute that possession adverse to the true owner, which is equivalent to a disseizin in spite of him, there need, indeed, be no legitimate right, but it must be accompanied by a claim to the land.” And judge Livingston .said, '‘coming in as an intruder, or as a mere occupant, without any claim of title, will not prevent an alienation by the real owner, or be regarded as a holding adverse to his title.” In the case before us, Williams had no pretence of title.

The judgment must be reversed, and judgment entered for the tenant.  