44 U.S.

674
3 How. 674
11 L.Ed. 778

LESSEE OF GEORGE CLYMER ET AL., PLAINTIFF IN

ERROR,
v.
GEORGE DAWKINS ET AL., DEFENDANTS IN ERROR.
January Term, 1845
1

THIS case was brought up by writ of error from the Circuit Court of the United
States for the district of Kentucky.

There were three tenants in common of a tract of land in Kentucky, and the
question was, how far the possession of the occupiers, holding under two of the
three, constituted an adverse possession against the third, so as to entitle them to
the benefit of the Statute of Limitation.

In 1806, a patent was issued by the Governor of Kentucky to George Clymer

for one-third, and Charles Lynch and John Blanton for two-third of a certain
tract or parcel of land, containing eleven thousand acres by survey, bearing date
the 30th of May, 1784, lying and being in the county of Jefferson, on the waters
of Harrod's creek, and bounded as follows, &c., &c.

A division of the land was made by commissioners and offered in evidence

during the trial; and as the various proceedings under this commission ran
through a long period of time, the whole of them will be stated before passing
on to other circumstances in the history of the case.

'Henry county, the first day of January, eighteen hundred and two.

'We, William Neall and Isaac Forbes, having been appointed commissioners by
the Country Court of the said county of Henry, in conformity to an act of the
General Assembly of the state of Kentucky, for the purpose of making division
of lands between residents and non-residents in the said county of Henry,
having been called on to divide a tract of eleven thousand acres on the waters of
Harrod's creek, in the name of George Clymer for the one-third, and Charles
Lynch and John Blanton two-thirds, agreeably to a patent bearing date the 24th

day of December, in the year of our Lord, one thousand eight hundred and six,
and of the commonwealth of Kentucky the fifteenth, and signed by Christopher
Greenup, the then Governor of Kentucky. It being stated to us that the said
George Clymer is a nonresident, we have gone on the ground, and made the
following division, to wit: Charles Lynch and John Blanton's portion is lot No.
1, containing seven thousand three hundred and thirty-three and one-third acres,
agreeably to the plat hereby laid down, which is bounded as followeth, to wit:
&c., &c.
7

'No. 2, on the plat allotted to George Clymer on the division, is bounded as

follows, to wit, containing three thousand six hundred and sixty-six and twothirds acres: Beginning, &c., &c., hereby conveying and affirming the
foregoing division, agreeable to the said allotment, to the said Charles Lynch
and John Blanton, for the two-thirds of said eleven thousand acres, and the onethird to the said George Clymer, agreeably to the metes and bounds before
described.

'Given under our hands and seals as commissioners aforesaid, the day and date
first above written.

WILL. NEALE, [L. S.] Com'r.

10

ISAAC FORBES, [L. S.] Com'r.

11

'Signed, sealed, and delivered in presence of

12

Henry County Court, Clerk's Office, Jan. 1, 1810.

13

'The within division of land was filed in my office, acknowledged by William

Neale and Isaac Forbes, commissioners in said county for the division and
conveyance of lands, parties thereto, as their act and deed, and admitted to
record.

14

'Att.

15

ROW. THOMAS, C. C.

16

'Henry County, October Court, 1827.

17

'An instrument of writing purporting to be a division of eleven thousand acres

of land, in the county of Henry, between Charles Lynch, John Blanton, and
George Clymer, the same being made by William Neale and Isaac Forbes,
commissioners appointed for that purpose, was this day produced into court,
(the commissioners being absent,) together with the certificate of
acknowledgment, entered and attested by Rowland Thomas, clerk. Whereupon,
on motion of Charles H. Allen, attorney for the parties, it is ordered that the
same be now received and recorded accordingly, which was heretofore done.
18

'Att.

19

EDMD. P. THOMAS, C.

20

By WILL. SHARP, D. C.

21

'Henry County Court, Clerk's Office, Aug. 8, 1828.

22

'I, Edmund P. Thomas, clerk of the County Court for the county aforesaid, do
certify, that on the day of the date hereof, the foregoing commissioners' report
of lands, together with the certificates thereon endorsed, were filed in my office
and recorded.

23

'Att.

24

EDMD. P. THOMAS, C.'

25

In 1813, George Clymer, one of the patentees, residing in Philadelphia, made

his will and died. He devised his property to certain persons in trust, for the
payment of certain moneys, and these to be divided amongst his children and
grandchildren.

26

Much evidence was given in the court below, to show the nature of the title and
possession under which the occupants (residing entirely upon the part allotted
to Lynch and Blanton) held their lands. They all claimed under Lynch and
Blanton; and the following is a summary of the evidence: It was proved that
these persons entered upon and first improved, settled, and occupied, the land;
and they, and those claiming under them, have held, claimed, and occupied, the
land, as their own, for upwards of twenty-five years before the commencement
of this suit; but no evidence was introduced by either of the defendants,
conducing to prove that either of them, or any other person, had given any
express notice to the patentee, Clymer, in his lifetime, or either of the trustees

named in the will of said Clymer, that they, or any of them, held the land
adversely to the claim or right of Clymer; nor was any evidence given, tending
to prove that notice of any sort had ever been given to Clymer, or any of the
trustees named in his will, by any of the defendants, or any other person under
whom any of them claim, except the facts which the evidence did conduce to
establish, that the land in possession of each defendant had been taken
possession of, improved, and occupied by actual residence, by each defendant,
(or at first by him of whom he derived his possession and claim of right, and
afterwards by himself,) as all entirely his or their own, and not as co-tenant with
Clymer or his devisees, and had been so ever afterwards held, for upwards of
twenty years, and up to the commencement of this suit.
27

It did not appear by the evidence, that either of the defendants, or his
predecessor in the possession, had any knowledge or notice, in fact, that Clymer
was a co-partner with Lynch and Blanton, or had any interest in the land; and
plaintiff's counsel insisted only that they were bound to know and notice the
right of Clymer, apparent on the patent.

28

Evidence was also introduced to show that most of the defendants were within
the boundary of adverse patents, elder in date than the patent to Clymer, Lynch
and Blanton, and that some of them had contracted with the claimants of those
elder patents, for the land in their possession, since they became possessed of it.

29

The suit was brought in December, 1840, by the representatives of Clymer,

against sixty-three occupants of the tract, which, as before stated, had been
assigned, in the partition, to Lynch and Blanton.

30

Upon the trial, the plaintiff asked the court to instruct the jury:

31

1. That if the jury believe, from the evidence, that the defendants, or others
under whom they claim, entered upon the land in contest under the claim of
Clymer, Lynch and Blanton, for eleven thousand acres, that such of the
defendants as the jury may find so entered, by themselves or others under
whom they claim, cannot avail themselves of the elder patents read in evidence,
as to defeat the plaintiff in this action.

32

2. That the defendants cannot defeat the plaintiff's right to recover, if the jury
believe, from the evidence, the plaintiff ever had right, by reason of the Statute
of Limitation, provided the jury believe, from the evidence, that the defendants,
or those under whom they claim, entered upon the land in contest, under the
title of Clymer, Lynch and Blanton, for the eleven thousand acres patented to

them.
33

3. That if the jury find, from the evidence, that any of the defendants entered
upon the land in contest, under a parol contract of purchase from the agent of
Lynch and Blanton, who were tenants in common with Clymer in the eleven
thousand acre patent, read in evidence; and the jury also find that such of the
defendants as so purchased never notified the patentee Clymer, or the trustees
named in his will and codicil, or either of them, that they held adversely to
Clymer's title, that the defendants, as to whom the jury may so find, cannot
avail themselves of the Statute of Limitation in defence of this action. Also,

34

4. That such defendants as the jury may find as above-mentioned, if there be

any such, cannot avail themselves of the outstanding conflicting elder patents
read in evidence, unless the jury further find that such defendants, in the
opinion of the jury, have proved a connection with such elder patent or patents,
by purchase, either made by them or others under whom they claim.

35

The court refused to give either instruction, as asked, but instead thereof gave to
the jury the following instruction:

36

'The court instruct the jury, that if they find, from the evidence, that any of the
defendants, or those under whom they claimed, entered upon the parcel of the
land in controversy in their possession at the commencement of this action,
under a contract, whether it was executed or executory, by parol or in writing,
with the agent of Lynch and Blanton, or either of their co-grantees with Clymer,
of the eleven thousand acres, by the patent read by plaintiff, or any other
person claiming under that patent, whereby they purchased an individual twothirds, or any other such part, and not the entire interest in such parcel or parcels
of the land, then such defendants, or those under whom they claimed, and who
had so entered, did not, by their entry into the possession, oust Clymer or his
devisees of his or their undivided third thereof; but the entry of such purchasers
and their possession was for him, Clymer, or his devisees, as well as for
themselves; and in the absence of all evidence of notice to Clymer, or those
claiming under him, of a subsequent adversary holding by such occupants, their
possession did not become adversary, in legal effect, to Clymer or his devisees;
and no defendant, who so entered, can now avail himself of the outstanding
legal title by the elder patents to be read in evidence; nor can any such
defendant prevail in his defence of this action by the length of his possession,
and the Statute of Limitation; nor can any defendant who entered, claiming the
entire estate in his parcel of the land, add to the length of his own possession
that of any one under whom he claimed and had succeeded, who had so entered
under a purchase of an undivided part, and was so a co-tenant with Clymer or

his devisees, and thereby make out the twenty years of adversary possession
within the statute.'
37

The defendants moved the following instructions, to find as in case of a nonsuit

as to all the defendants:

38

That the plaintiff has shown title only to an undivided interest in the land, and
that only one-fifteenth.

39

To find in favor of all the defendants whose tenements fall within the elder
claims of Tuttle and Howard.

40

To find in favor of all whose possession existed, and continued, and have been
held as their own, for twenty years before the commencement of this suit.

41

To find in favor of those whose possession existed and continued under Lynch
and Blanton, and adverse to Clymer, for twenty years before suit brought.

42

To find in favor of those whose possession originated, and have been held as
their own, twenty years before suit brought, under purchases from Lynch and
Blanton, or either of them, after the division made under the orders of the
Henry county court.

43

The court refused to give either of the instructions, as moved by the defendants,
but in substitution therefor gave the following instructions:

44

'The court instruct the jury, that their verdict ought to be for each defendant
who, or whose predecessor in possession, from whom he had derived his
possession and claim of right, had entered on the land in his possession at the
commencement of the action, twenty years before that day, by a purchase and
claim thereof in severalty, all as his own, and not an undivided part in cotenancy with Clymer or his devisees, but adversely to him or them, whether
such purchase was from Lynch or Taylor, or Lynch and Blanton, or any other
who had ever afterwards, up to the commencement of this suit, continued thus
to hold such possession.'

45

To each opinion and decision of the court, in refusing to give the instructions as
moved by the plaintiff and each of them, and in giving the instructions which
were given by the court in substitution, or instead thereof, the plaintiff at the
time excepted. Also, the plaintiff excepted to the instruction which is given by

the court in substitution of the instructions moved by the defendants, at the

time the instruction was given, and he now excepts to each opinion and
decision, and prays that this his bill of exceptions be signed, sealed, and
enrolled, which is accordingly done.
46

THOS. B. MONROE, [L. S.]

47

Crittenden, for the plaintiff in error.

48

Tibbatts and Armstrong, (in a printed argument,) for the defendants in error.
Crittenden made the following points:

49

1. That the proceedings of the County Court of Henry county, and of the
commissioners for the purpose of making a partition of said land, were not
authorized by any law, and the division was therefore null and void, because
not conformable to the statutes on which its validity depended. 1 Littell's Laws
of Kentucky, 691; Hood v. Mathers, 2 Marsh. (Ky.), 559; 3 Litt. (Ky.), 40; Clay
v. Short, 1 Marsh. (Ky.), 371.

50

2. That the defendants having entered and held under the patent to Clymer,
Lynch, and Blanton, could not lawfully set up and rely for their defence upon
any other outstanding adverse patents to bar the plaintiff's recovery, and
especially as it was not shown to be a subsisting and available title.

51

3. That the possession of the defendants having been acquired under Lynch and
Blanton, or one of them, could not be considered as adverse to their co-tenant,
Clymer, or allowed to operate as a bar to the present action; and that this is
especially true as to those defendants who showed no deed or written evidence
of purchase.

52

1st. Eight years after the division was said to have been made, it was given to
the clerk, and not to the court until 1827. The act of Assembly does not say
when it must be recorded, but twenty-five years is too long a time to elapse.
The parties might have had it in their pocket all this time. The courts in
Kentucky have always construed such papers strictly. See the authorities above.

53

2d. If the defendant has acknowledged the title of the plaintiff, he cannot
afterwards dispute it. 1 Cai. (N. Y.), 394, 444; 5 Cow. (N. Y.), 129, et seq. 174;
4 Cranch, 419.

54

Nor can a defendant, whose predecessors had recognized the title of the
plaintiff, afterwards dispute it. 5 Cow. (N. Y.), 129, 130; 4 Johns. (N. Y.), 230;
1 Caines (N. Y.), 394; 4 Munf. (Va.), 473; 2 Johns. (N. Y.), Cas., 353; 3 Pet.,
50; 3 Serg. & R. (Pa.), 386; 13 Johns. (N. Y.), 116; 3 Mart. (La.), (N. S.), 11; 6
Johns. (N. Y.) 34; 7 Id., 157; 19 Id., 202; 5 Cow. (N. Y.), 520; 3 Wash. C. C.,
498.

55

The defendants also offered in evidence outstanding titles in strangers, which

they alleged to be elder and better than the plaintiff's title. Can they do this?

56

If it be admitted as the settled doctrine, that though the plaintiff in ejectment

has a title better than that of the defendant, yet that he is not entitled to recover
if the defendant can show a superior title in a third person, though he does not
claim any privity with that third person: If this be the admitted doctrine, it is
subject to a great many exceptions, which destroy its general applicability, and
those exceptions are supposed to include the present case. The instances of
such exceptions are numerous, namely:

57

A mortgagor is never suffered to set up the title of a third person against his
mortgagee. Doe v. Pegge, 1 T. R., 758, n.

58

It is established that a mortgagor cannot set up a prior mortgage to defeat the

recovery of a second mortgage. He is barred by his own act from averring that
he had nothing in the premises at the time of the second mortgage. The
principle of this decision has been repeatedly recognized. Lade v. Holford, 3
Burr., 1416; Newhall v. Wright, 8 Mass., 138, 153; Jackson v. Dubois, 4 Johns.
(N. Y.), 216.

59

A lessee cannot do it against his lessor; 8 Mass., 138, 153; 1 Cai. (N. Y.), 444;
2 Id., 215; 7 Johns. (N. Y.), 186; but it is needless to cite authorities on this
point.

60

So a person who has entered into possession under another, and acknowledged
his title, cannot set up an outstanding title in another. Jackson v. Stewart, 6
Johns. (N. Y.), 34; Jackson v. De Walts, 7 Id., 157; Jackson v. Henman, 10 Id.,
292.

61

Nor can a person claiming the land under a tenant, set up an outstanding title
against the landlord. Jackson v. Graham, 3 Cai. (N. Y.), 188.

62

A person who has entered by permission under one tenant in common, cannot,

62

A person who has entered by permission under one tenant in common, cannot,
after partition made, set up an adverse title against another tenant in common,
to whose share the premises had fallen. Smith v. Burtis, 9 Johns. (N. Y.), 174;
Fisher v. Creel, 13 Id., 116.

63

A mere intruder cannot protect himself by setting up an outstanding title.

Jackson v. Harder, 4 Johns. (N. Y.), 202.

64

But if a defendant have acknowledged the title of the plaintiff, he cannot

afterwards dispute it. Jackson ex dem. Low v. Reynolds, 1 Cai. (N. Y.), 444;
Jackson ex dem. Smith et al. v. Stewart, 6 Johns. (N. Y.), 34; Jackson ex dem.
Davy v. De Walts, 7 Id., 157; Jackson ex dem. Browne v. Henman, 19 Id., 202.

65

And even where the predecessors of the defendant had acknowledged the title
of the claimant, it was held that the defendant was equally precluded from
setting up the defence of adverse possession. Jackson ex dem. Van Schaick and
others v. Davis, 5 Cow. (N. Y.), 129, 130.

66

Where one takes by descent as a co-heir and tenant in common, he cannot show
in ejectment by his coheir, or one claiming under him) that the ancestor had no
title. Jackson ex dem. Hill v. Streeter, 5 Cow. (N. Y.), 520.

67

Armstrong, for defendants in error, stated the case and proceeded thus:

68

The issue, then, in this cause between the parties seems to be on the question:
did the entry of defendants on land to which plaintiff had right in common with
their vendor, notwithstanding their ignorance of that right, their want of
intention to enter as tenants in common, and their express entry claiming and
holding the land as their sole freehold, adversely to the whole world, constitute
them tenants in common with Clymer?

69

It is not, I presume, necessary for me to cite authority to show the intention

with which an entry is made on land defines the nature of that entry. These
defendants, and those under whom they claim, entered under their purchases as
sole owners in fee of the whole lands held by them, and were so possessed
thereof for more than twenty-five years before the commencement of this suit.

70

The counsel for defendants does not deem it necessary to consume the time of
the court, by using argument, or citing authority, to prove that possession of
land by a purchaser, under a contract for the entire estate, without right in the
grantor, is adverse to the rightful owner; or that a person in possession of land

may purchase in an outstanding title to protect that possession, but will merely
call the attention of the court to the case of Jackson ex dem. Preston, &c. v.
Smith, in the Supreme Court of New York, 13 Johns. (N. Y.), 406, as a case in
point. There the defendant held under a deed made by one out of nine tenants in
common; but the deed purported to be for the whole fee. The court says, (page
411,) 'the deed,' under which defendant held, 'for the whole lot cannot control
the possession of the defendant, and of his father, so as to make it the entry and
possession of a tenant in common, merely because it gave title to no more than
one-ninth part of the whole lot;' and again, (page 112,) 'it is evident, therefore,
that the doctrine in relation to tenants in common does not apply to this case. It
might as well be urged as applicable to a conveyance made by a stranger of any
lands held in common, and it will not be questioned that the purchaser under
such a deed, given without right on the part of the grantor, would
notwithstanding be adverse to the rightful owners, although held by them in
common.'
71

It is believed the case cited presents the true law of this case, and should the
court deem it necessary, they are respectfully requested to examine the case
referred to for themselves.

72

Tibbatts, for the defendants in error, recited the facts and evidence in the case
with great particularity, and then added: Under this state of the evidence, on the
part of the defendants, we contend that the law of the case was for them, and
the verdict of the jury correct on the following grounds:

73

1. Because the division was a good and valid division, and severed the estate of
Clymer from that of his co-patentees.

74

2. Because, if it were not good in its inception, it became good by the lapse of
time, and the legal presumptions arising from the lapse of time.

75

3. Because the defendants held the land adversely to the right or title of the
lessor of the plaintiff, and their holding being adverse, his right of entry is
barred by the Statute of Limitations.

76

By the act of the legislature of Kentucky, approved December 19, 1792, (2 M.

& B., 1066,) it is enacted, sect. 1, that if the owners of lands within this state,
who are non-residents, do not attend to have the same divided, where the same
is held in conjunction with citizens of this commonwealth, or with other nonresidents, where such non-residents may apply by themselves or agents to have
the same divided, or do not appoint agents to make such division within one

year from the passage hereof, the courts of the several counties within this state
shall appoint six commissioners in each county, who, or any two of them, shall,
when called upon for the purpose by the citizens of this commonwealth, or the
owners of lands who are non-residents, or their agents, attend and make such
division agreeable to the contract entered into by the parties, 'and such
commissioners shall make return of such land by them so divided, with the
quantity and names of the parties concerned, and by whom called upon to do
the business, to the county court of the county where such land may lie, to be
there recorded.'
77

The requisitions of this act are,

78

1. The appointment of six commissioners by the court, which has been done.

79

2. The return of the land, with the quantity and names of the parties concerned,
and by whom called on, &c., which is construed to mean 'a description of the
boundaries of the whole tract, and of the particular lots divided, together with
the names of each party holding interests, so that it may duly appear who were
parties to the partition;' Hood v. Mather, 2 Marsh (Ky.), 560; which has been
complied with.

80

3. That the return shall be made to the county court of the county; and it is
decided (Id.) that it will not be good to make the return to the clerk's office, but
that it must be made to the county court.

81

We contend that this condition has also been complied with; for though the
division was first returned to the clerk's office and acknowledged by the
commissioners, yet it was afterwards presented to the court, which was good,
because the statute does not require that the commissioners shall present it in
person, nor acknowledge it; it being an official act, such as the return of a
summons by a sheriff, which, with the papers with the return written thereon,
may be handed in person, or sent by a third person, or by letter, &c.

82

Nor does the statute fix any time in which the division is to be returned; nor is
there any thing to be done by the commissioners in court, or by the court itself,
the law itself ordering what is to be done. Besides, it appears from the record of
the court, that it was received and ordered to be recorded, on the motion of 'the
agent of the parties,' which will include Clymer as well as the other, and will be
so intended by the court. See Pringle v. Sturgeon, Litt. (Ky.), Sel. Cas., 112,
and Parker's heirs v. Anderson, 5 Mon. (Ky.), 540. That if the division was not
good in its inception, it became good by the lapse of time, and the jury had a

right to presume every thing which would be necessary to make it good, as a

deed of release, or confirmation from Clymer.
83

'Artificial or legal presumption is is arbitrary, inflexible, and conclusive. It is

the policy of the law substituted for proof of facts, the establishment of which
by oral testimony, or written testimony, or written memorial, is rendered
impossible by lapse of time.'

84

The presumption not absolutely conclusive is such, that after twenty years a
bond is paid off; a mortgage satisfied, the mortgagor remaining all the time in
possession; the equity of redemption released, the mortgagee having enjoyed
the possession twenty years; or the legal title conveyed to the purchaser after
twenty years' possession, &c., &c. These may all be combatted by proofs or
explanations, inconsistent with the inference of reason, and from the isolated
facts which of themselves would establish the presumption. Hence their
consideration belongs to the jury, to whom they will be left upon hypothetical
instructions. The jury may presume a deed when neither the chancellor nor the
common law judge will or can. Stark., 1216, 1227, 1235; Peake Ch., 25.

85

A possession of thirty years or less, by a purchaser who held a bond for a title,
would be sufficient, in the absence of any controlling circumstances, to create a
legal presumption of a conveyance from the possessor or the legal title. In such
a case, it is not only necessary for peace and justice, that such a presumption
should arise, but is intrinsically probable that a deed was made. 10 Johns. (N.
Y.), 377; 11 Id., 456; 3 Mass., 399; 5 Cranch, 262; Gaines v. Conn's heirs, 2 J.
J. Marsh. (Ky.), 107.

86

Although the Statute of Limitations will not run where the possession held is on
pledge, mortgage, &c., yet, 'if possession had been of twenty years' duration, it
might have justified the presumption, in case there were no repelling
circumstances, that the testator relinquished the title to the slaves in satisfaction
of the debts, and a court of chancery would not then interfere to disturb the
possession. Mims v. Mims, 3 J. J. Marsh. (Ky.), 106.

87

Without some opposing probability, the jury will presume a deed after
possession of twenty years, by one who had purchased the land, which, in
consequence of his purchase, he shall have so long occupied. 2 Saund., 175 a.;
Stark., 502, 1243, 989; 7 Wheat., 59.

88

Grants may be presumed from lapse of time. 12 Co., 5; 2 Hen. & M. (Va.), 370.

89

90

Generally whatever will toll the right of entry will create a presumption of the
conveyance of the legal title.
Every thing necessary to the validity of a collector's deed will be presumed after
twenty years, if it be shown that he was collector of taxes which were
committed to him. 14 Mass., 145; Id., 177; Fitzhugh v. Croghan, 2 J. J. Marsh.
(Ky.), 436.

91

3. But we contend further, that the defendants held the land adversely to the
right or title of the lessor of the plaintiff, and that their holding being adverse,
the right of entry is tolled, and the plaintiff is barred by the Statute of
Limitations.

92

We admit, as a general principle, that the possession of one tenant in common,

or joint-tenant, is the possession of the other; Coleman v. Hutchinson, 3 Bibb.
(Ky.), 209; and that the Statute of Limitations does not run against one tenant in
common in favor of another, unless there has been an actual ouster and adverse
holding. (Id.) But in this case we contend that there has been both; we show
that the defendants, ignorant of the rights of the ancestor of the lessor of the
plaintiff, without any intention to enter as tenants in common, entered upon the
land, expressly claiming and holding it as their sole freehold, adversely to the
whole world; they, and those under whom they claim, entered under their
purchases, as sole owners in fee of the whole land held by them, and were so
possessed for more than twenty-five years before the commencement of the
suit.

93

The quo animo with which an entry is made on land, will define the nature and
character, whether friendly or adverse, and extent of the possession acquired by
the entry; 1 Marsh. (Ky.), 347; Calk v. Lynn's heirs, 3 Id., 615; and whether the
possession of land is adverse to a certain claim or not, is a question of fact to be
found by the jury; Bowles v. Sharp, 4 Bibb. (Ky.), 550; or as the true doctrine is
more distinctly laid down in Barrett and wife v. French, 1 Conn. The
possession of one tenant in common recognizing the title of his co-tenants, is in
legal consideration the possession of all; that persons under the same title,
without partition, cannot prescribe against each other. Broussard v. Duhamel, 3
Mart. (La.) N. S., 11.

94

That where 'two persons claim by the same title, there shall be no adverse
possession, so as to toll the entry of the one, but an entry of the other be at all
times lawful. 2 Esp. N. P., 8, (old paging 434;) Carothers et al. v. The Lessee
of Dunning et al., 3 Serg. & R. (Pa.), 386.

95

But that a person claims to hold land under the same title, is no evidence that he
holds amicably with the original holder of that title, or those claiming under
him. The purchaser of land sold for the non-payment of taxes holds adversely
to the former owner, and can consequently avail himself of twenty years'
adverse possession. Graves v. Hayden, 2 Litt. (Ky.), 65. The court say, 'The
circumstance that the defendant claims to hold the land in controversy under
Martin's title, was no evidence of his not holding adversely, nor could it prevent
the Statute of Limitations from running. Being a purchaser in fee, though he
held under Martin's title, he did not hold under Martin, but in his own right, in
virtue of his purchase, and must therefore have continued to hold adversely to
Martin and those deriving title through him.'

96

So a purchaser under a sheriff's saleand

97

Where a party had obtained a decree, though a void one, for a conveyance in
fee absolute, and a conveyance in pursuance thereof of the inheritance of his
deceased wife, under the erroneous idea that he was heir of her son, who died
shortly after his mother's death, and had sold the land to one who retained the
possession twenty years, such alienee is protected in his title and possession by
lapse of time. Baseman's heirs v. Batterton et al., 1 Dana (Ky.), 432.

98

So with the defendants, notwithstanding they claim the same title, and though
the division may have been void.

99

Therefore, though the possession of one tenant in common should be deemed

the possession also of his co-tenant, nothing to the contrary appearing; yet if a
tenant in common enter not as a tenant in common, but adversely to his cotenant, his twenty years' possession would not only be a good defence against,
but would in fact so invest him with the complete title, as to enable him to
recover in ejectment against his co-tenant.

100 'That one tenant in common may oust his co-tenant, and hold in severalty, is not
to be questioned. But a silent possession, accompanied with no act which can
amount to an ouster, or give notice to his co-tenant that his possession is
adverse, ought not, we think, to be construed into an adverse possession.'
McClung v. Ross, 5 Wheat., 124, per Marsh. Ch. J.
101 The law is, that nothing but an actual ouster by one tenant in common shall give
him the exclusive possession. Lessee of Empsom v. Shackleton, 5 Burr., 2604;
Carothers et al. v. The Lessee of Dunning et al., 3 Serg. & R. (Pa.), 385.

102 But if there has been an actual ouster and adverse holding, it is well settled in
numerous cases, that the Statute of Limitations will run from the time of such
ouster and adverse possession. Coleman v. Hutchinson, 3 Bibb. (Ky.), 212; and
see Brackett v. Norcross, 1 Greenl. (Me.), 91; Russell's Lessee v. Baker, 1 Harr.
& J. (Md.), 71; Lessee of Brandt et al. v. Whitbeck, 6 Cow. (N. Y.), 633; Van
Dyck v. Van Buren, 1 Cai. (N. Y.), 84; Bryans v. Atwater, 5 Day (Conn.), 188.
103 We contend that the division of the land, the marking the lines, the selling the
entire fee, amounted to an actual ousterno actual force was necessary, and
none could have been used in this case, the land being wild land. To prove an
actual ouster by one tenant in common against another, it is not necessary to
show that any real force was used; it is sufficient to show that the tenant in
possession claims the whole, and denies the title of his co-tenant; McConnell v.
Brown, Litt. (Ky.) Sel. Cas., 468; Adams Eject., 56; and this rule must work
both ways.
104 Where the defendant, having purchased a lot of land, and received a deed for
the whole lot, in which the grantor stated himself to be the heir of the patentee,
and he entered into the possession under that deed, and it afterwards appeared
that the grantor had title to one-ninth part of the lot only, as a tenant in
common, this was held not to alter the character of the defendant's possession,
so as to prevent its being adverse, but that he must be deemed to have entered
under his deed, as sole owner of the fee in the whole lot; and that possession of
land by a purchaser under a deed for the entire lot, given without right in the
grantor, is adverse to the rightful owners, though tenants in common with the
grantor. Lessee of Preston et al. v. Smith, 13 Johns. (N. Y.), 406.
105 And in the case of Culler et al. v. Motzer, 13 Serg. & R. (Pa.), 356, it is held,
that if one tenant in common sell the whole tract, and possession be held
adversely for twenty-one years, the sale and possession amount to an ouster of
the co-tenant, who is bound by the act of limitations.
106 This case is fully in point: the court say, 'the possession here was for twentyfive years, in denial of the right of the other; for the sale of the whole, and the
possession under such sale, would amount to an ouster.' The purchaser, who
came into possession in 1800, came into possession under a title adverse.
Motzer could never be considered as a co-tenant, and as the bailiff and receiver
of James Brown, and as such accountable for the profits in an action for
account rendered. He never entered as a tenant in common; and the charge of
the court was altogether correct, for this was an entire tract of land to which
there was no adverse claim, and therefore the adverse claim was co-extensive

with the claim. That was the only right, and the possession there being no
adverse title, was according to that right. There ought not, consequently, to be
made any deduction on account of James's supposed outstanding title. Jackson
ex dem. Preston v. Smith, 13 Johns. (N. Y.) Possession of land by a purchaser,
under a deed of an entire lot, is adverse to the rightful owner, though tenant in
common with the grantor.
107 If, then, a tenant in common or joint-tenant cannot hold adversely to his cotenant, and if the holding of the defendants amounts, as we contend it does, to
an ouster in contemplation of law, and they do hold adversely to the claim of
Clymer, the lessor of the plaintiff, then they can rightfully rely either upon the
Statute of Limitations, or an outstanding elder title, according as their
circumstances may require either defence; and there is no error in the
proceedings of the Circuit Court, either in refusing to grant the instructions
asked for by the counsel for the plaintiff, or in giving the substituted instruction
for the defendants, or in substituting the instruction for those asked for by the
plaintiff.
108 Mr. Justice STORY delivered the opinion of the court.
109 This is the case of a writ of error to the Circuit Court of the district of
Kentucky. The original suit was an ejectment for a certain tract of land, in
Kentucky, containing eleven thousand acres: and upon the trial, upon the
general issue, a verdict was found for the defendants, upon which judgment
passed for them. A bill of exceptions was taken by the plaintiff, to the opinions
of the court at the trial; and to revise those opinions, the present writ of error is
brought by the plaintiff.
110 On the 24th of December, 1806, a patent for the tract of eleven thousand acres
of land was granted by the commonwealth of Kentucky, unto George Clymer,
(under whose will the lessors of the plaintiff make claim,) one-third, and unto
Charles Lynch and John Blanton, (under whom the defendants make claim,)
two-thirds. In the year 1810, if not at an earlier period, (for there is some
repugnancy in the various dates stated in the record,) Lynch and Blanton
procured a partition of the tract to be made, by the authority of the County
Court of Henry, by certain commissioners appointed pursuant to the Kentucky
statute of 1792, by which one-third was assigned in severalty to Clymer, (he
being then a non-resident,) by certain metes and bounds; and the remaining
two-thirds were assigned to Lynch and Blanton, by certain other metes and
bounds. The return of the commissioners was filed, acknowledged, and
admitted to record in the clerk's office of the county of Henry, in 1810; but the
court of that county do not seem to have ordered the return to be received and

recorded until 1827. How this delay took place, has not been satisfactorily
explained; and the omission has been insisted upon as an objection to the
validity of the partition.
111 All the defendants appear, from the evidence, to have derived title to the lands
in their respective occupation, and to have entered into possession of the same,
after the partition was made, and by titles in severalty, derived exclusively from
or under Lynch and Blanton; and the lands held by them are situate exclusively
within the tract assigned by the partition to Lynch and Blanton. The main
defence relied upon by the defendants, at the trial, was an adverse possession to
the title of Clymer, during the period prescribed by the Statute of Limitations of
Kentucky. To rebut this defence, the plaintiff insisted that the partition was
void, and being void, the defendants having entered into the land under the
patent to Clymer, Lynch and Blanton, who still, notwithstanding the partition,
in point of law, remained tenants in common of the land, were not at liberty to
set up an adverse possession against that title; nor at liberty to set up any
outstanding superior title in any third person, under any elder patent offered in
evidence, to defeat the plaintiff in the action.
112 The plaintiff, upon the evidence, (which need not be here particularly recited,)
moved the court to instruct the jury as follows: [See the statement of the
reporter.]
113 The defendants also moved the court to give certain instructions to the jury;
which instructions the court refused to give, but gave the following instruction
in substitution thereof: [See statement.]
114 To the instructions so refused as propounded by the plaintiff, and to the several
instructions so given by the court, the plaintiff excepted; and the cause stands
before us for consideration upon the validity of these exceptions.
115 The first point made at the argument for the plaintiff, is as to the validity of the
partition under the proceedings in the county of Henry. In our judgment, it is
wholly unnecessary to decide whether those proceedings were absolutely void
or not; for, assuming them to have been defective or invalid, still, as they were
matter of public notoriety, of which Clymer was bound, at his peril, to take
notice; and as Lynch and Blanton, under those proceedings, claimed an
exclusive title to the land assigned to them, adversely to Clymer; if the
defendants entered under that exclusive title, the possession must be deemed
adverse, in point of law, to that of Clymer.

116 And this leads us to the consideration of the instructions actually given by the
court, which cover the whole ground in controversy, and, if correct in point of
law, show that the court rightly refused to give the instructions asked by the
plaintiff, so far as they were not consistent with the instructions actually given.
It is very clear that the court are not bound to give instructions in the terms
required by either party; but it is sufficient if so much thereof are given as are
applicable to the evidence before the jury, and the merits of the case, as
presented by the parties.
117 The first instruction given by the court is as favorable to the plaintiff, in all its
bearings, as the law either justifies or requires, and is in direct response to the
substance of some of the instructions asked by the plaintiff. It in substance
states that if the defendants entered under the title of Clymer, Lynch and
Blanton, as tenants in common, and did not claim any title except to two thirds
of the parcels of land respectively held by them, and not to the entirety thereof,
then their entry into the possession did not oust either Clymer or his devisees of
his or their undivided third part, and was not adverse thereto; and that the
defendants so entering could not avail themselves of the defence of the Statute
of Limitations; and they could not avail themselves of the outstanding legal title
of third persons by any elder patent. So far as this instruction goes, it is
manifest that it was favorable to the plaintiff; and indeed it is not now per se
objected to, but the objection is, that it does not go far enough, and thus was to
the prejudice of the plaintiff.
118 The real point in controversy turns upon the second instruction given by the
court, in answer to the prayer of the defendants. That instruction, in substance,
states, that if any of the defendant entered into possession of the lands
respectively claimed by them, and held the same for more than twenty years
before the commencement of the suit, by a purchase and claim thereof in
entirety and severalty, and not for an undivided part thereof, in co-tenancy with
Clymer or his devisees, but adversely to them, then such defendant was entitled
to a verdict in his favor, whether he held by a purchase from Lynch, or Blanton,
or any other person who had ever afterwards, up to the commencement of the
suit, continued thus to hold the possession. We see no objection to this
instruction, which ought to prevail in favor of the plaintiff; on the contrary, we
deem it entirely correct, and consonant to the principles of law upon this
subject. It is true, that the entry and possession of one tenant in common of and
into the land held in common, is ordinarily deemed the entry and possession of
all the tenants; and this presumption will prevail in favor of all, until some
notorious act of ouster or adverse possession by the party so entering into
possession, is brought home to the knowledge or notice of the others. When this
occurs, the possession is from that period treated as adverse to the other tenants,

and it will afterwards be as operative against them, as if the party had entered
under an adverse title. Now such a notorious ouster or adverse possession may
be by any overt act in pais, of which the other tenants have due notice, or by the
assertion, in any proceeding at law, of a several and distinct claim or title to an
entirety of the whole land, or, as in the present case, of a several and distinct
title to the entirety of the whole of the tenant's purparty under a partition,
which, in contemplation of law, is known to the other tenants. Upon so familiar
a doctrine it scarcely seems necessary to cite any authorities. So early as
Townsend and Pastor's case, 4 Leon., 52, it was holden in the Common Pleas,
by all the justices, that where there are two co-parceners of a manor, if one
enters and makes a feoffment in fee of the whole manor, this feoffment not only
passes the moiety of such co-parcener, which she might lawfully part with, but
also the other moiety of the other co-parcener, by disseisin. This decision was
fully confirmed and acted on, in the recent case of Doe d. of Reed v. Taylor, 5
Barn. & Ad., 575, where the true distinction was stated, that although the
general rule is, that where several persons have a right, and one of them enters
generally, it shall be an entry for all; for the entry generally shall always be
taken according to right; yet that any overt act or conveyance, by which the
party entering or conveying asserted a title to the entirety, would amount to a
disseisin of the other parties, whether joint-tenants, or tenants in common, or
parceners. Upon the same ground, it was held in New York, in the case of
Jackson v. Smith, 13 Johns. (N. Y.), 406, that a conveyance made by one tenant
in common, of the entire fee of the land, and an entry and possession by the
purchaser, under that deed, is an adverse possession to all the other tenants in
common. To the same effect is the case of Bigelow v. Jones, 10 Pick. (Mass.),
161. The reason of both these latter cases is precisely the same as in the case of
a feoffment, the notoriety of the entry and possession, under an adverse title, to
the entirety of the land.
119 Similar principles have been repeatedly recognized in this court. In McClung v.
Ross, 5 Wheat., 116, 124, the court said, 'That one tenant in common may oust
another, and hold in severalty, is not to be questioned. But a silent possession,
accompanied with no act which can amount to an ouster, or give notice to his
co-tenant, that his possession is adverse, ought not, we think, to be construed
into an adverse possession.' In the case of the Lessee of Clarke v. Courtney, 5
Pet., 319, 354, this court also held, that where a person enters into land under a
deed or title, his possession (in the absence of all other qualifying or controlling
circumstances) is construed to be co-extensive with his deed or title; and
although the deed or title may turn out to be defective or void, yet the true
owner will be deemed disseised to the extent of the boundaries of such deed or
title. This doctrine is strongly applicable to the possession under the partition in
the present case. There are several other cases affirming the same doctrine, and

especially Green v. Liter, 8 Cranch, 229, 230; Barr v. Gratz, 4 Wheat., 213,
223; and The Society for Propagating the Gospel v. The Town of Pawlet, 4 Pet.,
480, 504, 506. The doctrine has been carried by this court one step farther; but
at the same time one which is entirely consistent with the principles on which
the general rule, and the exceptions to it, are founded. In Blight's Lessee v.
Rochester, 7 Wheat., 535, 549-550, it was held, that in cases of vendor and
purchaser, although the latter claimed his title under or through the former, yet
as between themselves, the possession of the purchaser under the sale, where it
was absolute and unconditional, was adverse to that of the vendor, and he might
protect that possession by the purchase of any other title, or by insisting upon
the invalidity of the title of the vendor, as the foundation of any suit against
him. Now, upon this last ground, the defendants were certainly at full liberty as
absolute purchasers in fee to maintain their adverse possession to the land, and
the bar of the Statute of Limitations against Lynch and Blanton, and a fortiori
against Clymer.
120 Upon the whole, we are entirely satisfied that the second instruction given by
the court was correct in point of law; and, therefore, the judgment of the Circuit
Court ought to be affirmed with costs.