Milbourn v. David

The Court, Comegys, C. J., charged the jury: It is claimed that the statute began to run against Thomas Patterson on the death of his mother in 1852. Also that the plaintiff is barred by the adverse possession or holding of the defendant for twenty years and more. But in ease of a tenancy in common, the possession of one tenant in common is the possession of his co-tenant, and is presumed to be with his consent. Lord Mansfield in Fisher v. Prosser, Cowp., 217, said: “ Some ambiguity seems to have arisen from the term ‘ actual ouster,’ as if it meant some act accompanied by real force, and as if a turning out by the shoulders were necessary. But that is not so. A man may come in by a rightful possession, and yet hold over adversely without a title. If he does, such holding over, under circumstances, will be equivalent to an actual ouster. For instance, length of possession during a particular estate, as a term of one thousand years, or under a lease for lives, as long as the lives are in being, gives no title. But if tenant pur autre vie hold over for twenty years after the death of cestuy que vie, such holding over will in ejectment be a complete bar to the remainderman or reversioner; because it was adverse to his title. So in the case of tenants in common; the possession of one tenant in common, co nomine, as tenant in common, can never bar his companion; because such possession is not adverse to the right of his companion, but in support of their common title; and by paying him his share, he acknowledges him co-tenant. Nor indeed is a refusal to pay of itself sufficient, without denying his title. Bat if, upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole and will not pay, and continues in possession; such possession is adverse and ouster enough.” But the court cannot sanction the rulings in the cases cited by the counsel of the defendant from the Penna. Reps. The court therefore does not consider that the facts and circumstances proved in the case would warrant the court in leaving it to them to infer or presume from it that there had been an ouster of the plaintiff by the defendant from the possession of the premises, notwithstanding the length of time she had been out of any actual possession of it. A bare possession of twenty-nine years in such a case by the defendant is not sufficient for that purpose. Verdict for plaintiff.