DeLong v. Mulcher

Rothbock, J. i. adverse cofoSrSo£°titie. Under the averments of the answer, which must be taken as true, the defendant and those under whom he claims have been in the actual, open, notorious, hostile and adverse occupancy of the premises in controversy, under color of title and claim of right, for some twenty-seven years. It is conceded that William DeLong' did not have the legal title when he conveyed to Sitton. Plaintiff claims that when James DeLong, who held the title to an undivided half of the lot, died intestate, leaving his father, William, his sole heir at law, the deed to the latter “became effective to pass the interest of James, under the provisions of Sec. 2210 of the Revision of 1860, then in force, and whereby said appellee, or his grantors, became the absolute owners of the other half, common and undivided, of said lot. The parties were thus tenants in common. This was two years before plaintiff obtained his majority.” We think a conclusive answer to this position is that the defendant does not claim title because the deed of William DeLong became effective to pass the interest of his son, James DeLong. He bases his title upon adverse possession under color of title, commencing in 1850, and cannot be compelled to abandon it for the title to one-half, which has since been cast upon him by operation of law. He can elect whether he will hold by his original claim of title, or by that since acquired. Osterhout v. Shoemaker, 3 Hill, 513; Northrop v. Wright, 7 Id., 476; Jackson v. Newton, 18 John., 355; Jackson v. Smith, 13 Id., 406. Affirmed.