Kinney v. Slattery

Rothrock, J. , Kitfonimant'S'com-11' mon’ — The evidence is imperfectly abstracted, but it seems to be conceded by appellant in argument that the defendant Slattery and those -under whom he Maims were in the actual, open, continuous and adverse possession of said land, under color of title and claim of right based upon the conveyance from W. C. Dobbins, for more than ten years prior to the commencement of this action, and the court below so found in its decree. It is undoubtedly correct, as claimed by counsel for appellant, that the seizin and possession of one tenant in common of real estate is seizin and possession for the use of the others, and under such seizin and possession, however long continued, no title based upon adverse possession can be acquired. Burns v. Byrne et al., 45 Iowa, 285; Campbell v. Campbell, 13 N. H., 488. But the conveyance of the land by W. C. Dobbins as his own, and the possession taken by his grantee under such conveyance, evinced a claim of exclusive right and title, and a denial of the right of the plaintiff. This amounted to an actual ouster and disseizin of the plaintiff. Burns v. Byrne, supra. The record of the deed from W. C. Dobbins to Dutton, accompanied by the actual and notorious possession of the land by his grantee, was notice to the plaintiff of the adverse claim. She was charged with notice of what the deed conveyed and of all that the grantee acquired under it. In Horne v. Howell, 46 Georgia, 9, where a tenant in common conveyed the whole lot to a third person, and the grantee took possession, claiming the entire lot. as his own, it was held that such acts constituted a disseizin and ouster of the other tenants in common, and barred them from asserting their right to such property after the lapse of the period fixed by the statute of limitations. That such acts of one tenant in common will amount to an actual ouster of his co-tenant, see, also, Nelson v. Davis, 35 Ind., 474. Affirmed.