made out a regular title, under that patent, to Lot No. 70. The possession of the defendant was admitted.

The defendant produced a writing dated the 28th of June, 1768, from Francis Mackay, who claimed under a grant from the French Canadian Government, to one La Gauchetierre, prior to the conquest of Canada, by which one Jaques La Framboise was permitted to take two lots of land in Mackay's seignory, on Lake Champlain, and settle himself there. La Framboise had entered in 1763, by permission from Mackay, but did not continue long; and again, in 1768 entered under the above writing from Mackay, and continued there until the American war, having cleared about twelve acres when he left the premises; and again returned in 1794, and remained in the possession until January 25, 1803, when he conveyed to Charles L. Sailley, in fee all his right in the said Lot No. 70 in Dean's patent. On the 17th of March, 1803, Sailley conveyed to the defendant in fee.

THOMPSON, CH. J. delivered the Opinion of the Court, and after discussing the question of title, in conclusion, said; "The doctrine of this Court with respect to adverse possession, is, that it is to "be taken strictly, and not to be made out by inference, but by "clear and positive proof. Every presumption is in favour of "possession in subordination to the title of the true owner. (9 "Johns. Rep. 167.) It must be hostile in it's inception, and con"tinued so for twenty years; and must be marked by definite boun"daries. (1 Johns. Rep. 156. 2 Johns. Rep 280.) The posses"sion held by La Framboise, prior to his conveyance to Sailley, "in 1803, cannot be deemed adverse, if his original entry under "Mackay, is not to be so considered, as it clearly is not, it being "taken under a foreign government, which we must reject as a le"gitimate source of title. The plaintiff must, accordingly, have "judgment.'

"Deeds conveying the whole property of the person making them to a woman with whom he cohabited, without any proof of valuable consideration paid by her, she not having means to make such purchases, will be presumed to be void, as against creditors. The Statute of Limitations does not run in such cases." & Rowand vs. Smyth, Adm'r. &c., 2 Eq. Rep. (Dessaussure's)

214.

Buist

Where a conveyance of Land was obtained by fraud and imposition, and the same was acknowledged and recorded, and possession taken by the grantee, it did not operate such a disseisin as disabled the grantor afterwards to devise the estate. Smithwick & Al. vs. Jordan, 15 Mass. Rep. 113.

A grantec under a fraudulent conveyance cannot acquire a title

by possession against the creditors of the grantor. Beach vs. Catlin, 4 Day's Rep. 284.

A title void in itself, will prevent him in whose favour it was executed, from pleading prescription. Dufour vs. Camfranc, 11 Martin's Rep. 715. Frique vs. Hopkins & Al. 4 Martin's Rep. N. S. 224. Bonne & Al. vs. Powers, 3 Ibid. N. S. 462.

The prescription of four years against minors, runs only against them for those acts where the forms of law have been pursued in the alienation of their property. M. & F. Gayoso De Lemos vs. Garcia, 1 Martin's Rep. N. S. 324.

In the case of Rabineau vs. Cormier, (1 Martin's Rep. N. S. 461,) THE COURT said; "Under the circumstances of Error on the "part of the Vendor in delivering property not sold, and Error on "the part of the Vendee, in taking possession of that which he "did not purchase, the question is, can the latter hold it by pre"scription? We think not. An important and indispensable requisite is wanting, to make out a title of the kind; the intention "to possess. The Vendee intended to enter into, and hold the "property sold him. What he possessed over and above the quantity purchased, was in error."

"If the title under which the acquisition is made, be null in it"self, from defect of form, or discloses facts which show the per"son from whom it is acquired has no title, it cannot form the ba"sis of this prescription; [Prescriptio longi temporis,] because the "party acquiring must be presumed to know the law, and conse"quently wants the animo domini, which is indispensable in cases "of this kind. But where the title is free from these defects, and. "the property is not transferred, by want of title in the party mak"ing the transfer, then it forms a good ground for the prescription; in other words, the enquiry is, whether the error be one of "fact, or of law." L. & F. Frique vs. Hopkins & Al. 4 Martin's Rep. N. S. 224.

ог

But where possession is taken and held under an instrument which is not void, but only voidable, the prescription will run. So the Testator's concubine may prescribe under his will, against his brothers and sisters. And the action of inofficiosi testamenti, by which they might avoid such will, is barred by the lapse of five years. Carrel's Heirs vs. Cabaret, 7 Mart. Rep. 375, 408.

Devise to trustees in fee, in trust to permit A. H. to receive the rents and profits for life; remainder to W. H. in tail; remainder to J. S. in fee: Held, that a fine with proclamations, levied by W. H. to a stranger in the life time of A. H. was void; and therefore

the heir of J. S. was not barred by non-claim and want of entry. Doe ex dem. James & Ux. vs. Harris, 5 M. & S. Rep. 326.

A Sheriff's deed, which recites the execution under which the lands in dispute were sold, as having been tested and signed by the Deputy Clerk, shall enure as colour of title. For although the Constitution declares, "that all writs shall bear teste and be signed by the Clerks of the respective Courts, yet a Writ of Execution is not necessarily void because it bears teste and is signed by a Deputy Clerk; because the Act of 1777, Ch. 2 Sec. 95, provides that in the event of the death of the principal Clerk, the Deputy shall sue out writs and other process. Den ex dem. Jones vs. Putney, 3 Murph. Rep. 562.

A grant of Administration which was originally void, and not merely voidable, can acquire ne validity from an acquiescence of twenty years, or any longer period. And the tenants who held under a conveyance from the administrator, executed upon a sale made twenty-six years before the trial, in pursuance of a license from the Court, to sell the whole real estate of the Intestates to pay their debts, could not set up such conveyance and their possession under it in bar of the demandant's action. WILDE, J. in delivering the Opinion of the Court, said; "Nor can lapse of time "render an act valid, which was originally void. Quod ab initio non valet, tractu temporis non convalescit." It was also Held, That the Statute of Massachusetts, of 1817, Ch. 190, § 12, by which actions to recover real estate sold by administrators, &c. on license, are limited to five years, applies only to sales made subsequently to the passing of the Statute. Such a sale made previously to the passing of the Statute, may be avoided after the lapse of twenty years. Holyoke vs. Haskins & Ux. 5 Picker. Rep. 20, 27.

In the case of La Frambois vs. Jackson ex dem. Smith & Al. (In Error,--8 Cow. Rep. 589, 605,) COLDEN, Senator, said; "I "admit, also, that if an adverse possession be claimed under a "grant or conveyance which never could have been the founda"tion of a good title, it cannot bar the recovery of one who shews 'a perfect title."

Instruments which do not purport to convey title, as Leases, Contracts, &c. cannot be the foundation of an adverse possession.

"A mere contract for a Deed, though the purchaser enter under it, does not place him in a situation to hold adversely, till he perform the condition of the purchase by paying the purchase money; such a possession not being hostile in its inception." Jackson ex dem. Young & Devereux vs. Camp, 1 Cow. Rep. 610. Botts & Al.

vs. Shields' Heirs, 3 Littell's Rep. 34. & Vide Voorhies vs. White's Heirs, 1 Marsh Rep. (Ky.) 27.

A possession and claim of land, under an executory contract of purchase, is not such an adverse possession as will render a deed from the true owner void for champerty or maintenance; nor is it such an adverse possession as, if continued for 20 years, will bar an entry, within the Statute of Limitations; and especially, it is in no sense adverse as to the one with whom the contract is made. Jackson ex dem. Swartwout & Wife vs. Johnson, 5 Cow. Rep. 74. And to the same purport, Vide Proprietors of No. Six vs. M'Farland, 12 Mass. Rep. 325. Higginbotham & Al. vs. Fishback, 1 Marsh. Rep. (Ky.) 506. Wilkinson, &c. vs. Nichols, 1 Monroe's Rep. 36. Richardson & Al. vs. Broughton, 2 Nott. & McCord's Rep. 417. Fowke vs. Darnall, 5 Litt. Rep. 318. Chiles vs. Bridge's Heirs, Litt. Select. Cas. 423. Kirk & Al. vs. Smith ex dem. Penn, 9 Wheat. Rep. 288. & Vide Jackson ex dem. Marvin & Al. vs. Hotchkiss, 6 Cowen's Rep. 401.

To constitute an adverse possession, it must not only be hostile in its inception, but the possessor must claim the entire title; for if it be subservient to, and admit the existence of a higher title, it is not adverse to that title. 5 Cow. Rep. 92. Botts & Al. vs. Shield's Heirs, 3 Litt. Rep. 34. Proprietors of Township No. Six vs. M'Farland, 12 Mass. Rep. 327. & Vide Knox & Al. vs. Hook, 12 Mass. Rep. 331.

Possession of land by consent of the true owner, is not adverse possession. Atherton vs. Johnson, New Hamp. Rep. (R. & W.) 31.

A person entering under a lease and holding over after his term has expired, will be regarded as holding by consent of the original landlord, and his possession is not adverse; and if he transfer the possession, his grantee is supposed to hold under the same title. Brandter ex dem. Fitch vs. Marshall, 1 Caines' Rep. 401. & Vide Jackson ex dem. Van Schaick & Al. vs. Davis, 5 Cow. Rep. 123.

Title by improvement, is merely a right of pre-emption, until the purchase is made from the commonwealth. Up to that time possession is not adverse to, but under the commonwealth; and therefore, though it continue twenty-one years, it is no bar by the Statute of Limitations to the commonwealth, or her grantee. Morris vs. Thomas, (In Error,) 5 Binney's Rep. 77.

But where a man claiming under an executory contract for the purchase of land, is evicted and turned out of possession by a Writ of Habere facias possessionem, on an adversary claim, he may purchase in such adversary claim, and assert it in defence, against

a suit brought by the heirs of the man from whom he first purchased. Chiles vs. Bridge's Heirs, Litt. Select. Cas. 420.

A tenant, who endeavours to deprive his landlord of the benefit of possession, under a fraudulent pretence of giving it up, is still to be considered as a tenant, and cannot defend himself against his landlord in an Ejectment, brought to recover possession. A person who comes into possession under a tenant is in no better condition than the tenant himself, and cannot defend his possession against the landlord. Graham & Al. vs. Moore & Al. 4 Serg. & R. Rep. 467. & Vide Chiles vs. Bridge's Heirs, Litt. Select. Cas. 423.

Where the relation of landlord and tenant exists, a conveyance by the latter of the demised premises, cannot operate as the basis of an adverse possession, so as to bar the former of his ejectment; whether the grantee knew of the devise or not.-But this rule means the conventional relation of landlord and tenant, where some rent or return is in fact received to the former; not a relation arising from mere operation of law; as where one makes a grant, and by the omission of the technical word heirs, an estate for life, only, passes.

In such case, after the death of the tenant for life, an adverse possession may commence running, in favour of those who enter and claim in fee under him, which after 25 years will bar all claim of the reversioner and his heirs, Jackson ex dem. Webber & AL vs. Harsen & Al., 7 Cow. Rep. 323.

And where A. entered into possession of land under a lease in fee, reserving a pepper corn rent, in 1775, and in 1778, gave the land to B., by parol, who continued in possession, claiming under the lease, until 1798, excepting the period of the war, and a year or two after, and B. conveyed the premises to C., and C. to D., who conveyed the same to the defendant; it was held that this was a sufficient adverse possession to bar an action of ejectment by the person having title to the land, commenced in 1807. Jackson ex dem, Colden & Al. vs. Moore, 13 Johns. Rep. 513.

A. being the owner of certain lands in the Lunenburgh patent, died, after having devised the same to his wife during her widowhool, remainder to B. and his other three brothers; a dispute having arisen between C. the daughter of B., and her husband, on one side, and the other devisees, on the other side, as to the portion of land to which she was entitled, her portion was ascertained and conveyed in 1772, to C.'s husband; and certain persons were appointed by the deed to locate and reduce to severalty her share on any of the lands within the patent in the possession of the parties of the first part, (the other devisees and the widow of A.) or their tenants; the defendant entered upon the premises in question 23 years before the trial, claiming title under the husband of