Opinion of the Court.

said lands and wrongfully took possession of a portion of said lands, you must find for plaintiff, although you also find that defendant has held said lands for more than ten years adversely to plaintiff."

Obviously the proposition here set out by the court is, that if plaintiff had the real title to the land, and the evidence of it was on record, nobody could, by taking possession and holding it adversely for the period allowed by the statute, defeat such a title. The language used by the court is: "Unless the defendant had a right to the possession of such lands when he took possession of them he has no right now; time never makes a wrong right."

It is the essence of the statute of limitations that whether the party had a right to the possession or not, if he entered under the claim of such right and remained in the possession for the period of ten years, or other period prescribed by the statute, the right of action of the plaintiff who had the better right is barred by that adverse possession. This right given by the statute of limitations does not depend upon, and has no necessary connection with the validity of the claim under which that possession is held. Otherwise there could be no use for adverse possession as a defence to an action, for if the decision is made to depend upon the validity of the respective titles set up by the plaintiff and the defendant, there can be no place for the consideration of the question of possession. It is because the plaintiff has the better title that the defendant is permitted to rely upon such uninterrupted possession adverse .o the plaintiff's title as the statute prescribes, it being well understood, and an element in such cases, that the plaintiff does have the better title, but though he has it, that he has lost his right by delay in asserting it.

Nor is it necessary that the defendant shall have a paper title under which he claims possession. It is sufficient that he asserts ownership of the land, and that this assertion is accompanied by an uninterrupted possession. It is this which constitutes adverse possession, claiming himself to be the owner of the land. This is a claim adverse to everybody else, and the possession is adverse when it is held under this claim of owner

Opinion of the Court.

ship, whether that ownership depends upon a written instrument, inheritance, a deed, or even an instrument which may not convey all the lands in controversy. If defendant asserts his right to own the land in dispute, asserts his right to the possession, and his possession is adverse and uninterrupted, it constitutes a bar which the statute intended to give to the defendant.

The instructions of the court are utterly at variance with this doctrine. They do away with the value of adverse possession as a defence to an action of ejectment. They say in effect that unless the defendant was in the right when he took possession, the length of its continuance does not afford him any ground for a defence; whereas it is obviously the nature and purport of the defence established by the statute of limitations that the defendant may not have been in the right, but this long actual possession estops the plaintiff from putting the defendant to the proof of the right.

The court not only erred upon this subject in the positive instructions which it gave to the jury, but also in refusing to charge as follows, at the request of the defendant :

“That an uninterrupted occupancy of land by a person who has in fact no title thereto, for the period of ten years adversely to the true owner, operates to extinguish the title of the true owner thereto and vests the right to the premises absolutely in the occupier."

In Ewing v. Burnet, 11 Pet. 41, 52, this court said upon this subject:

"An entry by one man on the land of another is an ouster of the legal possession arising from the title, or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise it is a mere trespass; in legal language the intention guides the entry and fixes its character."

We think this is a correct statement of the doctrine of adverse possession. It is implied by the language of the court in Harvey v. Tyler, 2 Wall. 328, 349, that "any one in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with and in subservience to

Statement of the Case.

that title." And the instruction of the court below in that case was approved, that if "any of the defendants entered upon and took possession of the land, without title or claim, or color of title, such occupancy was not adverse to the title of plaintiffs, but subservient thereto."

The fair implication in both of these cases is that where possession is taken under claim of title it sufficiently shows the intention of the party to hold adversely within the meaning of the law upon that subject. There is no case to be found which holds that this adverse claim of title must be found in some written instrument.

In the case of Bradstreet v. IIuntington, 5. Pet. 402, 439, this court said:

"The whole of this doctrine is summed up in very few words as laid down by Lord Coke (1 Inst. 153) and recognized in terms in the case of Blunden v. Baugh, 3 Cro. [Car.] 302, in which it underwent very great consideration. Lord Coke says: A disseisin is when one enters intending to usurp the possession, and to oust another of his freehold; and therefore querendum est à judice quo animo hoc fecerit, why he entered and intruded.' So the whole enquiry is reduced to the fact of entering, and the intention to usurp possession."

The judgment is reversed and the cause remanded, with a direction to award a new trial.

SEIBERT v. UNITED STATES ex rel. HARSHMAN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 130. Submitted December 18, 1888. Decided January 21, 1889.

Seibert v. Lewis, 122 U. S. 284, was very carefully and elaborately considered, and is adhered to.

THE case is stated in the opinion.

Syllabus.

Mr. E. John Ellis, Mr. John Johns and Mr. D. A. Mc

Knight for plaintiff in error.

Mr. Clinton Rowell for defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

The facts of this case are similar to those in Seibert v. Lewis, before the court at its October term, 1886, 122 U. S. 284, and it is admitted by the counsel for the plaintiff in error that the decision there, if adhered to, will control here. He, however, asks us to reconsider our rulings and reverse our former judgment. We see no reason to justify such reconsideration and change of position. The very elaborate argument of counsel is but a re-presentation of the reasons originally offered against the decision in that and analogous cases. Seibert v. Lewis was very carefully and elaborately considered, and to the doctrines there announced we adhere. Upon its authority

The judgment of the court below must be affirmed.

GALIGHER v. JONES.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 75. Submitted November 14, 1888. - Decided January 21, 1889.

A stock-broker received orders by telegraph from his principal to sell certain securities belonging to the principal in his hands and invest the pro ceeds in certain other securities, named in the order, at a fixed limit. When the telegram arrived the order might have been executed that day, and the securities ordered could have been bought within the limit. The principal was in the habit of dealing with the agent in that way, the agent executing the orders, making advances when necessary and charging the principal with commissions and interest. At the time when this order was received the principal was indebted to the agent for advances, commissions and interest about $4000 more than the value of the securities in his hands: The broker did not execute the order, did not notify the principal by telegraph that he declined to do so, and made no demand for further advances; but notified him of his refusal by a letter written on the day when the order was received, but received by the principal

VOLA CXXIX-13

Opinion of the Court.

two days later. The securities which had been ordered sold depreciated below the prices at which they could have been sold on that day, and those which had been ordered bought advanced, so that they could have been sold at a large profit. The broker sued the principal for advances on an open account current and interest and commissions. The principal set up as a counterclaim the losses from these sources: Held,

(1) That the broker was bound to follow the directions of his principal or give notice that he declined to continue the agency;

(2) That this notice should have been given by telegraph, and that the delay caused by using the mail alone was inexcusable under the circumstances;

(3) That in the absence of a special agreement to the contrary, it was the principal's judgment, and not the broker's, that was to control; (4) That the broker was liable for all the damages which the principal sustained by the refusal to change the stock, both on the stocks ordered sold, and those ordered purchased.

The measure of damages in stock transactions between, a stock-broker and his principal, in which the principal suffers from the neglect of the broker to execute orders either for the sale of stock which he holds for the principal, or for the purchase of stock which the principal orders, is not the highest intermediate value up to the time of trial — but the highest intermediate value between the time of the conversion and a reasonable time after the owner has received notice of it: in this respect disregarding the rule adopted in England and in several of the States in this country, and following the more recent rulings in the Court of Appeals of the State of New York.

THE case is stated in the opinion.

Mr. John R. McBride for appellant.

Mr. C. W. Bennett for appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is a suit brought by Jones, a stock-broker, against his customer, for the balance of account alleged to be due to the plaintiff arising out of advances of money and purchases and sales made, and commissions. The complaint, or declaration, states "that between the 15th day of January, 1877, and 15th day of January, 1879, the plaintiff, as a stock-broker, at the special instance and request of the defendant, paid and advanced on an open account current, to and for the use of the defendant, divers sums of money, and also earned