ELDER et al. v. McCLASKEY et al., 70 F. 529

TAFT, Circuit Judge, after sta ting the case as aboye, delivered the opinion of the court. The defendants in possession, or the persons under whom they claim, have been in possession of the quarter

section here in controversy from 1889 until the present day. The right of entry to this land under the title which the complainants and cross complainants assert accrued to them on the lid of August, 1860, when Maria Bige-low died. This action was not begun until the 4th day of December, 1886, or 26 years and 4 months after the immediate right of possession vested in the complainants and cross complainants. The present statute of limitations of Ohio, which is substantially the same as that in force in 1860 (section 4977, Smith & B. Ed. Rev.

St.), provides that “an action l’or the recovery of the title or possession of real property can only be brought within- twenty-one years after the cause of action accrues.” Under the construction put upon this statute by the supreme court of Ohio, an open, notorious, exclusive, and adverse possession of land for 21 years, with or without color of title, whether continuous in the first possessor, or tolled in persons claiming under him, and whether with or without knowledge of the. existence of a better title, confers upon the original possessor, or those claiming under him, an indefeasible title in fee. Paine v.

Skinner, 8 Ohio, 159, 165, 167; Yetzer v. Thoman, 17 Ohio St. 130; McNeely v. Langan, 22 Ohio St. 32, 37. This is a rule of property binding on federal courts of law and equity in adjudicating upon titles to real estate in Ohio. Miles v. Caldwell, 2 Wall. 36; Blanchard v. Brown, 3 Wall. 245, 249; Britton v. Thornton, 112 U. S. 526, 5 Sup. Ct. 291; Smelting Co. v. Hall, 106 U. S. 86, 1 Sup. Ct. 128; Orvis v. Powell, 98 U. S. 176.

In view of the lapse of time between the accruing of the right of possession and the bringing of the action, the only question for our consideration on this branch of the case is whether the possession of the defendants in possession was adverse to the title and claim of the complainants and cross complainants. For brevity, we shall hereafter refer to the defendants in possession as “defendants,” and to the complainants and cross complainants as “claimants.” The conclusion of the circuit court that the statute of. limitations created no bar to claimants’ action was based on these three propositions: First.

That the defendants had entered the land in sub-serviency to the title of the heirs of the brothers and sisters of William Barr, Sr., .and therefore as tenants in common of the fee with the claimants, who were some of such heirs. Second. That a possession begun by defendants as tenants in common with claimants could not become adverse, so as to set the statute running, until actual notice of the intent to disseise them was brought home to the claimants, and po .such notice was shown in this case. Third.

That even if the original entry by defendants had been adverse, or it had become so by actual disseisin, yet the disseisin was purged by acts of the defendants which were in law and in fact an acknowledgment of the validity' of the title of claimants, and conclusively showed an intention thereafter to hold under it. We propose to examine these propositions in their order, and to consider their application to the case at bar.

When a tenant in common, claiming as such, enters upon the common land, he is exercising the right which his title gives him, and his resulting possession is presumed to be consistent with his avowed title, and therefore to be the possession of his cotenants and himself. His cotenants have the right to rely on this presumption until his acts or declarations are palpably inconsistent with it. r|Vhe law fully recognizes that he may oust them, but he cannot do so except by acts so distinctly hostile to the rights of his cotenants that his intention to disseise them is unmistakable.

Notice of this intention must be brought home to his cotenants, but whether this must be actual, or may be constructive, it is not necessary at this point to discuss. It suffices for our present purpose to say that the rule thus stated has no application to any case except where the possession of the person in question was avowedly begun as a tenant in common, or under a deed which defined his title as such. 1. We come, therefore, to the question whether the defendants began their possession in August, I860, as tenants in common with the claimants.

The circumstances under which Morgan and his grantees began this possession are somewhat different, and we shall consider their cases separately. When the life tenant died, in August, 1860, all but 23 acres of the quarter

section was held by persons who claimed exclusive ownership in fee to the pieces they respectively occupied, under deeds from Morgan in fee simple, with covenants of general warranty. They or their predecessors in title had entered under these deeds, and were maintaining possession thereunder when the rights of the claimants accrued. Such an entry and possession is an ouster of all other persons claiming an interest in the land, at and from the time they have a right of entry.

It is immaterial that the fee-simple deeds under which the entries were made actually vested only the title to a life estate or an undivided interest. The extent of the estate purporting to he conveyed characterizes the entry and subsequent jmssession, and shows beyond doubt that they were made under a claim to the whole, and were with intent to oust all others asserting an interest. This is well settled by federal and state authorities. Prescott v. Nevers, 4 Mason, 326, Fed. Cas. No. 11,390; Bradstreet v. Huntington, 5 Pet. 402; Clymer’s Lessee v. Dawkins, 3 How. 674; Hall v. Law, 102 U. S. 461, 466; Christie v.

Gage, 71 N. Y. 189; Jackson v. Smith, 13 Johns. 406; Clapp v. Bromagham, 9 Cow. 530, 551, 557; Kittredge v. Proprietors, 17 Pick. 246; Foulke v. Bond, 41 N. J. Law, 527, 539, 541; Sands v. Davis, 40 Mich. 14, 18; Greenhill v. Biggs, 85 Ky. 155, 2 S. W. 774; Freem. Coten. § 224, and cases cited. The principle is recognized in Ohio, although there is no authority directly illustrating it. Youngs v. Heffner, 36 Ohio St. 232; Hogg v. Beerman, 41 Ohio St. 81.

It is suggested that the fact that these deeds from Morgan were made, and possession begun under them, before the claimants’ right, of entry accrued, should prevent their having any effect to oust the latter. The contention is without merit. The question is whether the possession of the; defendants was adverse after the life tenant died. There was no change in the claim or character of the possession after the life estate determined. It continued as before, and we can only know its nature by reference to the circumstances under which it began and was continued.

Thus, the warranty deeds from Morgan prior to the falling in of the life estate are of first importance in showing whether the possession taken by virtue of them was intended to he, and was in fact, adverse, when continued after the time at which claimants’ right of entry accrued. There can be no doubt of the correctness of this view, on principle, and the authorities fully support it. In Constantine v.

Van Winkle, 6 Hill, 177, 195, the question was whether the possession of a grantee in a deed of husband and wife purporting to pass the fee of the wife, but in fact, because of a defective acknowledgment of the wife, passing only the life estate of the husband, was adverse, after the husband’s death, to the claims of the heirs of the wife; and it was held tliat it was so, and must be referred .to the deed under wbicb it began during tbe pendency of the husband’s life estate. In Miller v. Railway Co., 132 U. S. 662, 692, 10 Sup.

Ct. 206, the supreme court determined the adverse character of the possession of a defendant under a statute of limitations by reference to a deed under which it had begun at a time before the statute could begin to run, because the title was then in the government. In Kinsell v. Daggett, 11 Me. 309, 314, the defendant took exclusive possession of a dam while the fee was in the state.

Subsequently the state conveyed the fee to. the plaintiff, who sought to avoid the effect of the statute of limitations by denying that defendant’s possession was adverse, urging that the acts of disseisin before title passed from the state, when the statute did not run, could not characterize the possession thereafter. The argument was not sustained.

The court said: “Holding exclusively and adversely and openly are the highest acts in the power of the disseisor to indicate his intentions; and, if he thus hold prior to the conveyance from the state, what more could he do subsequently to constitute a disseisin?” Nor is there any substantial ground for maintaining that the possession of the 23 acres held by Morgan in 1860 was begun or continued as that of a tenant in common with claimants. He began his possession under a deed from Maria Bigelow, which conveyed to him and 'Pugh, whose interest he soon acquired, the entire tract, with words of inheritance.

The deed actually conveyed but a life estate, but it purported to convey a fee. Within a year after, and before he had actually obtained any other legal title, he executed a deed in fee of nearly one-half the tract to Con-sidine, with covenants of general warranty.

In the interval between the Bigelow and the Considine deed, being advised that the Bigelow deed only passed a life’s estate, and that the remainder in fee was outstanding in the brothers and sisters of William Barr, Sr., and their heirs, he procured Wood to buy in their interests; and upon December 16, 1839, four days after the Considine deed, Wood executed a deed to him in fee simple of the entire tract, reciting that he thereby conveyed to Morgan the title conveyed to him by the heirs at law of William Barr, Sr.

It is immaterial for our present purpose whether thereafter Morgan’s possession is to be referred to the Bigelow or the Wood deed, for in either case his claim of title thereunder was wholly inconsistent with, and necessarily excluded, any implied admission or avowal that he was holding in common with, or for the benefit of, any one else, whether heirs of William Barr, Sr., or otherwise. The language of Wood’s deed conveying a fee-simple title derived from the heirs of William Barr, Sr., necessarily implied that there were no other heirs entitled than those persons whose interests were thus being conveyed.

In Jackson v. Smith, 13 Johns. 406, the conveyance by one, as the heir of another, of an entire tract in fee simple, was held to imply the conveyance of the ancestor’s entire estate in the land, and possession thereunder was held to be adverse to eight other heirs of the same-ancestor equally entitled with the grantor. As already shown by the authorities aboye cited, it is wholly immaterial in this discussion that Maria Bigelow had only a life estate, and that Wood did not have in him the title of all tin; heirs of the brothers and sisters of William Barr, Sr.

It suffices that the Bigelow deed purported to convey the fee, and that the Wood deed purported to convey the entire remainder in fee then outstanding in the heirs of William Barr, Sr. Allusion has been made to the fact that Morgan’s general warranty deed to Gonsidine was executed before Wood’s deed to Morgan. While this is true, the deeds were but four days apart, and they should perhaps be treated as contemporaneous. Read in the light of the covenants assuring Gonsidine a title in fee, clear, free, and unincumbered, Morgan’s claim of title under both the Bigelow and the Wood deeds cannot be mistaken.

It was,to a fee in sev-eralty. Morgan’s subsequent dealing with his title was a continued assertion of its complete and exclusive character, down to the falling in of the life estate. He asserted it in his bill to quiet title in 1847, and be reiterated the assertion in eight different deeds of general warranty executed between 1839 and I860, by which, at Mrs. Bigelow’s death, he had parted with all but 23 acres of the quarter section.

His petition to perpetuate testimony tiled in 1858 was a claim of exclusive title under the Wood deeds, with the admission and exception of a small outstanding interest in the descendants of Samuel Barr, which he first contested in the Poor-Considine suit, and then bought. That he did not intend to hold as a cotenant even with these heirs was shown by deeds and mortgages of the entire fee executed about the time of filing the petition, and in the interval between that time and the falling in of the life estate.

The same objection is made to a consideration of Morgan’s acts prior to 18(50 to determine the character of his possession thereafter, that we have discussed above in fixing the adverse character of the possession of the other defendants, and for the reasons and precedents there given it is equally untenable here. It is also objected that the possession of the 23 acres held by Morgan in 1860 cannot be affected or rendered adverse by his dealings with the remainder of the quarter section.

Generally it may be admitted' that where the bar of the statute is pleaded as to two sejjarate pieces of land, against the same claimant, adverse possession of each must be made out by circumstances relating to the possession of each piece respectively.

But it would seem that where, by plaintiff’s admission, the plaintiff and defendant are tenants in common in one continuous tract of land, and the defendant, under color of title to exclusive possession, had entered thereon, the defendant might show conveyances by him in fee to others of a much larger part of the tract than his share as admitted by plaintiff, to show that his possession of what he retained was inconsistent with and adverse to plaintiff’s claim.

However this may he, it is not necessary to refer to Morgan’s warranty deeds of the remainder of the tract to show his assertion of exclusive ownership of the 23 acres which he retained. His mortgages, the bill to quiet title, the.petition to perpetuate testimony, and the character of the occupancy, sufficiently show it. He gave a mortgage on Ms homestead a month after Mrs. Bigelow’s death, and three more, covering parts of the tract, in the following-two years, covenanting that his title was clear, free, and unincum-bered.

He was made defendant in an ejectment suit brought by an heir of the brothers and sisters of William Barr, Sr., in 1863, more than 21 years before the bringing of this suit to recover the entire tract, and pleaded not guilty. He bought the title of this heir and others of the same branch after it was settled by litigation, reciting that he was holding adversarily. He sold five acres in 1867, and three more in the same year, with deeds of general Avarranty. He sold six acres with a like deed in 1869, and in 1873 he died in the house he had built upon the tract and occupied for 44 years.

His house and the remaining eight acres were sold under judicial proceedings, and a deed in fee executed to the purchaser, Avho holds it to this day. Entering as he did under a claim to the fee of the tract in severalty, under deeds which purported to give such a title, we are of opinion that his possession was never in privity with claimants, as their tenant in common, or in subordination to them. 2.

But, even if we were to concede that the tenancy of defendants and those under whom they claim was begun as tenants in common with claimants, we cannot agree with the court below in the view that the facts shoAvn in this record were not sufficiently brought home to the claimants to constitute a disseisin, and to set the statute running. Where one enters avowedly as tenant in common with others, his possession is the possession of those others, so long as the tenancy in common is not openly disavowed.

Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, ■clearly show to the Avorld, and to all haAdng occasion to observe the condition and occupancy of the property, that his possession is intended to exclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or dis-seising of his cotenant, to him. He must, in the language of the authorities^ “bring it home” to his cotenant.

But he may do this by conduct, the0 implication of Avhich cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the xn-operty, and exercises that degree of attention in respect to what is his that the law presumes in every owner. Said Mr. Justice Bradley in Re Broderick’s Will, 21 Wall. 503, 519: “Parties cannot, by their seclusion from the means of information, claim exemption from the Iravs that control human affairs, and set up a right to open up all transactions of the past.

The world must more on, and those who claim an interest in p>ersons and things must be charged Avith the knowledge of their status and condition, and of the vicissitudes to which they are subject.” See, also, Townsend v. Eichelberger (Ohio Sup.) 38 N. E. 207; Webster v. Society, 50 Ohio St. 1, 13, 33 N. E. 297; State v. Standard Oil Co., 49 Ohio St. 137, 188, 30 N. E. 279; Williams v. Coal Co., 37 Ohio St. 583; Howk v. Minnick, 19 Ohio St. 462.

There are some authorities in which language is used indicating that, before a tenant in common can hold adversely to his eotenants, he must prove that his eotenants had actual knowledge of his intention to assume exclusive possession, hut it will he found that the language was not necessary to the decision of the cases under consideration. Such a case is Chandler v. Ricker, 49 Vt. 128.

By the overwhelming weight of authority, however, actual notice is not necessary, and acts public and notorious, and of such a character as to leave no doubt to any one observing that exclusive right of enjoyment against (¡very one is asserted by the holder, are quite sufficient to bring home notice of ouster to the tenants in common. Buell is the law of Ohio, in Hogg v. Beerman, 41 Ohio St. 81, 99, the court states the rule as to the adverse possession of one who entered under a deed conferring title as a tenant in common as follows: “Ho had full right to so enter.

Having so entered, his possession continued referable to that deed- continued to be that of one tenant in common — until by unmistakable acts, of which Ins cotenants had notice, or of which it was their duty to take notice, he disclaimed to hold as a tenant in common, and asserted ownership of the entire estate.” In ih,e ease of Youngs v. Heffner, 36 Ohio St. 232, two brothers owned a tract in common. One left and went to Texas, leaving the farm to the other, with the agreement that he cultivate the farm for the benefit of both.

Trace of the absent brother was lost: for more than seven years, and steps were taken to settle his estate as of one dead. Partition proceedings were brought by his representatives, and the tract sold in fee. Twelve years after, the brother returned. The supreme court held that previous to the partition proceedings the tenancy had been avowedly in common, hut that thereafter the possession was adverse, although the absent brother had not actual notice of them. The question has been decided in the same wav in many well-considered cases in other states. Warfield v. Lindell, 38 Mo. 561; Rich v.

Bray, 37 Fed. 277, 278; Lodge v. Patterson, 3 Watts, 74-77; Dikeman v. Parrish, 6 Pa. St. 210, 227; Weisinger v. Murphy, 2 Head, 674; Greenhill v. Biggs, 85 Ky. 155, 2 S. W. 774; Winterburn v. Chambers, 91 Cal. 182, 27 Pac. 658; Bath v. Valdez, 70 Cal. 350, 11 Pac. 724; Forest v. Jackson, 56 N. H. 357; Roberts v. Moore, 3 Wall. Jr. 292, 294, 297, Fed. Cas. No. 11,905; Foulke v. Bond, 41 N. J. Law, 527, 540; Rutter v. Small, 68 Md. 133, 11 Atl. 698; Freem. Coten. § 230. There is nothing in the cases of Graydon v. Hurd, 6 U. S. App. 610, 5 C. C. A. 258, and 55 Fed. 724, and Root v. Woolworth, 150 U. S. 415, 14 Sup.

Ct. 136, which should vary our conclusion. In those cases it was attempted to show (hat a possession begun in avowed subordination to another’s title had been rendered adverse by mere ads in pais upon the land, like the building of fences, the clearing of timber, and the cultivation of the soil, — acts that were in their nature quite consistent with a superior title in another. There were in those cases no open, notorious, and publicly recorded declarations of exclusive ownership on the part of the defendant, in judicial or other public proceedings, of which it would be the duty of an owner to fyke notice.

The court, below rested its ruling, that nothing short of actual notice, of disseisin to the cotenants out of possession would render adverse possession begun in privity with them, upon the language of the supreme court of the United States in Zeller’s Lessee v. Eckert, 4 Howl 289. In that case a testator devised land to his son, but permitted his wife to occupy it until the time when the son should be 15 years old. The son died. The wife married again, and had a second son, and the second husband and second son remained on the land for many years after the first son would have been 15 years old.

The question was whether the possession of the second son and second husband was adverse to the heirs of the first son, and when it became so. It appeared that, even before the expiration of the time within which the wife was permitted under the will to occupy the land, suit had been begun by the heirs of the first soil to recover the land, which was resisted by the second son and his father, and ended in an arbitration and award against the plaintiffs, and that a. second suit ended in a compromise, which was not carried out.

It was held that the possession of the second son and his father was adverse from the time the plaintiffs had a right of entry, i. e. upon the day the first son would have been 15 years of age. 3STo question arose in this case whether constructive notice of a disseisin was sufficient, because actual notice was undisputed. The words of the court so much relied on were not used, therefore, with reference to such a distinction.

They were as follows: “The original possession of Eckert, the husband of the widow, being confessedly in subordination .to the title of the younger White during his lifetime, and after his decease to the title of the heirs at law, down to 1809, when the right to occupy under the will ceased, the burden was upon him to establish a change in the character of the possession after this period; and, being thus in privity with the title of the rightful owner, nothing short of an open and explicit disavowal and disclaimer of a holding under that title, and assertion of title in himself or in his son, the half-brother, brought home to the lessors of the plaintiff, will satisfy the law.

Short of this, he will still be regarded as holding in subserviency to the rightful title. * ⅜ * The only distinction between this class of-, cases and those in which no privity between the. parties existed when the possession commenced is in the degree of proof required to establish the adverse character of the possession.

As that was originally taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the title, and assertion of an adverse right, and to .be brought home to 'the i>arty, are indispensable before any foundation can be laid for the operation of the statute. Otherwise the grossest injustice might be practiced; for, without such notice, he might well rely upon the fiduciary relations under which the possession was originally taken and held, and upon the subordinate character of the possession, as the legal result of those relations.

The statute, therefore, does not begin to operate until the x>ossession,. before -consistent with the .title of the real owner, becomes tortious and wrongful by the disloyal "acts of the tenant, which must be open, continued, and notorious, so as to preclude all doubt as to the character of the holding, or the want of knowledge on the part of the owner.” All that the court meant here to say was that the evidence of the Intention on the part of the tenant in possession to disseise the owner must he of such an open, notorious, distinct, and unmistakable character that the owner must have known of the disseisin if he exercised the slightest care with 'respect to his property.

This is clearly shown by the decision of the same court in the term previous, in Clymer’s Lessee v. Dawkins, 3 How. 674, in which, unlike Zeller’s Lessee v. Eckert, the question whether constructive notice o£ dis-seisin was sufficient, as between tenants in common, did arise, and had to be decided. In that case three tenants in common luid 7,000 acres in Kentucky.

Two of them, without the knowledge of (he third, who lived in another state, instituted partition proceedings in a court of Kentucky, and the tract was divided, and the two complainants entered in possession in severalty of the parts allotted to them respectively. The partition proceedings were defective because not iu compliance with the statute, and were claimed to be void. The period of limitation after the partition proceedings expired before the third, owner brought suit in ejectment against his cotenants.

He was held to be barred on the ground that possession of his cotenants became adverse front and after the defective partition proceedings. Mr.

Justice Story delivered the opinion of the court, and said: ‘•In onr judgment, it is wholly unnecessary to decide whether those proceedings li. e. the partitionJ were absolutely void or not; for, assuming them to have been defective or invalid, still, as they were matter of public notoriety, of which Olymer was hound, at his peril, to take notice, and as Jj.vnch and 151anf.cn, tinder those proceedings, claimed an exclusive title, to the land assigned to them, adversely to Olymer, if the defendants entered under Unit exclusive title the possession must be deemed adverse, in point of law, to that of Olymer. * * ” If, is true that the entry and possession of one tenant in common of and into the land held in common is ordinarily deemed the entry and possession of all the tenants, and this presumption will prevail in favor of all until some notorious act of ouster or adverse possession by the party so entering into possession is brought home to the knowledge or notice of the others.

When this occurs the possession is from that period treated as adverse to the other tenants, and it will after-wards he as operative against them as if the party had entered under an adverse title.

Now, such a, notorious ouster or adverse possession may be by overt act in pais, of which other tenants have due notice, or by the assertion in any proceeding at law of a several and distinct claim or title to an entirety of the whole land, or, a.s in the present case, oí a several and distinct title to the entirely of the whole of the tenant’s imrpnrty under a partition which, in contemplation of law, is known to the other tenants.” The ease of Clymer’s Lessee v. Dawkins is not mentioned in Zeller's Lessee v. Eckert.

Certainly we cannot suppose that (he. supreme court in the latter case intended to overrule the decision in the former without referring to it, especially when such action was wholly unnecessary to the decision of the later case. If a tenant in common, in order to make his possession adverse to a cotenant, is obliged to seek (he latter out and actually inform him of his intention, then it would become impossible to set the statute running against absent: heirs, whose existence and whereabouts were unknown to the tenant, and whose heirship and interest in the property were unknown to themselves.

It: is certainly the policy of the law to require chums which have been latent for many years to slumber on. The disturbance of possessions of long standing, if thus encouraged, would be, as said by Mr. Justice Grier in Roberts v. Moore, 3 Wall. Jr. 292, 294, Fed. Cas. No. 11,905, an intolerable mischief to the community.

Oases can be stated, doubtless, where the fiduciary relation between the possessor and the owner is actual, and not created alone by tbe legal character of their respective titles, in which the dependence of the one upon the loyalty of the other is so" complete that nothing but actual notice of the change from a subordinate to an adverse possession would suffice to set the statute running. In such cases it would seem that the relation must be of such a nature as affirmatively to discourage the owner from giving attention to conduct of the tenant.

But the authorities cited show conclusively that no such rule obtains where the fiduciary relation, if such it can be properly called, is created merely by the character of the respective titles, and not by an actual personal dependence of the owner upon the possessor, and that in such cases the owner is bound at his peril to take notice of acts of the possessor of such open and notorious character, and so unmistakably indicative of an intention to exclude others from any interest in the land, that the world about, including the real owner, must be presumed to know and act upon them.

Any other doctrine would make of a rule of law founded on the plainest principles of natural justice and equity an instrument of oppression, and a means of seriously impairing the peace of society. Indeed, in England so much trouble has arisen from the rule that the possession of one tenant in common is the possession of all that it is now provided by statute that the exclusive possession and enjoyment of the common property by one tenant shall be held to be adverse, and set the statute running, without other proof of ouster. See remarks of Mr. Justice Campbell in Campau v. Dubois, 39 Mich. 274.

In the light of these principles, we think that but one conclusion can be reached as to the adverse character of the possession of the dfefendants from August 3, 1860, until this suit was brought. The bill to quiet title hied in 1847 by Morgan, Considine, and others, was then still on record in the common pleas court of Hamilton county; in which he and they asserted ownership in fee in the lands in dispute.

It is true that, by the petition to perpetuate testimony hied in 1858, Morgan and his grantees admitted a small outstanding interest in the heirs of Samuel Barr; but the same public records which showed this would also show deeds and mortgages, executed both before and after the hling of the petition, which asserted an exclusive ownership in. fee by the' possessors in the entire tract.

Extensive improvements of recent date, in 1860, or actually in process of completion, were patent to the casual observer, and, in connection with the other circumstances, were entirely inconsistent with anything but an exclusive ownership in the improver, and referable only to the claim of title set forth in the recorded instruments already alluded to. Immediately after the life estate fell in, Morgan gave a number of mortgages on his homestead, covenanting that he owned it in fee simple, and these were duly recorded in the public records of Hamilton county.

In 1863 he and his grantees, ■when sued by one who had, by the same title as claimants, a thirtieth interest or less in the property, pleaded not guilty,' although she owned part of the small outstanding interest referred to by him in the petition to perpetuate testimony in 1858. And when, in .1868, he and his grantees took a deed for all these small interests referred to in the petition of 1858, there was inserted a recital that they claimed the land adversarily to the grantors.

The subsequent subdivisions, sales, judicial and otherwise, and the enormous improvements, need not be dwelt upon, except to say that it is difficult to imagine a case in which the legal presumption of knowledge of the adverse character of the possession could be stronger, as against the owners of outstanding interests. 3.

There remains to. consider the contention of claimants, sustained by the court below, that, whether the possession of defendants was at any time adverse to the claimants, the disseisin was subsequently purged by recognition and acquiescence of defendants in claimants’ title, so that an avowed cotenancy ensued before the statute had run. This contention is chiefly rested on the purchase and acceptance by the defendants of deeds conveying to them outstanding interests of certain of the heirs of the brothers and sisters -of William Ban*, Sr., whose title was of the same character as that of claimants.

It is well settled by binding authority that a vendee is not estopped to denv the title of his vendor. Robertson v. Pickrell, 109 U. S. 608, 614, 615, 3 Sup. Ct. 407; Watkins v. Holman, 16 Pet. 25, 54; Willison v. Watkins, 3 Pet. 43; Blight’s Lessee v. Rochester, 7 Wheat. 535. And the necessary conclusion from this is drawn, in the last-named case, that the person in possession of property' under a claim of complete ownership has the light to fortify his title by the purchase of any' real or pretended titles, without thereby holding possession in subordination to them.

This is further supported by the decisions of many other courts to the same effect. Warren v. Bowdran. 156 Mass. 280, 283, 31 N. E. 300; Gardner v. Greene, 5 R. I. 104; Chapin v. Hunt, 40 Mich. 595; Sands v. Davis, Id. 14, 18, 20; Campan v. Dubois, 39 Mich. 274, 279; Mather v. Walsh, 107 Mo. 321, 131, 17 S. W. 755; Giles v. Pratt, 2 Hill (S. C.) 439, 442; Osterhout v. Shoemaker, 3 Hill, 513, 518; Tobey v. Secor, 60 Wis. 310, 332, 19 N. W. 99. Sir.

Freeman, in his work on Co-tenancy and Partition, says (section 106): “A person in possession of land may protect ltimself from litigation by purchasing any outs!finding claim against his property. By so purchasing he does not necessarily admit the superiority of the title bought, nor change his possession, which was- before adverse, into a possession subordinate to the newly-acquired title.

Therefore one who is in ixiaaession 0f real estate does not become a tenant in common thereof b,v merely accepting a deed therefor from the owner of an undivided interest 1 herein.” The following are cases where the possessor and defendant purchased outstanding titles of tenants in common with the plaintiffs in ejectment, and yet was held not to have thereby acknowledged the validity of plaintiff’s title: Fox v. Widgery, 4 Me. 214; Jackson v. Smith, 13 Johns. 406, 413; Northrop v. Wright, 7 Hill, 477, 489, 496; Bryan v. Atwater, 5 Day, 181; Cannon v. Stockmon, 36 Cal. 539; Winterburn v.

Chambers, 91 Cal. 183, 27 Pac. 658; Cook v. Clinton, 64 Mich. 309, 313, 31 N. W. 317. And the same rule prevails in Ohio. In Coakley v. Perry, 3 Ohio St. 344, one Nathan Perry had purchased the land, received a conveyance, and was in possession. Subsequently be took a deed, with covenant of warranty, from Job I)oan, to whom a one-fourth interest in a tax title had descended from his father.

The court say: “It. would be the grossest absurdity to conclude that Nathan Perry, by taking, the conveyance from Job Doan, for a trifling consideration, con-tenuplated, instead of continuing, seised of the whole premises, as he claimed to have been before, that he became seised of only an undivided

part in common with the other heirs of Job Doan’s ancestor. It would seem to be just and reasonable that a person in the bona fide possession of land under a claim of title should be allowed to buy in any title, real or pro-tended, with a view to quiet the enjoyment of his possessions, and that the purchase of an adversary title, if it does not strengthen, should certainly not- have the effect to impair, the title of the owner.

It is not the policy of the law to deter persons from buying their peace, and compel them to submit to the expense and vexation of lawsuits, for fear of having their titles tainted by defects which they would gladly remedy by purchase, where it can be done with Safety.” Whether the acceptance of a deed of an outstanding interest by^ one in possession shall affect his adverse possession, depends on all’ the circumstances surrounding it. Generally, if his possession began under a claim of title in fee, the purchase of another title is not to be regarded as a change of his attitude.

His purchase may strengthen his title, but it is usually not permitted to impair it. Oases may perhaps be conceived where the acceptance' of a deed of an interest in property by one in possession would be equivalent to an express avowal of subordination to the title of others in priv- . ity with the grantors, but it would be exceptional. The cases relied upon by the court -below to establish a different doctrine do not seem to us to do so. They are Criswell v. Altenmus, 7 Watts, 565; Vaughan v. Bacon, 15 Me. 455; Carpenter v. Mendenhall, 28 Cal. 487; Carpenter v. Small, 35 Cal. 356; House v.

Fuller, 13 Vt. 165; and Parker v. Proprietors, 3 Metc. (Mass.) 99. In the two cases first above cited the possessor and defendant had expressly relinquished his adverse possession and had agreed to hold under and for plaintiffs. If the two California cases contain a principle different from that we have above stated (which may be seriously questioned), they are overruled by the latter cases in the same state already cited. In House v. Fuller, 13 Vt. 165, a defendant in ejectment defended on the ground that he was a tenant in common of the plaintiff, and plaintiff had never demanded possession in common.

It appeared that defendant had entered under a deed which disseised plaintiff, but that he subsequently took a deed from a tenant in common with plaintiff, and that thereafter he had never denied plaintiff’s title or his right to possession. Under these circumstances it was held that defendant might claim to hold under the latter deed, but there is nothing in the case to show that, if he had chosen so to do, he might not have continued his adverse possession in spite of the second deed.

In Parker’s Case, in 3 Mete. (Mass.), Justice Wilde, in passing, does say that where a man without color of title disseises heirs, and subsequently buys the interest of one of them, he purges his disseisin as against all; but the remark was .unnecessary to the case, and in any event would seem to have no application to a case like the present, where there is color of title to which the disseisor’s continued possession may be referred. More than this, the view we have taken is sustained by a much later decision of the same court in Warren v.

Bowdran, ubi supra. Í Taving determined the principles applicable to this branch of the case, we come now to examine the circumstances under which these deeds of outstanding interests were taken, and the other alleged admissions of superior title in claimants were made by defendants. In his bill to quiet title, in 1847, Morgan averred that he had acquired the whole legal title, and in his petition to perpetuate testimony, in 1858, he in effect stated that he had acquired all but a small part of it.

Between the filing of this petition and the death of tin; life tenant, Morgan had conveyed about 20 acres more of the tract by deeds of general warranty, and his grantees were selling off large tracts in fee simple, and, by most extensive improvements, wore giving every possible evidence of an exclusive and adversary ownership. When one of tin; owners of the small interests referred to by him in his petition of 1858 sued him in ejectment in 1863. ho and his grantees resisted and pleaded not guilty.

How could they more clearly emphasize the fact that the purchase of outstanding interests had not been intendal to put their holding in subordination to those which remained un-bought?

In 186!), after the Poor-Gonsidine litigation had settled the proper descent of the title, ¡he defendants joined in an agreement to buy up the outstanding interests of three heirs of Samuel Barr, brother of William Barr, Sr., which they had not been able to purchase, because of the litigation and the syrapaihy felt by that branch in the adverse claim to the entire tract made therein by the direct descendants of William Barr, ⅜., with whom these heirs had intermarried. Deeds were procured, and expressly recited the adversary claim of Morgan and his grantees.

In the face of this recital, tiow can it be said that defendants thereby changed their ad-’K'rse holding into one subordinated) thetitle of other possible heirs? Nor can the deeds of 1871 from the heirs of Andrew Ban*, or those of 1873 and 1877 from the heirs of Jane Mewhirter, be given any such effect. The proof is overwhelming, from all the attorneys now living who conducted the negotiations that led to these deeds, that they were purchased merely to avoid litigation, and with the assurance that there were no other outstanding interests.

If is true that some of these deeds are drawn with covenants of general warranty, and carefully describe ttie interests claimed by the grantors, but deeds in this form no more estop the grantee to deny or resist grantor’s title than a quitclaim. Giles v. Pratt, 2 Hill (S. C.) 439, 442.

It is suggested in the opinion of the court below that, if claimants were to be charged with constructive notice of the publicly recorded acts of defendants in regard to this proj>erty, the acceptance of these deeds would lead them to suppose that defendants’ possession was not hostile to the title under which they claimed, however adverse prior acts may have rendered it. An examination of the records from 1868 to 1881, the period covered by these deeds, would have disclosed to the claimants a dealing with all this property by its possessors utterly inconsistent with anything but their exclusive ownership.

A large surburban village was constructed on the tract, with all the numerous recorded changes of ownership and permanent improvements which that implies. The claimants would hardly be justified in supposing that small householders, who had put their savings into town lots and brick houses, were doing so as tenants in common with unknown heirs, and in subserviency to their title.

And this suggests another aspect of the case, which renders it still more difficult to sustain the theory that defendants purged their disseisin of claimants by accepting deeds from other heirs of the brothers and sisters of William Barr, Sr., or in any other way. A close examination of this entire record satisfies the court that when Morgan and his grantees filed their bills to quiet their title, in 1847, they supposed they had acquired all the outstanding interests of the heirs of the brothers and sisters of William Barr, Sr.

Morgan so stated in his bill, and his acts and those of his grantees manifest their confidence in this belief; Indeed, when Morgan received the first Wood deed, it is probable that he then thought he had the title of all the heirs. The recital in the Wood deed, and the character of Morgan’s deed to Considine, indicate as much.

That Morgan should have been so much mistaken as the facts found by the court below indicate is not strange when we consider the difficulty that the parties to this record have had in tracing the true history of the various and remote branches of this numerous and widely-spread family in these days of quick communications.

The egregious lapses of memory in many witnesses as to near members of the family, and the uncertainty of the claimants themselves as to their immediate relatives, show that it was entirely possible for Morgan and Wood, in 1850 and later, to have been misled as to the number and identity of the descendants of William Barr’s brothers and sisters, who were far along in life when the century began.

In 1858, it does appear, from his petition to perpetuate testimony, that he knew that the interests of some of the heirs of Samuel Barr were outstanding, but he and his grantees bought these as soon as the decision of the supreme court made it possible. The deposition of Maria Bigelow, taken on the petition of 1858, showed that the number of William Barr, Sr.’s, brothers and sisters was six. Her statements made it probable that the lines of two, and perhaps three, had become extinct.

The finding in the Poor-Considine case was made on the basis of four inheriting lines, and in 1871- the deed of Andrew Barr’s alleged heirs recited the shares on the basis of five such lines. The court below found that there were six. The sixth line was made by proof of a will by one brother who was known to have died without issue. The identity of this testator with the brother of William Barr, Sr., .was fiercely contested, and the evidence .presented a close question, both on its weight and competency.

The evidence of the descent of those claimants who claim under Sarah or Mary Grafton, a sister of William Barr, Sr., though found by the court below to be sufficient to sustain it, .is by no means so conclusive, after years of careful preparation by acute and industrious counsel, that Morgan and his grantees, with the lights they had, might not reasonably have supposed that this line had become extinct.

We quite concur with the learned judge who delivered the opinion of the court below in thinking that the deeds which Morgan and his grantees received from the Barr heirs covered those of all the heirs they could find or hear of. It was not until the decision in the case of Poor v. Considine by the supreme court of the United ¡Mates had been spread abroad in the published reports of that court, and liad shown the chance of an inheritance to any one hearing the name of Barr who traced his descent hack to Pennsylvania, that these slumbering claimants began to appear from distant states.

Till then they were as ignorant of their interests as the defendants were of their existence. Morgan and ids grantees, it now appears, had actually acquired in 18(50 a large; part of the share descending to each of four lines; and then had deeds from other claimants, whose descent and interest Mrs. Bigelow was unable to fix in 1858, and which cannot even now be satisfactorily established.

These circumstances malee it entirely reasonable and probable that Morgan and his grantees in good faith believed, as they said they did, in 1847, in 1858, and in 1803, that they had acquired the interests of all the heirs of William Barr, ¡Sr.’s, brothers and sisters, with the exception of a small interest which became theirs in 1868. From time to time, its new claimants appeared, they bought them off to round out their title, made defective by this new development, and with no intention of admitting, and not in fact believing, that there were other interests outstanding of the same kind.

Each settlement after 1.8(58 was made by the harassed possessors wilh the assurance that the interest purchased was the last. Indeed, it is in evidence that the counsel who had negotiated the last purchase declined employment by the present claimants, or some of them, because he; had made such strong representations to the possessors that his clients were the only heirs whose shares had not been acquired. The court below expressly found that the defendants had acquired all the outstanding interests they could find or hear of.

We have already pointed out why this series of purchases cannot he construed into a change in the adverse holding by Morgan and his grantees against all the world, in view of the course of their dealings with the property, which continued the same from 1860 to 1886.

But what we now wish to emphasize is that even if these purchases are to be construed as admissions that the vendors had titles superior to that of the vendees, and as controlling evidence of an intention on the part of the vendees to claim under the title thus acquired, they certainly could not. be held to he admissions of title in the claimants, and evidence of an intention to claim under them, whose existence and heirship they did not then suspect, and the heirship of many of whom, on the evidence adduced, they even now deny.

A claim of title under an ancestor is not a claim of title under the heir, when the heirship is not known or admitted. Acquiescence in the title of one heir is entirely consistent with a possession adverse to a eolieir, when the fact of the relationship between the two is' unsuspected or is the point in dispute.

The fact of heir-ship is as material to a title by descent as the existence or validity of a deed to a title by purchase, and acquiescence in the title of the ancestor and some of his heirs is no more an acknowledgment of the title of his unknown heirs than would the recognition of the title of a grantor and some of his grantees be an acknowledgment of the title of other grantees claiming under a deed, the existence, genuineness, or validity of which was not admitted.

The contention of the claimants and the holding of the court below on this branch of the case, when reduced to their last logical analysis, amount to this: that when one in the exclusive possession of a tract of land, claiming it in fee under the known heirs of a former owner, is confronted with the claim of one asserting an interest in the property as an hitherto unknown heir of such former owner, and, through fear of its validity, buys it in the confident belief that it is the only outstanding interest, he thereby becomes the avowed cotenant of all other heirs of the same former owner, of whose existence he has no suspicion, so that his possession forever after is their possession.

If this is the law, surely it is a trap for the prudent as well as the unwary. Under such circumstances, to impose on the defendants obligations to the claimants which grow out of the fiduciary relation existing between avowed tenants in common, merely because defendants were trying to strengthen their title as its defects became revealed to them and to avoid the chance of litigation, seems to us to work .against them great injustice.

Some argument is made to show that Morgan and his grantees ought to have known of the heirship of complainants and cross-complainants, if they did not, and that if they had used due diligence they might have discovered it. It would be a new doctrine, indeed, if persons in possession under a most notorious, distinct, and explicit claim of title in fee, in order to make their possession adverse to all the world, were bound to show the use on their part of due diligence in hunting up unknown heirs, and their failure to discover them. In Foulke v. Bond, 41 N. J.

Law, 527, the court of errors and appeals of New Jersey, in considering a case not unlike this, on its facts, under' a statute in which good faith is a necessary element of successful adverse possession, though it does not seem to be in Ohio (Yetzer v. Thoman, 17 Ohio St. 130, 132, 133), used this language: “It Is contended on the part of plaintiff that the defendant had constructive notice of the imperfection in his title, on the principle that a party is legally chargeable with knowledge of the contents of the deeds in his claim of title, and therefore was not a purchaser bona fide.

But the doctrine of constructive notice does not apply in such a case. There must be proof of actual fraud. Mere neglect to inquire into the state of the title is not sufficient evidence of fraud. Nor does the rule that what is sufficient to put a party on inquiry operates as notice apply in such case. There must be clear and satisfactory proof of knowledge that the title supposed to be acquired was invalid, accompanied by proof of an intent to defraud the real owner. Clapp v. Bromagham, 9 Cow. 531.

If the law were otherwise under the system of recording adopted in this country, a disseisin of one tenant in common by a conveyance of the entire estate by his cotenant would be quite impossible.” Pages 542, 543. The court of appeals of New York, in Sands v. Hughes, 53 N. Y. 287, said: “The mere taking by a purchaser of a bad title Is not fraud; nor is the doctrine of constructive notice of defects in the title, arising out of neglect in the purchaser to investigate, applicable on the question of adverse possession. This was decided by the court of errors in the case of Clapp v.

Bromugham. 9 Cow. 558. whore a deed from the committee of a lunatic and a deed from one of several tenants in common were held each to be a good basis for an adverse possession in the grantor.” Hut, even if due diligence were necessary, the court helow, in its finding already alluded to, acquitted the defendants of failure to exercise it.

The result is that the adverse possession of Morgan and his grantees against claimants began in 1800, when Maria Bige-low’s life estate determined by her death, and ripened into an indefeasible title some five years before this suit was brought, and became and is a complete bar to this action. It is claimed that the case of some of the cross complainants is taken out of the operation of the statute by the fact that suits to partition this land were brought by them in the court of common pleas of Hamilton county against the defendants in 1881, before the 21 years after the death of Maria Bigelow had expired.

It does appear from the record that, six days before the statutory period had expired, four suits were brought for partition against a part of the defendants, to partition the tract in question, — one by Robert Barr, one by Samuel Barr, one by Jane Chapman, and one by Martha Reed. Each plaintiff claimed one-fortieth interest in the tract, as heir of William Barr, Sr. Three years later Samuel Barr, Jane Chapman, and Martha Reed filed cross petitions in Robert Barr’s suit.

Samuel Barr joined with him in this cross petition James Barr and others, and claimed one-fifth of the entire tract as devisees under the will of old Robert Barr, brother of William Barr, Sr., in addition to the one-fortieth interest set up in his suit of 1881. About a year after the filing of the cross petitions the separate suits of Samuel Barr, Jane Chapman, and Martha Reed were voluntarily dismissed. In 1889, four years later, the cross bill was filed below, in which all these interests were set forth and relied on as grounds for partition here.

Meantime a decree for partition was rendered by the common pleas court for interests aggregating 1S/82B of the entire tract, in favor of some of the plaintiffs, and an appeal wastaken to the state circuit court, where it is pending for trial de novo. It might be difficult to see how the bar of the statute could be avoided, except In the case of Robert Barr, and then only for the interest he originally claimed, to wit, one-fortieth.

But we do not find it necessary to pass on this question at all, and we do not do so, because we are clearly of opinion that, however completely the claimants in the suits in the state court may have escaped the bar of the statute for the purposes of those suits, they cannot be pleaded in this action, begun several years later, to avoid the statutory bar to relief here. The bringing of one action does not stop the statute, when pleaded in a later action. Delaplaine v. Crowninshield, 3 Mason, 329, Fed. Cas. No. 3,756; Stafford v. Bryan, 1 Paige, 239; Moore v. Green, 19 How. 69, 71; Crane v.

French, 38 Miss. 503, 525, 528; Callis v. Waddy, 2 Munf. 511. A judgment in ejectment in favor of the plaintiff establishes his right of entry, but does not suspend the statute of limitations. To do this there must be a change of possession. Smith v. Trabue, 1 McLean, 87, Fed. Cas. No. 13,116; Doe v. Stevens, 1 Houst. 240; Jackson v. Haviland, 13 Johns. 229, 235; Doe v. Reynolds, 27 Ala. 364, 377; Smith v. Hornback, 4 Litt. (Ky.) 232.

If Robert Barr or any of his co-claimants have a good right to any interest in this land saved from the bar of the statute by the suit or suits now pending in the state courts, they must prosecute it there. Here they, equally with all their co-complainants, are barred. One other contention of the complainants should be here noticed, although not pressed before the court in argument.

In an amendment to the second amended bill, the complainants Sarah King, daughter of Augusta King, and Marcus and Luella Love, her granddaughters, sought to avoid the statute of limitations by the following averment as to their disability: “Complainants further allege that Augusta Grafton, one of the heirs of Mary Grafton, intermarried with one James King in the month of August, 1858, prior to the determination of the life estate of Maria Bigelow; that she remained in coverture until some time in December,. 1879, and that the complainants Sarah King and Marcus Love and Lauretta Love, who are the heirs of Augusta Grafton aforesaid, were therefore under disability until December, 1879, at which time said coverture was removed; and that their right of action accrued in 1879.” Augusta King was found by the court below to be an heir of Sarah or Mary Grafton, sister of William Barr, Sr.

It was through her that Sarah King and the two Love children claimed. The evidence shows that her husband, James H. King, died in 1869, instead of 1879, as averred. The statute began to run against the wife at that time, and made the bar complete 21 years after the death of Maria Bigelow, in 1860. By

section 4978, Rev. St. Ohio 1890, the rights of married women were saved for 10 years after the removal of the disability, if the disability continued during the 21 years; but, where the disability was removed more than 10 years before the expiration of the 21 years, the saving clause had no possible . application. The bar of the statute was therefore complete against Augusta King before her death, in 1885, and she had no estate in this land which could descend to these minor complainants.

The appellants assign error to the action of the court below in taking jurisdiction of this partition in equity before the disputed questions of title had been settled by action at law. In view of our very clear conviction that on the merits the statute of limitation is a complete bar, we have deemed it best not to consider this assignment of error.

The dreadful weight of this litigation should be lifted as soon as possible from this unfortunate quarter section, and, having reached the conclusion stated, we would, if we could, .avoid a decision which would simply transfer this tedious and expensive controversy to another forum, there to drag its slow and exhausting length along. The objection to the equitable jurisdiction of the court below in a case lilce Uiis is one wbicli can be waived.

It is of a class of actions usually cognizable in equity, and though it be conceded that, for a special reason, it should be heard at law first, the rule is, in such a case, that the objection, if not made below, will not be considered here. Reynolds v. Watkins, 9 C. C. A. 274, 60 Fed. 824; Reynes v. Dumont, 130 U. S. 355, 9 Sup. Ct 486; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594.

As the complainants and cross complainants went into equity, they cannot complain of a decree on the merits; and we may assume that the defendants, whatever may have been their previous view, are now willing to waive any objection on this ground. (June 14, 1895.) Our holding as to the plea of the statute of limitations disposes of this case, and makes it unnecessary to consider any of the many interesting questions of pedigree evidence and allowances for improvements, and the much-contested validity, construction, and effect of old Robert Barr’s will, which, together with the question divided, have been elaborated in tin* brief of counsel for appellants with an industry, ability, and copiousness of authority rarely equaled in this court.

The decree of the circuit court is reversed, with instructions to dismiss the hill at the costs of the complainants and cross complainants, both in this court and the court below.