T. S. Coogler et al., Appellants, vs. Charles P. Rogers, Appellee, 25 Fla. 853

The opinion of the court was delivered by the Honorable John F. White, Judge ot the Third Judicial Circuit, who sat in the place of Mr. Justice Mitchell, disqualified. Plaintiff below recovered a judgment for the lands in dispute, from which defendants appealed. Appellants assign nine errors in the trial of the case below, and insist and rely for a reversal on those several grounds. We propose to notice only such of these as in our opinion are decisive of the case.

The first error assigned is, that the court erred in refusing to dismiss said cause on his motion, because brought in the name of Rogers, the nominal plaintiff, by Smith,’the real plaintiff, without the knowledge of Rogers. Was the action properly brought in the name of O. P. Rogers ? The record does not show that suit was commenced in the name of Rogers against his consent, or that he at any time interposed objections to its being so entered or continued in his name. He only disclaims any interest in the land, or knowledge of the action on the trial of the case.

It is well settled that a deed made to laud by a person out of possession, when the lands are held adversely by another, though good as between the grantee and grantor, and as to all other persons, except as to the part}1- in adverse possession. Yet as to him, and to those that afterwards come in under him, it is entirely void, and as a conveyance a mere nullity, and cannot be read in evidence against him. In such case the attempt to convey, at least as between the grantor, grantee and the person in possession, fails to accomplish its purpose or object.

In such case, in contemplation of law, as between the grantor, grantee and the person in adverse possession, the title remains in the grantor or original proprietor, and he may sue to recover the land, but the deed to lands thus held in adverse possession, being good as against the grantor, his heirs and strangers, and void as to the party in possession, an action will lie against him in the name of the grantor notwithstanding such deed, but not in the name of-the grantee. And such recovery when had by the grantor will enure to the benefit of the grantee. Hamilton vs. Wright”, 37 N. Y., 502; Wade vs.

Lindsey, 6 Metcalf, 413, 414; Betsey vs. Torrance, 34 Miss., 138; Wilson vs. Nance, 11 Humph., 191; Edwards vs. Parkhurst, 21 Vt., 472. So it has been held in Pennsylvania that ejectment will lie and be maintained in the name of the warrantor, although he might have no beneficial interest in the land and might not have known of the'action. Cambell vs. Galbreath, 1 Watts, 70.

As before remarked, Rogers does not seem to have interposed objection or opposition to the use of his name as nominal plaintiff; and if he conveyed or attempted to convey to Smith and received a valuable consideration therefor, inasmuch as the action could have been maintained successfully in his name, he would be estopped to refuse the use of his name in an action to promote and secure the endsof justice, in the event he attempted so to do.

Entertaining these views, we see no error in the action of t.'ie court below in overruling appellants’ motion, and this disposes of several of the other errors assigned by the appellants, especially the second, fourth and others of like character. It being evident that the action must stand or fall upon the strength of the title of Rogers alone, and his recovery, if recovery be had, muting to the benefit of Smith, the real plaintiff, it follows that if the recovery cannot be had upon the strength of the title of Rogers, then the action cannot be. maintained, nor a recovery laid upon the title of both combined.

The fifth error assigned by appellants is, the court below erred in charging the jury ‘£ that if Annie Rogers received land from her father, John L. May, and died without issue, the land descended to her husband whether she was of age •or not.” It is earnestly contended by counsel for appellants, that inasmuch as Annie Rogers died without issue, and before she arrived at the age ot twenty-one years, that such real estate descended to the paternal kindred, or to the kindred of her father, John L. May, deceased, under our statute of descent of 1829, McClelland Digest, 469, sec 2.

While we consider the statute of 1829 as the law governing the descent of real and personal property of unmarried minors, where the same is derived from the father or mother, without expressing an opinion as to the statute of 1829 on estates of married persons who died without issue, and who were minors at the time of their death, prior to the act of March 6, 1845, we think it was the intention of the Legislature in passing the twelfth

section of that act (McClellan’s Di.gest, 471,) to make a distinction between the descent of property of deceased unmarried minors, and that of deceased married minors, without regard to the source from which the latter class derived such property, and we are persuaded that the descent of property owned by married persons who die under the age of twenty-one, is governed and controlled by the act of 1845, directing the disposition and descent of property of married persons dying intestate,whether with or without issue born, and that it is not now controlled by the act of 1829.

The Legislature of 1845 no doubt wisely intended in passing said act to more clearly define and fix the rights of a surviving husband or wife on the death of the other, as to the property owned by either when dying intestate. It was reasonable and right, just and proper, that the old law of 1829 should be made more intelligible and just, and conform more to the liberality of our age and institutions. The rights of the surviving husband, and his interest in the estate of his deceased wife, as tenant by the courtesy secured to him by

section 2, Acts of 1829, in estates there referred to, were hedged in by the embarrassing subtleties growing out of the-doctrine of tenancy by the courtesy at common law. These intricacies and subtleties were a fruitful source of litigation, for to create a tenancy by the courtesy at common law four things had to occur and combine: '1st, marriage ; 2d, actual seisin of the land by the wife during coverture ; 3d, issue born alive of her which might inherit the same estate as heir of the wife; and 4th, the death of the wife.

This often-worked a great hardship to the surviving husband, who,, though he might have lived with his wife from early youth to hoary age, and though there was actual seisin of the wife for the whole period of coverture, and though lie might have expended his energies in improving and embellishing the estate of the wife, yet if there were no issue born of the wife capable of inheriting the estate as heir of the wife, on her' death the surviving husband was left without any estate whatevei in her property and was liable to bo ousted from his homo in his old age, as he took nothing as tenant by the courtesy.

This unjust and inequitable appendage of the common law being contrary to our institutions, and to the liberality of the age in which we live, no doubt led to the passage of the act of 1845, the provisions of which are more in accord and harmony with modern notions of right, and justice, and which clearly and squarely and without any contingency declares and defines the estate of the surviving husband dying intestate, with or without issue born, dead or alive.

It is insisted by counsel for the appellants that the act^of 1845 can only be construed to refer to, and be applicable to, “adult married women,” and to their property ; that a “female cannot be considered a woman in law until she is twenty-one years of age.” To this it may be replied that while it is true she is disqualified by minority from making certain contracts, such as the making of deeds of conveyance, and relinquishment of dower, yet this disability does not -attach to the contract of marriage nor its incidents, for, as to this contract at common law, she could assent to it at the age of twelve years; and for the purpose of marriage, including and involving all the rights and responsibilities consequent upon the consummation of this contract, she is considered in law a “ woman,” though she may not have arrived at the age of twenty-one years. • “ Marriage,” in a legal sense, is defined to be a conti'act, made in due form of law, by a man and woman reciprocally engaging to live with each other during their joint lives, and to discharge towards e.ach other the duties imposed by law on the relation of husband and wife, and all persons are able to contract marriage, unless they are under the legal age, or other disabilities. 2 Bouvier’s Law Dictionary, Title “Marriage.” By the provision of the twelfth section, Act of March 6, 1845, it is provided, “If married women die in this State possessed of real and personal property, or of either species of property, the husband shall take the same interest in her said property, and no other, which a child would take and inherit, and if the wife should die without children then the surviving husband shall be entitled to administration and to all her property, both real and personal.” See McClellan’s Digest, Sec. 12, 471.

The language of the statute is so plain, giving to the husband the same interest, and no other than therein provided for, that we are constrained to believe that it repeals the act of 1829 as to the estates of married minors, if said act was ever intended to apply and control the descent of married minors’ estates, and the court below committed no error in giving the charge as claimed by appellants in the fifth error assigned. It is further insisted by the appellants that the appellee,.

Rogers, (plaintiff below) was estopped from setting up a claim to the land in the controversy against Coogler and Higgins, the appellants. From what has already been said, we do not deem it important to inquire what effect the estoppel, of Rogers, the nominal plaintiff, would have and work upon the right of Smith, the real plaintiff; but inasmuch as there will have to be another trial had in this cause from what follows-hereafter,- we deem it proper to dispose of any disputed point that may arise on this question hereafter.

We inquire, does the estoppel of the nominal plaintiff in ejectment reach to- and substantially affect the real plaintiff, and whether or not he is also estopped from maintaining an action for the recovery of the land conveyed to him by the nominal plaintiff, where the nominal plaintiff is estopped from bringing such action ?

From the fact already stated- — -that the deed from Rogers to Smith was void as to Coogler, because executed by Rogers out of. possession, and while Coogler was holding the land adversely, and because as between Rogers, Smith and Coogler, iu a contest over the lands in dispute, the law deems the title, if any exists, to be in Rogers, whose recovery will inure to the benefit of Smith — we are of the ojfinion that if the doctrine of estoppel applies to Rogers in this case, then Smith is likewise estopped to claim the lands or maintain an action against Coogler or those holding lawfully under him.

It has been repeatedly affirmed and decided that one claiming title under a party who himself is estopped, to deny the title of another is likewise estopped, and bound by such estoppel to deny the title of such other person. Phelps vs. Blount, 2 Dev., (N. C.) 177; 3 Washburn on Real Property, 94; Scott vs. Douglass, 7 Ohio, 227; Carver vs. Jackson, 4 Peters, 85.

Estoppel is defined to be “the preclusion of a person from asserting a fact, by previous conduct inconsistent therewith, on his own part, or on the part of those under whom he claims.” Bouvier’s Law Diet., Title “Estoppel.” But was Rogers estopped from bringing an action against Coogler, either in his own right or for another, for the lands in controversy ? Stephen, in his Pleading, defines estoppel to be “ a preclusion in law which prevents a man alleging or denying a fact in consequence of his own previous act, allegation, or denial of a contrary tenor.” Stephen’s Pleading, 239.

And it has been repeatedly decided that the principal of estoppel is applicable to all cases where one by word, act or conduct wilfully caused another to believe in the existence of a certain state of things, and thereby induces him' to act on this belie! injudiciously to himself, or to alter his own previous' condition to his injury. 16 Wend., (N. Y.) 31; 28 Maine, 525; 11 Wend., (N. Y.) 117; 9 New York, 121; 1 Dev. & Battle, 464; 12 Vt., 44; Keyser, Judah & Co. vs. Simmons, 16 Fla,, 268; Camp vs. Moseley, 2 Fla., 171; Hollingsworth vs. Handcock, 7 Fla., 338; Levy vs. Cox, 22 Fla., 552.

This court in an early day and in a well considered case, used the following language : “The technicalities incident to an estoppel, especially in pais, are gradually giving way to considerations of reason and practical utility ; and the courts of the present day seem disposed to give force and efficiency to a doctrine which is based upon principles of justice and the purest morality.” Camp. vs. Moseley, 2 Fla., 197, text: From cases cited above, and numerous others adjudicated, the law of estoppel may be briefly laid down as follows : 1.

Words and admissions, or conduct, acts and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things. 2. In which the person so speaking, admitting, acting and acquiescing, did so wilfully, culpably or negligently. 3. By which such other person is or may be induced to act so as to change . his own previous position injuriously. Referring to the evidence as shown by the record in this cause. 1.

As to the prior conduct of Rogers in regard to the lands in controversy, it is clear that he 'never actually entered into the possession • of any part of the lands personally, or by tenant: and there is no evidence that he ever attempted to do so, or that he ever claimed to own an interest in the same; while it is evident . that Barnes and wife, Coogler’s grantors, did enter and claim .'to be the owners of the land. 2. When the title is assailed by creditors of Matilda IT.

May, Rogers refused to join in the defense, or to contribute anything to protect the) title, and refused to allow his name to be connected therewith. He could not have been ignorant of those suits carried on in the name of Barnes and wife alone, nor of his interest there.in, if he claimed or had any, for he had actual knowledge . of the same brought home to him by Barnes and by Coogler.

His acquiescence therein, and his acts and acquiescence in . and before said suit, or circumstances to be considered in .connection with his subsequent declaration to Barnes that he had no interest in the litigation, which was certainly tantamount to saying that he had no interest in the land, and, . to Coogler, when he declared, as Coogler testifies, that he claimed no interest in the lands. “The acts and admissions of a party operate in the nature of an estoppel,when in good conscience and honest dealing, he ought not to be permitted to gainsay them.” Welland Canal Co. vs.

Hathaway, 8 Wendell, 483, cited and-approved in 2 Fla., 197, text. “Admissions arising from-demeanor and conduct are conclusive against the party when he has received a benefit therefrom, or prejudiced another thereby.” 2 Saunders’ Pleading and Evidence, 1. Mr.

Starkey, in his valuable work on evidence, says, as to admissions: “In general, admissions may be presumed not only from the declarations of the party, but even from his acquiescence or silence, as for instance, when the existence of a debt or a particular right has been asserted in the presence of a party, and he has not contradicted it, such acquiescence and silence will amount prima facie to an admission of a debt or right.

So an acquiescence and endurance, where acts are done by anothei', which if wrongfully done, are encroachments and call for resistance and opposition, are evidence of a tacit admission that such acts could not be legally resisted.” 2 Starkey’s Evidence, 37, cited and approved in 2 Fla., 198, text.

The evidence shows that Rogers said to Barnes, when told of the prospective or pending litigation, and when told by Barnes that if he, Rogers, made any claim to the land, that they would have to fight for it; “well, he didn’t intend to have anything to do with it; if I wanted it I would have to fight for it.” Coogler swears; In January, 1879, lands were levied on under an execution against Matilda H. May. I was employed by Barnes.to enjoin the sale. I endeavored to get Rogers to unite in the suit if he claimed any interest in the land.

Rogers refused either to let me use his name, or contribute to the prosecution of the suit, stating to me the fact that he claimed no interest in the land. I therefore filed a bill in the names ot John D. Barnes and wife against Mayo, administrator of Edrington. The positive denial of any interest in the lands to Coogler, his utter refusal to aid in the' suits to protect the title, coupled with his assei-tion that he had no interest in the litigation concerning them, his refusal to allow his-name to be connected with said suit in any way, are all circumstances to be considered in determining this question.

We ask, was the conduct and declaration of Rogers “wilful, negligent or culpable ?” If the denial of interest in the land to Coogler, and denial of interest in the litigation concerning the lands to Barnes were made by Rogers, with a knowledge .of his right in the lands, as the husband of the deceased wife, and we believe that it was, then it was wilful ; and if not made witli such knowledge, then his utterances and conduct showed culpable'negligence.

Were those utterances, acts and admissions, coupled with the conduct of Rogers throughout, calculated to induce Coogler to believe that if he purchased the lands from Barnes and wife, that as to Rogers, he would get a good title, and peaceable possession of the same?

Taking the statements as proven, in connection with the surrounding circumstances,we think that Coogler was justified in believing, and did believe when he bought the lands from Barnes and wife, that he would have no litigation with Rogers, directly or indirectly, in regard to the same, and could not have expected that Rogers could be capable of assailing his title, directly or indirectly.

The very fact that Rogers attempts to convey the land without warrantee, except against himself, is a potent circumstance going to show his want of confidence in his title to said lands; and after his denial of interest iu the lands, after his tacit admission that the lands belonged alone to Barnes and wife, after throwing upon them the extire expense, and loss of time incident to protracted litigation, in protecting and enforcing their sole claim to it, in morals and in conscience, as well as in law, Rogers is estopped to claim the sa,me, and cannot maintain an action to recover it, either for himself or another. “The law imposes silence on him, and prevents his setting up a claim against a purchaser who had been influenced by his conduct,” or against those holding under him.

Levy vs. Cox, 22 Fla., 552; Camp vs. Moseley, 2 Fla., 197, text; Hollingsworth vs. Handcock, 7 Fla., 338; Welland Canal Co. vs. Hathaway, 8 Wend., 483; 16 Wend., 531; 9 N. Y., 121; 1 Dev. & Battle, 161. Entertaining the above views, we are of opinion that the verdict as rendered in the court below, should not be allowed to stand, and that the judgment rendered thereon should be reversed.

It is further insisted by the appellants that the proofs-showed in court below, that they had held the land adversely to the appellee for more than seven years before the commencement of this suit by the plaintiff; and that the action was barred by the statute of limitations, and that it was error to refuse a new trial, as the verdict of the jury was contrary to the evidence and the law. This brings up for consideration the very difficult question of what constitutes adverse possession under the statures of our State.

For obvious reasons growing out of the shortness of limit of our statute, being only seven years, our sparse population, and extensive domain, we think the doctrine of adverse possession is to be taken strictly, and should not be allowed to be made out by inferences, but by clear and positive proof.

Every presumption should be in favor of possession in subordination to the title of the true owner, for, to allow a different construction, (says Chief Justice Marshall,) “would be to make the statute of limitations a statute for the encouragement of fraud — a statute to enable one man to steal the title of another by professing to hold under it.” Kirk vs. Smith, 9 Wheat., 241.

The possession to be adverse must be: 1, hostile to the tr.ue title; 2, it must be open; 3, it must be continuous; 1, it must be notorious; so as to prevent all doubt as to the character of the holding, or want of knowledge on the part of the owner. Hart vs. Bostwick, 14 Fla., 178-9, text. Measured by these rules, was the possession of the appellants adverse? It has been decided that where one enters upon land under a deed duly acknowledged and recorded, he acquires a freehold either by right or wrong; if by wrong,, it is an actual disseisin of all claiming the land under a different title, Higbee vs.

Rice, 5 Mass., 344; Little vs. Megquier, 2 Greenleaf, 176. When a party enters upon land upon the strength of a deed from another person than the owner, it seems that the possession from the time of such entry is adverse; and if continued for the statutory period, it will bar his entry. Hart vs. Bostwick, 14 Fla., 179, text; citing Jackson vs. Camp., 1 Cow., 605; Woods vs. Dille, 11 Ohio, 455.

The records show that Barnes and wife conveyed lands the to Coogler on the 10th day of February, 1882; that the deed was duly recorded, and that he went into possession openly; and cultivated part of the land, and made improvements thereon. And the evidence of Barnes, and of Coogler, show that Coogler contracted for and bought the lands in dispute from Barnes and wife in March, 1880, paying part of the price down and taking from Barnes a bond for title, which bond was destroyed when the balance of the price of the land was paid, and when the deed of Barnes and wife was executed on the 10th day of February, 1882.

Coogler and Barnes both swear that up to the purchase and execution of the bond for title, that Coogler acted as agent for Barnes .after Barnes moved to Texas. And Coogler swears most positively that from the date of the purchase and delivery to him of the bond for title in March, 1880, he has been in actual adverse possession of the premises in his own right, (except the few acres held by defendant, Higgins,) improving and cultivating the same up to the commencement of plaintiff’s suit in December, 1887. . This court, in Hart vs.

Bostwick and wife, 14 Fla., 179, held, and we think correctly, “That a possession and claim of land under an executory contract of purchase is in no sense adverse as to the one with whom the contract is made. But that one entering under an executory contract of purchase may always hold adversely, as against all persons but his vendorciting Whitney vs. Wright, 15 Wend., 171; Adams vs. Guerard, 29 Ga., 651; 8 Cowan, 589; 15 Wend., 381; 9 Cowan, 550; 5 Cowan, 74; 14 Wend., 228; 1 Cowen, 605.

His, Coogler’s, possession seems to have been open, and his claim notorious and undisputed, and such as to prevent all doubt as to the character of his entry and of his holding ;. arid the fact of his deed being of record coupled with his claim to the land, and with acts of possession by himself and tenant, precluded the idea of the want of knowledge on the part of Rogers, as to the character of his possession ; and from the date of the entry, and under his executory contract of March, 1880, adverse possession commenced as to Coogler in person against appellee, and it is clear that over seveu years had expired before appellee commenced his action in December, 1887; and in order to establish the defense of adverse possession for seven years, appellants are not compelled to rely upon the adverse possession on the part of their grantors, Barnes and wife.

We might here rest the case, but if this were not so, then if the evidence shows that Barnes and wife held adversely to Rogers prior to and at the time of the sale to Coogler, then Coogler may avail himself of such adverse possession of his grantors, and connect the same with his own, and thus avail himself‘4t the benefits of the statute. Brandt vs. Ogden, 1 Johnson, 156; Wade vs. Doyle, 17 Fla., 527-8; Tyler on Ejectment, 908.

But here we are confronted with the further question as to what constitutes adverse possession between tenants in common, or co-tenants; and if it is proven to exist, then to enquire when it commenced, how it commenced, and to what time it continued. It seems to be conceded, that on the death of John L. May, the lands in controversy descended to his two daughters, the wives of Barnes and Rogers, respectively, as tenants in common.

If this be true, and Barnes and wife went into possession of the lands in controversy, then their possession was prima facie the possession of Rogers and wife, and after the death of the wife of Rogers, or Rogers himself, and before the possession of Barnes and wife could be adverse as to Rogers, an actual ouster of Rogers must be proved.

Eor in all cases where a party is in possession of lands in privity with another, or with the rightful owner, nothingshortof an open and explicit disavowal and disclaimer of holding under that title and of an assertion of title in himself brought home to the knowledge of the owner, will satisfy the law; and as between co-tenants there must be an ouster by one or the other, before an action of ejectment will lie. Williams vs. Cash, 27 Ga., 507; Kirk, vs. Smith, 9. Wheat., 241; Jackson vs. Berner, 48 Ill., 203; Tyler on Ejectment, 476.

Do the facts and circumstances, as proven in this case, show an ouster in law of Rogers, by Barnes and wife ? “ Every ouster is an actual ouster, whether it be the result of positive expulsion, or whether it result-s from exclusive possession accompanied by such acts or facts as amount to a denial of the right of the co-tenant out of possession.” Gale and wife vs. Hines, 17 Fla., 774, text; Kearnes vs. Hill, 21 Fla., 185.

But this ouster must be proved, and even when the fictitious proceedings under the -common law previuling in ejectment by other means than by the “ consent ” rule, as by showing that the delendant held adversely, or that he denied the title of his co-teuaut, or that he claimed all of the premises' for himself, or denied possession to the other, or had held the sole and undisputed possession for a long course of years without payment of rent, and without any claim of any part of the profit by the other co-tenant during the whole time. Frederick vs. Grey, 10 Sreg. & awle, 12; Lodge vs.

Patterson, 3 Watts, 77; Law vs. Patterson, 1 Watts & Serg., 191; Doe vs. Prosser, Cowp. Rep., 217; Tyler on Ejectment, 476. It has been repeatedly held that exclusive possession connected with some act amounting to a denial of the rights of a co-tenant out of possession constitutes an ouster. Gale and wife vs. Hines, 17 Fla., 774, citing 10 Wend., 419; 82 Cal., 499; Humph., 668; 5 Mass., 351; 5 Green, 482; 21 Conn., 385; Kearnes vs. Hill, 21 Fla., 187.

There can be no doubt of the fact that Barnes and wife held possession of the land from the death of the ancestor ; but, as before remarked, this possession was the possession of Rogers and wife, uutil the death of Mrs. Rogers, and then of Rogers, as their co-tenants, at least until this possession became exclusive, and shown to be exclusive by some act of Barnes and wife, brought home„to the knowledge of Rogers.

While it is admitted that Rogers never entered the land in person or by tenant, nor received or demanded any of the rents or profits of the lands, yet, until the commeneent of litigation between the creditors of Matilda II. May and Barnes and wife, which occurred in June, 1879, there appears no act on the part of Barnes and wife inconsistent with their holding as tenants in common with Rogers. But when this litigation commenced in regard to the title to said land, Barnes and wife openly assert their title to the whole of the land. This was public and notorious. It was matter of record.

It was with the full knowledge of Rogers/, It was connected with the possession of the entire lands, and was continued to the date of conveyance and sale to Coogler. This open and notorious claim to the. whole of the land, coupled with the entire possession by Barnes and wife, was such

an act as amounted to, and was a denial of the rights of Rogers to any part thereof, and constituted an ouster, which would have justified Rogers, if so disposed, to bring an action of ejectment against Barnes and wife for the recovery of his undivided interest under ordinary circumstances. Gale and wife vs. Hines, 17 Fla., 774, and the authorities there cited; Kearnes vs. Hill, 21 Fla., 187.

And in the absence of evidence to show collusion between Barnes and wife and Rogers, as to this litigation, the admission of Rogers made then and there that he had no interest in the lands, is conclusive of adverse possession on the part of Barnes and wife as to him from that date. We have already seen the effects in law of the entry by Coogler into the lands under the deed from Barnes and wife. We inquire, was this possession continuous from its inception for the period of seven years ?

What constitutes a continuity of possession is not always easy to determine, and the question has been attended with much litigation. When the adverse possession has commenced and continued by the same person, the question may be settled without much difficulty; but when continuity is held by different persons in possession, or under different rights, it is often complicated, aud sometimes difficult. It is well settled that the possession need not be by the same person, and under the same rights.

The claim of possession may continue unbroken by successive tenants in possession, and when this appears, the adverse possession may be just as effectual as though the premises were held by the same person for the whole period. There must be a privity and continuity of possession under a claim of title during the wffiole statutory period in order to make adverse possession effective to bar the entry, or to ripen the possession into title to the premises enjoyed. Brandt vs. Ogden, 1 Johns., 156; Doe vs. Campbell, 10 Johns., 477; Wade vs. Doyle, 17 Fla., 527-8, text; Tyler on Ejectment, 908.

Says this court in Doyle vs. Wade, “ As to what is continuous possession must necessarily depend much and largely upon circumstances of qach case as it may arise. The use to which the property is adapted, the actual manner of its use, the circumstances of the possessor, and partly his intention, must be considered in determining it.” 23 Fla., 90. To constitute adverse possession in its incipiency, the owner must be ousted, and the possession must continue adversely and uninterruptedly for the statutory period of time, which in this State is seven years.

This is the fact which creates the bar, and it cannot exist if the person having the title takes actual possession in pursuance of his right, if but for a moment of time; or, if the adverse possession is at any time abandoned by the disseiser; for in so doing his adverse possession is at an end. But when a party is once ousted, it is not every entry upon the premises without permission that will disturb the adverse possession.

A man may tread upon his own soil, and still be as much out of possession of it as though he were elsewhere ; but to regain possession, when thus ousted, he must assert his claim to the land. He must perform some act that will reinstate him in possession before he can regain what he lost. No entry by stealth, nor for other purposes than those connected'with the right to enter, will be sufficient to break the continuity of exclusive possession in another. There cannot be at the same time two legal possessions adverse to each other of the same premises.

As to adverse possession like the case at bar, our statute of 1872, Chap. 1869, McClellan’s Digest, 782, provides, “ When the occupant or those under whom he claims entered upon the possession of the premises under claim of title exclusive of any other rights, founding such claim upon a written instrument, as being a conveyance of the premises in question, the lands are deemed to have been possessed and occupied in the following cases ; 1. Where it has actually been cultivated or improved; or 2. Where it has been protected by substantial enclosure ; or 3.

Where, although not enclosed, it has been used tor the supply of fuel, or fencing timber’, for the purpose of husbandry, or for the ordinary use of the occupant. 4.

Where a known lot or single farm has been partly improved, the portion of such farm or lot that may have been left not cleared or enclosed according to the usual course orcustom of the adjoining country, shall be deemed to have been occupied for the same length of time as 'the párt improved or cultivated.” The testimony shows that Barnes and wife occupied the premises, a part of which were enclosed and improved, and that Coogler in person and by tenants improved the property by setting out orange trees, cultivating a part of the same, and repairing the fencing of that part enclosed.

Barnes swears he took possession under a deed given to him by his wife in the name of her father, John L. May. I went to work on the land in controversy, fenced about seven acres, plowed it and planted it in corn; this was in the spring of 1878. Held possession right along until December, 1879, then went to Texas, leaving Coogler in possession as agent until March, 1880, when he sold to Coogler and gave bond for title. Coogler finished paying for it in 1882, in February, and wife and I made deed. Rogers made no claim to the land.

Coogler swears Barnes and wife were in possession of the land from 1878, until December, 1879. Barnes moved to Texas in 1879. I was made his agent for the 160 acres. I took immediate possession. He, Barnes, delivered me the possession. This was a verbal understanding, we had talked over between Barnes and myself that I should become the purchaser of this land in controversy. A written agreement was then made, which was destroyed, because I had no further use for it after I had paid up. I destroyed the contract and took the deed. This paper, or agreement, was from Barnes to me.

Deed from Barnes and wife to Coogler bearing date of February 10th, 1882. From December, 1879, I recognized myself as the agent of Barnes, and holding as agent under and in subordination to Barnes until March 20th, 1880, when I assumed that I was owner of the land. And I have been in the possession of it and claiming it as my own property from that day until now, adversely to Rogers and everybody else. Have appropriated the rents, issues and profits of that land since March 20th, 1880, to the-present time to my personal use. Have cleared, fenced and improved, built a dwelling and other houses, &c.

There is no intimation that the appellants or their grantors, after the litigation between the creditors of Matilda H. May and Barnes and wife, ever abandoned or intended to abandon the premises in a legal sense, and the conclusion is evident that the contrary was their purpose.

It does not appear that the appellee ever demanded, or received any rents or profit from the appellants or their grantors, or that he ever claimed any part of the same, or that he ever attempted to make a legal entry on the land in dispute personally or by tenant, from the date of the entry in 1878 of Barnes and wife —appellants’ grantors — to the commencement of this suit. But on the contrary,disclaimed all interest in the same.

And all the evidence goes to show that after the ouster of Rogers by Barnes and wife, on the — day of June, 1879, when the litigation referred to commenced, and when Barnes and wife openly averred and claimed title to the whole of the said premises, the possession was adverse to the appellee. It is evident that appellants’ claim of adverse possession to the lands described in’the pleadings should have prevailed, and it was error to refuse a new trial in the court below. The judgment should be reversed, and the case remanded for a new trial, and it will be so ordered.