conveyed to his son-in-law, J. R. St. Clair, his undivided interest in the Robert Wilson land. He insists that, by this conveyance, there passed to his son-in-law only that interest for which he then had paper title. The deed does not so state. It calls for his undivided interest, and undoubtedly passed all interest of every kind and character, which the grantor then owned or claimed in the land described in the deed. If there was any mistake in the execution of this deed or fraud in its procurement, appellant had five years from the discovery of the mistake or fraud, or at most, ten years from the date of the execution of the deed, to have it corrected. The time within which he might have availed him of such right, if any he had, having long since passed, such plea would now be of no avail. Evidently this claim on the part of appellant to the interest of N. H. Ford is the result of an afterthought and is wholly without merit.

Appellant's claim to the Meyers tract arose in this way: He alleges that his son-in-law, J. R. St. Clair, bought the Myers interest in September, 1889, and thereafter sold and transferred it to him by assignment, and he procured a deed for this tract on June 12, 1911, after the institution of this suit. This claim occupies very much the same position as does his claim to ownership of the N. H. Ford tract, for St. Clair in 1892, two years after the division of the land between himself, Hoover, and E. D. Ford, sold and conveyed his interest in the Robert Wilson land to J. H. Wilson, who was the oldest son of Dan., and J. H. Wilson took possession under this conveyance and he and those claiming under him have held it ever since. Now, if it be conceded that St. Clair did, in fact, buy the Myers interest, it was evidently taken into account at the time of the division, and when he sold his interest in the Robert Wilson land, this Myers interest passed under his deed, and his father-inlaw acquired nothing by reason of the assignment and transfer of the title bond to him many years after St. Clair had parted with any interest that he had in this land. The record, which appellant, his son, and son-inlaw made at a time when there was no question of ownership involved, is a complete bar to the claim attempted to be asserted here on the part of appellant to the interest of N. H. Ford and Lucinda Myers in the Robert Wilson farm.

The only question giving us any concern is whether or not limitation had run against Catherine Wilson

Phelps, depriving her of her interest in the Robert Wilson farm. A determination of this question depends upon whether or not the possession of the occupying claimants, although cotenants with her, was adverse to her. As a general rule, the possession of one cotenant is amicable and not adverse to that of another cotenant. But, there are many exceptions to this rule, and it is well recognized in this State and elsewhere that the possession of a cotenant may be adverse or hostile to other cotenants and, if continued for fifteen years or more, will ripen into a perfect title. The exception to this rule is stated by the author in 1 Cyc. 1072, as follows:

"While the general rule is as stated, it is well settled that one tenant may hold adversely to his co-tenant, and if his possession is continued uninterruptedly for the statutory period he will acquire an indefeasible title; and this is true whether the original entry was with intent to hold adversely or whether the entry was as tenant in common.'

Gillaspie v. Osburn, 3 A. K. Marsh., 77 and Larman v. Huey, 13 B. Mon., 436 are cited by the author in support of the text.

As to the necessity of knowledge or notice of the fact of adverse holding, the same author, in 1 Cyc., 1073, citing in support of the text Gossam v. Donaldson, 18 B. Mon., 230, and Ward v. Ward, 15 Rep., 706, 25 S. W., 112, says:

"In order to constitute a disseizin of a cotenant the fact of adverse holding must be brought home to him either by information to that effect, given by the tenant in common asserting the adverse right, or there must be outward acts of exclusive ownership of such a nature as to give notice to the cotenant that an adverse possession and disseizin are intended to be asserted. Actual verbal or written notice is not, however, necessary; adverse possession may be inferred from outward acts, open and notorious claim of ownersip, and exercise of exclusive right."

*

*

In Bloom v. Sawyer 121 Ky., 308, an owner of an undivided three-fourths of a tract of land died, leaving a widow to whom dower was set apart. The widow conveyed her dower right to one who conveyed it to another, and he conveyed by deed, without warranty, the whole tract in fee simple. The grantee in the latter deed took possession of the whole tract and continuously claimed the property adversely as his own. The court there

held that the entry of a person on land under a conveyance which purports to dispose of the whole, though the grantor is but a joint tenant, is an entry of the whole in severalty and is adverse to the other tenants, and possession under such deed was sufficient to set the statute of limitation in motion against the cotenants.

There is no question that, at the time this land was divided in 1890, Hoover, St. Clair, and E. D. Ford were in possession and claiming all of it, and there is no evidence whatever to the effect that, at that time, any of them knew that Catherine Wilson Phelps owned an interest in this land. So that, at the time the division was made, it is undoubtedly true that they were claiming this land, whether they, in fact, owned it or not. It is likewise true that, under such claim of ownership, they proceeded to and did divide and partition it among themselves, causing it to be surveyed and each exercising such acts of ownership as one might exercise over land belonging to him. With the exception of E. D. Ford, they built upon it, cultivated it, cut timber from it, paid the taxes on it, and publicly and openly claimed as their own, and it was recognized as such by persons living in that community.

Were these acts on the part of appellees, and their predecessors in title, sufficient to put Catherine Wilson Phelps upon notice that their claim was hostile to hers? We are of opinion that they were. Appellees' possession was certainly as notorious and open as it could have been made, without giving to Catherine Wilson Phelps actual notice that they were claiming the land and were not recognizing her right to an interest in it. As a matter of fact, there is no evidence whatever that she, at any time, asserted or claimed to have such right, and her conduct leads rather to the conclusion that, at some time during the twenty years following the probate of her father's will and the division of this land, she had sold or disposed of her interest therein. Having lived in that vicinity and being of sound mind, her conduct is difficult of explanation upon any other theory, but whether she had sold it or not, we are of opinion that the conduct of appellees is such as must have apprised a person of ordinary intelligence that they were not recognizing the right or title of any one else in and to those portions of the land in controversy, which were held by them. This being true, we would hold that, were the claim of ownership now being asserted by Catherine

Wilson Phelps instead of appellant and her son, she had lost it by reason of the lapse of time. Her children could acquire no greater right than she had, and on the state of the record the chancellor was justified in holding that appellant had failed to make out a case. Judgment affirmed.

First National Bank of Louisville v. Bickel, et al. (Decided May 22, 1913.)

Appeal from Jefferson Circuit Court
(Common Pleas Branch, Second Division).

1. Contracts Construction of-A contract obligating the signers to "guarantee an overdraft to the First National Bank to the extent of $4,500; all the receipts of the White City Co. to be deposited in the bank until the above is extinguished," was not a continuing guaranty but a guaranty of an existing overdraft. Contracts-Extrinsic Evidence to Show Meaning of.-Where a written contract is not open to two or more constructions, the rights and liabilities of the parties under it are to be determined by the paper alone, and its meaning cannot be extended or modified by extrinsic evidence.

2.

3.

Banks-Rights and Liabilities of Officers of a Bank Who Sign a Guaranty to it.-The liability of bank officers who sign a paper guaranteeing to it the payment of a note, is not increased by their relation with the bank. They are to be treated as other customers dealing with the bank.

HELM BRUCE, BRUCE & BULLITT for appellant.

B. F. WASHER, W. PRATT DALE for appellees.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming.

On July 6, 1908, the appellee, C. C. Bickel, and the other appellees, all of whom were at that time financially interested in a corporation known as the White City Company executed and delivered to the appellant bank the following writing:

"We, the undersigned, hereby guarantee an overdraft to the First National Bank of Louisville, Ky., to the extent of $4,500; all the receipts of the Park (White City Company) to be deposited in said bank until the above is extinguished. It is also understood and agreed that chairs located in the theatre, bought from the Ross Chair

Company, to the value of $1,500, are hereby assigned to us as security by the directors of the White City Company."

Some months after this the White City Company made an assignment owing an overdraft to the bank of more than six thousand dollars, but between July 6, 1908 and the date of the assignment the receipts of the White City Company deposited in the bank amounted to largely more than $4,500.

Afterwards, this suit was brought by the bank against the signers of the guaranty to recover from them $4,500, the amount mentioned in the guaranty. A general demurrer filed to the petition as amended was sustanied, and, the bank declining to plead further, its petition was dismissed.

The suit was predicated upon the theory that the paper was a continuing guaranty of an overdraft to the extent of $4,500, and therefore as the account of the White City Company was continually overdrawn from the date of the execution of this guaranty to the time it became bankrupt, on which date the overdraft amounted to more than six thousand dollars, the guarantors were bound on the guaranty to the extent of $4,500. On the other hand, the position of the guarantors is that they only guaranteed an overdraft existing at the time the guaranty was executed to the extent of $4,500, coupled with an agreement on the part of the bank to apply the receipts of the company thereafter deposited in the bank to the extinguishment of the then existing overdraft, and as subsequent to July 6, 1908, the receipts of the White City Company deposited in the bank amounted to more than $4,500, the guaranty was satisfied and the guarantors released from liability.

As the guaranty does not seem fairly open to two constructions, the solution of the question at issue between the parties must turn on the proper construction of the guaranty as it is written, without the aid of extrinsic evidence, and, looking to the paper alone, we think the guarantors only guaranteed the payment of an existing overdraft and that the obligation on their part was not a continuing guaranty. The words of the guaranty exclude the construction that it was intended to be a continuing guaranty. The stipulation, that the receipts of the Park (White City Company) were to be deposited in the bank to satisfy the overdraft guaranteed, plainly shows that the parties had in contemplation an overdraft then exist