One who goes into possession of land under a tinnsfer of the land from the owner, which is invalid because cral mere ly, may assert the bar of the statute against the owner if his possession continues for the statutory period, since his pos session is under a claim of right which is necessarily exclu sive of any rights in the transferee.66 Likewise the posses sion of one who enters under an executory contract for a con veyance is usually regarded as adverse to his vendor from the time of the payment of the purchase money,67 and generally a grantee's possession is regarded as adverse to the rights of the grantor, whatever be the defects in the grant.68

-Mistake in locating boundary.

The question has frequently arisen whether, when an own er of land, by mistake as to the boundary line of his land,

If the possession is by one not claiming merely as assignee of the life estate, but as the owner of fee, it is adverse to the remainder man, since, though the latter cannot sue for possession, he car prevent the running of the statute by paying the taxes. Nelson v. Davidson, 160 Ill. 254. Moreover, in that state, the remainderman, to be protected, must claim under an instrument which appears of record, or of which the person in possession has notice Lewis v. Barnhart, 145 U. S. 56.

66 Sumner v. Stevens, 6 Metc. (Mass.) 337; Schafer v. Hauser, 111 Mich. 622, 66 Am. St. Rep. 403; Vandiveer v. Stickney, 75 Ala. 225; Clark v. Gilbert, 39 Conn. 94; Stewart v. Duffy, 116 Ill. 47; Rannels v. Rannels, 52 Mo. 109; Trotter v. Neal, 50 Ark. 340; Studstill v. Willcox, 94 Ga. 690; Bartlett v. Secor, 56 Wis. 52; Campbell v. Braden, 96 Pa. St. 388.

67 Furlong v. Garrett, 44 Wis. 111; Watts v. Witt, 39 S. C. 356; East Tennessee, V. & G. Ry. Co. v. Davis, 91 Ala. 615; Adams v. Fullam, 43 Vt. 592; Catlin v. Decker, 38 Conn. 262.

68 Nowlin v. Reynolds, 25 Grat. (Va.) 137; Parkersburg Nat. Bank r. Neal, 28 W. Va. 744; Mattison v. Ausmuss, 50 Mo. 551; Carmody 7. Chicago & A. R. Co., 111 Ill. 69; Gossom v. Donaldson, 18 B. mon. (Ky.) 239, 68 Am. Dec. 723; Case v. Green, 53 Mich. 615; Melvin v. Proprietors of Locks & Canals on Merrimack River, 5 Metc. (Mass.) 15, 38 Am. Dec. 384.

takes possession of another's land, and holds it for the statutory period, he thereby acquires the title as against the real owner. In some states, in such a case, the possession is regarded as adverse, without reference to the fact that it is based on mistake, it being sufficient that actual and visible possession is taken under claim of right. In other states the fact that, in such case, the possession of the other's land is under mistake, is regarded as material, and a distinction is asserted to the effect that, if such possession up to the boundary as located is with the intention of claiming to such boundary even though the boundary be incorrect, the possession is adverse, while, if it is with the intention of claiming thereto only if the boundary is correct, the possession is not adverse.70

Of these two views the former seems to be decidedly preferable, from the standpoint of both principle and convenience of application. Of the latter it may be said, not only does it confer a premium upon conscious wrongdoing, but it

• French v. Pearce, 8 Conn. 439, 21 Am. Dec. 680, 3 Gray's Cas. 76; Yetzer v. Thoman, 17 Ohio St. 130, 91 Am. Dec. 122; Metcalfe V. McCutchen, 60 Miss. 145; Burnell v. Maloney, 39 Vt. 579, 94 Am. Dec. 358; Tex v. Pflug, 24 Neb. 666, 8 Am. St. Rep. 231; Levy v. Yerga, 25 Neb. 764, 13 Am. St. Rep. 525; Seymour, Sabin & Co. v. Carli, 31 Minn. 81; Ramsey v. Glenny, 45 Minn. 401, 22 Am. St. Rep. 736; Greene v. Anglemire, 77 Mich. 168; Crary v. Goodman, 22 N. Y. 170; Tolman v. Sparhawk, 5 Metc. (Mass.) 469; Grim v. Murphy, 110 Ill. 271 (semble); Dyer v. Eldridge, 136 Ind. 654. See Bishop v. Bleyer, 105 Wis. 330.

70 Wilson v. Hunter, 59 Ark. 626, 43 Am. St. Rep. 63; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. Rep. 139; Taylor v. Fomby. 116 Ala 621; Ayers v. Reidel, 84 Wis. 276, Finch's Cas. 1016; Grube v. Wells, 34 Iowa, 148, 3 Gray's Cas. 82; Mills v. Penny, 74 Iowa, 172, 7 Am. St. Rep. 474; Winn v. Abeles, 35 Kan. 85, 57 Am. Rep. 138; Preble v. Maine Cent. R. Co., 85 Me. 260, 35 Am. St. Rep. 366; McCabe v. Bruere, 153 Mo. 1; Finch v. Ullman, 105 Mo. 255, 24 Am. St. Rep. 383, note; Caufield v. Clark, 17 Or. 473, 11 Am. St. Rep. 845; King v. Brigham, 23 Or. 262; Chance v. Branch, 58 Tex 490.

introduces into the law of adverse possession a requirement that is never asserted in connection therewith except in the case of mistake in locating a boundary. Under such a rule, generally applied, a man would never be in adverse possession of land unless he had the intention of claiming the land in case his title turned out to be defective. As a matter of fact, a person who believes that he owns certain land, or land up to a certain boundary, has no thought as to what he will do in case he is mistaken in his belief. Furthermore, assuming that there is an intention in the mind of the possessor," such an intention is necessarily difficult, and frequently impossible, of determination, with any approach to accuracy."1 444. Extent of possession.

As a general rule, one can acquire by adverse possession so great an extent of land only as is covered by his acts of actual possession, continued through the statutory period.72 It is, however, a well-recognized principle in this country that one having "color of title”—that is, claiming under what purports to be a valid muniment of title, although he actually occupies a part only of the tract conveyed-is to be regarded as in constructive possession of the whole tract for the purpose of barring the entry of the owner after the lapse of the statutory period.

71 "Adopt the rule that an entry and possession under a claim of right, if through mistake, does not constitute an adverse possession,

the inquiry no longer is whether visible possession, with the intent to possess, under a claim of right, and to use and enjoy as one's own, is a disseisin, but from this plain and easy standard of proof we are to depart, and the invisible motives of the mind are to be explored." French v. Pearce, 8 Conn. 439, 3 Gray's Cas. 76, per Hosmer, C. J.

72 Proprietors of Kennebeck Purchase v. Springer, 4 Mass. 416, Finch's Cas. 1021; Ferguson v. Peden, 33 Ark. 150; Garrison v. Sampson, 15 Cal. 93; Bristol v. Carroll County, 95 Ill. 84; Barber v. Robinson, 78 Minn. 193; Allen v. Mansfield, 108 Mo. 343; Ege v. Medlar, 82 Pa. St. 86; Langdon v. Templeton, 66 Vt. 173.

This rule is founded on the theory that one who has notice of an adverse occupancy of part of his land under a claim of title based on written evidence thereof is chargeable with notice that the claim is limited only by the terms of the conveyance. The rule applies not only when possession is taken under a conveyance which is invalid, either for want of title or capacity in the grantor, or for want of proper formalities in the execution of the instrument," but also when it is taken under a void or voidable decree of court," and generally when there is what is known as a "paper title." There is, however, considerable question as to whether a conveyance void on its face constitutes "color of title" for this purpose, or for the purpose of the short limitation acts.75 A conveyance which does not contain any sufficient description of the land sought to be conveyed is necessarily insufficient as color of title for the purpose of constructive possession."

78 Noyes v. Dyer, 25 Me. 468; Stull v. Rich Patch Iron Co., 92 Va. 253; Finch's Cas. 1023; Ellington v. Ellington, 103 N. C. 54; Hecock v. Van Dusen, 80 Mich. 359; Fugate v. Pierce, 49 Mo. 447; Miesen v. Canfield, 64 Minn. 513; Swift v. Mulkey, 17 Or. 532; Wright v. Mattison, 18 How. (U. S.) 50; Carter v. Chevalier, 108 Ala. 563.

74 Bynum v. Thompson, 25 N. C. 578; Reedy v. Camfield, 159 Ill. 254.

75 That a conveyance void on its face does not give color of title, see Frique v. Hopkins, 8 Mart. (La.) 110; Redfield v. Parks, 132 U. S. 239; Larkin v. Wilson, 28 Kan. 513. Contra, Reddick v. Long, 124 Ala. 260; Miesen v. Canfield, 64 Minn. 513; Barger v. Hobbs, 67 Ill. 592; Wilson v. Atkinson, 77 Cal. 485.

Sometimes the view is taken that a conveyance defective on its face will be sufficient as color of title if the defect is such that a person unlearned in the law would have reason to consider the instrument valid. Beverly v. Burke, 9 Ga. 443, 54 Am. Dec. 351; Avent v. Arrington, 105 N. C. 377, 390.

76 Jackson v. Woodruff, 1 Cow. (N. Y.) 276, 13 Am. Dec. 525, 3 Gray's Cas. 88; Bellows v. Jewell, 60 N. H. 420; Davis v. Stroud, 104 N. C. 484; Ohio & M. Ry. Co. v. Barker, 125 IL 303; Reddick v. Long, 124 Ala. 260.

In order that this principle, giving one constructive pos session beyond the limits of his actual occupancy, may apply, not only the land not actually occupied, but also that occupied, must belong to the same person, and the owner of land is not affected with notice as of a constructive possession of his land by the fact that it is included in a conveyance with other land not belonging to him, if such other land alone is occupied by the claimant.""

The fact that the true owner of land is in actual possession of part of the land prevents the application, in favor of another, of the rule of constructive possession by color of title as to the land not occupied by the true owner. 78 The rule, moreover, cannot be applied in favor of one person as against another who has previously obtained constructive possession of the same land, that is, in the case of overlapping conveyances, neither of which is valid, the grantee who first takes actual possession of part of the land included in his conveyance obtains onstructive possession of the land covered by both conveyances, to the exclusion of the subsequent acquisition of merely constructive possession of such land by the other.79

The land in actual possession must adjoin that of which

Bailey v. Carleton, 12 N. H. 9, 37 Am. Dec. 190, 3 Gray's Cas. 99; Word v. Box, 66 Tex. 596; Korner v. Rankin's Heirs, 11 Grat. (Va.) 420; Garrett v. Ramsey, 26 W. Va. 345; Turner v. Stephenson, 72 Mich. 409; Hicklin v. McClear, 18 Or. 126; Hole v. Rittenhouse, 25 Pa. St. 491.

78 Hunnicutt v. Peyton, 102 U. S. 333; Hall v. Powel, 4 Serg. & R. (Pa.) 456, 8 Am. Dec. 722; Semple v. Cook, 50 Cal. 26; Langdon v. Templeton, 66 Vt. 173; Claiborne v. Elkins, 79 Tex. 380; Bradley v. West, 60 Mo. 33. But that this is the case only if such actual possession by the true owner existed before the constructive possession by the claimant, see Stull v. Rich Patch Iron Co., 92 Va. 253, Finch's Cas. 1023.

TM Jackson v. Vermilyea, 6 Cow. (N. Y.) 677, 3 Gray's Cas. 91; Frisby v. Withers, 61 Tex. 134; Garrett v. Ramsey, 26 W. Va. 345.