Lieberman v. Clark. session by himself." Citing Sullivan v. Sullivan, 66 N. Y., 37. In Cyc., vol. 1, pp. 982, 983, it is said: "That an adverse claim to land may ripen into perfect title by virtue of the statutes of limitation, it is primarily essential that the possession relied upon be actual." On page 1125 it is said: "The general rule is well settled that where a party enters, under color of title, into actual occupancy of a part of the premises described in the instrument giving color, his possession is not considered as confined to that part of the premises in his actual occupancy, but he acquires possession of all the lands embraced in the instrument under which he claims." In a note on page 983 it is said: "Actual possession may not consist either in an occupancy in fact of the whole tract claimed, or of an occupancy of part thereof in the name of the whole, where there is sufficient evidence of the bounds of the whole that is claimed as one entirety, and the circumstances are such that the law extends the possession of the part that is occupied to these bounds. This latter may be termed a 'virtual possession,' in order to distinguish it from the other kind of actual possession, which is called 'substantial' or 'pedis possessio.' But whatever term may be used to give precision to the subject, the attributes which pertain to an actual possession belong to it, whether it be substantial or virtual." Citing McColman v. Wilkes, 3 Strob. (S. C.), 465, 51 Am. Dec., 637. In our own case of Hebard v. Scott, 95 Tenn., 467, 32 S. W., 390, it was held that "the occupation of part of Lieberman v. Clark. the tract, claiming the whole, under a paper title defining its boundaries, is effective possession of the whole tract under the statutes of limitation." To the same effect are Winters v. Hainer, 107 Tenn., 337, 64 S. W., 44; Turnage v. Kenton, 102 Tenn., 328, 52 S. W., 174; Hunter v. Bills, 3 Tenn. Cas., 97, 101; Elliott v. Cumberland Coal & Coke Co., 109 Tenn., 745, 71 S. W., 749. We have one or two cases in our reports which upon casual reading would seem to indicate that there must be an inclosure of the whole tract claimed, even when the party claims under color of title; but, upon careful reading of these cases in connection with the cases cited in them (Pullen v. Hopkins, 1 Lea, 741; Hicks v. Tredericks, 9 Lea, 491), it is clear that what is meant is simply that there must be some sort of inclosure upon some part of the land, as a house, a fenced field, or other "improvment," as visible evidence of possession, where the land is capable of such use, and not that the whole tract of land must be inclosed. The latest cases we have upon the subject of adverse possession are Green v. Cumberland Coal & Coke Co., 110 Tenn., 35, 72 S. W., 459, and Mansfield v. Northcut, 4 Cates, 536, 80 S. W., 437, not yet printed in our official reports both cited supra. In the first of these cases it is said: "Where there is no part of the land in actual possession, the constructive possession is with the party holding the superior legal title; but, where a portion of land is in actual adverse possession, the party holding has constructive possession Lieberman v. Clark. of all of the premises outside of his enclosure to the limits of his claim or assurance of title; and such.constructive possession is superior to that which results merely from the ownership of the legal title, and is sufficient to put in operation the statutes of limitation to the entire tract." In the second case it is said: "The Northcuts had act ual possession of a small house upon the land occupied by Mrs. Mansfield as their tenant, claiming to the extent of the boundaries called for in their title papers. The remainder of the tract was uninclosed. A claimant of the land under a hostile title to that of defendants in error built a cabin upon a different part of the premises, and induced Mrs. Mansfield to move into it and attorn to him, and this action [forcible entry and detainer] was brought to dispossess her. Defendants in error, under these facts, had possession of the entire tract-actual possession of the house occupied by their tenant, and constructive possession of the remainder. Constructive possession of this nature, connected as it is with actual possession of a part of the premises, is of a higher character than that which follows the legal title. It will perfect a defective title, under the statute of limitations, and raise a presumption of grant, when held for sufficient periods of time.. . . We think that constructive possession of this character is sufficient to enable a claimant so holding to mai tain this action." It is perceived that the species of "constructive possession" enforced in these two cases in no wise differs Lieberman v. Clark. from the "effective possession" mentioned in Hebard v. Scott, and the "virtual possession" mentioned in McColman v. Wilkes, supra, and that the attributes which pertain to an actual possession belong to it. It is further apparent that the learned justice who prepared the opinion in the cases quoted from carefully distinguished the kind of constructive possession-"effective possession" or "virtual possession"-enforced in those cases from the general constructive possession which the law attaches to the title where there is no actual possession in the owner of the title, and no one in adverse possession. It is also perceived that the learned justice differentiated this "effective possession" or "virtual possession" from technical "actual possession" merely for the sake of scientific precision or logical accuracy of thought, and that he not only did not assign to it a different office and effect from that belonging to actual possession, but blended the two and gave them the same effect; that is, treated both as constituting, in effective operation, a single possession. In so treating them, the opinions referred to not only held the court in line with its former adjudications above referred to with approval, but preserved its harmony with the overwhelming weight of authority in this country upon the special phase of the question herein considered, as shown by the excerpts which we have made from the text-books quoted above, and as exhibited by the vast number of cases cited in the notes on the pages referred to. Lieberman v. Clark. The substance of the whole matter, as applied to the present controversy, is that the defendants in error being in actual possession of a part of the tract on which the timber grew, by their tenant living in a house built upon the tract, holding under color of title, and claiming the land as their own at the time the timber was felled and the logs taken away, their possession extended to the limits or boundaries contained in their title papers, which covered the space where the trees grew. This possession was the "effective possession" or "virtual possession" described above, and was an "adverse possession," in the sense in which that term is used in the law. Being thus in adverse possession of the land, they were likewise in adverse possession of the timber which grew upon it, and, when it was felled and the logs hauled away, these logs were taken from their possession; and, within the authorities cited, and under the principles stated, they were entitled to pursue the logs by the appropriate possessory action (replevin), and to sustain the action they did not need to go further than prove their status as above outlined, and the taking, without deraigning title or going into a controversy with the person taking the logs concerning the true title to the land. Any other view would place the court in the novel position of holding that one in adverse possession of land, claiming under color of title, may recover the land itself from a trespasser by a possessory action, but must bring ejectment for timber cut from it, or (the same |