that where a cotenant conveys to a stranger to the title by a conveyance appropriate in form to transfer an estate in severalty, and the grantee enters into exclusive possession of the property thereunder as a claimant in severalty, this is an ouster of the other cotenants, of which they must take notice, and which, if sufficiently long continued, bars them of all right to the property."

The author's note then cites numerous decisions, among them Fielder v. Childs, 73 Ala. 567. See also 2 C. J. 185.

The court below evidently proceeded upon the theory that appellant by the execution of the mortgage and foreclosure deeds had become a tenant in common with the cotenants of Celeste Childress, and that the evidence was insufficient to show an ouster of his joint owners. Miller v. Vizzard Invest. Co. 195 Ala. 467, 70 So. 639. But this is an erroneous view. The appellant did not become, nor did he enter into possession as, a tenant in common with the joint owners of Celeste Childress, but entered as a stranger under a deed purporting to convey the entire interest in the property, and claimed the same exclusively as his own. This itself operated a disseisin of the parties to this suit, and the possession continued for such length of time as to perfect his title. This is very clearly stated in Joyce v. Dyer, 189 Mass. 64, 109 Am. St. Rep. 603, 75 N. E. 81, a case of similar character to that here involved, wherein the court said: "In considering this question we must bear in mind the familiar principle that when one enters upon land he is presumed to enter under the title which his deed purports upon its face to convey, both as respects the extent of the land and the nature of his interest. The deed to Samuel Dyer purported to convey

the fee in the whole. Under that deed he entered and in the absence of anything shown to the contrary, he is presumed to have entered under a claim of right to the fee in the whole. It is not a case where a tenant in common, being or entering into possession as such, afterwards attempts to claim that his occupation was adverse to his cotenant. Dyer did not enter as a tenant in common. From the very first he is presumed to have claimed under his deed, and there is nothing to show that he or his successors ever acknowledged or ever supposed that the interest thereby conveyed was anything other than as it appeared upon the face of the deed."

The conveyances relied upon by appellant were duly recorded, and his possession was open and notorious (see note to Joyce v. Dyer, supra, p. 614), and that constituted color of title so as to extend the possession to the entire tract.

While in this case the testimony was taken orally before the court, yet, under the situation here presented, the rule concerning the effect of the finding of the court upon the facts on appeal is without application. The evidence is practically without dispute, and it is evident that the decree rendered was based upon an erroneous view of the law as applied to the facts before the court. When such

is the case, the rule anding-erroAppeal-effect of

law.

is of course without neous view of application. Murphree v. Hanson, 197 Ala. 246, 72 So. 437.

Having reached the conclusion there is error in the decree of the court below, it will be reversed, and a decree will be here rendered, dismissing the bill.

Anderson, Ch. J., and Sayre and Thomas, JJ., concur.

United States. Clymer v. Dawkins (1845) 3 How. 674, 11 L. ed. 778; Jackson ex dem. Bradstreet v. Huntington (1831) 5 Pet. 402, 8 L. ed. 170; Prescott v. Nevers (1827) 4 Mason, 326, Fed. Cas. No. 11,390; Elder v. McClaskey (1895) 17 C. C. A. 251, 37 U. S. App. 199, 70 Fed. 529, reversing (1891) 47 Fed. 154.

Alabama.

Abercrombie v. Baldwin (1849) 15 Ala. 363; Riggs v. Fuller (1875) 54 Ala. 141; Fielder v. Childs (1883) 73 Ala. 567; Gulf Red Cedar Lumber Co. v. Crenshaw (1906) 148 Ala. 343, 42 So. 564; Kidd v. Borum (1913) 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226. See also Short v. De Bardeleben Coal Co. (1922) 208 Ala. 356, 94 So. 285. And see the reported case (DEW v. GARNER, ante, 5).

Arkansas. Brown V. Bocquin (1892) 57 Ark. 97, 20 S. W. 813; Jackson v. Cole (1920) 146 Ark. 565, 226 S. W. 513, 1064. See also Parsons v. Sharpe (1912) 102 Ark. 611, 145 S. W. 537; Patterson v. Miller (1922) 154 Ark. 124, 241 S. W. 875.

III. As affected by nature or extent of possession, 20.

IV. Rule in North Carolina, 25.

Pac. 419; Packard v. Moss (1885) 68 Cal. 123, 8 Pac. 818; Bath v. Valdez (1886) 70 Cal. 350, 11 Pac. 724, in effect overruling Seaton v. Son (1867) 32 Cal. 481; Frick v. Sinon (1888) 75 Cal. 337, 7 Am. St. Rep. 177, 17 Pac. 439; Winterburn v. Chambers (1891) 91 Cal. 170, 27 Pac. 658.

Connecticut. Clark v. Vaughan (1819) 3 Conn. 191; Lucas v. Crofoot (1921) 95 Conn. 619, 112 Atl. 165. See also White v. Beckwith (1892) 62 Conn. 79, 25 Atl. 400.

Georgia. Horne v. Howell (1872) 46 Ga. 9; Cain v. Furlow (1873) 47 Ga. 674; Street v. Collier (1903) 118 Ga. 470, 45 S. E. 294. See also Norris v. Dunn (1883) 70 Ga. 800; McDowell v. Sutlive (1886) 78 Ga. 142, 2 S. E. 937; Morgan v. Mitchell (1898) 104 Ga. 596, 30 S. E. 792.

Hawaii.-Kuanalewa v. Kipi (1889) 7 Haw. 575.

Illinois. Goewey v. Urig (1856) 18 Ill. 238; Hinchman V. Whetstone (1859) 23 Ill. 185; Burgett v. Taliaferro (1886) 118 Ill. 503, 9 N. E. 334; Steele v. Steele (1906) 220 Ill. 318, 77 N. E. 232; Waterman Hall v. Waterman (1906) 220 Ill. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142; Long v. Morrison (1911) 251 Ill. 143, 95 N. E. 1075; Roberts v. Cox (1913) 259 Ill. 232, 102 N. E. 204.

Indiana. Nelson v. Davis (1871) 35 Ind. 474; Price v. Hall (1895) 140 Ind. 314, 49 Am. St. Rep. 196, 39 N. E. 941; Grubbs v. Leyendecker (1899) 153 Ind. 348, 53 N. E. 940. See also King v. Carmichael (1893) 136 Ind. 20, 43 Am. St. Rep. 303, 35 N. E. 509.

Iowa.-Kinney v. Slattery (1879) 51 Iowa, 353, 1 N. W. 626; Murray v. Quigley (1902) 119 Iowa, 6, 97 Am. St. Rep. 276, 92 N. W. 869; Crawford v. Meis (1904) 123 Iowa, 610, 66 L.R.A.

(1847) 8 B. Mon. 177; Larman v. Huey (1852) 13 B. Mon. 436; Riddle v. McBee (1883) 4 Ky. L. Rep. 898; Greenhill v. Biggs (1887) 85 Ky. 155, 7 Am. St. Rep. 579, 2 S. W. 774; Rose v. Ware (1903) 115 Ky. 420, 74 S. W. 188, on rehearing in (1903) 25 Ky. L. Rep. 947, 76 S. W. 505; Wise v. Wolf (1905) 120 Ky. 263, 85 S. W. 1191; Bloom v. Sawyer (1905) 121 Ky. 308, 89 S. W. 204; Miller v. McDowell (1891) 13 Ky. L. Rep. 535, 17 S. W. 482; May v. Chesapeake & O. R. Co. (1919) 184 Ky. 493, 212 S. W. 131. See also Pope v. Brassfield (1901) 110 Ky. 128, 61 S. W. 5; Adkins v. Whalin (1888) 87 Ky. 153, 12 Am. St. Rep. 470, 7 S. W. 912.

Louisiana. Liles v. Pitts (1919) 145 La. 650, 82 So. 735.

Massachusetts. Parker v. Locks & Canals (1841) 3 Met. 91, 37 Am. Dec. 121; Kittredge v. Locks & Canals (1836) 17 Pick. 246, 28 Am. Dec. 296; Higbee v. Rice (1809) 5 Mass. 344, 4 Am. Dec. 63. See also Bigelow v. Jones (1831) 10 Pick. 161; Marcy v. Marcy (1843) 6 Met. 360; Lefavour v. Homan (1862) 3 Allen, 354.

Michigan. Highstone v. Burdette (1886) 61 Mich. 54, 27 N. W. 852; Fuller v. Swensberg (1895) 106 Mich. 305, 58 Am. St. Rep. 481, 64 N. W. 463; Brigham v. Reau (1905) 139 Mich. 256, 102 N. W. 845; Payment v. Murphy (1905) 141 Mich. 626, 104 N. W. 1111.

V. Butler (1891) 45 Minn. 545, 48 N. W. 407; Hanson v. Ingwaldson (1899) 77 Minn. 533, 77 Am. St. Rep. 692, 80 N. W. 702; Sanford v. Safford (1906) 99 Minn. 380, 116 Am. St. Rep. 432, 109 N. W.,819. Mississippi.

Gardiner v. Hinton (1905) 86 Miss. 604, 109 Am. St. Rep. 726, 38 So. 779, followed in Ferrell v. Hinton (1905) Miss., 38 So. 783. Missouri.-Miller v. Bledsoe (1875) 61 Mo. 96; Johnson v. Calvert (1914) 260 Mo. 442, 169 S. W. 78. See also Long v. Stapp (1872) 49 Mo. 506.

Nebraska.—Wiese v. Union P. R. Co. (1906) 77 Neb. 40, 108 N. W. 175. See also Maxwell v. Higgins (1894) 38 Neb. 671, 57 N. W. 388. Nevada. Abernathie v. Consolidated Virginia Min. Co. (1881) 16 Nev. 260; O'Banion v. Simpson (1920) 44 Nev. 188, 191 Pac. 1083.

New Hampshire. Newmarket Mfg. Co. v. Pendergast (1851) 24 N. H. 54. See also Hatch v. Partridge (1857) 35 N. H. 148.

New Jersey.-Watson V. Jeffrey (1884) 39 N. J. Eq. 62; Foulke v. Bond (1879) 41 N. J. L. 527.

New Mexico. Neher v. Armijo (1898) 9 N. M. 325, 54 Pac. 237; Armijo v. Neher (1903) 11 N. M. 645, 72 Pac. 12; Baker v. De Armijo (1912) 17 N. M. 383, 128 Pac. 73.

New York. Clapp v. Bromagham (1827) 9 Cow. 530; Town v. Needham (1832) 3 Paige, 545, 24 Am. Dec. 246; Bogardus v. Trinity Church (1833) 4 Paige, 178, affirmed in (1835) 15 Wend. 111; Jackson ex dem. Preston v. Smith (1816) 13 Johns. 406; Baker V. Oakwood (1890) 123 N. Y. 16, 10 L.R.A. 387, 25 N. E. 312; Sweetland v. Buell (1900) 164 N. Y. 541, 79 Am. St. Rep. 676, 58 N. E. 663, affirming (1895) 89 Hun, 543, 35 N. Y. Supp. 346; Koch v. Ellwood (1910) 138 App. Div. 584, 123 N. Y. Supp. 502; Stappenbeck v. Mather (1911) 73 Misc. 434, 133 N. Y. Supp. 482. See also Hamershlag v. Duryea (1899) 38 App. Div. 130, 56 N. Y. Supp. 615; Wright v. Saddler (1859) 20 N. Y. 329. Oregon.-Crowley v. Grant (1912) 63 Or. 212, 127 Pac. 28.

Pennsylvania.—Culler

V. Motzer

(1825) 13 Serg. & R. 356, 15 Am. Dec. 604; Earle v. Delaware, L. & W. R. Co. (1921) 270 Pa. 152, 113 Atl. 196. See also Law v. Patterson (1841) 1 Watts & S. 184.

Rhode Island.-Union Sav. Bank v. Taber (1882) 13 R. I. 683.

South Carolina.-Gray V. Bates (1848) 34 S. C. L. (3 Strobh.) 498; Sudduth v. Sumeral (1901) 61 S. C. 276, 85 Am. St. Rep. 883, 39 S. E. 534; McIntosh v. Kolb (1919) 112 S. C. 1, 99 S. E. 356. See also Odom v. Weathersbee (1887) 26 S. C. 244, 1 S. E. 890; Coleman v. Coleman (1905) 71 S. C. 518, 51 S. E. 250.

South Dakota.-Taylor v. Edgerton (1919) 42 S. D. 106, 173 N. W. 444.

Tennessee.-Weisinger v. Murphy (1859) 2 Head, 674; Burns v. Headerick (1886) 85 Tenn. 102, 2 S. W. 259. See also Waterhouse v. Martin (1824) Peck, 392.

Texas.-Jacks v. Dillon (1894) 6 Tex. Civ. App. 192, 25 S. W. 645; Lewis v. Terrell (1894) 7 Tex. Civ. App. 314, 26 S. W. 754; Naylor v. Foster (1906) 44 Tex. Civ. App. 599, 99 S. W. 114; Church v. Waggoner (1890) 78 Tex. 200, 14 S. W. 581; Hardy Oil Co. v. Burnham (1909) 58 Tex. Civ. App. 285, 124 S. W. 221; Eastham v. Gibbs (1910) 58 Tex. Civ. App. 627, 125 S. W. 372; Robles v. Robles (1913) Tex. Civ. App., 154 S. W. 230; Jung v. Petermann (1917) Tex. Civ. App. 194 S. W. 202; Olsen v. Grelle (1921) Tex., 228 S. W. 927, reversing on other grounds (1916) Tex. Civ. App. 190 S. W. 240. See also Byers v. Carll (1894) 7 Tex. Civ. App. 423, 27 S. W. 190; Morgan v. White (1908) 50 Tex. Civ. App. 318, 110 S. W. 491; Alexander v. Kennedy (1857) 19 Tex. 488, 70 Am. Dec. 358. Compare Kirby v. Hayden (1906) 44 Tex. Civ. App. 207, 99 S. W. 746. Vermont. Roberts v. Morgan (1858) 30 Vt. 319; Waterman v. Moody (1918) 92. Vt. 218, 103 Atl. 325.

Virginia.-Johnston V. Virginia Coal & I. Co. (1898) 96 Va. 158, 31 S. E. 85; Virginia Coal & I. Co. v. Hylton (1913) 115 Va. 418, 79 S. E. 337. See also Buchanan V. King (1872) 22 Gratt. 414; Cochran v.

Hiden (1921) 130 Va. 123, 107 S. E. 708.

West Virginia.-Talbott v. Woodford (1900) 48 W. Va. 449, 37 S. E. 580; Bennett v. Pierce (1901) 50 W. Va. 604, 40 S. E. 395; Pickens v. Stout (1910) 67 W. Va. 422, 68 S. E. 354; Lloyd v. Mills (1910) 68 W. Va. 241, 32 L.R.A. (N.S.) 702, 69 S. E. 1094; Perkin v. Pfalzgraff (1906) 60 W. Va. 121, 53 S. E. 913 (by Brannon, J.) See also Cecil v. Clark (1898) 44 W. Va. 659, 30 S. E. 216; Justice v. Lamson (1899) 46 W. Va. 163, 33 S. E. 102; McNeeley v. South Penn Oil Co. (1903) 52 W. Va. 616, 62 L.R.A. 562, 44 S. E. 508; Hutchens v. Denton (1919) 83 W. Va. 580, 98 S. E. 808.

Wisconsin.-Wright v. Sperry (1867) 21 Wis. 332; Sydnor v. Palmer (1871) 29 Wis. 226.

England.-Townsend's Case (1584) 4 Leon. 52, 74 Eng. Reprint, 724; Doe ex dem. Reed v. Taylor (1833) 5 Barn. & Ad. 575, 110 Eng. Reprint, 903, 2 Nev. & M. 508, 3 L. J. K. B. N. S. 67.

"No citation of authorities is required to establish the proposition that one who enters under a warranty deed of the entire premises is never presumed to be a tenant in common, but a tenant in severalty." Soper v. Lawrence Bros. Co. (1903) 98 Me. 278, 99 Am. St. Rep. 397, 56 Atl. 908.

The distinction between adverse possession as against strangers and as against other tenants in common, and the effect of a conveyance of the whole estate by one tenant in common to overcome the presumption that possession is not adverse to cotenants, are clearly and fully set out in Foulke v. Bond (1879) 41 N. J. L. 527. The court there said: "In the acquisition. of title by adverse possession the distinction between strangers and tenants in common relates to the character of the evidence necessary to prove that the possession was adverse. The relations between the joint owners are presumed to be amicable rather than hostile, and the acts of one affecting the common property are presumed to be done for the common benefit. Freeman, Cotenancy § 166. This presumption is liable to be overcome by the circumstances of the particu

lar case. It is a rule of evidence merely, which enters into the question whether the possession is in fact adverse, and not a rule of law, which forbids the application of the Statute of Limitations to persons who occupy to each other the relation of tenants in common. It is with respect to those two essential qualities of the possession, on which title by lapse of time is founded, hostility in fact to the title of the true owner, and notoriety of the adverse claim,-that the fact of a cotenancy between the parties becomes an important element. If the parties are strangers in title, possession and the exercise of rights of ownership are in themselves, in the absence of explanatory evidence, proof of an ouster of the true owner, whereas, in cases of privity of title such as subsists between tenants in common, the acts of possession of one tenant will, in the absence of satisfactory evidence to the contrary, be referred to the community of title, and there must be clearer and more decisive evidence of an ouster by one tenant in common of his associate than is necessary to prove that a person having no right to possession had ousted an owner in severalty. Doe ex dem. Reed v. Taylor (Eng.) supra; Prescott v. Nevers (1827) 4 Mason, 330, Fed. Cas. No. 11,390; Freeman, Cotenancy, § 221. An ouster by a tenant in common does not differ in its nature from any other ouster, in any respect, except in the degree of evidence required; in other cases the assumption of ownership is more clearly adverse; in case of a tenant in common such assumption of ownership, and the acts which indicate it, may be consistent with an acknowledgment of the rights of the cotenant, and therefore acts which are decisive in the one case are equivocal and insufficient in the other. . . . The presumption that the entry of one cotenant is for the benefit of all applies to a third person who acquires an undivided interest under a conveyance to that effect from one of the original cotenants. He has title to an undivided interest, and his entry is presumed to have been in accordance with

his title. But where the grantee has obtained a conveyance of the whole estate by one of the cotenants, entry made under such a title is a disseisin of the other cotenants. Entry

by a grantee holding under a deed of conveyance for the entire estate, made by one of the cotenants and duly placed on record, has all the constituent elements of a disseisin at common law. The conveyance by one tenant of the estate in entirety is decisive of his purpose to appropriate the entire estate to his own use, especially if his deed contain full covenants of seisin and warranty. The entry of the grantee under such a conveyance is equally evincive of his intention to claim the whole to the exclusion of the other cotenants, and if the deed be duly recorded the transaction acquires that notoriety which is equivalent to the notoriety of livery of seisin. The disseisin thereupon becomes complete; and, if possession be held continuously thereafter for the period of twenty years by open and notorious acts of ownership, without any interference on the part of the other cotenants, title to the whole estate may be acquired by adverse possession."

In Clarke v. Dirks (1916) 178 Iowa, 335, 160 N. W. 31, the court said: "The rule is, that where one cotenant in possession conveys the entire fee in the land, by warranty deed, to a stranger, who knows nothing of the limitation upon his title, and surrenders possession to the stranger, and the stranger enters into possession under the deed, believing that he he has full title to the property, the presumption is that he enters der the terms of his deed as fee owner, and a complete ouster has been effected. A continued, uninterrupted, adverse possession for the statutory period thereafter ripens in him a title against the adverse claims of all others. The Statute of Limitations is a statute of repose."

un

In Lucas v. Crofoot (1921) 95 Conn. 619, 112 Atl. 165, it was held that the effect of a deed by a cotenant purporting to convey the whole title was to