Hon. Thomas Johnson, Special Judge,
delivered the opinion, of the Court.
The first point that we consider necessary and proper to settle in this case, relates to the sufficiency of the location under the New Madrid claim of Cockerham, to constitute an appropriation of the land in controversy. The decision of this question will necessarily depend upon the construction that shall be placed upon the act of Congress, of February 17th, 1815. That act provides that any person owning lands in the county of New Madrid, in the Missouri Territory, according to the extent said county had on the 10th of November, 1812, and whose lands had been materially injured by earthquakes, should be authorized to locate the like quantity of land on any of the public lands of the said territory, the sale of which was authorized by law. No person was allowed to locate a greater quantity that might be confirmed to him, and in no case to exceed 040 acres; but the owners of lots or tracts of land injured, and less in quantity than one hundred and sixty acres, were permitted to locate any quantity, not exceeding that number; with a proviso, that in every case where such location should be made according to the provisions of that act, the title of the person or persons, to the lands injured, as aforesaid, should revert to, and become absolutely vested in the United States. The claimant was required to satisfy the Recorder of Land Titles, by the oath of one or more competent witnesses, that he was entitled to a tract of land under the provisions of that act, and upon being satisfied of his right to make such location, in lieu of that injured, it became the duty of the Recorder to issue a certificate for that purpose, to the claimant. The certificate thus issued might then be located, on the application of the claimant, by the principal deputy surveyor, for said Territory, or under his direction: and it was made his duty to cause a survey thereof to be made, and to return a plat of the same to the Recorder, together with a notice in writing, designating the tract or tracts thus located, and the name of the claimant, and which plat and notice the Recorder was required to spread upon the records of his office. It was then made the duty of the Recorder to transmit a report of the claims allowed, and locations made, under the act, to the Commissioner of the General Land Office, and to deliver to the party a certificate, stating the circumstances of the case, and that he was entitled to a patent for the tract therein designated. That certificate the claimant was required to file with the Recorder within twelve months from its date, and thereupon the Recorder was to issue a certificate in favor of the party, which certificate, being transmitted to the Commissioner of the General Land Office, entitled him to a patent, to be issued in like manner as was provided for other public lands of the United States. The Supreme Court of the United States, in the case of Bagnell vs. Broderick, (13 Peters Reports, 436, et seq.l) whilst passing upon said act of Congress, said: “The United States never deemed the land appropriated until the survey was returned, for the reason that there were many titles and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New Madrid claims were subject to be located. So there were lead mines and salt springs excluded from entry. Then again, the notice of entry might be in a form inconsistent with the laws of the United States, in all which cases no survey could be made in conformity with it. The location referred to in the act, is the plat and certificate of survey returned to the Recorder of Land Titles; because, by the laws of the United States, this is deemed the first appropriation of the land, and the Legislature of Missouri has no power, had it made the attempt, to declare the notice of location filed with the Surveyor General, to be an appropriation contrary to the laws of the United States.” And in Barry vs. Gamble, (3 How. Rep. 84;) when speaking of the Recorder’s certificate to Lesseur, for 640 acres of land, in compensation for land injured by the earthquake in New Madrid county, the court said: “ On this, the survey of April, 1815, is founded. Its return by the surveyor, with a notice of location, to the Recorder, was the first appropriation of the land, and not the notice to the Surveyor General’s Office, requesting a survey to be made, as the court held in the case of Bagnell vs. Broderick, 13 Peters Rep. 450; and again in Lesseur vs. Price, 12 How. U. S. R. 60., the court said that a New Madrid location, though a professed bounty to, and at the option of persons whose lands were injured, is nevertheless upon a consideration, being an exchange of lands. The title of the injured lands does not revert to the United States according to the terms and obvious construction of the act of 1815, until the location is completed, by the return of the survey, and notice to the Recorder of Land Titles, and a record of it made in his office; and until this is done no title is divested out of the United States, or vested in the locator, and the land remains the property of the United States, subject to be appropriated, etc., and the court further say, in that case, that this is the meaning of the Statute of Missouri, authorising those claiming lands by New Madrid locations, to maintain ejectment; that is to say, a location, which is an appropriation of the land perfected in the Recorder’s Office, when the exchange of titles takes place.— This court, in the case of Rector et al. vs. Gains, et al. 19 Ark. 86, when commenting on these authorities in connection with the New Madrid act, said: “ The true question on the point, is not what is a location in general, or what is, in general, the proper signification of that word; but what is the location contemplated by the New Madrid acts? and we feel constrained to hold, that according to these authorities, and not, as we think, at all inconsistent with the plain language of the acts, and certainly in accordance with a safe and wise policy on the part of the government, that location was the actual survey and return of the plat by the surveyor to the Recorder. Until such return and its approval, on the part of the government, there was no commencement of right or title to the land applied for, no severance of it from the public domain. Then, for the first time, rights to the respective lands exchanged vested respectively. Before that point of time, either party could recede. It was a standing oiler on the part of the government, which the New Madrid sufferer might accept or not at his election. If he elected to accept it, that election was shown, not by the acts of the party above, but by the concurrence in the act on the part of the government, upon the terms and in the mode prescribed by the act of Congress tendering the bounty. Until this concurrence thus manifested, no rights could vest, cognizable in a court of justice. If anjr arose, in honor and conscience, they rested in entreaty. The Government undertook to dispose of her own lands upon her own terms. If the New Madrid sufferer undertook to acquire them under the offer on the part of the Government, he could do so only when those terms were fully complied with, whether within his own control or not. Until then the Government did not part with her lands, nor he acquire them — no rights vested, cognizable in a court of Justice. If intermediate the application of the New Madrid sufferer for the benefits of the act of Congress, and pending the needful steps resulting, when completed, in securing the bounty of Congress, the Government should sell, patent, or take in reserve for the uses of the Government, the land applied for and contemplated to be acquired by the New Madrid sufferer, no legal rights were invaded, because none had been created under the terms of the act of Congress, of the provisions of which the sufferer had sought in vain to avail himself; that very contingency having been contemplated, according to the construction of the act in making this bounty subordinate to the paramount policy of the Government in reference to the disposition of the public lands, and the security of land titles; and especially, the Supreme Court say, in the quotation already made, because there were many titles and claims, perfect and incipient, emanating from the provincial governments of France and Spain, and others from the United States, in the land district where the New Madrid claims were subject to location. So there were lead mines and salt springs excluded from entry. Then again, the notice of entry might be in a form inconsistent with the laws of the United States; in all which cases no survey could be made in conformity to it. Hence, if vested rights were allowed to grow up, previous to the return and approval of the survey, a great field of litigation would be opened, which sound policy dictated should not be done; an evil which is beginning to be too sensibly felt in the land States, in reference to the policy and construction of the pre-emption laws of Congress, as expounded by the Supreme Court, at Washington, whereby confidence in land titles derived from the Government has been, in no little degree, impaired. Nor was there any hardship at all comparable with this great evil, growing out of the sounder policy of the New Madrid acts, which vested no rights, and hence allowed either party to recede from the contemplated exchange ©f lands at any time previous to the final consummation of the proffered exchange, by the return and approval of the survey, afterwards to be perfected by grant on the part of the government.”
We will now proceed to apply these tests to the New Madrid claim under consideration. We have carefully examined the transcript filed in this court, but have been unable to discover such a state of facts as the law requires to constitute a valid location and appropriation of the land in controversy under that claim.
Exhibit M, of the answer and cross-bill of the defendant, Rector, presents a certificate, purporting to have been issued by the Recorder to Henry Cockerham, or his legal representatives, under date of the 30th of November, 1815, by which authority is given to locate 640 acres of any of the public lands in the Territory of Missouri, the sale of which was authorized bjr law; and also a selection of that amount of land made by Wm.. O’Hara, dated October 20th, 1820, and in which he requested an order of survey. It also contains a letter from Edward Cross, as surveyor of public lands of Arkansas, under date of July 7 th, 1838, addressed to F. R. Conway, esq., Recorder of Land Titles, St. Louis, Mo., in which he states that an application had recently been made to him for a 'copy of the survey made by virtue of New Madrid certificate numbered 156, in the name of Henry Cockerham, or his legal representatives, for 640 acres of land, and that a copy of said survey was furnished the applicant, with the exception of the meanders of the Arkansas river. When the survey referred to was made, or by or for whom, does not appear, nor can that document be received as evidence that a survey was in fact made, since it is utterly destitute oi every requisite necessary for such a purpose. It does not purport to be a certified copy of such surve3r, and it is also fatally defective in not appearing to have been approved and recorded in the office of the Recorder of Land Titles. It was, therefore, entitled to no consideration as an instrument of evidence, and consequently should have been excluded by the Chancellor. The survey of C. E. Moore, bears date of May 2d, 1839, and even upon the presumption that such survey was authorized by law, and could have served as a basis for the claim of Cockerham to rest upon, yet it is obvious that it could not so operate in the present case, as the land in dispute had been previously appropriated by Chester Ashley, under the five section act. It is inadmissible as evidence, for the further reason that there is no showing that it ever was filed, approved and recorded by the Recorder of Land Titles, as required by the New Madrid act. The record also exhibits certain documents, purporting to be transcripts from the General Land Office, and which were admitted by the Chancellor, against the objection of the defendants in the cross-bill. These consist of a patent certificate, issued on the 16th June, 1838, a selection by Wm. O’Hara, of 640 acres, under a location certificate previously issued to Henry Cockerham, numbered 156, and dated October 20th, 1820, and also a plat of survey and designation of the tracts, without date, over the signature of Edward Cross, surveyor of public lands.
We think that these transcripts were wholly inadmissible, upon the clearest principles of evidence. The patent certificate is manifestly predicated upon the plat and designation, which appears to have been forwarded to the Recorder of Land Titles, by Edward Cross, surveyor of public lands for Arkansas. There is nothing to show at what time, or by whom, or for whom the supposed survey and designation were made, nor does it appear at what time it was put upon the record in the office of the Recorder. The patent certificate having issued on the 16th June, 1838, and the certificate of the Recorder appended to the transcript bearing the same date, and it not appearing at what time the supposed survey was received or recorded, the presumption is against the party for whose benefit it is offered, as the law presumes that if the fact actually existed he would have made it appear at a date sufficiently early to preclude all adverse claims. In the absence of any showing to the contrary, the law will intend that it was put upon the record at the latest possible period of time that the facts of the case will warrant, and that is the 16th June, 1838. Taking that to be the true time, and which, under the rules of pleading, wm are bound to do, it follows that it was too late to vest the title in the defendant, Rector, as the General Government had previously parted with all her interest by the entry of Chester Ashley, under the five section grant. The next and only remaining question, which we deem it necessary to discuss, relates to the legal effect of a certain instrument of writing-entered into by Justus Post, Robert Simpson and Chester Ashley, and bearing date of February 14th, 1825. It was agreed by and between those parties, that each of them claimed and had title to a portion of a New Madrid location of 640 acres, which were located near Little Rock, by the legal representatives of Henry Cockerham, by virtue of a certificate No. 156, and that all their several claims on said 640 acres, should be united, and their interest so divided that Justus Post, should receive two-fifths of all the interest acquired by the united titles, and that Robert Simpson and Chester Ashley should have the residue to be equally divided between them. There can be no doubt but that each of the parties to that instrument, from the instant of its execution and acceptance, became tenants in common of the lands described in it, and consequently held the same in trust for each other in virtue of that relation. It is contended that Ashley, being thus affected with a trust, could not locate the whole for his individual benefit, but that his entry under the five section grant inured to the common benefit of all. The question then to be determined is, whether that relation still subsists, or is it dissolved by the subsequent act of Ashley.
The Supreme Court of Alabama, in the case of Abercrombie vs. Baldwin, et al., said: “ A tenant in common, from the nature of the estate, must, if in the enjoyment of his rights, be in the possession of the whole; consequently the seizin of one such tenant, who admits, or does not deny, the title of his co-tenant, may be considered the seizin of all. Knox vs. Silloway, 1 Fairf. Rep. 201; Shosinway vs. Holbrook, 1 Pick. 114. One tenant in common may oust his co-tenant. Hoffsletter vs. Blottner, 8 Miss. Rep. 276; Mason vs. Ferish, 1 Scum. 495. But whether such tenant entered upon the estate claiming an exclusive right, and ousted his co-tenant, is a question of fact. Blackmore vs. Gregg, 2 Watts & Serg. 182. In Law vs. Patterson, 1 Watts & Serg. 184, it was decided that an entry upon and possession of the whole of the land by one tenant in common, as if it had been his exclusive property, and the receipt of the rents and profits thereof, without accounting to his co-tenant for any part thereof, or proof of a demand to do so, amounts to an ouster. So, an ouster will be presumed between tenants in common, in favor of one who has had peaceable possession and received the profits for the length of time which the statute of limitations prescribes as a bar. Mchoffy vs. Dobbs, 9 Watts 363. A co-tenant may be ousted by denying or resisting his rights, or by excluding him from the enjoyment of the property. Brackits vs. Norcrop, 1 Greenl. 89; Thomas vs. Pickering, 1 Shep. 337. If the tenant who is out of possession submits to the exclusive occupancy of his co-tenant, commenced with the intent to hold in severalty, until the expiration of the period prescribed by the statute of limitations as a bar to an action, he cannot recover. Gillaspie vs. Osburn, 3 A. K. Marsh. 77. Although possession by one tenant in common will not per se constitute an adverse possession against his co-tenants; but if, by a notorious act, he claims an exclusive right, even under a void title, his possession becomes adverse, and the statute of limitations will run. Jackson vs. Tibbits, 9 Cow. 241; Clapp vs. Bromagher, Ib. 530. A silent possession, accompanied by no act which can amount to an ouster, or give notice to his co-tenant of his intention to exclude him, will not make a possession adverse. McClung vs. Ross, 5 Wheat. 116. In Willison vs. Watkins, 3 Pet. 51, it was said that the relation between tenants in common is, in principle, very similar to that between lessor and lessee, the possession of the one is the possession of the other. But if one ousts the other, or denies his tenure, his possession becomes adverse. Weld vs. Oliver, 21 Pick. 559 — and other cases cited. The Supreme Court of Alabama, in the case of Johnson d al. vs. Toulmin ct al., referring to the case of Abercrombie vs Baldwin, said: “This Court held as the principle deducible from many authorities cited in the opinion of the late Chief Justice, that the possession of one tenant in common may become antagonistic, and exclusive of a co-tenant, and will become so by an unequivocal and notorious denial of the right of his co-tenant. If one tenant in possession retains the whole, and denies the title of his co-tenant to any part of the land, it amounts to an ouster. 11 East, Doe vs. Bird, 47; Doe vs. Prosser, Cowp. 217. It is undoubtedly true as a general proposition, that the possession of one joint tenant, or tenant in common, is the possession of his co-tenant, and is regarded as in support of their common title (see 2 Cruise of Real Property, by Greenl. 273); but it is equally well settled that one tenant in common may disseize another. What acts, however, shall constitute such disseizin, or ouster, is not so well agreed upon by the authorities. The simple fact that one tenant in common receives the whole profits, is not sufficient to divest the possession of his co-tenant. Willison vs. Wathins, 3 Pet. 51; Chambers vs. Chambers, 3 Hawks. 332; 2 Greenl. Cruise 393. Neither are acts of ownership necessarily to be construed in tenancies in common as acts of disseizin. It is said to depend upon the intent with which they are done, and their notoriety, as affording evidence of notice as to the adverse character of the possession. In testing a defence founded on possession, courts of justice direct their attention to the time during which it has continued, and its character. The latter respects its notoriety, the nature of the occupation, and especially the intention with which it is taken and continued. If it be a naked possession', not accompanied with any claim of right, it will never constitute a bar, but will enure to the advantage of the true owner. It is possession in his right, and for his benefit. The law presumes, until the contrary be shown, that a man in possession without title, intends to hold for the true owner; in other words, that he intends to hold honestly, so far as he can consistently with holding at all. So, if he have a title as tenant in common, he is presumed to hold for himself and his co-tenant; and, in either case, if his possession be in fact wrongful; in other words, adverse, or exclusive, so as to make a statute bar, he must show this in a course of proof, or show that it is admitted by his adversary in pleading. 24 Wend. 596, Humbert vs. Trinity Church. Now, although a man who may hold possession rightfully as a tenant in common, presumptively refers himself to that right, yet the contrary may be shown; and if his conduct be such as to satisfy the mind that he means to hold out his co-tenants, and he does in fact exclude them, this is an ouster, and his possession from that time becomes adverse, within the meaning of the statute of limitations, equally so as if he had never any right to claim as tenant in common. It by no means follows, therefore, that even had the deed from Cornelius expressly mentioned his right as tenant in common, the defendants were necessarily tied up to hold in that relation. They might at any moment break the connection by openly disavowing it, and from that time the statute of limitations would begin to run. In Gill 276, the Court of Appeals of Maryland said, it is a settled principle in the law, apparently of all the States, that title to lands from the commonwealth draw's the seizin or actual legal possession to it; so that one who has title derived out of the State is, by force of his title, in possession until an ouster, or disseizin is committed by some one entering upon the land with a claim of possession adversely to him; and for which they refer to Smith’s Leading Cases 413; Hoye vs. Swan’s Lessee, 5 M. D. 253. It is well settled that although the statute of limitations does not apply to any demand purely equitable, yet courts of equity acting according to legal analogies, adopt it in cases analogous to those in which it applies at law. Statham vs. Barnston, 11 Ves. 453. But where the remedy at law and in equity is concurrent, the statute of limitations applies alike to both forums. Peay ad. vs. Badgett, January Term, 1859, and cases there cited. These authorities, and the cases referred to in them, may suffice to show, that even in cases where the title is complete in the tenants in common, there are circumstances under which an adversary claim to the entirety may be set up by one oí the tenants, so as to bar the rights of his co-tenant by the operation of the statute of limitations; and for a much stronger reason may such claim be established where there is an utter failure of the common title.
The original bill alleges that Chester Ashley made his entry under the 5th section grant, on the 8th June, 1838; that he caused his certificate of purchase to be recorded in the Recorder’s office of the county of Pulaski, in the State of Arkansas, on the 17th of December, 1839; and that having sold one undivided half of the land in controversy to Roswell Beebe, on the 11th of January, 1840, they, on the 1st day of May, of the same year, caused the whole tract to be surveyed, subdivided and laid off into blocks and lots, as an addition to, and extension of the city of Little Rock; and that from the time of said entry, he, and those claiming under him, had held uninterrupted and peaceable possession of the land, as well actual as constructive. The location and entry under the five section claim is abundantly proved by the exhibits; and that Ashley sold one half of the land to Beebe, and that they subdivided the same into blocks and lots, and wrnnt on to make sale of the same, as stated in the bill, is admitted by the answer of the defendant, Rector. Here, then, is an open, notorious and unequivocal act on the part of Ashley, as far back as the 8th June, 1838, by which he appropriated the entire quarter section to his individual and exclusive benefit. From that period of time to that of his death, he never has conceded that he held possession as a tenant in common; but, on the contrary, that he claimed and controlled it as his own exclusive property. There can be no question, therefore, but that his entry under the five section claim, amounted to a disseizin and actual ouster of his co-tenants; and that, consequently, the statute of limitations began to run in his favor from that instant. But it has been intimated that the representatives of Ashley cannot claim the benefit of the statute of limitations, since they have not put it in issue by a direct plea. The first section of the act provides that “ No action for the recovery of any lands or tenements, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of such suit. It would be difficult to conceive in what other manner Beebe and the representatives of Ashley, in framing their bill to quiet their title to the land in controversy, could have availed themselves of the benefit of the statute bar. They do not occupy the attitude of defendants, whose title or possession has been attacked by suit, so as to require them to interpose their grounds of defence by plea; but, on the contrary, they appear upon the record as complainants setting forth a title, and calling upon Rector, as the defendant, to come forward and make proferí of his, if he has any to exhibit. In deraigning their title, as the groundwork of their bill, they urge that Ashley, on the 8th June, 1838, entered the land in controversy under a five section claim, and that he, and those-claiming under him, went immediately into possession, and have had a continuous, peaceable and uninterrupted possession ever since. The entry, as has already been shown, was such as to amount to an ouster of his co-tenants; and it is not denied, but expressly admitted by the answer, that they actually took possession by causing the whole tract to be surveyed, and proceeding to the sale of portions of the same. It was not necessary, in this case, that they should have alleged or shown an actual possession of the premises, as the title, the moment it accrued, drew the possession with it, and co-extensive with the limits of the tract. The entry of Ashley under the five section grant, was made on the 8th June, 1838, and the suit was not instituted until the 4th of May, 1850, a period of near twelve years, and there is no showing that Rector held adversely to them within that entire period, or that he has done any act, by instituting suit or otherwise, which could impose upon them the necessity of exhibiting their title, within the period of limitation. We deem it well worthy of remark, in this connection, and in addition to what has been said in reference to the entry of Chester Ashley, under the five section grant, and the statute bar that has grown up from his possession under it, that the facts as presented by the record do not sustain the allegation of fraud in the acquisition of the land in controversy. It does not clearly appear at what precise period of time, but it is supposed to be about 1820, when he first became interested in the Cockerham claim. From that time until 1836, when it was'finally determined, by the Land Department at Washington, that that claim was void, and that it could not be made available as an appropriation of the land, he continued to control and hold possession of the same, and if not before, certainly from 1825, as a tenant in common -for the benefit of Simpson, Post and himself. It was not until he had held possession and controlled the land under the New Madrid claim for some eighteen years, and when he had bécome fully satisfied that he could control it no longer under that claim, that he abandoned it, and sought to avail himself of the five section grant. The Cockerham claim having been thus declared void by the only tribunal then authorized to pass upon it, and having from that time been virtually abandoned, and surrendered, as utterly invalid and worthless, he most unquestionably was at liberty to buy in an outstanding title, for his own benefit, and that without subjecting himself to the imputátion of fraud. What might have been the result in case that his co-tenants under the Cockerham claim, had have presented themselves, within a reasonable time after his entry under the five section grant, and have offered to make contribution, we will not now decide, as that question is not presented by the record.
From a full review of the facts of this case, and a careful examination of the law applicable to them, we are satisfied that there is error in the decision of the Court below, and that, therefore, the same ought to be reversed. It is, therefore, ordered, adjudged and decreed, the decree of. the Chancellor of Pulaski county, herein rendered, be and the same is hereby reversed, with costs, that the cross bill of defendant, Rector, be dismissed for want of equity, and that the complainants in the original bill be quieted in their title, and possession of the land described and claimed in their said bill, audit is further ordered that the decree herein rendered be certified to thé said Court of Chancery of Pulaski county, and be there executed according to law.
Mr. Justice Rector did not sit in this case.