Garrett v. Ramsey

26 W. Va. 345, 1885 W. Va. LEXIS 73

• Court: West Virginia Supreme Court
• Decided: July 9, 1885
• Status: Published

Opinions

Green, Judge:

In this case the defendant demurred to the evidence; and the evidence on both sides was properly inserted in the demurrer, as is well established by the authorities. (Muhleman v. National Insurance Company, 6 W. Va. 508, point 1 of syllabus.) In such case the demurrants, in this instance the defendants, must be considered as admitting all that can reasonably be inferred by a jury from the evidence given by the other party, in this case the plaintiff; and as waiving all the evidence on his own part which contradicts that offered by the other party, in this case the plaintiff, or the credit of which is impeached, and all inferences from his own evidence, which do not necessarily flow from it. (Muhleman v. National Insurance Company, 6 W. Va. 508, point 2 of syllabus.) As the demurrer to evidence by the defendants withdrew from the jury, the proper tryers of facts, the consideration of the evidence, by which the facts are to be ascertained, the plaintiff, whose evidence in this case was thus withdrawn from its proper forum, is entitled to have it most benignly interpreted by this substitute for the jury. The plaintiff in this case ought therefore to have all the benefit in the consideration of the demurrer to the evidence, that might have resulted in his favor from a decision of the case by the jury. (Miller, use, &c. v. Insurance Company, 8 W. Va. 515, point 2 of syllabus.)

If the evidence in this case is weighed according to these well established rules, the case will present but the single question: Whether the possession by the junior patentee or party having the worse paper title .will be limited to his enclosure, when the elder patentee or party holding the better paper-title has actual possession of a part of the land embraced in' his grant or boundaries set out in his deed but not embraced within the limits of the grant, junior patent or the boundaries set out in the deed of the party holding the -worse paper-title, that is not embraced in the interlock ? This question was made a quære in Overton’s Heirs v. Davisson, 1 Gratt. 212, point 7 of syllabus, and to this day remains a mooted question in the Virginia courts, and has never been decided or even considered in the Supreme Court of Appeals in West Virginia. In considering this question it is all important, that we have a clear and distinct conception of several definitions and propositions, which may be regarded as undisputed here in this State and in Virginia.

First. — Adverse possession is one dependent on adverse and conflicting title grounded upon an ouster of the rightful owner, and which in ease of a freehold is known as a disseizin. To constitute adverse possession there must be a possession under claim of title, and it must consist of an exclusive, continued, visible, notorious and hostile possession under a colorable claim of title. (Dawson v. Watkins, 2 Rob. 259; Taylor’s Devisees v. Burnsides, 1 Gratt. 186; Nowlin v. Reynolds, 25 Gratt. 141; Core v. Faupel, 24 W. Va. 238.)

Second. — 'Actual possession, to constitute adversary possession, must be an actual occupation or else the use and enjoyment thereof by the act of ownership equivalent to such actual occupation. But no- adversary possession can ever be acquired by any acts of ownership over the land, which fall short of such actual occupation, use or enjoyment. (Taylor’s Devisees v. Burnsides, 1 Gratt. 166, syl. 4; Overton’s Heirs v. Davisson, 1 Gratt. 812, syl. 8.)

Third. — Constructive possession, which may or may not be adversary possession, arises when one under color of title by patent, deed or other writing takes actual possession of a part of his land thus in law acquiring possession to the extent of his boundaries contained in his patent, deed or other writing. (Lessees of Clark et al. v. Courtney et al., 5 Pet. 320.) This is properly speaking constructive possession as distinguished from actual possession. It is however sometimes loosely spoken of as actual possession, because in many instances it operates just as though it was actual possession; hut as in other instances it does not so operate, it ought to be carefully distinguished from actual possession, and 'the failure to distinguish between them has produced confusion and misunderstanding. This constructive possession has its origin in the maxim of the common law : “ Possession of a part shall be construed as possession of the whole,” which, so far as I know is everywhere recognized.

Fourth. — Constructive seizin is seizin in daw, where there is no seizin in fact. Thus, when the State issues a patent to a person who never takes any sort of possession of the land granted to him, he has nevertheless constructive seizin of all the land in his grant, though some one else be at the time in actual possession of it; for this actual possession of land belonging to the State is not regarded as adverse possession, as the State can not be disseized. So also, when a deed is made of a tract of land, no part of which is in the adverse possession of any one else, the grantor has constructive seizin of the whole of the land granted. (Clay v. White, 1 Munf. 162; Green v. Liter, 8 Cranch R. 229; Clarke’s Lessees v. Courtney, 5 Pet. 318, 356; Langdon v. Potters, 3 Mass. R. 15.) This proposition is universally admitted, to be true. But constructive seizin as thus defined is some times confounded with constructive possession as above defined. It is of course a matter of no importance by what ter,ms we designate these several conditions above defined, actual possession, constructive possession and constructive seizin;, but as each of them is clearly and distinctly different from the others, it is unfortunate that they have frequently been confounded, because distinctive names have not been uniformly given to them. We in this opinion will take special care to avoid this confusion and will uniformly give to each its proper name according to the above definitions. In doing this I am aware that I maybe giving a name to some one or more of them, which has not always been given by- courts and judges; but I shall do so, because it is essential to keep them constantly distinguished the one from the other. Indeed while these terms have not always been used with precision, yet the decisions have always recognized, that the conditions designated by them are themselves distinct and separate and have very different effects in determining the rights of parties, when questions of conflicting claims or adversary possession are to be determined.

To illustrate the real difference between these three conditions, we will suppose the State grants to a person a large tract of land, to which the State has good title. The patentee may take actual possession of the whole tract of land by enclosing and cultivating the whole of it. He has then actual possession of the whole tract of land; and he can not be dis-seized by any one else acquiring adversary possession thereof except by such person actually turning this patentee out of possession by force and taking actual possession of the land himself, claiming it as his own as by a subsequent grant to him by the State. Or such patentee instead of taking actual possession of the whole tract of land may take actual possession of a small part by enclosing and cultivating the same, but claiming title to the whole of it he has constructive possession of the whole ; and as to such parts of it, as are not in his actual possession, he may be disseized by another without his using any force but by actually settling on a part of the land and enclosing and cultivating it and claiming title thereto, though in fact his title be not a good one, as for instance, when it is a subsequent patent from the State. The part so actually enclosed and cultivated by this junior patentee is in his adversary possession as against the senior patentee, the constructive possession oí the senior patentee yielding to actual possession of the junior patentee. If we do not distinguish between these two sorts of possession but call them both actual possession, is it not obvious, that much confusion must necessarily be produced ? for clearly, as shown by the above example, which all admit to be law, there is a marked difference between what I have called actual possession and what I have called constructive possession. If any one prefers different names for them Ido not object; I only object to giving the same name to both.

If the senior patentee instead of taking possession of part of his land should take no actual possession of any part of it, so that he had what we have called only constructive seizin of the whole of his tract of land, and the junior patentee, whose patent was entirely within the bounds oí the senior patentee, took actual possession by enclosure and cultivation of a part of the land in his patent, he would nevertheless have constructive possession of the whole of the land included in his patent;- and this constructive possession would as effectually be regarded as adversary possession of the whole as against the constructivE seizin of the senior patentee, as if the junior patentee had actual possession of the whole. Then the constructive possession of the junior patentee would oust the senior patentee, though he had, before the iunior patentee obtained his patent, constructive seizin of the whole of the land including all that covered by the junior patent. Thus a constructive seizin of the senior patentee would yield to the constructive possession of the junior patentee. This is undisputed law and shows the marked difference between what we have called constructive seizin and constructive possession. Yet these two have also frequently been called by judges and law-writers by the same name, constructive seizin, as I have called it, being often called constructive possession, I do not claim that the names I have adopted are peculiarly well chosen; but as the conditions are obviously different, I insist that if confusion and uncertainty are to be avoided, they should be known by different names. Tor these reasons I will use the phrases actual possession, constructive posession and constructive seizin throughout this opinion as having distinct meanings and according to the definitions I have given above, though in so doing I may use the phrases in a different sense from what they have been sometimes used by judges and law-writers.

We will now consider the case before us of an interlock between a senior patent or better title and a junior patent or ' worse title.

First. Where neither party ever took any actual possession under their respective patents or titles, when the senior patent or older and better title was first issued or obtained, the senior patentee or person holding the better title immediately on the issuing of his patent or obtaining his title would, as we have seen, admittedly have constructive seizin of his whole tract of land including of course the whole of the land included in what became an interlock, when the junior patent was issued or worse title obtained. The junior patentee or holder of the worse title, when his junior patent was issued or when his worse title was obtained subsequently, would have constructive seizin of only such portion of sih land, as lay out of the interlock. For he could not have constructive seizin of the interlock, as it was already in the constructive seizin of the senior patentee or holder of the older and better title, and it is obviously an absurdity for two persons holding adverse titles to be both constructively seized of the same land. This proposition is obvious and is undisputed by any one. This may be expressed by saying that the constructive seizin of the junior patentee must yield to the constructive seizin of the senior patentee where there is an interlock.

Second. If the. senior patentee never enters upon any part of the land patented to him and has no actual possession of any part of it either within or without the interlock, so that he has only a constructive seizin of his land patented to him including the interlock, and the junior patentee takes actual possession of a portion of the land patented to him outside of the interlock claiming title to the whole of his grant, so that he would have constructive possession of the whole of his grant including the interlock but for the fact that the senior patentee had constructive seizin of the land, when this constructive possession of the junior patentee arose, the constructive possession of the junior patentee arising from his actual possession of a part of his land outside of the interlock, extends only to all his lands lying outside of the interlock, and can not overcome the constructive seizin of the senior patentee to the whole of the interlock and thus work an ouster of him. This is expressly decided in Koiner v. Rankins' heirs, 11 Gratt. 420, point 3 of syl. and pages 427 and. 428, and Cline’s heirs v. Catron, 22 Gratt. 378, point 1 (II) of syl. and p. 392. These Virginia decisions are fully sustained by decisions elsewhere. (Trimble v. Smith, 4 Bibb 257; Smith v. Mitchei, 1 J. J. Marshall 208; Pogue v. McKee, 3 J. J. Marshall, 208; Napier v. Simonson, 10 Overton 448.) The reasons, on which these decisions are b.ased, are expressed in the opinion of the court in Trimble v. Smith, supra. The court say:

“ The question presented by the agreed case is, whether the entry oí settlement by the defendants upon that part of the land covered by their patent, which is not within the interference between the two patents, should be construed to give them posession of the land included within the interference. * * When there is no adverse possession, there can be no doubt that a man by an entry into a part of the tract may acquire possession of the whole provided he may lawfully enter upon the whole; but to construe entry into part to which he has a right to give him possession of another part to which he has no right, would be making an act which was right in itself tortuous by construction. This would be wholly un-waranted and in direct violation' of the principles of law, which requires that where an act is done, which is susceptible of twofold construction, one of which is consistent with law and the other not, that the former should prevail. A distinction is taken and obviously for good reason between the case where an entry is to have the effect of vesting or divesting an estate, and the case where the estate is already in the person making the entry and the possession vacant. In the former case an entry into part, gives possession of that part only; but in the latter a general entry into part reduces the whole to actual possession. ‘ And therefore ’ (says Coke) ‘ if the lord entereth into part generally for a mortmain, or the feoffee for a condition broken, or a disseizin into a parcel generally, the entry shall not vest or divest in these or like cases, but for that parcel. But where a man disseized of divers parcels, and the freehold is cast by law upon the heir, and the possession in no man, then the entry into parcel generally seemeth to vest the actual possession in him in the whole. Co. lit. b.’ How as the entry of the defendants in this ease upon the part of their tract not within the interference, if construed to give them possession of the land within the interference, would have the effect of divesting the plaintiff of his rights, it is clear that such a construction is contrary to the law as laid down by Coke. Indeed if such a construction should prevail, a party having right might be divested ot his right without any wrong being in fact done him or any possibility of knowing that any was intended to be done.”

This reasoning seems to me conclusive. Different reasons for a like conclusion are given by Judge Baldwin in Taylor’s Devisees v. Burnsides, 1 Gratt. 196, but to my mind they are far less satisfactory. But his reasoning was approved by Judge Lee in Koiner v. Rankin’s Heirs, 11 Gratt. 428-9.

Third. — If the senior patentee never entered upon any part of his grant, so that he was only constructively seized of the land including the interlock, and the junior patentee has actual possession of a portion of the land lying within the interlock and thus constructive possession of the whole of the interlock as well as of the land in his grant outside of the interlock, then the mere constructive seizin of the senior patentee to the land in the interlock must yield to this constructive possession of the junior patentee to all the land in the interlock, and the result is an ouster of the senior patentee from all the land in the interlock as effectual as though the junior patentee had actual seizin of all the land in the interlock. This seems entirely just and right. The constructive possession of the junior patentee acquired by taking possession of a part of the land in the interlock ought in that case to override the mere constructive seizin of the senior patentee. This is abundantly sustained by all the Virginia authorities. (Overton v. Davisson, 1 Gratt. 223-4; Koiner v. Rankin’s Heirs, 11 Gratt. 427-8; Cline v. Catron, 22 Gratt. 392. See also Buford v. Cox, 5 J. J. Marshall 587, 589, 590 ; Calk v. Lynn’s Heirs, 1 A. K. Marshall 346; West v. Price’s Heirs, 2 J. J. Marshall 280; Fox v. Hinton, 4 Bibb 529.)

It appears then, if the senior patentee has mere constructive seizin of the interlock, it can not be overcome so as to Avork his ouster by the constructive seizin of the interlock by the junior patentee nor by the constructive possession of the junior patentee of the interlock, if that constructive possession of the interlock arose from the junior patentee having actual possession of a portion of his grant outside of the interlock; but if the constructive possession of the junior patentee arose from the actual possession by him of a portion of his grant lying within the interlock, then the constructive possession of tlie whole of the interlock by the junior patentee will be an ouster of the senior patentee, where he has only a constructive seizin of the interlock.

When the senior patentee has not a constructive seizin of the land in his grant, as in the three cases heretofore considered, but constructive possession of the whole of his land by holding actual possession of a portion of it, then in case of an interlock and the j unior patentee holding constructive possession also of the whole of his grant by reason of his holding actual possession of some portions of it within his grant, this will give rise to four different eases :

First.- — -When the senior patentee holds actual possession of a portion of his grant within the interlock and thus has constructive possession of all the land within his grant, and the junior patentee has also actual possession of a portion of his land within the interlock and thus constructive possession of the land within his grant, the constructive possession of the junior patentee can not overcome the constructive possession of the senior patentee and work an ouster of the senior pat-entee of all the land in the interlock not in the actual possession of the senior patentee, though it would obviously work an ouster of the senior patentee of that portion of the land in the interlock, of which the junior patentee had the actual possession, but the ouster would be confined to the land actually occupied by the junior patentee and could not be extended beyond that to the whole of the land in the interlock. This seems to be an obvious and necessary result, as the constructive possession of the junior patentee could not oust the senior patentee of lands in his constructive possession, though the actual possession of the junior patentee to the extent of the land thus actually occupied would oust the senior patentee of lands, of which he had only a constructive possession. This proposition is universally admitted by all courts and judges. (Overton v. Davisson, 1 Gratt. 224 ; Koiner v. Rankin’s Heirs, 11 Gratt. 420, 427-8; Cline v. Catron, 22 Gratt. 392.)

Second. — If the senior patentee is in the actual possession of a portion of the interlock and thus in constructive possession of the whole of his grant including the whole of the interlock, and the junior patentee is in actual possession of a portion of his grant outside of the interlock and thus has constructive possession of the whole of his land, it is obvious, that the constructive possession of the junior patentee can not overcome the constructive possession of the senior prtentee. This is admitted by all and indeed, as we have seen, the constructive possession of the jurior patentee arising, as in the supposed case we are considering, according to the Virginia cases would not even overcome the constructive seizin of the interlock by the senior patentee, and of course it ceuld not evereome his constructive possession of the interlock arising from his actual possession of a part of the interlock. (Koiner v. Rankin’s Heirs, 11 Gratt. 420, 427-8 and Cline’s Heirs v. Catron, 22 Gratt. syl. 1, 2, p. 392, point 1 (II) of syl.)

Third. — If the senior patentee is in actual possession of a portion of his land outside of the interlock and thus in constructive possession of the whole of his grant including the whole of the interlock, and the junior patentee is also in possession of a portion of his grant outside of the interlock and thus in constructive possession of all his land, it is obvious, that the constructive possession of the junior patentee can not overcome the constructive possession of the senior pat-entee. This is admitted by all and is sustained by the au-thorties just referred to.

Fourth. — When the senior patentee has actual possession of some part of the grant outside of the interlock claiming title to the whole andthushas constructive possession of all theland included in his grant including all the land in the interlock, and the junior patentee enters upon and-takes actual possession ofa. part of the land i neluded in the interlock claiming title to all the land'included in his grant and thus but for the senior paten-tee’s constructive possession of all the land in the interlock would have constructive possession of all the land within his grant including all the land in the interlock not in his actual possession, it would seem clear upon principal, that the constructive possession by the junior patentee of all the land in his patent including all the land in the interlock, had there been no conflict with the senior patent, can not take effect so far as the land in the interlock not in his actual possession is concerned; and there is nothing which can serve to overcome the constructive possession of the senior patentee and work an ouster of him from all the land in the interlock not in the actual possession of the junior patentee. In oth.er words the constructive possession by the senior patentee can not he overcome by the subsequent constructive .possession by the junior patentee. We have seen, that in all other cases the prior constructive possession of the senior patentee is always held to be superior to and to destroy what otherwise would have been a constructive possession of the whole land lying within the interlock; and I can see no good reason why there should be an exception to this otherwise universal rule. Indeed it strikes my mind as absurd to hold in any conceivable case, that, when the senior patentee or party having the better title has constructive possession of the whole of the interlock, he can be ousted therefrom by the mere constructive possession of all the lands in the interlock by the junior pat-entee. One having a good title to the land and the constructive possession thereof certainly ought in no case to be ousted therefrom by one having a worse title and claiming only constructive possession of the land. Two parties in the nature of things can not have constructive possession of the same land. And as the constructive possession claimed by one must necessarily yield to the constructive possession claimed by the other, it seems to me to be almost absurd to say, that the party, who in such conflict must yield, is the party who has the best title and also the first constructive possession of the land. How can he be called on to yield to one, who has a worse title, and who claims to have a constructive possession originating subsequent to the unquestionable constructive possession of the senior patentee.

Plain as this proposition seems to be, it has been called in question by distinguished judges. But there has been no decision, which I have seen in this State or elsewhere, which controverted this proposition, but on the contrary there are numerous decisions which sustain it; and while there is no decision in Virginia or West Virginia affirming or denying this proposition, there are elsewhere many decisions, which affirm it, and none I have seen, which lay down the opposite proposition.

Among the cases, which sustain this proposition, is Green v. Liter, 8 Cranch 229. The proposition which we have above laid down as law, is distinctly held to' be- tbe law for' the reasons assigned in the answer given by the court to' the tenth question found on page 250. The question answered is to be found on page 231.

The next case in the same court on this point is Lsssee of Clarke v. Courtney et al, 5 Pet. 320. In that case the party claiming under a defective deed entered into and held the actual possession oí a part of the interlock, and the party having the better title was in possession of a part of his land outside of the interlock. The syllabus on this proposition we have laid dowm is: “When a person enters into land under a deed or title, his possession is construed to be co-extensive with his deed or title, and though the deed or title may turn out defective or void, yet the true owner will be deemed to be disseized to the extent of such deed or title. This however is subject to some qualifications. For if the true owner be at the same time, in possession of a part of the land, claiming title to the whole, then his seizin extends by construction of law to all the land, which is not in the actual possession or occupancy by enclosure or otherwise of the party claiming under the defective deed or title.”

Both these cases were from Kentucky ; but they were decided on common law principles, no statute of the State of Kentucky touching the subject being referred to by the court; and these decisions are clearly in accord with the Kentucky decisions. (Bodly, &c. v. Logan’s Heirs, 2 J. J. Marsh. 254; Layton v. Galloway, &c., 4 Bibb 101.)

From the cases of Fox v. Hinton, 4 Bibb 559 and Calk v. Lynn’s Heirs, 1 A. K. Marsh. 547 it appears, that if, before any possession is taken by the senior patentee, the junior pat-entee enters upon the interlock and takes actual possession of a part of it, his possession will be construed to extend to the limits of the interlock, and a subsequent occupation by •the senior patentee of a portion of the land outside of the interlock will not give him constructive possession within the limits of the interlock, but it will still remain in the constructive possession of the junior patentee. But the reasoning in these cases shows, that, if the senior patentee had taken actual possession of a portion of his patent outside of the interlock, his possession would be regarded as constructively extending to the limits of bis patent, if he so claimed, and would include the whole of the interlock as in his constructive possession ; ■ and if subsequently the junior patentee took actual possession of a part of the interlock, he could gain no constructive possession of the whole interlock, but his ouster of the senior patentee would be confined to the land in the actual enclosure or occupancy by him. These views correspond with the views I have above expressed.

In the case of Burns v. Swift et al, 2 Serg. & R. 439, the court say : “Where the surveys interfere the act of 'limitation has no operation against him, who has the best right, except his opponent takes adverse and exclusive possession. Where there is no interference,'possession of a part is in law possession of the whole. And it is this maxim, of possession oj a part being possession of the whole, which has led some persons into error, by applying it to the case of interfering surveys, to which from the nature of things, it is not applicable. In the case of Ringold, lessee v. Cheney, in the general court of Maryland, the principle which I have mentioned with regard to interfering surveys was expressly decided. (Hall’s Am. Law Journal No. 1, p. 128.) I understood Chief Justice McKean and brother Y ates have recognized the same principle in decisions at Nisi JPrius, and, indeed, I have always, considered the' law as very clear.”

I have found no decisions, which controvert these decisions in other States; but it has been claimed, that the proposition, 'which I have above laid down, though fairly deducible from the decided cases ought not to be regarded as law in Virginia or West Virginia because of a statute in force in both States which declares: “In a controversy affecting real estate possession of a part shall not he construed to be possession of the whole, where an actual adverse possession can be proved.” (1 R. C. p. 510, sec. 9; Code of Virginia, ch. 135, sec. 19, p. 560; Code of West Virginia, ch. 90, sec. 19, p. 520.) But it seems to me obvious that this statute has no bearing on the proposition under consideration ; that what would be constructive possession of an entire tract of land shall not prevail as against actual adverse possession. This was law prior to the passage of this act, as it was a part of the common law. But as some doubt as to whether this was the law has been created by the frequent calling of constructive possession actual possession by judges and text-writers, the legislature properly enacted this statute simply 're-affirming the common law and thereby removing, the doubts created by the loose use of terms which I have shown was common then and is still not unusual. The legislature simply distinguishes clearly between constructive possession and actual possession, so as to avoid the confusion which had arisen from not properly distinguishing between them. The familiar speaking of constructive possession as though it was the same as actual qwssession, had rendered the common law as laid down in this statute obscure; and to clear up this obscurity was, it seems to me, the obvious and only object of this statute. Though there is no decision in Virginia or West Virginia opposed to the proposition, which I have last above laid down, yet Judge Baldwin in Taylor’s Devisees v. Burnsides, 1 Gratt. 196-8 does controvert this position. It is true on page 197 he frankly admits, that the current of authorities support the position, which I have taken, and are opposed to the contrary proposition laid do.wn by him, but he regards them as inapplicable because of the statute I have quoted above. But it seems to me obvious that this statute has no application or bearing on this proposition as I have shown. Judge Stanard in this case on page 209 expressly dissents from this view of Judge Baldwin. It has been supposed that Judge Lee concurred in these views of Judge Baldwin in his opinion in Koiner v. Rankin’s Heirs, 11 Gratt. 428. He says: “In the case of Taylor v. Burnsides, Judge Baldwin in an able and luminous opinion delivered by. him adverts to this question and expresses views with which the opinion here advanced is. strictly coincident. And it would seem to be fully supported by numerous authorties.” He then refers to numerous authorities, all of which have been referred to by me in this opinion. A careful examination of this opinion of Judge Lee will show, that the question on which Judge Baldwin delivered a luminous opinion, in which Judge Lee concurred, was not the question, we are now discussing but a very different question, that is, where the senior patentee had never had any actual possession of any part of his land and of course no constructive possession of the interlock but only constructive seizin thereof resulting simply from the issuing of his patent, and the junior patentee took actual possession of his land outside of the interlock. In such case Judge Baldwin in Taylor v. Burnsides, 196, expressed his views and was of opinion, that the junior patentee gained no constructive possession of the land in the interlock. And with this view Judge Lee concurred and I also concur. And even if by this question Judge Lee meant the one we ai’e now discussing, still he expresses no sort of concurrence in the views on this question but simply says, that the views he had advanced on other questions, for he had advanced none whatever on this, would be strictly coincident with the views of Judge Baldwin. All the authorities which Judge Lee cites as sustaining these views of Judge Baldwin we have quoted; and they do fully sustain all of Judge Baldwin’s views except those on the proposition we are considering, upon which, as Judge Baldwin himself admits, they are in opposition to his views. I do not therefore consider that Judge Lee intended to say he concurred with Judge Baldwin on this proposition, or that he intended to express any opinion on the subject; and the authorities he cites are opposed, as we have seen, to the views of Judge Baldwin on this proposition, though they are strictly co-incident with all his other views as wéll as the views of Judge Lee, so'far as he expressed any in his opinion. But on the point we are now discussing he did not say one word.

So too Judge Anderson has been supposed to have expressed his views in Cline v. Catron, 22 Grat., and that they were like those of Judge Baldwin. He says on pp. 392-393: “ But if the junior patentee has an actual occupation and improvement of a part of the interlock,- the actual possession of the junior patentee is co-extensive with the limits of his patent and is exclusive and adversary, and if continued uninterruptedly for the period of limitation defeats the elder patentee’s right of entry or his better title as the'ease may be.” He then cites the Virginia eases, which 1 have heretofore cited in Gratton.

How this proposition is perfectly true and is fully sustained by the authorities cited, provided the senior patentee had no actual possession of any part of his lands, before the junior patentee took possession of a part of the interlock. In such case the junior patentee’s constructive possession does, as we have seen, “ defeat the elder patentee’s right of entry or his better title as the case may he.” This I suppose is all that Judge Anderson meant; for he speaks of this principle being well settled. This is evidently the meaning attached to this rather loose language of Judge Anderson by professor Minor, who in his Institutes lays down this last proposition, as I have stated it, andas sustaining it refers to Green v. Liter, 8 Cranch 229 and the Virginia cases cited by Judge Anderson as well as the case of Cline v. Catron, 22 Grat. 392, which is the case, in which Judge Anderson expresses these views.

My conclusion therefore is, that when the senior patentee or party holding the better title takes actual possession of any part of his land claiming title to the whole of it, and subsequently the junior patentee or party holding the worse title takes actual adverse possession of any part of the interlock claiming.title to the whole of it, he does not thereby oust the senior patentee or party holding the better title of any portion of the interlock, the whole of which he had constructive possession of excepting that portion in the enclosure or actual occupancy of the junior patentee. This conclusion is sustained both by reason and authority. It is true the legislature of West Virginia by an act passed March 8, 1879, ch. 61, p. 91 of Acts of 1879, changed this section 19 of ch. 90 of the Code of West Virginia and in so doing have changed the law, as I have laid it down above, and.apparently adopted as law the views of Judge Baldwin, from which I have dissented. As this suit was instituted in April, 1874, it of course can not be affected by a statue-law passed five years afterwards.

It only remains then to apply the conclusion, which I have reached, to the facts in the case. And first we will observe, that the evidence shows, that the written title of the defendants is better than the written title of the plaintiff to all the land lying within the interlock; but if the plaintiff has by the evidence shown that he had actual or constructive possession, which was exclusive, continued, visible, notorious and hostile under colorable claim of title for a period of ten years of all the land included in the interlock, this would give him not only a conclusive defence to any action of ejectment for this land, which might he brought against him, but the result would be so absolute as to confer on him a perfect title to all the land included in the interlock and would enable-him to sustain an action of ejectment against the defendants, though they had a perfect written title to the land, unless they had such adversary possession for ten years before the institution of the suit. This is an undisputed proposition so fundamental as to need no reference to any authorities to sustain it. But as stating it substantially I may refer to Judge Baldwin’s opinion in Taylor v. Burnsides, 1 Grat. 189; Moody v. McKim, 5 Munf. 374 and Middleton v. Johns, 4 Grat. 129, I have mentioned ten years as the time one must hold-such adversary possession in order to give him a perfect title even against the party, who has a perfect written title, because by our statute the right of entry and the right to bring an action to recover-land is barred by ten years after the time the right to make such entry or bring such action first accrued. (Code of W. Va. ch. 104, sec. 1, p. 546.)

The only question is: Did the plaintiff in this ease have such an adversary possession of all the land contained in'the interlock? If he had, he should recover all the land in the interlock not already in the possession of the defendant. If he did not have such adversary possession, then fhe judgment of the circuit courf against him must be affirmed. Under the rules we have laid down as to the weight to be given to evidence on a demurrer to evidence the plaintiff must be regarded as having, snch adversary possession for more than ten years of the two parcels of land, one containing about eight acres and fifteen perches, and the other three fourths of an acre lying within the interlock. Of this he still has such possession, and his title thereto is, on the principles we have laid down, perfect. But as it was not when this suit was brought either in the possession of or claimed by the defendants the plaintiff is entitled to no judgment in his favor in reference to these two parcels of land in his actual possession but only to a verdict, if this actual adversary possession of these parts of the land in the interlock gave him constructive possession of all the land in'the interlock, from the time he or those under whom he claimed took actual adversary possession thereof. ■

The defendants’ title is derived by a regular chain of title, the links of which are all perfect, irom a patent of the State of Virginia issued October 20, 1786 ; and this tract of land has been occupied in part by defendants and those under whom they claim continuously, from 1816 to this time, they residing upon it or portions of it all the time. During all this time they claimed title to the whole tract of land owned by them respectively, the boundaries of which included what is now the interlock, the greater portion of which is the subject of controversy in this suit. But they never had actual occupation of anyportion of this land in this interlock till 1870, about four years before the institution of this suit. But since 1816 they have at all times had constructive possession of this interlock, unless as a legal consequence of the fact, that the plaintiff and those under whom he claimed took possession of these two small parcels of land enclosed within the interlock, they were ousted of their constructive possession of the portions of this interlock in controversy.

They were admittedly ousted of the possession of the two small parcels of land, which were enclosed and occupied by the plaintiff and those under whom he claims. Were they ousted from the residue of this interlock not actually occupied by the plaintiff or those under whom he claims by a constructive possession on their part of his portion of the interlock now in controversy in this suit? If the principles we have laid down are correct, they clearly were not so ousted. The interlock had no existence till 1836, when a grantor, under whom the plaintiff claims by a regular and perfect train of title-conveyed to a grantee the tract of 140 acres, to the portion of which not. interlocking with the land claimed by the defendants this grantor had a perfect title, but to the portion, which did interlock, .he had no title, he in selling off this land having by mistake so run it off,as to interlock with this grant of land by the State made October 20, 1786. Persons claiming under this grantee of 1836 took actual possession of a small portion of this interlock as early as 1847 and enclosed the two small portions, which we have named, more than ten years prior to 1870, when the defendants took actual possession of a part thereof for the first time. Upon this state of facts upon the principles, which we have laid down, the defendants and those under whom they claim had constructive possession of this interlock continuously from 1816, till the plaintiff and those under whom he claims took actual possession oí a portion of this interlock, a period exceeding thirty years. Having this constructive possession under a perfectly good title to the whole of this interlock for this great length of time they were only ousted therefrom by those under whom the plaintiff claims to the extent that they took actual possession, that is to say, to the extent of' the two small enclosures still held by the plaintiff in his actual possession. But they were obviously not ousted of any other portion of this interlock or of the land in controversy in this suit.

The plaintiff and those under whom he claims could not gain constructive possession of this portion of the interlock in controversy, for the obvious reason that the persons, under whom the defendants claim, already had constructive possession under a perfectly good title and had had this possession for more than thirty years. I am therefore clearly of opinion that the plaintiff and those under whom he claims never had possession real or constructive of the land really in controversy in this suit, and that for that reason the circuit court of Harrison county properly rendered judgment in favor of the defendants on the demurrer to the evidence.