Smith, C. J.,
delivered the opinion of the court.
This was an action brought in the Circuit Court of Marion county, by Jackey Magee against Leonard and Rebecca Magee, to recover a certain tract of land situated in said county.
The suit was instituted on the 20th of September, 1855; and the plaintiff claimed under a patent issued to him by the Government of the United States on the 10th of April, 1827. He had many years previously purchased the land by entry at the land office. The defendants based their defence to the action exclu[150]*150sively upon the Statute of Limitations of seven years, then in force ; and upon an alleged actual adverse possession for ten years in Fleet Magee, the late husband of the defendant Rebecca, and the father of the defendant, Leonard Magee, prior to his death; followed by the alleged actual adverse possession of the defendants down to the commencement of the action.
The cause was submitted to a jury, on these pleas, at the September term of the court in 1857, and a verdict was rendered in favor of the plaintiff. Whereupon the defendants moved for a new trial upon the ground that the verdict was contrai-y to law and the evidence, and because the instructions of the court were disregarded by the jury. The motion was sustained and a new trial awarded ; and the plaintiff excepted and filed his bill of exceptions, setting forth the evidence adduced on the trial.
At a subsequent term of the court, the cause was again tried, when a verdict was found for the defendants. The plaintiff then moved for a new trial, first, because the jury found contrary to law and .the evidence; secondly, because erroneous instructions were granted in behalf of the defendants. The motion having been overruled, the plaintiff excepted, and has brought the case before us on writ of error.
The errors assigned relate to the action of the court on both the trials. First, it is insisted that the defendants’ motion for a new trial was improperly sustained; and secondly, that, on the last trial, the court erred in charging the jury in behalf of the defendants ; and also in overruling the plaintiff’s motion for a new trial.
If the verdict rendered at the first trial was improperly set aside, it will be our duty, without examination into the subsequent proceedings, to reverse the judgment from which this writ of error is prosecuted, and to order judgment to be entered on that verdict in favor of the plaintiff in error. As first in order, therefore, we will consider the exception to the judgment on the defendants’ motion for a new trial.
The subject of this controversy is a few acres of inclosed land, which were embraced by the patent to the plaintiff in error, which issued in 1827, upon an entry made by him in 1821 or 1822. A sectional or township line was the common boundary of the tract on which Fleet Magee resided, and the land covered by the patent; [151]*151and the premises in dispute lie very near his dwelling, being separated from the inclosure around it only by a lane. They were cultivated by the plaintiff in error before Fleet Magee went into possession, which was at least as early as 1823. There is no suggestion that either party acted under a mistake as to the true boundary of their lands. They knew from the first that the disputed premises were part of the land patented to the plaintiff in error. It was not pretended that the plaintiff in error ever made a deed conveying the land in dispute to Fleet Magee or to any other person. But it appears to be clearly proved that the latter held possession under a verbal contract for the purchase of the land ; and that he had paid the price agreed on. He entered into possession as early as 1823, and was in the open, actual use and occupation of it from that date to the time of his death, which occurred in 1847. During his occupancy he put permanent and valuable improvements upon the land. He planted an orchard, and built a corn-crib and stables upon it; and a part of the inclosure was used as a family burying-ground. The value of these improvements exceeded, by fifteen or twenty times, the unimproved value of the land. Fleet Magee died in possession ; and the defendants in error have since that event continued uninterruptedly in possession. The plaintiff in error continued to render the whole land contained in his patent to the assessor, and to pay taxes upon it as his property. On the other hand he never pretended to set up any claim to the land until within one or two years before the suit was instituted. The land in dispute was never assessed as the property of Fleet Magee, nor did he ever pay taxes upon it.
The foregoing are all of the material facts established by the evidence on the first trial. And as it is certain that Fleet Magee did not enter or hold possession of the land under color of title, the only question which could admit of controversy was whether the possession held by him and those claiming under him, was or was not adverse.
Courts have acknowledged the difficulty, if not the impracticability, of laying down any precise rule by which, in all cases, the question of adverse possession may be determined. Disseisin and ouster mean very much the same thing as adverse possession. And it has been frequently said that an adverse possession is a posses[152]*152sion acquired by disseisin. But by making this assertion, the difficulty is not removed; for a solution of the question what constitutes disseisin, is proved to be not more easy by the great amount of litigation which has arisen respecting it.
A mere claim of title, unaccompanied .by adverse possession, gives no right of action to the person against whom it is asserted, and consequently, his rights are unaffected. Hence, the principle on which the Statute of Limitations proceeds, “is not that the party in whose favor it is invoked, has set up an adverse claim for the period prescribed, but that such adverse claim is accompanied by such an invasion of the rights of the opposite party, as to give him a cause of action, which, having failed to prosecute within the time limited by law, he is supposed to have extinguished or surrendered.” Abell v. Harris, 11 Gill & J. R. 371. Doubtless it is the occupation with an intent to claim against the true owner, which renders the entry and possession adverse. “A disseisin and adverse holding,” says Mr. Angelí, “is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right; either under an openly avowed claim, or. under a constructive claim, arising from the acts and circumstances attending the appropriation, to hold the land against him who was seised.” Angell on Lim. 410, sec. 11. This is, perhaps, the clearest and most comprehensive definition which can be given of the subject.
And applying it to the facts before the jury, it seems not to admit of doubt that their verdict was erroneous.
The possession and occupation of the land by Fleet Magee and the defendants in error was open, notorious, and exclusive, and continued for a period of more than twenty-five years. It is true that he did not enter under a colorable title; but the circumstances attending his entry and occupation of the land leave no doubt as to the character of his possession. He entered under a parol contract for the purchase of the land, having paid the purchase price. He erected permanent and valuable improvements upon it, greatly exceeding in amount the unimproved value of the premises; and his occupation was open, notorious, and exclusive, and continued down to the time of his death.
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Smith, C. J.,
delivered the opinion of the court.
This was an action brought in the Circuit Court of Marion county, by Jackey Magee against Leonard and Rebecca Magee, to recover a certain tract of land situated in said county.
The suit was instituted on the 20th of September, 1855; and the plaintiff claimed under a patent issued to him by the Government of the United States on the 10th of April, 1827. He had many years previously purchased the land by entry at the land office. The defendants based their defence to the action exclu[150]*150sively upon the Statute of Limitations of seven years, then in force ; and upon an alleged actual adverse possession for ten years in Fleet Magee, the late husband of the defendant Rebecca, and the father of the defendant, Leonard Magee, prior to his death; followed by the alleged actual adverse possession of the defendants down to the commencement of the action.
The cause was submitted to a jury, on these pleas, at the September term of the court in 1857, and a verdict was rendered in favor of the plaintiff. Whereupon the defendants moved for a new trial upon the ground that the verdict was contrai-y to law and the evidence, and because the instructions of the court were disregarded by the jury. The motion was sustained and a new trial awarded ; and the plaintiff excepted and filed his bill of exceptions, setting forth the evidence adduced on the trial.
At a subsequent term of the court, the cause was again tried, when a verdict was found for the defendants. The plaintiff then moved for a new trial, first, because the jury found contrary to law and .the evidence; secondly, because erroneous instructions were granted in behalf of the defendants. The motion having been overruled, the plaintiff excepted, and has brought the case before us on writ of error.
The errors assigned relate to the action of the court on both the trials. First, it is insisted that the defendants’ motion for a new trial was improperly sustained; and secondly, that, on the last trial, the court erred in charging the jury in behalf of the defendants ; and also in overruling the plaintiff’s motion for a new trial.
If the verdict rendered at the first trial was improperly set aside, it will be our duty, without examination into the subsequent proceedings, to reverse the judgment from which this writ of error is prosecuted, and to order judgment to be entered on that verdict in favor of the plaintiff in error. As first in order, therefore, we will consider the exception to the judgment on the defendants’ motion for a new trial.
The subject of this controversy is a few acres of inclosed land, which were embraced by the patent to the plaintiff in error, which issued in 1827, upon an entry made by him in 1821 or 1822. A sectional or township line was the common boundary of the tract on which Fleet Magee resided, and the land covered by the patent; [151]*151and the premises in dispute lie very near his dwelling, being separated from the inclosure around it only by a lane. They were cultivated by the plaintiff in error before Fleet Magee went into possession, which was at least as early as 1823. There is no suggestion that either party acted under a mistake as to the true boundary of their lands. They knew from the first that the disputed premises were part of the land patented to the plaintiff in error. It was not pretended that the plaintiff in error ever made a deed conveying the land in dispute to Fleet Magee or to any other person. But it appears to be clearly proved that the latter held possession under a verbal contract for the purchase of the land ; and that he had paid the price agreed on. He entered into possession as early as 1823, and was in the open, actual use and occupation of it from that date to the time of his death, which occurred in 1847. During his occupancy he put permanent and valuable improvements upon the land. He planted an orchard, and built a corn-crib and stables upon it; and a part of the inclosure was used as a family burying-ground. The value of these improvements exceeded, by fifteen or twenty times, the unimproved value of the land. Fleet Magee died in possession ; and the defendants in error have since that event continued uninterruptedly in possession. The plaintiff in error continued to render the whole land contained in his patent to the assessor, and to pay taxes upon it as his property. On the other hand he never pretended to set up any claim to the land until within one or two years before the suit was instituted. The land in dispute was never assessed as the property of Fleet Magee, nor did he ever pay taxes upon it.
The foregoing are all of the material facts established by the evidence on the first trial. And as it is certain that Fleet Magee did not enter or hold possession of the land under color of title, the only question which could admit of controversy was whether the possession held by him and those claiming under him, was or was not adverse.
Courts have acknowledged the difficulty, if not the impracticability, of laying down any precise rule by which, in all cases, the question of adverse possession may be determined. Disseisin and ouster mean very much the same thing as adverse possession. And it has been frequently said that an adverse possession is a posses[152]*152sion acquired by disseisin. But by making this assertion, the difficulty is not removed; for a solution of the question what constitutes disseisin, is proved to be not more easy by the great amount of litigation which has arisen respecting it.
A mere claim of title, unaccompanied .by adverse possession, gives no right of action to the person against whom it is asserted, and consequently, his rights are unaffected. Hence, the principle on which the Statute of Limitations proceeds, “is not that the party in whose favor it is invoked, has set up an adverse claim for the period prescribed, but that such adverse claim is accompanied by such an invasion of the rights of the opposite party, as to give him a cause of action, which, having failed to prosecute within the time limited by law, he is supposed to have extinguished or surrendered.” Abell v. Harris, 11 Gill & J. R. 371. Doubtless it is the occupation with an intent to claim against the true owner, which renders the entry and possession adverse. “A disseisin and adverse holding,” says Mr. Angelí, “is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right; either under an openly avowed claim, or. under a constructive claim, arising from the acts and circumstances attending the appropriation, to hold the land against him who was seised.” Angell on Lim. 410, sec. 11. This is, perhaps, the clearest and most comprehensive definition which can be given of the subject.
And applying it to the facts before the jury, it seems not to admit of doubt that their verdict was erroneous.
The possession and occupation of the land by Fleet Magee and the defendants in error was open, notorious, and exclusive, and continued for a period of more than twenty-five years. It is true that he did not enter under a colorable title; but the circumstances attending his entry and occupation of the land leave no doubt as to the character of his possession. He entered under a parol contract for the purchase of the land, having paid the purchase price. He erected permanent and valuable improvements upon it, greatly exceeding in amount the unimproved value of the premises; and his occupation was open, notorious, and exclusive, and continued down to the time of his death. These circumstances eyince, beyond doubt, the character of his possession ; that it was based upon a claim of right, and consequently hostile to the title of the plaintiff in error. [153]*153And sucb possession having been continued for a period of time sufficient to vest in the occupant an absolute title, it follows that the verdict was erroneous, and should have been set aside.
The evidence submitted to the jury on the second trial, was much less satisfactory. The defendants offered none; and the only evidence in regard to the possession of Fleet Magee and the defendants consisted of the testimony of a single witness. That witness proved, that the defendants were in possession when the suit was commenced, and had been in possession for ten years before the date of the trial; that Leonard went into possession upon the death of his father, Fleet Magee; and that Rebecca, Fleet Magee’s widow, was in possession during the occupation of the premises by her husband ; that Fleet Magee was in possession thirty-five years before the time of the trial, and died in possession ; that he occupied the premises a long time, and while in possession, he built corn-cribs and stables, and planted an orchard, and made all the improvements upon the land. The witness did not know that Fleet Magee set up title, or claimed to be the owner of the land. He appeared to occupy it as the owner, and just as witness would have occupied it, if he had been the owner. There was no dispute as to the fact that the premises in dispute were embraced by the patent to the plaintiff in error.
It is apparent, from this testimony and the instructions, that the only question about which there could be the least doubt, and which was, in point of fact, the only matter of contest, related to the character of Fleet Magee’s possession, and that of the defendants who claimed under him. Hence, in determining the propriety of the verdict, we are limited to the single inquiry, whether the jury were not justified, by the evidence, in finding that that possession was hostile.
In legal contemplation, to constitute complete possession of land, there must be a corporeal occupation, attended with a manifest intention to hold and continue it; and when the intention is plainly to hold it against the claim of all other persons, the possession is adverse to the rights of the true owner. Such an intention may be evinced by decided acts of ownership, such as actual cultivation of the soil, the erection of valuable improvements upon the land, and the like. In thickly populated countries, such intent may be mani-[154]*154fesfced by less decided acts of ownership. Angell on Lim. 479, and cases cited.
Every presumption is to be made in favor of the true owner; and a bare possession is evidence of no more than the fact of present occupation by right. Hence, when it is clear that there is no intention to claim against the true owner, the possession Avill not be adverse, and however long continued, will not bar his right of entry. Ricard, v. Williams, 7 Wheaton, 59. What constitutes adverse possession is a question of law ; but as the intention of the possessor must always be considered in determining the question of adverse possession, that is a fact which alone could be ascertained by a jury ; and in determining the quo animo, the jury must of course be governed by their own view of the effect of the evidence.
In the case before us, it is not pretended that there was any direct evidence that either Fleet Magee or the defendants in error held under an open and avowed claim of title. The claim of title or right to the fee, if, in point of fact, such claim accompanied the possession, is merely constructive, arising from the circumstances attending the occupation. And if the facts established by the evidence had been found by a special verdict, there is little room to doubt that such verdict, in legal intendment, could not be considered as establishing the fact of adverse possession.
But the jury were entitled to draw every natural presumption arising from the facts and circumstances established by the evidence. In old and thickly populated countries, “ digging stones or turfs, as in England, with an occasional cutting of timber, are acts of ownership, from which a jury may infer an adverse holding and so almost everywhere, it is held, that actual cultivation of the soil and the erection of permanent and valuable improvements are circumstances from which the same conclusions may legitimately be drawn.
Here the possession, held by the first occupant, continued for so long a time, accompanied by unequivocal acts of ownership, his dying in possession and the entry of his heir, and the continuance of his possession for the period of seven years, in the absence of all proof that the plaintiff in error asserted title to the land, were, doubtless, circumstances from which the jury were fully justified in holding the possession adverse.
[155]*155The jury were instructed, at the instance of the plaintiff in error, first, That every possession of real estate is presumed to be in subordination to the legal title, and by the permission of th$ real owner; secondly, That a mere using and occupying of lands, as if they were the occupant’s own property, without any claim to ownership thereto being set up by the occupant, does not amount to a claim or color of right or title, and will not make such possession adverse ; and thirdly, That no length of time will give any right or title to real estate, arising from mere possession and uso, unless such possession was adverse. These instructions presented, fully and correctly, the law relating to the subject before the jury. It is hence gravely to be presumed that they were misled by the third instruction granted for the defendants, even if it were admitted that it laid down an incorrect rule.
By the instruction referred to, it was probably intended to be laid down, that the possession of an occupant, who holds as owner, although based on no claim of title, is protected to the extent of his actual occupation by the Statute of Limitations. And if so understood by the jury, it could not have improperly influenced their verdict.
Judgment affirmed.