The opinion of the court was delivered by
Poland, J.
The defendant objects to the correctness of the judgment of the county court upon several grounds.
I. The defendant claims that he has acquired a valid title to the interest of Silas Sutherland, in the land sued for by an adverse possession of more than fifteen years, in himself, and those under whom he claims title.
It appears to have been conceded on the trial below, that in March, 1839, the piece of land in question, and another piece, were properly set out as the share of Martin French, in certain lands which had been set out to and occupied by Mary French, as dower, and that when so set out, Silas Sutherland owned three undivided eighth parts, and Price Beardsley, the five undivided eighth parts of the same.
On the 2d day of May, 1839, Price Beardsley executed to John Chapman, as trustee for Joel French, a quit claim deed of all his right, title and interest, in the share of Martin French, in the dower of Mary French, and on the 28th of Slay, 1839, Sutherland conveyed, by a quit claim deed, all his right, title and interest in the piece of land set out to Martin French’s share, not now in suit, to Califf Monroe. The exceptions say, that in the spring of 1839, Joel French went into the possession of the land sued for, and claimed the whole as his own, and the defendant it seems deduced title regularly from Chapman, who held the title in trust for Joel French, and the same has been constantly occupied under this claim of title, since Joel French entered in the spring of 1839, a period of more than fifteen years. The case states that Sutherland moved to the state of Illinois in 1839, and died there in 1840.
The defendant and those in his claim of title, have been in possession, claiming title a sufficient length of time to bar the title of [324]*324Sutherland, provided a sufficient foundation was laid for the commencement of an adverse possession against his title, more than fifteen years before the suit was commenced. The defendant claims that the deed from Price Beardsley to John Chapman, upon its face and by its terms, was such an assertion of title to the whole of this piece of land, as to be notice to Sutherland, the other tenant in common, when recorded, that the grantee in that deed claimed title to the whole land, and thus create such an ouster of Sutherland, and the commencement of an adverse holding against him, which, continued fifteen years, would bar his right. But it has never been considered that a conveyance by one joint tenant, or tenant in common, of all his interest in real estate, though the land is described in such a manner as to pass the whole under the deed, if the grantor had owned the whole, is notice of itself to the other joint owner of any such exclusive claim to the land, as to oust him of his legal seizin in the land. He has the right to suppose that by such a deed, both the grantor and the grantee understand it to convey the real interest the grantor owns in the land. But if this were otherwise, the exceptions show that after this conveyance from Beardsley to Chapman for Joel French, the parties recognized each other as joint owners, and had an arbitration as to the extent of their respective titles, which would be a good answer to any claim of an ouster by that deed.
The defendant claims too, that the entry and taking possession of the land in question, claiming title to the whole, by Joel French, in the spring of 1839, was an ouster of Sutherland, and that the statute then commenced running. This probably was an act which Sutherland might have elected to treat as an ouster, and have thereupon brought and maintained an action of ejectment, without other proof of any ouster, and without making any demand to be let into possession of his share. Carpenter v. Thayer et al. 15 Vt. 552. But we do not consider that this alone would be such an ouster as would bar a joint owner of his rights, unless he commenced his action within fifteen years thereafter. Another element is necessary in order to make it sufficient to found an adverse holding upon, and that is, notice of such exclusive and hostile claim, to the joint owner out of possession. When one joint owner is in possession of the whole, the legal presumption is, that he is keeping possession, not [325]*325only for himself, but for his co-tenant, according to their several interests, and the other joint owner or owners, have the right to so understand, until they have notice to the contrary ; and the statute would only run from the time of such notice. We consider the principle substantially the same as between landlord and tenant as to converting a mere fiduciary po íséssion into an adverse or hostile one.
It does not appear from the case that there was any such notice to Sutherland. The case does not say what time in 1839 he left the state, whether before or after the time French entered upon the land. If he remained in the vicinity after the possession and exclusive claim was taken and set up by French, it might be proper evidence to submit to a jury as tending to show notice to him of that fact. The defendant also claims, that from the conveyances in the case, and the manner in which possession was taken under them, by the respective parties, the county court ought to have found that there was a practical severance of this joint ownership, and that it was understood between Sutherland and Joel French, that French was to own the land sued for, as his in severalty, and that Sutherland’s grantee was to be the sole owner of the other piece. But we think no such inference can be made as matter of law. It might very probably furnish evidence proper to be submitted to a jury tending to establish a division in fact, and so furnish a good commencement of an adverse possession. The question whether the defendant’s possession was made adverse to Sutherland, either by notice that French had entered and claimed the whole, or that there had been a division in fact, and French was to have this piece, was wholly a question of fact, and as the county court rendered judgment for the plaintiff, we are to understand they found against the defendant, upon the evidence on these points and we cannot reyise their judgment on any such question.
II. The defendant claims that the plaintiff cannot maintain the suit, for want of sufficient proof that he has ousted the plaintiff from his undivided interest in the land. If the entry of Joel French, claiming title to the whole was not a sufficient ouster (of which there seems no doubt), the subsequent conveyance of the whole by deed of warranty, from Joel French to Benjamin Morgan, the father of the defendant, and under whom the defendant [326]*326claims would seem to put the question at rest. See Johnson v. Tilden, 5 Vt. 426; Pomeroy v. Mills, 3 Vt. 410; Carpenter v. Thayer, 15 Vt. 552.
III. The defendant claims also, that his wife being a daughter and heir of Silas Sutherland, that he was entitled to hold possession of the premises and could not be evicted by the administrator. There is some confusion, if not conflict, in the cases, as to the right of an administrator over the real estate of the intestate, and his right to maintain actions to recover it.
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The opinion of the court was delivered by
Poland, J.
The defendant objects to the correctness of the judgment of the county court upon several grounds.
I. The defendant claims that he has acquired a valid title to the interest of Silas Sutherland, in the land sued for by an adverse possession of more than fifteen years, in himself, and those under whom he claims title.
It appears to have been conceded on the trial below, that in March, 1839, the piece of land in question, and another piece, were properly set out as the share of Martin French, in certain lands which had been set out to and occupied by Mary French, as dower, and that when so set out, Silas Sutherland owned three undivided eighth parts, and Price Beardsley, the five undivided eighth parts of the same.
On the 2d day of May, 1839, Price Beardsley executed to John Chapman, as trustee for Joel French, a quit claim deed of all his right, title and interest, in the share of Martin French, in the dower of Mary French, and on the 28th of Slay, 1839, Sutherland conveyed, by a quit claim deed, all his right, title and interest in the piece of land set out to Martin French’s share, not now in suit, to Califf Monroe. The exceptions say, that in the spring of 1839, Joel French went into the possession of the land sued for, and claimed the whole as his own, and the defendant it seems deduced title regularly from Chapman, who held the title in trust for Joel French, and the same has been constantly occupied under this claim of title, since Joel French entered in the spring of 1839, a period of more than fifteen years. The case states that Sutherland moved to the state of Illinois in 1839, and died there in 1840.
The defendant and those in his claim of title, have been in possession, claiming title a sufficient length of time to bar the title of [324]*324Sutherland, provided a sufficient foundation was laid for the commencement of an adverse possession against his title, more than fifteen years before the suit was commenced. The defendant claims that the deed from Price Beardsley to John Chapman, upon its face and by its terms, was such an assertion of title to the whole of this piece of land, as to be notice to Sutherland, the other tenant in common, when recorded, that the grantee in that deed claimed title to the whole land, and thus create such an ouster of Sutherland, and the commencement of an adverse holding against him, which, continued fifteen years, would bar his right. But it has never been considered that a conveyance by one joint tenant, or tenant in common, of all his interest in real estate, though the land is described in such a manner as to pass the whole under the deed, if the grantor had owned the whole, is notice of itself to the other joint owner of any such exclusive claim to the land, as to oust him of his legal seizin in the land. He has the right to suppose that by such a deed, both the grantor and the grantee understand it to convey the real interest the grantor owns in the land. But if this were otherwise, the exceptions show that after this conveyance from Beardsley to Chapman for Joel French, the parties recognized each other as joint owners, and had an arbitration as to the extent of their respective titles, which would be a good answer to any claim of an ouster by that deed.
The defendant claims too, that the entry and taking possession of the land in question, claiming title to the whole, by Joel French, in the spring of 1839, was an ouster of Sutherland, and that the statute then commenced running. This probably was an act which Sutherland might have elected to treat as an ouster, and have thereupon brought and maintained an action of ejectment, without other proof of any ouster, and without making any demand to be let into possession of his share. Carpenter v. Thayer et al. 15 Vt. 552. But we do not consider that this alone would be such an ouster as would bar a joint owner of his rights, unless he commenced his action within fifteen years thereafter. Another element is necessary in order to make it sufficient to found an adverse holding upon, and that is, notice of such exclusive and hostile claim, to the joint owner out of possession. When one joint owner is in possession of the whole, the legal presumption is, that he is keeping possession, not [325]*325only for himself, but for his co-tenant, according to their several interests, and the other joint owner or owners, have the right to so understand, until they have notice to the contrary ; and the statute would only run from the time of such notice. We consider the principle substantially the same as between landlord and tenant as to converting a mere fiduciary po íséssion into an adverse or hostile one.
It does not appear from the case that there was any such notice to Sutherland. The case does not say what time in 1839 he left the state, whether before or after the time French entered upon the land. If he remained in the vicinity after the possession and exclusive claim was taken and set up by French, it might be proper evidence to submit to a jury as tending to show notice to him of that fact. The defendant also claims, that from the conveyances in the case, and the manner in which possession was taken under them, by the respective parties, the county court ought to have found that there was a practical severance of this joint ownership, and that it was understood between Sutherland and Joel French, that French was to own the land sued for, as his in severalty, and that Sutherland’s grantee was to be the sole owner of the other piece. But we think no such inference can be made as matter of law. It might very probably furnish evidence proper to be submitted to a jury tending to establish a division in fact, and so furnish a good commencement of an adverse possession. The question whether the defendant’s possession was made adverse to Sutherland, either by notice that French had entered and claimed the whole, or that there had been a division in fact, and French was to have this piece, was wholly a question of fact, and as the county court rendered judgment for the plaintiff, we are to understand they found against the defendant, upon the evidence on these points and we cannot reyise their judgment on any such question.
II. The defendant claims that the plaintiff cannot maintain the suit, for want of sufficient proof that he has ousted the plaintiff from his undivided interest in the land. If the entry of Joel French, claiming title to the whole was not a sufficient ouster (of which there seems no doubt), the subsequent conveyance of the whole by deed of warranty, from Joel French to Benjamin Morgan, the father of the defendant, and under whom the defendant [326]*326claims would seem to put the question at rest. See Johnson v. Tilden, 5 Vt. 426; Pomeroy v. Mills, 3 Vt. 410; Carpenter v. Thayer, 15 Vt. 552.
III. The defendant claims also, that his wife being a daughter and heir of Silas Sutherland, that he was entitled to hold possession of the premises and could not be evicted by the administrator. There is some confusion, if not conflict, in the cases, as to the right of an administrator over the real estate of the intestate, and his right to maintain actions to recover it.
By our law, the lands of deceased persons are holden for the payment of debts, if the personal estate is not sufficient for that purpose, and though the real estate descends directly to the heirs, it is in subordination to the legal right of the personal representative to dispose of it for the payment of the debts against the estate, and the heirs are not entitled to take and enjoy the lands until that purpose is answered, or it has been ascertained that the land is not needed for that purpose. The only power of the administrator over the real estate, is to hold the possession of it during the period of administration, and to dispose of so much as may be necessary for the payment of claims, and then it is to be assigned to the heirs by the probate court, and divided among them according to their respective interests.
To avoid any conflict between the administrator and heirs during this period, while it is uncertain whether the lands will be needed for the payment of debts, or will be left to be enjoyed by the heirs, it was provided by the probate act of 1821, sec. 63, (see Slade’s Comp. p. 346,) that executors and administrators might maintain actions to recover possession of real estate, etc. belonging to the testator or intestate, and that “ no such action shall be maintained by any heir or heirs, devisor or devisees, until such estate shall be set off to them by an order of the probate court.”
But in the case of Hubbard v. Ricart, 3 Vt. 207, which arose soon after the passage of that act, it was held that the plaintiff, to whom all the heirs of Arad Hunt (who died in 1825, and had in his lifetime owned and possessed the land in question,) had conveyed their respective interests in the land the same year, might maintain an action of trespass against the defendant, for cutting timber on the land in 1827. The court in this case said, that even [327]*327after this short lapse of time, as the administrator of Hunt had not interfered to claim the land, and had taken no possession of it, they would presume the lien of the administrator wjts satisfied, and that as no division was necessary, as the plaintiff had the title of all the heirs, the plaintiff might maintain the action notwithstanding the statute.
In the case of Abbott v. Pratt, et al. 17 Vt. 626, the testator died in 1834, and by his will devised the lot of land in question in that case, and the devisee deeded to the plaintiff in 1841, who soon after brought the suit to recover the land of the defendant. The will had been proved in the probate court, hut no other proceedings, and no assignment to the devisee. The court in that case said, they would presume the lien of the executor was satisfied, and as no division was necessary, the plaintiff might well maintain the action.
The case of Buck, et al. v. Squires, 22 Vt. 484, was also one where the heirs were permitted to sue, though there had never been any assignment by the probate court, or any division among the heirs.
The case of Cushman, admr. of Upson, v. Jordan, 13 Vt 597, is in principle more like the present. In that case, Upson, the intestate, died sixty years before the plaintiff took out letters of administration upon his estate, and left several heirs. The defendant, in 1832, obtained deeds from some of the heirs, and went into possession of the land. The other heirs assented to the granting of administration to the plaintiff, and the action was brought soon after the defendant took possession. It was held by the court that, though the defendant held the land as tenant in common with the other heirs, the administrator could not maintain the action to recover any part of the land. So in a case decided on the present circuit in Rutland county, Cox v. Ingleston,
Our present statute is far less restrictive of the right of the heir or devisee, than the act of 1821. See Comp. Stat. 341, sec. 11. That section provides “ When an executor or administrator shall he appointed and assume the trust of administering upon any estate, no action, etc. shall be maintained by any heir or devisee, until there shall be a decree of the probate court assigning such lands to such heir or devisee, or the time allowed for paying debts shall have expired, unless the executor or administrator shall voluntarily surrender the possession to the heir or devisee.”
Our statute makes no limitation as to the time within which the probate court may grant administration, but ordinarily, when for any reason an administration is necessary, it is granted immediately after the decease of the intestate, and especially when this becomes necessary to provide means for the payment of the debts of the deceased, and if the widow or next of kin do not take administration within a short period, any creditor may do so. Hence, under our present statute, if the administrator should not take possession of the real estate, but allow the same to go into the possession of the heir, or if no administration should be taken, and the heir remain in, or go into possession, and in either case any considerable pez’iod elapse beyond the ordinary time of administz’ation, before an administrator should call upon the heir for the possession, it would probably be necessary for him to show that the land was needed for the payment of debts.
In the present case, Sutherland, the intestate, died in 1840, and the plaintiff took letters in 1856, a period of sixteen yeai-s.
It does not appear there was any evidence to show there are any claims now outstanding against the intestate, or any evidence there are any other heiz’s to his estate except the wife of the defendant. Under our statutes of limitation, there is no species of contract which is not barz’ed by fifteen years lapse of time, and in analogy to our statute barring all rights in the realty by fifteen years adverse possession, the term of prescription and presumption in relation to incoz’poreal rights, mortgages, payments of debts, etc. all have been limited to that time as the extent.
In the absence of any evidence to the contrary, in this case the [329]*329legal presumption arises, from the facts reported in the exceptions, that there were no debts existing against Sutherland, which this land was necessary to satisfy, and therefore the administrator had no right to recall it out of the possession of the heir, when for aught that appears, it would go to her again by assignment, when recovered. Upon this last ground therefore, we think the defendant, on what appears to have been the evidence below, was entitled to judgment in his favor.
The case of McFarland v. Stone, 17 Vt. 165, where the administrator was allowed to maintain an action after a great lapse of time, and some cases which have followed that, if correctly decided, do not conflict with the views we now entertain. Those were cases where the defendant held under a title adverse to the title of the intestate, and hostile to both the administrator and the heirs, so that the question here presented did not arise.
The .judgment of the county court is therefore reversed.
See ante. page 258.