Ewing, Judge,
delivered the opinion of the court.
It is insisted that the instruction given for the defendant defining adverse possession was contradictory in principle to that given for the plaintiff on the same subject; and it is maintained that possession of a part claiming the whole under color of title is not an adverse possession, against the [317] constructive possession of the true owner, beyond the actual adverse occupancy. This proposition, in the general terms in which it is stated, we think, is incorrect as applied to the case before us. Its correctness would not be questioned as applicable to cases where the true owner and an intruder, or even one holding by color of title, are both in possession of different parts of the same tract. In such cases, the actual occupancy of a part by the rightful owner carries with it the constructive legal possession and seisin of all not actually occupied adversely. (Hale v. Powell, 4 Serg. & R. 465.) But a different doctrine prevails where the rightful owner is not in possession at all, and the adverse holding is by color of title. If A., with color or claim of title, enter upon the land of B., who has the superior title, his possession is not adverse as to B. beyond the part actually occupied by him, if B., the rightful owner, is also in possession of another part of the same land. In that case, both being in possession, the constructive possession of B. prevails over all not actually occupied by A., by virtue of his superior title. If, however, he who claims to be the true owner is not in possession, the possession of him who is in under a colora-ble title is construed to be coextensive with the premises described by his deed; and this is the character of the case at bar. The controversy here is not between two persons in the actual possession of different parts of the same tract as to their respective rights to that part not actually occupied by either, but as to the effect of a possession by the defendant with a color of right against the plaintiff, who claims to be the rightful owner, but is out of possession. It is not pretended that the plaintiff, or those under whom he claims, have had possession since 1812.
The locus in quo is a small tract of 84 30-100 arpens, a concession to William Bizette, situated in the Grand Prairie, numbered as survey No. 3340, confirmed by act of Congress, and which it is claimed lies within New Madrid locar tions, which are the source of the defendants’ title. There was evidence tending to show that a part of the lot in dis[318] pute, as well as other portions of the larger tract, was in the adverse possession of the defendant for more than twenty-years before the commencement of this suit; but there was no evidence of possession within that period by the plaintiffs or those under whom they claim; and, upon the facts disclosed on the trial, the question is whether the law was properly declared in the instructions given on the subject of adverse possession.
The instructions given at the instance of the plaintiffs tell the jury that the legal seisin and possession follow a title under the act of June 13, 1812; and that the defendants, setting up an adverse possession for twenty years, must show, by satisfactory evidence, that they, or either of them, have had a visible, notorious and continuous possession of the land, &c., during that period. For the defendants, the jury were told that if they, the defendants, have had possession of the land in question, using and claiming the same as their own, and holding it adversely to the plaintiffs and those under whom they claim, for the space of twenty years or more next before the commencement of the suit, there ought to be a finding for the defendants. Possession, in the sense of this instruction, is defined to be, that if the defendant entered into possession of part of the tract, claiming the whole by-deed, and asserting ownership of the whole, this is possession of the whole, if there be no actual adverse possession. An enclosure by fence is not necessary to constitute possession, legal or actual.
The last instruction was a proper qualification, under the evidence in the case, of the propositions embi'aeed in the plaintiffs’ instruction; and they are consistent with each other. The defendants were entitled to the benefit of the distinction, implied in their instruction, between a mere intruder and one entering into possession with a claim of right. If the defendants entered upon the land in dispute, and had possession of a part, the deed under which they claimed described the boundaries within which the jury were to determine, under the instructions, whether there was such' an [319] assertion of ownership and use of- tbe premises as to bar the plaintiffs’ right of action. They were to ascertain whether there was in fact a possession of a part of the tract, claiming the whole, and, if so, whether there was such a use as, in the language of the plaintiffs’ instruction, was visible, notorious and continuous.
Where a large tract embraces several smaller ones, a pedis possessio of a few acres, by one setting up title to the larger tract, claiming the whole, would not be a defence against a superior title in any one of the smaller tracts. There is in such case no ouster of the owner of the smaller tract, because the possession, being of a part of the -larger tract not included in his, is not adverse to him; and the constructive possession following his title will prevail against any other but an actual possession. Where, however, the rightful owner of one of the smaller tracts is not in possession, and the claimant of the large one enters upon and encloses a part of the former, and continues in possession for twenty years, claiming the whole, he would not be confined to the part actually occupied, but his possession would be construed to be coextensive with the boundaries of the deed. The second instruction asked by the plaintiffs was properly refused.
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Ewing, Judge,
delivered the opinion of the court.
It is insisted that the instruction given for the defendant defining adverse possession was contradictory in principle to that given for the plaintiff on the same subject; and it is maintained that possession of a part claiming the whole under color of title is not an adverse possession, against the [317] constructive possession of the true owner, beyond the actual adverse occupancy. This proposition, in the general terms in which it is stated, we think, is incorrect as applied to the case before us. Its correctness would not be questioned as applicable to cases where the true owner and an intruder, or even one holding by color of title, are both in possession of different parts of the same tract. In such cases, the actual occupancy of a part by the rightful owner carries with it the constructive legal possession and seisin of all not actually occupied adversely. (Hale v. Powell, 4 Serg. & R. 465.) But a different doctrine prevails where the rightful owner is not in possession at all, and the adverse holding is by color of title. If A., with color or claim of title, enter upon the land of B., who has the superior title, his possession is not adverse as to B. beyond the part actually occupied by him, if B., the rightful owner, is also in possession of another part of the same land. In that case, both being in possession, the constructive possession of B. prevails over all not actually occupied by A., by virtue of his superior title. If, however, he who claims to be the true owner is not in possession, the possession of him who is in under a colora-ble title is construed to be coextensive with the premises described by his deed; and this is the character of the case at bar. The controversy here is not between two persons in the actual possession of different parts of the same tract as to their respective rights to that part not actually occupied by either, but as to the effect of a possession by the defendant with a color of right against the plaintiff, who claims to be the rightful owner, but is out of possession. It is not pretended that the plaintiff, or those under whom he claims, have had possession since 1812.
The locus in quo is a small tract of 84 30-100 arpens, a concession to William Bizette, situated in the Grand Prairie, numbered as survey No. 3340, confirmed by act of Congress, and which it is claimed lies within New Madrid locar tions, which are the source of the defendants’ title. There was evidence tending to show that a part of the lot in dis[318] pute, as well as other portions of the larger tract, was in the adverse possession of the defendant for more than twenty-years before the commencement of this suit; but there was no evidence of possession within that period by the plaintiffs or those under whom they claim; and, upon the facts disclosed on the trial, the question is whether the law was properly declared in the instructions given on the subject of adverse possession.
The instructions given at the instance of the plaintiffs tell the jury that the legal seisin and possession follow a title under the act of June 13, 1812; and that the defendants, setting up an adverse possession for twenty years, must show, by satisfactory evidence, that they, or either of them, have had a visible, notorious and continuous possession of the land, &c., during that period. For the defendants, the jury were told that if they, the defendants, have had possession of the land in question, using and claiming the same as their own, and holding it adversely to the plaintiffs and those under whom they claim, for the space of twenty years or more next before the commencement of the suit, there ought to be a finding for the defendants. Possession, in the sense of this instruction, is defined to be, that if the defendant entered into possession of part of the tract, claiming the whole by-deed, and asserting ownership of the whole, this is possession of the whole, if there be no actual adverse possession. An enclosure by fence is not necessary to constitute possession, legal or actual.
The last instruction was a proper qualification, under the evidence in the case, of the propositions embi'aeed in the plaintiffs’ instruction; and they are consistent with each other. The defendants were entitled to the benefit of the distinction, implied in their instruction, between a mere intruder and one entering into possession with a claim of right. If the defendants entered upon the land in dispute, and had possession of a part, the deed under which they claimed described the boundaries within which the jury were to determine, under the instructions, whether there was such' an [319] assertion of ownership and use of- tbe premises as to bar the plaintiffs’ right of action. They were to ascertain whether there was in fact a possession of a part of the tract, claiming the whole, and, if so, whether there was such a use as, in the language of the plaintiffs’ instruction, was visible, notorious and continuous.
Where a large tract embraces several smaller ones, a pedis possessio of a few acres, by one setting up title to the larger tract, claiming the whole, would not be a defence against a superior title in any one of the smaller tracts. There is in such case no ouster of the owner of the smaller tract, because the possession, being of a part of the -larger tract not included in his, is not adverse to him; and the constructive possession following his title will prevail against any other but an actual possession. Where, however, the rightful owner of one of the smaller tracts is not in possession, and the claimant of the large one enters upon and encloses a part of the former, and continues in possession for twenty years, claiming the whole, he would not be confined to the part actually occupied, but his possession would be construed to be coextensive with the boundaries of the deed. The second instruction asked by the plaintiffs was properly refused.
The admission of the deed read in evidence of Mary and Jean Louis Provenchere to Phillipson and Labadie is assigned for error. This deed was dated July 25, 1816, four days before the date of that from the same grantors to Price, under which the plaintiffs claim title. The deed was offered to show an outstanding title; and the objection to its admission is that it does not purport to convey the lot in controversy, but another and wholly different lot, and that evidence ali-unde, to show that it did convey, or was intended to convey, the lot in dispute, was inadmissible. The calls in the deed under which plaintiffs claim title are for a tract of land in a place commonly known as the Big- Prairie, about three and a half miles west of St. Louis, containing one arpent in front by forty arpens in the rear, bounded north by land now belonging to Joseph Lacroix, as it is said, south by land culti-[320] yated formerly and said to belong to one Simoneau, it being tbe same tract or parcel of land which the said John B. Provenchere, in his lifetime, cultivated for many consecutive years prior to 1803. The deed to Phillipson and Labadie described the land it conveys as lying in the Grand Prairie, and which land contains two arpens in front by forty in depth, and is bounded on the north side by a road thirty feet broad, which separates it from the land which Pierre Chou-teau bought of Alexis Marie, and on the south by land of an owner unknown, on the east and west by vacant lands, which land belongs to us as having been cultivated during a number of years by the said Jean Baptiste Provenchere, deceased.
Though the subjects of the grants are not the same on the face of the deeds, they may be so in point of fact; and if there is nothing absolutely repugnant in the description or calls, then evidence aliunde is admissible to identify them. As to the northern boundary, it is obvious there is no such repugnancy.
But it is insisted that the calls on the other three sides, being for quantity alone, are therefore essentially descriptive, and do not admit of any explanation or modification by extrinsic evidence. It may be admitted that the calls for quantity are essentially descriptive, yet it does not follow that the conclusion drawn therefrom is correct. The deed to Price is for one by forty arpens, with Lacroix’s land for the northern boundary, containing one arpent in front by forty in depth. The deed to Phillipson and Labadie calls for two arpens in front by forty in depth. It is true, there is nothing in the deed to give width to the lots except the call for two arpens front, but it is not necessary to strike out two and insert one arpent in order to make it a description of the lot in controversy, or of a tract including it; and it is therefore not liable to the objection of introducing new words and a new description into the body of the deed.
Now supposing the call for quantity in the deed to Phil-lipson and Labadie is essentially descriptive, it may nevertheless include the land in dispute ; for if the calls for the [321] northern boundary are not on the face of the deeds repugnant, as it is obvious they are not, then neither is there any repugnancy in the calls on the east and west; that is, from any thing appearing on the deeds, they may coincide to the extent of one arpent. Both tracts have the same depth, each being forty arpens. The call for quantity, then, of two by forty arpens may be satisfied without any conflict with the description of the deed to Price. It is only upon comparing the two deeds as to quantity that there is perceived on their face any difference, but this difference consists only in the calls for the front. One being for one arpent front, the other two, does not make them irreconcilable. It is the difference only between the whole of a thing and the parts of which it is composed, and not of things essentially distinct. In other words, there is nothing on the face of the deeds showing that as a matter of fact three of the corresponding boundaries in the two deeds — north, east and west — may not perfectly coincide throughout their whole extent; and if their identity may be shown thus far, the call for the additional quantity of one arpent may be satisfied by producing the east and west lines to the distance of two arpens from the northern line; and thus show the identity of the lot in dispute with a part of the tract described in the deed to Labadie and Phillipson — the greater including the less.
The opinions of the witnesses Evans and Cozens, as to the location of the lot in controversy and of those described in the other deeds read in evidence, were incompetent and improperly admitted; (Blumenthal v. Ralls, 24 Mo. 113;) and for this the judgment will be reversed and the cause remanded.
The other judges concur.
[end oe march term.]