1. For the reasons which are clearly and concisely stated in the able argument of the counsel for the plaintiff, and upon the authorities there cited, we are of opinion that the defendants are estopped to deny the title of the present plaintiffs to an undivided sixth of the land sued for. Claiming under Marley, who held as (93) tenant by curtesy under the mother of the plaintiffs, they cannot deny the estate of such ancestor, or of the plaintiff, as her heir.
2. Upon the authorities cited, we think also that the plaintiffs are not barred by the statute of limitations.
3. We do not concur with the learned counsel, that the plaintiffs are entitled to recover the whole land, or more than one-sixth of it.
If John Marley and his wife had been personally in possession of the whole land for the forty years which elapsed from the death of Jehu Barnes to that of John Marley, an actual ouster of his cotenants would be presumed for his or her benefit, and releases from them to him or her. It might be somewhat difficult to say whether the releases would be presumed to be to the husband or to the wife; but it is not a material inquiry in this case.
Marley and his assignees held one undivided sixth of the land by virtue of his wife's estate, and assuming twenty years to be the period after which an actual ouster of his cotenants will be presumed in favor of the tenants in possession, until the termination of that period, the possession of John Marley and his assignees was, as a cotenant, entitled to an undivided share, and in right of and for the benefit of their cotenants as well as for their own. But when there has been an actual ouster, whether really or by presumption of law, by one cotenant or the others, the possession is held by him for his own benefit, unless he be in some relation to some other person such as agent, trustee or other similar, which makes it his duty to hold it for the benefit of such other person. Cases of that sort may be conceived of, and in such cases the possession would be presumed to be consistent with the duty. If any such relation would have existed between Marley and his wife, had he have been personally in possession, none such existed between his assignees and him, or between them and his wife. They might at any time without any breach of duty to Marley or his wife, have (94) taken releases from the ousted cotenants, and when a presumption of such releases is to be made from their long possession, *Page 81 there is no reason for presuming that the releases were to Marley or his wife, rather than to the actual possessors. Their possession was adverse to all the world except Hannah Marley, and was adverse to her except as to the undivided sixth, on which they had entered by virtue of her husband's conveyance, and therefore in subordination to her title.
PER CURIAM. New trial.