The prevailing opinion assumes that there was sufficient evidence to justify a finding that the defendant and her ancestors have continuously occupied the premises in dispute for more than twenty years and that the inclosure of the premises and the use to which they were put was a cultivation or improvement within the meaning of the statute. It is, however, proposed to reverse the judg- " ment because of the fact that the proof is not sufficient to.show that the entry of the defendant’s predecessors in title was adverse to that of the plaintiffs. With this conclusion I do not agree. The plaintiffs’ predecessor had obtained a judgment awarding him the possession of the property. Ejectment being a mere possessory action is- not necessarily an adjudication as to title. The defend; ant’s predecessor in title had appealed from the judgment when the plaintiffs’ ancestor committed suicide and his family sailed for France, where they have since remained. To prosecute that appeal it would be necessary to revive ■ the action, and it does not appear - that any personal representative of the deceased had been appointed in whose name the action could have been revived. ETor was there anybody in this country then claiming possession of the property to- whom the defendant’s predecessor who had claimed title arid had • conducted a litigation for years to establish his right to possession could give notice. Having claimed title, having at one time had a judgment in his favor, and having appealed from the judgment against him, all other claimants of the property having disappeared, he then, following out his claim in the litigation ' that he was entitled to. possession, took possession of the property and has maintained it ever since. ' The fact that the litigation that liad been carried on between the parties and that during that litigation the defendant’s predecessor had claimed title or the right to possession and had resisted the claim of the plaintiffs’ predecessor to such possession is certainly evidence of an adverse claim to the *657property. I think it was sufficient to justify a finding of the jury that the possession was adverse and based upon a claim of title. Certainly, while a person is in active litigation as to the right to possession of a piece of property, and while that litigation is continuing obtains actual possession and holds it against all comers, the presumption can be indulged that his possession was under the claim of the title that had been the basis of his demand during the litigation and was adverse as to his opponent.
I think, therefore, there was evidence to justify the finding of the jury and that this judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.