The opinion of the court was delivered, November 7th 1867, by
Strong, J.There were two prominent questions in this case, both questions of fact. The first was whether the land in con*150troversy was included in what is called the Montgomery survey, the title to which has become vested in the defendants. This involved the inquiry where was the dividing line between that survey and the tract of land patented to Peter Sheaffer, under whom the plaintiff claims. It was therefore substantially a question of location. The second prominent question was whether the defendants had acquired a title under the Statute of Limitations. This was of importance only in case their title under the Montgomery warrant and survey failed. Standing thus upon two grounds of defence, it may well have been that evidence was admissible in support of one, which had no legal tendency to support the other, and which ought not to have been received, if that other ground of defence had been the only one. And it is this which has given rise to some of the difficulty of the case. If, however, the evidence was admissible for any purpose, there is no just ground of complaint, especially if the court confined its operation within the limits where it was legitimately entitled to consideration. Keeping these reflections in mind, we pass to the consideration of the errors assigned. The first three may be considered together. They present two alleged errors. The 1st is that there was error in permitting Samuel Foreman’s declarations respecting the “ corners and lines of the surveys” to be given in evidence. It is enough to say of this that no such evidence appears to have been given. The objection was not made, or exception taken, until after the witness had testified, and then the plaintiff objected to the testimony (in the language of the exception) “ as to the declarations of Foreman as to the lines and corners.” Now, it is obvious that if none of Foreman’s declarations respecting lines and corners had been given, the plaintiff was not injured by the ruling of the court, or by a refusal to strike out the testimony. The exception is a complaint of the admission of such declarations of Foreman as proved by Mitchell. But Mitchell did not testify that Foreman said anything of the lines and corners. At least he did not testify this directly. Certainly no such declaration is to be found in the testimony as exhibited to us in the paper-books. There is nothing more than the fact that Mitchell had told Sheaffer, the predecessor in title of the plaintiff, that Foreman had showed him the line; that Sheaffer had replied, “ Foreman knows the line wellthat they went over the line together; that Sheaffer asked if a corner was one Foreman had shown, to which the witness replied it was, and that the witness examined the corner (a white-oak), first when Foreman showed it to him, also when Sheaffer showed it, and often afterwards. Now, if this can be regarded as a statement of declarations made by Foreman, it was a statement made to the plaintiff, or the person under whom the plaintiff claims, and it was plainly admissible. In Potts v. Everhart, 2 Casey 493, it *151was ruled, that the acts and declarations of a defendant in ejectment himself, made while he is in possession of land, may be given in evidence in his favor, even if they amount to an assertion of boundaries.
The first three assignments of error also raise the question whether it was competent for the defendants to give in evidence the declarations of Foreman and other tenants that they held mediately or immediately under the defendants. They were made while the tenants were actually living upon the land. We see no valid objection to the admission of such evidence. The character of a possession may always be shown by contemporaneous declarations of the tenant, and especially is this true when the party who offers them is endeavoring to make out a title under the Statute of Limitations by his own possession and that of tenants, or by the latter alone.
The only objection to this urged here is that the tenants are alive, and might have been called as witnesses.
That, however,-does not appear, except perhaps m the case of one tenant, nor does it appear that this objection was made in the court below. Even if it had been, it must have proved unavailing. The declarations were part of the res gestae, made at the time of the possession, and tending to show its character. The first three assignments of error are therefore not sustained.
The 4th assignment is founded upon a misapprehension of what the court ruled. The plaintiff proposed to prove by John Klingensmith that Foreman (one of the tenants of the defendants) pointed out to the witness where he claimed to, and the extent of his possession, to rebut the running of the Statute of Limitations. The offer did not state whether the act of Foreman proposed to be proved took place during his tenancy, and while he was in possession, but assuming that it did, the court ruled that the declarations of Foreman and all other tenants could not be received to show the boundaries of the survey, but allowed the plaintiff to rebut the evidence of possession, and show that it covered less than claimed by the defendants.
To understand this we must look at it as it appeared on the trial in the court below. In answer to an objection to the plaintiff’s offer the court said in effect, the boundaries of the Montgomery survey are not to be affected by the declarations of the tenants, but the plaintiffs may show by any legal evidence the extent of their possession. This was not overruling the offer, but rather its acceptance, and if the evidence was not given as at first proposed, it was not the error of the court that prevented it. It was because of a misunderstanding of what the court did rule, induced probably by temporarily overlooking the fact that the defendants asserted two grounds of defence. It is argued now that it was intended to rebut other declarations of Foreman *152made to Mitchell, that Foreman had pointed out to him a certain corner, but it was not offered for such a purpose, or generally. The purpose was specified. Besides, it had no tendency to disprove the fact testified to by Mitchell, and whether it had or not, it was not rejected.
The 5th assignment is that the court erred in rejecting testimony offered by the plaintiff to prove that Peter Eakman, one of the defendant’s tenants in 1846, refused to permit the assessor to assess the disputed tract of land as the property of his landlord, or as part of the landlord’s tract, alleging .that it belonged to Sheaffer, and directed it to be assessed as Sheaffer’s. It would certainly be very extraordinary, if a tenant put into possession of land and owing fealty to his landlord, bound to protect his landlord’s possession, could be allowed to confess away that landlord’s title. Had he surrendered the possession to Sheaffer, Sheaffer could have gained nothing by it. How, then, can he profit by such a declaration, which is much less than a surrender: see Eakman v. Sheaffer, 12 Wright 176.
The 6th assignment charges error in the answer given by the court to the plaintifffs 1st point, in assuming that the plaintiff opened his lines by saying that he might open the lines of his improvement and extend them to the extent of 400'acres, up until the time he returned his official survey into the land-office ; after that he could not without an order for a resurvey. The plain meaning of this is, that the plaintiff having an improvement younger than the Montgomery survey, might extend his claim in virtue of it, until he had defined it by an official survey returned. There is no error in this of which the plaintiff can complain.
There remains nothing but the consideration of the 7th and 8th assignments, which present the most important question in the case. The plaintiff requested the court to charge the jury, “that to create title by the Statute of Limitations, the evidence must show an actual, visible, peaceable, continued, uninterrupted, adverse, open, notorious, and hostile possession for a period of twenty-one years; that an interruption for one or two years would be a bar to the claim under the statute, and that the evidence in the case was not sufficient to enable the defendants to shelter themselves under that plea. This point as a whole might have been denied, for it took the case away from the jury, and there was certainly too much evidence of an adverse possession, such as makes a title, to be withdrawn from a jury. It was not however negatived. The court submitted the evidence with the instruction, that in order to enable the defendants to hold by the Statute of Limitations, they must show to the satisfaction of the jury that they, by themselves or tenants, held the exclusive, actual, continued and peaceable possession, uninterrupted and acquiesced in for a period of twenty-one years. That it was not *153necessary the land should be enclosed, but if a residence was kept on any part of it, using the woodland for timber or firewood, or farming purposes, and holding and claiming by fixed boundaries for twenty-one years, the defendants would have a good title by the Statute of Limitations. And that any interruption of -the possession, or abandonment of it for any length of time, would defeat the title. It is not material that the point presented was not answered in the words in which it was stated ; if all its substance was affirmed, that is sufficient. But the plaintiff complains that the answer was not as full as it should have been; that it omitted two essential requisites of the possession necessary to perfect a title, to wit, that it must be adverse and hostile, and that it must be visible and notorious. We think, however, what the learned judge did say was in effect that the possession must be both adverse and notorious, or visible. The charge is to be understood as having reference to the case on trial. There was no pretence that the defendants held possession pnder the plaintiff. If, therefore, they held exclusively, their possession was adverse and hostile. An adverse and hostile possession is one held for the possessor, as distinguished from one held in subordination to the right of another. In other words, it is a possession inconsistent with the possession or right of possession by another. And such is an exclusive possession of one who is not in privity with the true owner of the land. By instructing the jury, as the judge did, that the possession must be exclusive, they were in effect told, therefore, that it must be adverse, and the plaintiff had no right to more. So the meaning of the charge was, that the possession was visible and notorious. What else did the court mean by saying that the possession must be acquiesced in; that though enclosure of the land was not necessary, yet if a residence was kept up on any part of it, and the woodland was used for timber or firewood, or farming purposes, and the land was claimed and held by fixed boundaries, the defendants would have a good title by the Statute of Limitations. Visible and notorious are terms employed to denote that the possession must be more than secret, and unknown to the disseised owner. But how can possession be secret, which a disseised owner acquiesces in ? This acquiescence implies knowledge, and hence a possession that he permits is notorious, or known to him. We hold firmly that all the acknowledged requisites of a possession, efficient to bar the entry of a claimant to land, must appear. We have no disposition to relax the rules already established. Still it is the substance and not the form of the rules which is to be regarded. And -we think that in this case, the point of the plaintiff in all essential particulars was affirmed.
It follows that no error appears on the record.
Judgment affirmed.