The opinion of the court was delivered by
Sergeant, J.The principal error relied on in this case, is in the charge of the court, but we think the complaint of the defendant is without foundation.- AThe entry of John Ormsby must be taken to have been adverse to the title of Lamb and Checkly, in the absence of any sort of evidence that he entered for them, or held under them. He acted, in all respects, as the sole owner and claimant of the inheritance, making leases, receiving rents, paying taxes, and preserving and improving the property. He had no title or colour of title that we know of. He was merely a trespasser, but such an occupant as by our law gains a complete title by disseisin, after an uninterrupted enjoyment for twenty-one years. Pipher v. Lodge, 4 Serg. & Rawle 310, and 16 Serg. & Rawle 214. On his death, his son, Oliver Ormsby, entered and held, not in his own right, but jure representationis, as one of the sons and *296heirs of his father, and as tenant in common with the other heirs. By so doing he preserved the claim or initial title, such as it was, of the whole of the heirs, and as much for their benefit as for his own. For it has long been a settled principle, that the entry and possession of one coparcener, joint-tenant or tenant in common into lands, is the entry and possession of the others, whether it be on the one hand, to prevent the statute of limitations running against them in his favour, or on the other, to preserve and perpetuate their rights as possessors, and to gain a title thereby. The heir who enters is .considered as doing so for himself, as regards his own right, and as trustee for the others, and accountable to them for their portion of the rents and profits received by him, during the time he so holds the lands., It is in consequence of this sort of fiduciary relation in which he is placed, as to the others, that he is not ordinarily-allowed to claim for himself an interest opposite to that of the others, but his acts are treated as theirs, and for their common benefit. He may, it is true, oust the other heirs, and gain the title for himself; but this must be by some clear,-positive, and unequivocal act, amounting to an open denial of their right, and putting them out of the seisin. Such ouster will not be presumed merely from his taking the rents and profits, (unless after a lapse of a very great length of time,) but must be proved by decisive acts of a hostile character-.) Lodge v. Patterson, 3 Watts 96; Ford v. Gray, 1 Salk. 285; Smales v. Dale, Hob. 120; Fisher v. Prossar, Cowp. 218; Fairclaim v. Shackleton, 2 W. Bl. 2620; Burr. 2604; Co. Lit. 242, a. b.; 1 East 568.
It cannot'be pretended here, that Oliver Ormsby ever thus ousted the other heirs. On the contrary, he recognized his duty to them by holding the possession, taking care of it, receiving the rent's, making leases, paying taxes, and other expenses, and charging the estate in his accounts with their proportion of his disbursements. It would require much stronger facts than any here shown, to establish, that he at any time divested the rights of the other heirs, and to enable him to claim the whole for himself, or to admit an outstanding title in a third person as against them. There is nothing to warrant the idea, that he ousted the other heirs; and as to the title of Lamb and Checkly, he never yielded up the possession to them, or attorned to them as their tenant, or had any intercourse or communication with them, nor had he, or any of the other heirs, any knowledge of them. All that is shown is, that at different times, he stated to these persons, that there was an outstanding title of some kind, which might, at a future day, be asserted for the land. This could not affect the possession taken and held by his father, John Ormsby, and cast upon his children by descent, which Oliver continued and carried on by his possession: and in fact, in legal operation as against their rights, amounted to nothing. The court was, we think, right in saying, that the statute would run in favour of the heirs, if Oliver Ormsby continued the possession, re*297ceived the rents, and paid the taxes, though he knew and admitted that there was a better title to the land, and expressed his belief of its appearing one day.
In regard to the bill of exceptions, we see no error in the rejection of the depositions by the court. The question-was not of identity, that is, whether the persons now suing are the same as those who executed the powers of attorney: but whether certain persons claiming as heirs, and executing conveyances to the defendant, on which he sets up a title, must not be proved by evidence of some sort or other, to be such heirs, before the conveyances, can be read: and it is clear they must.
Judgment affirmed.