OPINION OP THE COURT.
MILLS, C. J.It is evident from an examination of the record that this case was ably contested by -the attorneys for both the plaintiffs and the defendants, and that every effort was used to secure and present to the Trial Court all of the evidence which minds trained in the subtlet}r of legal procedure by many years of active practice before the courts believed would be useful to the respective sides which they represented in the controversy now before us.
The questions discussed by counsel in their briefs are numerous, and involve complicated points of law, but in our opinion the real questions on which this case must finally be decided can be compressed into a small compass, by brushing to one side, what under our opinion of this case, are collateral and comparatively unimportant matters, many of which are elaborately urged in the briefs submitted to us by counsel. We will endeavor to dispose of this case along these lines.
1 2 3 1. We do not consider as well taken the contention of the appellants that the plaintiffs below could not maintain this suit without joining their tenants in common as parties. No provision of our laws, so far as we are aware, requires that all of the tenants in common should join in a suit to recover possession of real property. In fact this court has held in Neher v. Armijo, 9 N. M. 325, “Defendant insists that these plaintiffs as tenants in common could not be joined as parties plaintiff, and -their having so joined is fatal to their case. We do not interpret the law to be as defendant contends, but believe the better rule to be that tenants in common may join in ejectment and recover the whole property demanded as held by them in common, or -they may sue separately and recover each one only his whole interest.” The opinion in the Neher v. Ar-mijo ease, that tenants in common may join in an ejectment ease and “recover the whole .property demanded so held by them in common or they may sue separately and recover,” is we think correct, but we think that that case is incorrect in limiting such recovery, in case a suit is brought by one of several tenants in common to, “each one only his whole interest,” and to that extent the ease of Neher v. Armijo is reversed. We think the true rule to be that a tenant in common may sue separately in ejectment, and that if the defendant shows no title, he is entitled to recover possession of the entire estate “'in subordination, however, to the rights of his cotenants.” As is well said in Hardy v. Johnson, 1 Wall. 371, “The action of ejectment determines no rights but those of present possession; and that one tenant-in common has such rights as against all parties but his co-tenants, or persons holding-under them, is not questioned.”
That a tenant in common may sue without joining the other tenants in common is also held as late as 1898, when the Supreme Court of the United States quotes approvingly from 12 D. C. App. 51, 60, as follows to-wit: “The original rule at Common Law was, that tenants in common could only sue separately, because they were separately seized, and there was no privity of estate between them. Mobley v. Brunner, 59 Pa. St. 481; Corbin v. Cannon, 31 Miss. 570, 572; May v. Slade, 24 Texas, 205, 207; 4 Kent Com. 368.”
“The practice soon became general, however, in the United States to permit them to sue either jointly or severally as they might elect. 7 Enc. P. & P. 316, and eases cited. This seems to have been the practice in the District of Columbia, and, so far as we are advised, has never been ■questioned. Tenants in common may join in an action if they prefer to do so, but. it is with the risk of the failure of all if one of them fail to make out a title or right to possession;” and the Supreme Court adds to this quotation the words, “These remarks express the rule correctly.” Davis v. Coblens, 174 U. S. 719. The law is also laid down in 15 Cyc. 8, to be, that it is not necessary that all the tenants in common should unite in the action, although they may join in it for their common estate.
2. We will now consider the agreement in writing signed by Otero and Sena y Baca, on which this controversy is largely based, to determine whether it is a deed or an agreement to convey, for the decision of this point is of vital importance to the parties to this case.
From the standpoint of performance contracts have been divided into two classes, executed and executory. “A contract is executed where everything that was to be done is done, and nothing remains to be done. A grant actually made is within this category. Such a contract requires no consideration to support it. A gift consummated is as valid in ■ law as anything else. Dartmouth College v. Woodward, 4 Wheat. 518. An executory. contract is one where it is stipulated by the agreement of minds, upon a sufficient consideration that something is to be done or not to be done by one or both of the parties. Only a slight consideration is necessary. Pillans v. Van Mierop, 3 Burr 1663; Forth v. Stanton, 1 Saund 210, Note 2, and the cases therein cited.” Farrington v. Tennessee, 95 U. S. 679.
4 An examination of the contract or agreement entered into between Otero and Sena y Baca, and which is set out in full in the statement of facts preceding this opinion, convinces us that it was an executory contract, (although it contains words of present purchase and sale), for the conveyance of the Galisteo Ranch by Otero to Sena y Baca, upon the happening of a certain contingency, viz: the adjudication and approval of the Bartolomé Baca Grant. The wording of the contract provided that Sena y Baca could take possession of the Galisteo Ranch and enjoy, the products of the same, until the proper documents were executed to convey the title to him, which documents were to be executed on the favorable adjudication and approval' (confirmation) of the Bartolomé Baca Grant. The wording of the agreement is unequivocal and plain, that the deed of conveyance to the Galisteo Ranch was. to be made when the Bartolomé Baca Grant was favorably adjudicated and approved. Nor can it be contended that the-contract of June 22nd, 1878, was a deed, for it is signed by both Otero and Sena y Baca, and not alone by Otero,, the then owner of the Galisteo Ranch. If the instrument in question had been signed by Otero alone, there would have been more force than now exists in the contention of the-appellants that.it was a deed transferring the title to real estate rather than a mere agreement to execute deeds to convey on the happening of certain events. Another thing which leads us to conclude that the writing was an executory contract and not a deed is that it is not acknowledged before any officer having the power to take acknowledgments to deeds, nor before any one, and as lon¿ ago as 1852, our legislature passed an act which was approved on January 12th, of that year, which provided in See. 5 that,, “every instrument in writing by which real estate is transferred or affected, in law or equity, shall be acknowledged and certified to in the manner hereinafter prescribed.’’ Section (j, of the same acts, sets out the officers before whom such acknowledgments might be taken. This law was in force at the time of the signing of the-agreement or contract on June 22nd, 1878, and must have-been known to the parties who signed it, for the evidence-discloses that one of them at least was a man of affairs and one who was familiar with the working of the legislative bodies of the Territory.
In arriving at a conclusion as to whether or not the' writing which is the basis of this controversy is a deed or-contract, we must consider it as an entirety. We cannot pick out a few words of a line here and there, and determine from them what it is. As the Supreme Court of the United States says, “We agree generally that although there are words of conveyance m praesenti in a contract for the-purchase and sale of lands, still, if from the whole instru-m'ent it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey, and not a conveyance. The whole question is one of intention to be gathered from the instrument itself. Jackson v. Moncrief, 5 Wend. 26; Ogden v. Brown, 33 Penn. St. 247; Philips v. Swank, 120 Penn. St. 76; Williams v. Paine, 169 U. S. 55.
We have gone over the written instrument dated June 22nd, 1878, very carefully, and have come to the conclusion that it is not and was not intended to he a deed for the conveyance of the Galisteo Ranch, but that it was an execu-tory contract, by the terms of which a deed for its conveyance was to be delivered by Manuel Antonio Otero to Jesus Sena y Baca, on the favorable adjudication and confirmation of the Bartolomé Baca Grant. As the Bartolomé Baca Grant was finally rejected by the Supreme Court of the United States no necessity arose for Otero or his heirs to give deeds of conveyance for the Galisteo Ranch.
3. Holding that the instrument in writing under which Sena y Baca took possession of the Galisteo Ranch and held the same was an executory contract, we must determine the nature of the possession of the said ranch by Sena y Baca and his successors in title, with the view of determining whether or not title has been acquired by adverse possession.
The evidence in this case discloses that Sena y Baca in obtaining the confirmation of the Galisteo Grant, de-raigned his title through Manuel Antonio Otero by virtue of the executory contract, and thus recognized the title of his vendor to the premises. No claim was made by the defendants that their title arose from any other source.
5 Sena y Baca then, entered into the possession of the lands in controversy by virtue of the contract, and with the permission of Manuel Antonio Otero, and it is generally held that a possession by permission or license from the owner is not adverse and cannot ripen into title, no matter how long continued or however exclusive it may be. 1 Cyc. 1030, and eases cited in Note 66, from twenty-seven states, and from England, Canada, and the Supreme Court of the United States. The possession of the occupant under such circumstances is considered as the possession of him upon whose pleasure it continues. Pulaski County v. State, 42 Ark. 118, and again in 1 Cyc. 1044, the rule is stated to be, and 'many cases are cited in its support, that, “Where one enters into and holds possession of lands under an executory contract of purchase or bond for title, the entry and possession are in subordination to the title of the vendor until payment or performance of all the conditions by the vendee or until the vendee has distinctly and unequivocally repudiated the title of his vendor, which repudiation is brought expressly or by legal implication to the vendor’s knowledge.” The reason for this rule forbidding a person who has gone into possession under a contract to purchase is the injustice of allowing a person who has obtained possession by admitting title of another, to enjoy that title, and, in case of failure of proof of it, hold the premises -himself. Howard v. McKenzie, 54 Texas 171; Kirk v. Taylor, 8 B. Monroe (Ky.) 262; McKelvain v. Allen, 58 Tex. 383; Clouse v. Elliott, 71 Ind. 302.
The evidence in this case nowhere discloses that Sena y Baca, or his assigns, ever distinctly and unequivocably repudiated the title of Manuel Antonio Otero. When Sena y Baca disposed of whatever title he had in the Galisteo Banch to Bumberg, he did so by a quit-claim deed, and handed Bumberg the executory contract which he had in Iris possession, and this contract appears to have always been given to the occupants of the real estate in controversy down to the present day, for we find it in the possession of the defendants, when this suit is brought, and it is introduced by them in evidence, to support their claim that they own the property in fee.
We are aware that many paints are raised in the briefs of both appellants and the appellees which we have not discussed, but as before stated, under the view which we have taken of this case, we do not think that it is necessary for us to discuss or determine them, and we therefore refrain from so doing, although we have read and considered them with much care.
.Finding no reversible error in the judgment of the court below, the same is therefore affirmed, and itis so ordered.