The opinion of the court was delivered by
Collamer, J.It seems that Eunice Hollister died seized of the lot in question, leaving three sisters, heirs. In 1814, one of those sisters conveyed, not the land, but with her husband conveyed her interest in this lot to the plaintiff. The plaintiff, in 1817, went into possession, and by himself and tenants, one of whom was this defendant, continued possession until this suit, in 1831. In 1830, the other heirs of said Hollister conveyed their interest to the defendant. The main question in the case is, what was the nature of the plaintiff’s possession ? No man, taking possession of land, is presumed to be a trespasser. If he has a deed on record, that gives character or color to his possession, both as to its nature and extent; and he is presumed to possess according to his right, which, in this case, would be of an undivided third, in right of himself and his co-tenants. The case is entirely destitute of any proof, any ouster of the co-tenants, or any holding adverse to them. There *15has been no period when they could have maintained ejectment against the plaintiff, and of course the statute of limitations has not commenced running against them. In the case of Fisher et al. vs. Prosser, (Cow. 217) there was such a great lapse of time, and other circumstances, that it was left to the jury to presume an ouster, which they found, as a matter of fact. Here no such circumstances existed to leave to the jury.
The defendant was tenant to the plaintiff, but he was tenant only of what the plaintiff was owner, that is, an undivided third part. It was therefore as competent for him, as for any other person, to purchase the other two thirds. This was not at war with his tenancy, or inconsistent with the relationship he sustained to the plaintiff, and the plaintiff not being in adverse possession of those parts, the deeds to the defendant were not void. But the defendant having taken and set up a deed from Belden of the third which the plaintiff owned and possessed, this was such an act of war in a tenant as amounted to an ouster of his landlord, and therefore entitled the plaintiff to sustain this action and recover for the part he owned.
Judgment affirmed.