A careful examination of the numerous authorities cited by the plaintiff has failed to satisfy us that the plaintiff’s deed is valid.
It is undoubtedly true that one who enters into the possession of land in subordination to the title of the real owner, is estopped from denying _ that title while he holds actually or presumptively under it.
The plaintiff claims in his first point that the defendant, having commenced his possession of the premises by the consent of the owner, that possession can never become adverse. But the authorities do not ■ sustain the position. There are authorities to the effect that a possession taken under the owner can never become adverse until after it k'as been surrendered. Some of the authorities cited, and particularly that of Shaw v. Spear, 7 Wend., 401, in which the opinion was given by Judge Nelson, sustain that doctrine. But Judge Nelson himself, after his accession to the Supreme Court of the United States, in the case of Zeller’s Lessee v. Eckhert, 4 How., 289, alluded to this class of decisions, and the doctrine embodied in them, saying: “ The law however has been settled otherwise. The trustee may disavow and disclaim his trust; the tenant the title of his landlord, after *267the expiration of his lease; the vendee the title of his vendor, after breach of his contract; and the tenant in common the title of his co-tenant; and drive, the respective owners and claimants to their action within the period of the statute of limitations.” This we apprehend is now the true rule.
Assuming then that Decker could not dispute the title of Catlin while the contract was in force under which he entered into possession, it is equally clear that if the plaintiff’s grantor claimed that the contract was broken, upon failure of payment at the day, and insisted upon the benefit of the breach, it was competent for Decker to disclaim, and thereby render his possession adverse, if Decker then had disclaimed, we should have had no trouble with the law, or in holding his possession thereafter as adverse. Decker, however, did not disclaim, but claimed the contract to be in force, assigned his interest in it and in the land to Graves, and Graves proceeded to fulfil the contract as a contract in force, and having fulfilled it, gave notice to John Oatlin that he should insist upon its benefits as a fulfilled contract, and should hold the land pursuant to it. The case we have then is not a disclaimer during the existence of a contract, when it could not, as against John Catlin, be made; nor a disclaimer after a breach of the contract, insisted on as a breach by Catlin, when a disclaimer could have been made, but a claim that the contract had been fulfilled, and of a lawful right -of possession, and to the title withheld by Catlin. We de not see how it could be successfully claimed, if Decker had himself fulfilled the contract by payment or tender of the installments respectively at the day, that an absolute right of possession would not have vested in Decker. Although in one sense he entered into possession with the consent of Catlin, he entered under an agreement which contemplated a continued right of possession while the contract was being performed, and an absolute right of possession by virtue of its performance. The amount of the purchase money was agreed upon, the amount and time of the installments agreed, and interest was to be paid upon the whole sum ; and the consideration for the interest was the continued and undisturbed possession of the premises by Decker. ___ ___
*268This contract differs from those to which our attention has been called. Most of those were parol contracts, and there is no analogy between them. Judge Swift inclines to treat contracts of this character as in the nature of mortgages to secure the purchase-money, and as not broken by non-payment at the day. 2 Swift Dig., 91. But whether that is so or not has not been made an issue, and we need not consider the question. Nor is it necessary that we should consider the question whether Decker had an assignable interest in the bond or in the land. It is sufficient in this case that such conveyances were in fact made, and a contract of tenancy was entered into between Decker and Graves, and that Graves proceeded to fulfill the contract with Oatlin, or at least attempted to fulfil it.
It being true then that the title of Oatlin could be denied after the last installment was due, and the contract fulfilled or broken, that Graves in fact had an assignment of Decker’s interest in the contract and land, that the possession of Decker was then as the tenant of Graves, and Graves was insisting that the contract was completed, and his right of possession absolute, it is obvious that the possession was adverse as against Oatlin, if he had sufficient notice of the facts, whatever the legal rights of the parties might be. We think he had sufficient notice. Although it is not found that he had knowledge of the precise contract of. tenancy between Graves and Decker, he did know that Decker was in privity with Graves, that Graves was tendering the installments under a claim of right, that he claimed the right of absolute possession on making the final tender, and he was explicitly notified that Graves would thereafter hold the premises as his own. From these circumstances a clear implication and presumption arise that, Catlin knew that Decker was holding for Graves adversely, and the subsequent conveyance by Oatlin to his son, and the manner of bringing the suit, tend to confirm the presumption.
For these reasons w“e think the deed of the plaintiff was invalid, and judgment should be rendered for the defendant.
In this opinion the other judges concurred.