There would not seem to be any serious difficulty in affording proper relief to LaTce and Palmer in this action, if it appears that they were the equitable owners of the mortgaged premises when the mortgage was executed, and had such possession as would operate as notice to the mortgagee or his assignee of their title. That there was a mistake in the description of the land in each of the conveyances executed by John McCune to his sisters is established by the most satisfactory evidence. The mortgaged premises embraced in.the mortgage of Eliza should have been conveyed to Jane. She was really the owner of the land, John having entered it for her and as her agent. John, in violation of his trust, as it may fairly be assumed, entered the land in his own name, instead of that of his principals ; and hence the mistake • on his part. But he states that he deeded to Eliza the land entered for Jane, and his testimony is corroborated by all the evidence in the cause. This mistake', therefore, in the deed from John McCune to Jane McCune, having been established by the most conclusive evidence, there would not seem to be any valid objection to declaring the mortgage void as against the premises in question, unless the mortgagee or his assignee is entitled to protection as *78a subsequent purchaser for valuable consideration without notice of these equitable adverse claims. Was there, then, such possession of the premises, and such acts of ownership exercised over them by those claiming under Jane, as would amount to constructive notice of their rights to the subsequent mortgagee ? We are inclined to think there was.
It appears that the land in controversy was situated in' a new and heavily timbered country, where there were but few settlements. As early as 1849 or 1850, parties claiming under Jane McCune went into the actual possession of the land, and chopped and cleared small pieces on each tract now belonging to Lalce and Palmer. In December, 1851, the defendant Lalce bought a hundred acres of tlie land, took possession of the same, and commenced chopping and clearing it up. At the time, there was about three-fourths of an acre cleared and fenced. He chopped on the land until the spring of 1852, when he left it and went east. At the time he left, he leased the land by parol to one Blackwood, who was to use the three-fourths of an acre that was fenced, and was to clear up the two and a half acres that had been chopped.. Blackwood occupied the land as tenant of Lalce up to the time the mortgage was given, clearing up what had been chopped, inclosing it in a fence, and using it for raising turnips and potatoes, ahd for pasturing. The facts in .regard to the isossession of the sixty acre Palmer tract are very much the same as those relating to the Lake tract. There was a. clearing upon it of three-fourths of an acre, which was inclosed in a fence. One Thompson cultivated this clearing for two or three years,- commencing with 1853, as tenant of Palmer, and had charge of the land generally. It was well understood among the settlers of the country that Lake claimed to own one of these tracts, and Palmer the other, from 1851 or 1852. Thus both tracts were actually occupied and cultivated by the tenants of Lake and Palmer, as far as they were cleared, *79when the mortgage was given by Eliza McCnne to the railroad company. And the question is, Was there not such a visible, open and notorious possession, and occupancy of each tract as would put a purchaser upon inquiry as to the character of the claim asserted in virtue of such possession ? We think there was.
In Ely v. Wilcox (20 Wis. 524) the rule was laid down, that possession, to be notice, must be open, visible, exclusive, and unambiguous, not liable to be misunderstood or misconstrued. Now, it seems to us that the facts of this case bring it fully within the rule here stated. For what more notorious, open, visible and unambiguous acts of possession and ownership can be manifested over real estate, than by chopping, clearing up, fencing and actually cultivating between two and three acres of heavily timbered land? True, the number of acres is not large, yet it will cost as much time, labor and money to chop and clear up three acres of heavily timbered land, and make it fit for cultivation, as it will to make large improvements on the prairie. The possession and cultivation of a large inclosed field on the prairie, by raising wheat upon it, would not naturally be more observed by the public, -or create a stronger presumption of notice, than such an improvement in tbe woods. . And it is very plain that such unambiguous acts of ownership over land will never be confounded with mere acts of trespass. They are not liable to any such misconstruction. Considering the condition of the country, that it was sparsely settled and but a little cleared up, the clearing, fencing and cultivating one, two or three acres are such decided acts of ownership as will not fail to attract the notice of the public, as it seems they did in this case, and are of such a character to- be notice to a purchaser. Such improvements, under the circumstances, are open, visible, notorious and unambiguous, and are as striking evidence' of the continued and complete possession of the land by the party who makes them, as *80can well be imagined. Por we do not understand the rule to be, that a person must actually reside upon the land, to make his possession notice. He may actually improve and cultivate it, and perform decided acts of ownership over it, without residing upon it. He may cultivate and improve it by a tenant; for the possession of the tenant is his possession. But here there were actual, visible and substantial improvements made, which would cost considerable labor and money to make them; land was cleared up, fenced and cultivated, and the occupation and possession were as notorious and exclusive as could have' existed, unless Lalce and Palmer had actually resided upon their several tracts. The occupation and possession were undoubtedly sufficient to constitute adverse possession under the statutes of 1849 (section 9, chap. 127, E. S. 1849); and we think they were so distinct and unequivocal in their character as to put a.subsequent purchaser upon inquiry, and to operate as’ notice. We have examined a great number of decisions upon the question as to what must be the particular acts of ownership, what the use/ cultivation and improvement, to make the occupation and possession notice to subsequent purchasers; and we think the weight of authority supports our conclusion that Lalce and. Palmer had such open, visible, notorious and unambiguous possession in this case as to be notice to the mortgagee of their rights.
The judgment of the circuit court must therefore be affirmed.