(After stating the case.) It is argued before this Court, against a new trial, by the counsel of the plaintiffs, that the charge given to the jury, was correct: in fact, that there was no case to be left to the jury. They insisted, that to make a possession adverse, it was essentially requisite, that the holding of the property should be in opposition to the title of the true owner; that riot only, there should be no holding under him, but his title should be disclaimed and denied by the holder ; that in the case under consideration, there was no denial of the plaintiffs’ title, but. on the contrary, there was an express acknowledgment of it: That the bond for a deed, was evidence of this fact; and was evidence, also, that the defendant and his father, William Atwater, held the premises under the plaintiffs: That the principle contended for, was proved, by the taking of the deeds from Juliana Bryan and Joseph Bryan, two of the heirs of Joseph Bryan, deceased, after their arrival al *187use age of twenty-one years : That the demand of the ful-filment of the bond of Juliana Buckingham, the late wife and widow of the said deceased, Joseph Bryan, was confirmatory of the proposition, that there had been no adverse possession.
It is my opinion, however, that from the facts appearing in this case, there has been an adverse possession; and I think there ought to be a new trial of the cause.
In order to determine whether my opinion is correct, or sot, it will be necessary to ascertain, precisely, the meaning of the terms adverse holding, or adverse possession. There had been, in fact, a possession of the premises by the defendant, and by his father, William Atwater, for more than fifteen years before the commencement of the action, and for more than five years after the youngest child of Joseph Bryan, deceased, attained full age. If this possession has been adverse, the case is with the defendant; if otherwise, St is with the plaintiffs. I apprehend, it is not necessary to make a holding, or possession of lands, adverse, that it should be accompanied with a claim of title, on the part of the possessor, with a denial of title in the legal proprietor. Still, the holding cannot be adverse, if it be under the legal proprietor; that is, if the claim to the possession be derived from him. When, indeed, from the kind of possession, it is doubtful whether it be adverse, or not, and the fact rest* tn presumption, there being no direct proof, one way.or the other, this presumption is a proper subject for the consideration of the jury ; and they ought to make such inference from the circumstances, as the nature of the case requires. If there be direct proof, that the possessor holds under the legal proprietor, or does not so hold, there is then no case to be left to the jury.
In the case of a tenant for life, or for years, during the continuance of the lease, there can be no question, as to the nature of the possession of such tenant. It cannot be adverse. There is no presumption in the case, to be considered by the jury. By the terms of the contract, the tenant has a right to the possession of the land; and this *188contract appearing, the legal inference is direct, that such possession it not adverse. If, however, the lessen for years, holds over, after the expiration of his term, or if the tenant for the life of another, holds over, after the death of the cestui qw vie. there may be let in a presumption, that sue!holding is adverse, or otherwise, as the case may be. If i' be a mere holding over, unaceompained with any other acts, the more probable inference would lie, in favour oí possession, not adverse. If, however, it has been of lonc standing, without accounting for the rents and profits, i; may be evidence to the jury, of an adverse possession. Here, let it be remarked, that the possession of the less! i is, also, the possession of the lessor. The possession of the mortgagor is that of the mortgagee. In short, the possession of every one, who properly holds under the legal proprietor, is the possession of such proprietor.
The same principles are applicable, in case of tenants u; common. The possession of one tenant iu common, is the possession of his co-tenant, or co-tenants, whether there bo more or less. But if one tenant in common, has been ir_ possession a great number of years, without any accounting to his fellow commoners, this is proper evidence, from which the jury may infer an adverse possession. Such was tin decision in the case of Fisher v. Prosser, Comp. 217.
But more particularly ; what, in point of law, is an adverse possession, without any reference to presumption, to make out such possession ? It is a possession, not under t’u legal proprietor, but entered into without his consent. <;<!(■■ r directly or indirectly given. It is a possession, by which he is disseised and ousted of the lands so possessed. To make a disseisin, it is not necessary, that the disseisor should claim title to the lands taken by him. It is not necessary, that he should deny or disclaim the title of the leg;. i>.r-prietor. No; it is necessary only, that he should enter inl- and take the possession of. the lands, as if they wen >. own ; to take the rents and profits, and so manage wiih the property, as the Segal proprietor himself would manage with it. if property be so taken, and so used, by an}*189¿bough be claims no title, but avows himself to be a wrongdoer, yet, by such act, the legal proprietor is disseised. Nay, if he acknowledges the title of the legal proprietor to be good, it makes no difference ; he is still a disseisor, [a trulh, to determine, whether or no!, the possession be adverse, it is only necessary, to find out, whether it can be considered as the constructive possession of the legal proprietor. If it be, as has been before hinted, with bis consent, express or implied, it is his possession, and not adverse. If it he without such consent, and against his will, it is adverse.
Again, whenever the legal proprietor can maintain an action for such entry and possession, without previously demanding the property, so entered upon and possessed, he is disseised and ousted, by the entry and possession of another. \nd, that he can maintain such an action, in every instance, where his lands are so occupied, without his license or consent, is clear beyond all doubt.
These being the general principles, with respect to an adverse possession, it is now to be considered, how they bear upon the case under consideration. It was said in the argument, that the taking a bond for a deed, was not only an acknowledgment of the title of the plaintiffs, but also, an acknowledgment, that William Atwater and Peter Butler, under whom the defendant claims, held under the plaintiffs. That the taking of the bond, was an acknowledgment of the title being in the plaintiffs, I agree. But, that it proves a holding under the plaintiffs, that is to say, a holding by their ■ license or consent, I deny. Nay, it does not prove a holding under them, in any sense whatever; inasmuch, as a holding under any one, is either a holding by his license or consent, or a claiming of title from him. Atwater and Butter, when they took possession, claimed no title from the plaintiffs; and in this point of view, did not hold under them ; nor did they enter upon the premises, with the consent of *he plaintiffs; nor did they agree to account with them, for the rents and profits. They, indeed, knew, that they, themselves, had no title ; and that the plaintiffs had. *190They purchased the premises from the mother of the plaintiffs, paying therefor, a full consideration, and trusting, that the plaintiffs, when they should arrive at full age, would give them a deed. In case of failure of a deed or deeds, recourse was intended to be had to the bond, for an indemnification. William Atwater, afterwards, purchased Peter Butler's part, and has erected valuable buildings on the premises. Indeed, ever since the purchase was made, the defendant, and those under whom he claims, have used the premises, exclusively, as their own, without accounting to any one, for the rents and profits. I cannot bring myself to doubt, but that such a holding, is an adverse holding, an adverse possession ; in other words, that the plaintiffs were disseised by William At-water and Peter Butler, at the time when they took possession ; and that the disseisin has, ever since, been kept up. Could not the plaintiffs have treated Atwater and Butler as tort-feasors and disseisors, the moment they took possession of their property ? There cannot be a question about this. If so, the consequence is clear, that the possession has ever been adverse. If I take a deed of my neighbour’s land, from one who has no title, and whom, I know not to have a title, and in virtue of such deed, go into possession, and take the rents and profits; do I not, by this act, disseise my neigh-bour ? Will it avail me, to say, I know I have, no title, and I also know, that my neighbour has a title ? Does this acknowledgment and recognition of my neighbour's title, soften this illegal act of mine ? Does it make the entry, as it were, lawful, when otherwise, it would have been tortious ? The answer to these questions, is plain and obvious. The very act of my entry and possession, makes me a disseisor; and if I so remain on the property, for the space of fifteen years, I shall, thereby, gain a title to it. Nor do the conveyances from the two heirs of Joseph Bryan, deceased, after they came of age, make any difference in the case.
It was argued, that after these conveyances, the defendant, and those under whom he claimed, became tenants in common of the demanded premises, with the plain!iffs ; and that the principle that a mere perception of the profit?, by one *191tenant in common, not being an ouster of Ms co-tenant, of co-tenants, would apply, and prevent the possession from being adverse. This reasoning is specious* but rests on no solid foundation. It is true, as a general principle, that the possession of one tenant in common, is also the possession of his fellow commoner. As both have an equal right to the possession, the law presumes, that if one only enters, and takes the rents and profits, he does act, as well for his companion, as for himself. But this presumption may be rebutted, by the overt acts of the one so entering; by such acts as shew, that he means to hold exclusively for himself, without being accountable to any one. Apply this principle, then, to the case under consideration. After the above mentioned conveyances, William Atwater and Peter Butler, until Butter's eon\ eyance to Atwater, were, and afterwards, Atwater alone, was, so far as respected the real right and title to the premises, tenants in common with the plaintiffs; in other words, the premises then belonged to those grantees and to the plaintiffs. And if, after thus gaiuing title to part of the property, the grantees had, for the first time, entered, and taken the rents and profits of the whole, this entry and taking of the profits, might not have constituted an adverse possession. But the facts were far otherwise. Before the first conveyance was made, they had tortiously entered upon, and possessed the property; and were, in this manner, possessing it, when the conveyance was made. Clear it is, that this conveyance could not alter the nature of their previous possession. If it had been tortious, it would remain so. It is also clear, that the part conveyed, must, as to the nature of the possession, be in statu quo, For, by taking a conveyance, there was no more than an acknowledgment of title in the heirs of Joseph Bryan ; which had always been done ; but there did not then commence any holding under the plaintiffs ; nor auy claim of title from them ; nor any license or consent, that the grantees should be in possession. They still, as they had paid for the whole, intended to hold the whole as their own property.
Of as little avail is the argument, that Atwater and Butler, *192by taking the bond from Juliana Buckingham, obtained lief right of dower, and, thereby, became rightfully possessed of the property, as tenants in common with the plaintiffs and the other heirs. I do not recollect, that any argument was, in fact, offered against a new trial, on this ground. 1 mention it only, to shew, that a new trial ought to have been granted, even if ibis reason against it, had been urged, or suggested. True it is, that by having the right of dower engaged to them, they may have had a right to the possession of an undivided third part of the premises. But did they go into possession, claiming nothing more than this ? The fact is, they never took possession of it, as claiming right under the tenant in dower; but as has been said, they having purchased the whole, intended to hold the whole. They never entered as tenants in common, never claimed as such, and never intended to claim as such. These, then, being their views, as it respects the plaintiffs, they were as complete tort-feasors, as they possibly could be.
But, as has been observed, no argument against a new trial, was drawn from the circumstance of having the right of dower engaged to them. Supposing, however, that by taking this bond, they became tenants in common with the plaintiffs, and were not tort-feasors, still, the charge was manifestly wrong, and the verdict equally so : Because, on this ground, the defendant would be entitled to an undivided third part of the moiety sued for; and the verdict ought to have been for two-thirds only. But, at any rate, as to the possession being not adverse, on account of the right of dower, to make the best case of it for the plaintiffs, the am of going into possession, by William Atwater and Peter ¡infla-, was an original act, to be explained by circumstances. 'The possession might, or might not, be adverse ; and, therefore, a proper matter for the consideration of the jury. But this is of minor importance.
I am of opinion, upon the whole case, that there was an adverse possession by the defendant, and by those under whom he claimed, for so long a time before Hie commencement of the action, as to bar all claim of thi* plaintiffs to the *193demanded promises; and (herefore. that the verdict <m«;ht to Slave beeu for the defendant; ami on this ground, I noted advise a new trial.
Mitchell, Ch- J. Reeve, Trumbull, Edmond, and Smith, Js. concurred in this opinion. Am. Braimard, and Baldwin, Js. dissented.New trial to be granted.