ADVERSE POSSESSION. The en joyment of land, or such estate as lies in grant, under such circumstances as indicate that such enjoyment has been commenced and continued under an assertion or color of right on the part of the possessor. 3 East, 394; 1 Pick. Mass. 466; 2 Serg. & R. Penn. 527; 3 Penn. St. 132; 8 Conn. 440; 2 Aik. Vt. 364; 9 Johns. N. Y. 174; 18 id. 40, 355; 5 Pet. 402; 4 Bibb, Ky. 550.
When such possession has been actual, 3 Serg. & R. Penn. 517; 7 id. 192; 2 Wash. C. C. 478, and has been adverse for twenty years, of which the jury are to judge from the circumstances, the law raises the pre sumption of a grant. Angell, Wat. Cour.
85, et seq. But this presumption arises only when the use or occupation would otherwise have been unlawful. 3 Me. 120; 6 Cow. N. Y. 617, 677; 8 id. 589; 4 Seri'. & R. Penn. 456. See 2 Smith, Lead. Cas. 307-416.
Possession is not adverse: When both parties claim under the same title; as, if a man seised of certain land in fee have issue two sons, and die seised, and one of the sons enter by abatement into the land, the statute of limitations will not ope rate against the other son; for when the abator entered into the land of his father, before entry made by his brother, the law intends that he entered claiming as heir to his father, by which title the other son also claims. Coke, Litt. s. 396; When the possession of the one party is consistent with the title of the other; as, where the rents of a trust estate were re ceived by a cestui que trust for more than twenty years after the creation of the trust, without any interference of the trustee, such possession being consistent with and secured to the cestui que trust by the terms of the deed, the receipt was held not to be adverse to the title of the trustee. 8 East, 248;
When, in contemplation of law, the claim ant has never been out of possession; as, where Paul devised lands to John and his heirs, and died, and John died, and after wards the heirs of John and a stranger en tered, and took the profits for twenty years; upon ejectment brought by the devisee of the heir of John against the stranger, it was held that the perception of the rents and profits by the stranger was not adverse to the devisee's title; for when two men are in possession, the law adjudges it to be the possession of him who has the right. 1 Ld. Raym. 329; When the occupier has acknowledged the claimant's titles; as, if a lease be granted for a term, and, after paying the rent for the land during such term, the tenant hold for twenty years without paying rent, his possession will not be adverse. See 1 Bos. & P. 542; 8 Barnew. & C. 717; 2 Bouvier, Inst. n. 2193, 2194, 2351.