SO. One joint-tenant, tenant in common, or coparcener cannot dismiss another but by actual ouster, as the seisin and possession of one are the seisin and possession of all, and inure to the benefit of all. 2 Salk. 422 ; 7 Wheat. 59 ; 12 Mete. Mass. 357 ; 11 Gratt. Va. 505. Actual ouster implies exclusion or expulsion. No force is necessary ; but there must be a denial of the right of the co-tenant, Cowp. 217 ; 1 Mass. 323 ; 1 Me. 89; 12 Wend. N. Y. 404 ; and, like a grant, after long lapse of time it may be presumed, 1 East, 568 ; 3 Mete. Mass. 100 ; 10 Serg. & R. Penn. 182, and inferred from acts of an un equivocal character importing a denial. .3 Watts, Penn. 77 ; 1 Me. 89. But the posses sion of the grantee of one tenant in common is adverse to all. 13 B. Monr. K.,. 436; 3 Mete. Mass. 101 ; 4 Paige, Ch. N. Y. 178. The possession of the tenant is likewise the possession of his landlord, and cannot be adverse unless he distinctly renounce his landlord's title. 2 Campb. 11 ; 2 Bine. Penn. 468 ; 10 N. Y. 9.
Sl. Mere non-payment of rent during the time limited, there having been no demand, does not prejudice the landlord's right to enter and demand it, even though the lease contains a clause giving the right of ye-entry in case of non-payment of rent, 7 East. 299 ; 3 Hill, N. Y. 344 ; and payment of rent is conclusive evidence that the occupation of the party paying was permissive and not adverse. 3 Barnew. & C. 135. The defend ant in execution after a sale is a quasi tenant at will to the purchaser. 1 Johns. Cas. N. Y. 153 ; 3 Mass.-128. And a mere holding over after the expiration of a lease does not change the character..of the possession. 2 Gill & J. Md. 173. Nor does the assignment of the lease, or a sub-letting. The assignee and sub lessees are still tenants, so far as the title by adverse possession is concerned. 4 Serg. & R. Penn. 467 ; 6 Cow. N. Y. 751.
82. If the tenant convey ttie premises, as we have before seen, the landlord may treat him as a disseisor by election ; but the tenant cannot set up the act as the basis of a title by adverse possession, 5 Cow. N. Y. 123, un less in the case where the relation of landlord and tenant subsists by operation of law ; as where one makes a grant and by the omission of the word "heirs" an estate for life only passes. In such case, after the death of the tenant for life a.n adverse possession may commence. 7 Cow. N. Y. 30. So in case the tenant has attorned to a third person and the landlord has assented to the attnrnment. 6 Cow. N. Y. 133. But a mere parol dis claimer, by the lessor, of the existence of the relationship, and of all right in the premises, is not equivalent to an attornmetit. To admit such disclaimer would lead to fraud and per jury, and is in direct violation of the prin ciples of the Statute of Frauds. 7 Johns. N. Y.
186 ; 16 id. 305.; 5 Cow. N. Y. 74.
S3. The possession of the mortgagor is not adverse to the mortgagee, the relation being in many respects analogous to that of land lord and tenant, 11 Mass. 125 ; 30 Miss. 49; 27 Penn. St. 504 ; 1 Dougl. 275 ; not even if the possession be under an absolute deed, if intended as a mortgage. 19 How. 289. The tenancy is sometimes like a tenancy for years, Croke Jae. 659; sometimes like a tenancy at will, 1 Dougl. 22 ; and sometimes like a tenancy at sufferance, 1 Salk. 245; but, whatever it may be like, it is always pre sumed to be by permission of the mortgagor until the contrary be shown. The assignee of the mortgagor, with notice, is in the same predicament with the mortgagor; but if he purchase without notice, his possession will be adverse. 2 Rand. Va. 93 ; 2 No. C. Law Rep. 93.
84. But, although the possession of the mortgagor be not adverse so as to give title under the statute against the mortgagee, the courts have nevertheless practically abro gated this rule, by holding that where the mortgagor has held during the statutory limit, and has meantime paid no interest nor other wise recognized the rights of the mortgagee, this raises a presumption that the debt has be'en paid, and is a good defence in an action to foreclose. 12 Johns. N. Y. 242 ; 9 Wheat. 497; 8. Mete. Mass. 87 ; 19 Vt. 526 ; 3 Ga. 850 ; 6 B. Monr. Ky. 479. And the reasons for so holding seem to be equally cogent with those upon which rests the well-settled rule that, with certain exceptions, the mort gagee's possession for the time limited bars the mortgagor's right to redeem, 2 Jac. & W. Ch. 434 ; 1 Johns. Ch. N. Y. 385 ; 9 Wheat. 489 ; 3 Harr. & M'H. Md. 328 ; 2 Sumn. C. C. 401 ; 13 Ala. N. s. 246 ; 20 Me. 269.
S5. The exceptions are—first, where an account has been settled within the limited time, 2 Vern. Ch. 377 ; 5 Brown, Parl. Cas. 187; second, where within that time tbe mortgagee, by words spoken or written, or by deed, has clearly and unequivocally recognized the fact that he held as mortgagee, 2 Brown, Cb. 397 ; 1 Johns. Ch. N. Y. 594 ; 10 Wheat. 152 ; 3 Sumn. C. C. 160, by which recognition a subsequent purchaser, with actual or con structive notice of the mortgage, is barred, 7 Paige, Ch. N. Y. 465 ; third, where no time is fixed for payment, as in the ease of a mortgage where the mortgagee is by agreement to enter and hold till he is paid outofthe rents and pro fits, 1 Vt. 418 ; fourth, where the mortgagor continues in possession of the whole or any pelt of the premises, 1 Sel. Ca. in Ch. 55 ; 1 Johns. Ch. N. Y. 594 ; and, fifth, where there is fraud on the part of the mortgagee, or at the time of the inception of the mortgage he has taken advantage of the necessities of' the mortgagor. 1 Johns. Cas. N. Y. 402, 595.