If there is no written title, then the pos session must be under a bona fide claim to a title existing in another; McCall v. Neely, 3 Watts (Pa.) 72. Thus, if under an agree ment for the sale of land the consideration be paid and the purchaser enter, he has color of title; Brown v. King, 5 Mete. (Mass.) 173; Lander v. Rounsaville, 12 Tex. 195; though if the consideration be not paid, or be paid only in part, he has not ; Hunter v. Parsons, 2 Bail. (S. C.) 59; Woods v. Dille, 11 Ohio 455; because the fair inference in such case is that the purchaser is in by consent of the grantor, and holds subordinately to him until the payment of the full consideration. There is, in fact, a mutual understanding, and a mutual confidence, amounting to an implied trust; Kirk v. Smith, 9 Wheat. (U. S.) 241, 6 L. Ed. 81 ; Proprietors of Town ship No. 6 v. McFarland, 12 Mass. 325; Fowke v. Beck, 1 Speer (S. C.) 291.
In New York, a parol gift of land is said not to give color of title ; Jackson v. Rogers, 1 Johns. Cas. (N. Y.) 36; but it is at least doubtful if that is the law of New York; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677. In a later case it is said that to avoid a deed given by one out of possession, the party in possession must hold adversely, "claiming under a title" and not "under a claim of ti tle"; Fish v. Fish, 39 Barb. (N. Y.) 513. In some other states, a parol gift is held to give color of title if accompanied by actual entry and possession. It manifests, equally with a sale, the intent of the donee to enter, and not as tenant ; and it equally proves an ad mission on the part of the donor that the possession is so taken; Clark v. Gilbert, 39 Conn. 98; Rannels v. Rannels, 52 Mo. 108; Magee v. Magee, 37 Miss. 138; Steel v. John son, 4 Allen (Mass.) 425 ; Outcalt v. Lud low, 32 N. J. L. 239 ; but see contra, Roe v. Doe, 24 Ga. 494, 17 Am. Dec. 142. The ele ment of good faith, and the actual belief on the part of the claimant that he has title, give the claimant by color of title his advan tage over the mere trespasser, who, as we have seen, is restricted carefully to his ac tual occupation ; and it may be said, gener ally, that whenever the facts and circum stances show that one in possession, in good faith and in the belief that , he has title, holds for himself and to the exclusion of all others, his possession must be adverse, and according to his assumed title, whatever may be his relations in point of interest or priority, to others ; Jackson v. Porter, 1 Paine 467, Fed. Cas. No. 7,143; Ewing v. Burnet, 11 Pet. (U. S.) 41, 9 L. Ed. 624. When a man enters under such a claim of title, his entry on a part is an entry on the whole; but if he claims no such title he has no seisin by his entry but by the ouster of him who was seised, which can only be by the actual and exclusive occupation of the land; Proprietors of the Kennebeck Pur chase v. Springer, 4 Mass. 416, 3 Am. Dec. 227.
In cases of mixed possession, or a posses sion at the same time by two or more per sons, each under a separate colorable title, the seisin is in him who has the better or prior title; White v. Burnley, 20 How. (U. S.) 235, 15 L. .bid. 886 ; Doe v. Butler, 3 Wend. (N. Y.) 149; for, though there may be a concurrent possession, there cannot be a con current seisin ; and, one only being seised, the possession must be adjudged to be in him, because he has the better right; Mather v. Ministers of Trinity Church, 3 S. & R.
(Pa.) 509, 8 Am. Dec. 663. Of course, in such a case, if one has color of title, and the other is a mere trespasser or intruder, the possession is in him who has color of title; Hall v. Gittings' Lessee, 2 Harr. & J. (Md.) 112; Hall v. Powel, 4 S. & R. (Pa.) 465, 8 Am. Dec. 722. The possession of the true owner must prevail over the claim by con structive possession by one who holds under mere color of title; Anderson v. Jackson, 69 Tex. 346, 6 S. W. 575. No length of posses sion of one partner of real estate paid for with partnership funds and conveyed to him, bars the other partners; Riddle v. White hill, 135 U. S. 621, 10 Sup. Ct. 924, 34 L. Ed. 282.
But, with all the liberality shown by the courts in giving color of title, it has been denied that a grant from a foreign govern ment confers it, on the ground that the pos session under_such a title was rather a ques tion between governments than individuals ; Davidson's Lessee v. Beatty, 3 H. & McH. (Md.) 621. Thus, the courts of New York have refused to recognize claims under a grant of the French government in Canada, made prior to the treaty between Great Brit ain and France in 1763 ; Jackson v. In graham, 4 Johns. (N. Y.) 163; as conferring color of title. But the soundness of the ex ception has since been questioned in the same court; La Frombois v. Jackson, 8 Cow. (N. Y.) 589, 18 Am. Dec. 463; and the grant of another state has been expressly held to give color of title in Pennsylvania, even as against one claiming under her own grant; Barney v. Sutton, 2 Watts (Pa.) 37. For political reasons, it has been held that a grant from the Indians gives no color of ti tle; Johnson v. McIntosh, 8 Wheat. (U. S.) 571, 5 L. Ed. 681; nor does a grant by an Indian in contravention of a statute; Smythe v. Henry, 41 Fed. 705; but a sheriff's deed for laud in the Southern Confederacy was held to give color of title; McIntyre v. Thompson, 10 Fed. 531. See Coma OF Timm 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 ; Ricard v. Williams, 7 Wheat. (U. S.) 59, 5 L. Ed. 398; Caperton v. Gregory, 11 Gratt. (Va.) 505; Carothers v. Dunning's Lessee, 3 S. & It. (Pa.) 381; McCray v. Humes, 116 Ind. 103, 18 N. E. 500; Northrop v. Marquam, 16 Or. 173, 18 Pac. 449 ; actual ouster im plies exclusion or expulsion. No force is nec essary; but there must be a denial of the right of the co-tenant ; 5 Burr. 2604; Gilkey v. Peeler, 22 Tex. 663; aud, like a grant, aft er long lapse of time it may be presumed; Parker v. Proprietors of Locks and Canals, 3 Mete. (Mass.) 101, 37 Am. Dec. 121; Syd nor v. Palmer, 29 Wis. 226; and inferred from acts of an unequivocal character im porting a denial; Lodge v. Patterson, 3 Watts (Pa.) 77, 27 Am. Dec. 335; Bracket v. Nor cross, 1 Greenl. 89; Rodney v. Mc Laughlin, 97 .Mo. 426, 9 S. W. 726 ; Northrop v. Marquam, 16 Or. 173, 18 Pac. 449 ; Lind ley v. Groff, 37 Minn. 338, 34 N. W. 26; Fry v. Payne, 82 Va. 759, 1 S. E. 197; McDowell v. Sutlive, 78 Ga. 142, 2 S. E. 937; Killmer v. Wuchner, 74 la. 359, 37 N. W. 778; but the possession of the grantee of one tenant in common is adverse to all; Larmau v. Huey's Heirs, 13 B. Monr. (Ky.) 436; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178.