Dean v. Brown

Cochran, J., delivered the opinion of this Court: The injunction in this case was granted upon a hill filed' by the appellee to restrain the appellants from cutting and removing the wood and timber on a tract of land called ‘•Allcock's Chance.” The record shows that this land belonged to Catharine McOlish and Sarah Á. Green, her sister, as tenants in common, and that while they were so seized, the latter intermarried with one William P. Kelley, who sold the land to G-arretson Reese, and gave his individual bond for a conveyance thereof in July 1833. The death of Kelley occurred in 1844, and in December 1858, his widow and Catharine McClish joined in a deed conveying the property in question to the appellants, who thereupon commenced to cut and remove the standing wood and timber. It also appears that Reese entered on the land at the time of his purchase from Kelley; that ho cut and removed wood and timber therefrom, and, without obtaining any deed thereof or enclosing it, continued to occupy and enjoy the land in that manner until his death, in 1849.

The appellee avers, that after the decease of Reese, his property was apportioned among his heirs-at-law, and that this land was allotted to his daughter, Rachel, now the wife of the appellee; that she thereby came into the possession and ownership of the land, and he therefore claims in-her right the relief sought by the hill. ¹⁶ It clearly appears, from this statement of the case, that the title of the property remained in Mrs. Kelley and her sister Catharine, notwithstanding the sale of Kelley to Reese, and that their conveyance would vest the appellants with a good title, unless, indeed, the possession of the land under the Reese purchase was so far adverse as to divest them of their estate, and establish a title in those claiming under him. The question, then, as to the effect of the possession under the purchase of Reese, is the only material one in the case; and looking to the averments in the hill, all difficulty on that point would seem to he removed. The rule at law, as well as in equity, established by an unbroken course of authority, is, that possession, to he adverse, must he accompanied with a positive and exclusive claim of the entire title, and if the title claimed he subordinate to, or admits the existence of a superior title, the possession will not he taken as adverse to that title; nor does it matter how long such a possession may he continued, for it can have no effect in the way of barring the legitimate title. Smith vs. Burtis, 9 Johns., 180 .

Jackson vs. Johnson, 5 Cow., 14 . Angel on Lim., 413, 414. Stump vs. Henry, 6 Md. Rep., 201 . And where one contracts for land and enters into possession Under an agreement for a