#### DEN ON DEM. OF DANIEL MURRAY et al. vs. ANDREW SHANKLIN.

June 1839

The possession of a vendee, taken under a deed from an infant, whether that deed is to he considered as void, or voidable only, is adverse to the infant, (and much more is such the case where the deed has been executed by the infant jointly with others;) and the infant cannot, after he comes of age. convey a valid title to the land, while such adverse possession continues.

Where an infant executed a deed for land, by signing, sealing and delivering it, and after he came of age, endorsed on it, -‘I have signed the •within deed for the expressed purposes; and with the desire to ratify the same, I hereunto affix my hand and seal,” and after signing and sealing the endorsement, delivered the instrument to the vendee again, it was held, that if the deed were absolutely void in the first instance, it was rendered valid by the re-delivery, and if only voidable, the endorsement under the hand and seal of the vendor, was a proper act of confirmation.

Ejectment, tried before his Honor Judge Saunders, at Hyde, on the Spring circuit of 1838.

Peter Sermon died seized in fee of a tract of land, situate on Mattamuskeet Lake, in Hyde county, and the same descended to his heirs at law, of whom Reuben Berry, John Berry, Rachel Berry and Levisa Berry were part; to whom, as representing a deceased parent, one undivided fourth part of the Sermon tract of land belonged. Such proceedings were had by the heirs of Sermon, that partition of the descended land was made between them by the judgment of the County Court, in which one fourth part of the whole tract was laid off and allotted as the share of the said Reuben, John, Rachel aud Levisa together; and they entered into the said share or lot, containing sixty-six acres, as tenants with each other of that lot in fee. Being thus in possession, the said Reuben, John, Rachel and Levisa Berry, on the 5th day of March, 1831, sold for the sum of l$1000, and conveyed jointly, by their deed of bargain and sale, to the defendant, Andrew Shanklin, the said lot, ahd one fourth part of the said tract of land in fee simple, with general warranty. Thereupon the defendant took possession, and placed a tenant on the land, who has exclusively occupied it ever since.

When the deed to the defendant was executed, Levisa Ber-*290one of the bargainors, was an infaiit. She attained full 011 November, 1834, and on the 1st day December, 1834, she, in consideration of $200, executed a Q£ kal.gajn an(j sa]e t0 Danjei Murray, for one undivided fourth part of the said lot of land, containing sixty-six acres, fee. On the 28th day of November, 1834, the defendant caused to be written on the back of the deed made to him and bearing date the 5th of March, 1831, an instrument in the following words, to wit: “I do acknowledge that I have signed, by making my mark, the within deed for the express-purposes; and with the desire to ratify the same, I hereunto my hand and seal:” which instrument 'she, the said Le-in January, 1835, executed by signing and sealing; and being duly attested, she delivered both of the said instruments to the said Shanklin again.

Afterwards the said Levisa Berry filed against Andrew Shanklin her petition for partition, in which she claimed one fourth part of the said tract of sixty-six acres, and prayed to have it laid off to her in severalty. In that suit the defendant pleaded that the petitioner was not tenant in common with him, but that he was in the actual adverse possession of the whole tract, and had the sole seisin thereof. The Court stayed the proceedings therein'until the petitioner could bring an ejectment to establish her right, to the possession; and thereupon the present action was brought in May, 1837, upon the several demises of Levisa Berry and Daniel Murray.

On the trial, the defendant contended.that the plaintiff could not recover on the demise of Murray, because the deed to him was void by reason of the adverse possession under the defendant, when that deed was executed. The defendant also contended, that the plaintiff could not recover on the demise of Levisa Berry, because her title was divested by her two deeds to the defendant.

There was a verdict for the lessors of the plaintiff, subject to the opinion of the Court on the two points stated, with liberty to set aside that verdict, and enter one for the defendant, if, in the opinion of the Court, the law was for the defendant, on the facts stated. The Court pro forma gave judgment for the lessors of the plaintiff, and the defendant appealed,

*291ed by an ae-exciusion aoST put or'keep ers.aThe t£ has, is not, fl'ipi’pfni’p *292decisive of possession; for frequent -ly that is to more from whioWthe deed under claims -veyt from that ■which it ally does convey.

*291 Devereux for the defendant.

Badger for the lessors of the plaintiff. 0 r

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows: We think the judgment-'must be-reversed and verdict and judgment entered for the defendant. It is not stated on which count the plaintiff had judgment in the Superior Court; but we do not deem that material here, as in our opinion, both points raised are in favour of the defendant.

The deed to Murray is null, because it was executed by a person out of possession of the land conveyed. The actual possession, it cannot be denied, was in Shanklin’s tenant; and prima facie, therefore, Levisa Berry was notin possession. But it is said, that the possession of Shanidin is her possession, because he entered rightfully under her by force of her voidable deed: That the entry and possession must be taken to have been according to the title, and therefore could not become adverse to her, from whom it was derived by such an instrument.^ It may be true that the character of a possession is often to be judged of according to the title under which it was acquired; as the possession of one tenant in common, though in the sole enjoyment, is the possession of his brethren. But the possession of one tenant in common is hot necessarily that of his companions. It may become adverse; and is, in fact and law, rendered so by an actual ouster, or by such other circumstances as shew clearly that he denies the right of his companion and holds for himself exclusively. Adverse possession, indeed, is constituted by an actual exclusive possession, taken or held with the intent to put or keep out all others. The title which the party has, is therefore, decisive of the character of the possession; for ' A 7 quently, that is to be inferred more from the title which deed under which he claims purports to convey, than from that which it really does convey; as if one tenant in common, for instance, convey the whole tract, and the alienee enter and remain in possession seven years, he acquires title to the whole tract under the statute of limitations; and consequent-^® ly his possession was adverse to the other tenants in common throughout. Burton v. Murphy, No. Ca. Term R. 259. *292A possession taken under a deed in iee made by an infant, aithb'uyh the same be voidable, is not therefore to be deemed ° ; . a possession of or for the mlant, but is tnat ox the actual pos-gegscir_ jp not s0) the statute of limitations never could operate when the conveyance was by an infant, because the could not be adverse. But, in truth, every vendee jn fee takes possession adversely to his vendor as much as to L J . other persons. The possession of one, who has a particular estate, is subservient to the title of him from whom it is do-rived, and cannot be deemed to have been adverse during the continuance of his estate. But when an owner professes to all his estate to his'vendee, and the latter enters, he not hold the possession any more than he does the title, for the vendor, from whom he derived both. A sale by an ' • . * infant, whether his deed be void or voidable as a conveyance, jg nQt exceptjon t0 this principle. There is no reason why it should be. The question is, quo animo the vendee took possession; and surely that is clearly evinced by the purport of the conveyance under which the possession was taken. The vendee may not indeed have known of the infancy; but whether he did or not, it is certain he did not enter for his vendor, but for himself exclusively, and consequently, against all the world, including his vendor.

But this case is still stronger against the plaintiff on this point, seeing that the deed, .under which the defendant claims, is not from L. Berry alone, but from her and three others, and does not purport to convey their several undivided shares as tenants in common, but to convey the whole jointly. The possession of the defendant taken under this deed was unquestionably adverse to the three other bargain-ors; and why is it not as against the fourth? Each one conveyed the whole tract; and against each' and all of them, therefore, the vendee claimed the whole. A possession taken under such a claim must be deemed adverse.

Hence, we think the deed to Mr. Murray is void. That being so, there was nothing to interfere with the power of the lessor of the plaintiff, L. Berry, to re-deliver her deed to the defendant, if void, or to confirm it, if voidable. The state of facts renders it unnecessary to detemfine.whether the deed of *293bargain and sale of an infant be void or voidable. If void at first, it may be delivered a second time as was here done. Co, Lit. 48, Shep. Touch. 60. It is true, that if it be voidable only, a second delivery after full age is ineffectual, because the first had some legal operation, and is therefore irrevocable. But, if it be voidable, it admits of confirmation in some way, and if in any, it must be by the execution of an instrument of equal solemnity with the original instrument. The party after full age, by her deed on the same paper, re-acknowledges the first instrument, and expressly ratifies it. This comes up to the requsition, of Lord Ellenborough, in Baylis v. Dineley, 3 Maul and Selw. 482, and must amount to a confirmation, if the instrument admits of a confirmation, as every voidable act or instrument necessarily does. In whatever way it be taken, therefore, the defendant has the title at law.

The judgment must be reversed and the verdict set aside, and a verdict entered for the defendant and a judgment accordingly.

Per Curiam. Judgment reversed.