FEDERAL REPORTER I
of Mary Jane Barr, and taken n() deeds from them, the position of the defendants would be much stronger than it is. In that case, having no rtllation of co-tenancy with the complainants, their holding from the death of Maria Bigelow might well have been regarded as adverse. But one result of Morgan's taking those deeds was to put him in the relation of co-tenant with the complainants instantly upon the death of Maria Bigelow, and the question now is, has the subsequent holding by the dt!·fendants been accompanied by acts which amount to notice to the cotenants of an adverse holding? How are we to reconcile with any such theory the agreed and recorded statement of facts which was embodied in the hill of exceptions in the Poor and Considine Case, or the written agreement authorizing and empowering T. D. Lincoln and Fayette Smith, as trustees, to buy in, for the use of·the defendants or their grantors, the outstanding title oftheseveral heirs of William Barr, John T. Barr, and Margaret Barr Keys, all grandchildren of Samuel Barr, who is alleged to have been a brother of William Barr, Sr.? Can any of these acts or transactions be construed as notice to the co-tenants of an adverse hold. ing? Everyone of them indicates, as far as the question of notice is concerned, as does the ,proceeding of record in which the deposition of Maria Bigelow was taken and filed, a holding in subserviency, rather than in opposition )to the title and interests of the co-tenants; and we are of opinion that it is impossible to reconcile those acts, taken in connection with the other admitted facts, with the claim Man adverse holding. We are considering them solely and exclusively with reference to their bearing upon the question of notice to the co-tenants. It is not pretended that an actual notice was given. On the other hand, as has already been shown, the answer denies any knowledge even of the existence of the the proposition that if no such complainants. Weare not notice had been given, the defendants might, without prejudice, have taken deeds for outstanding interests of co-tenants, by way of compromise .and to avoid litigation; but it has been held that where the possession was adverse, so as to amount to a disseisin, the disseisin would be purged by the purchase of shares of several of the heirs soon after, and the subsequent posseseion must be considered as the posliession also of the other heirs, from whom title had not been obtained. Parker v. Proprietors, 3 Mete. 99. Now, regarding the fact that costly and permanent improvements were made by Archbishop Purcell in the time of the life-estate of Maria Bigelow, and the fact, also, thnt improvements of like character were made by him after her death, as indicating a claim to the entire estate, and intention to hold adversely, we must, in considering the question whether notice to the complainants can be J."easonably inferred, take into account that the recorded deeds to the defendants by co-te11l\nt8 of complainants amounted, in the absence of actual notice to the contrary i to notice that the defendants recognized the co-tenancy. rrhese suggestions apply, with perhaps even greater force, to the subsequent deeds from co-tenants prooured through Lincoln and Smith, trustees, and containing recitals recognizing in express terms the co-tenanOy. The admitted facts, as they appear from the pleadings, cannot be reconciled
M'CLASKEY V. BARR.
with the proposition that there has been an adverse possession, so open, continued, and notorious "as to preclude all doubt of the character of the holding or the want of knowledge on that part of the owner," which is what the supreme court in Zeller's Lessee v. Eckert declared to be necessary. But it is urged that exclusive possession by a tenant in common for a,great length of time, without interruption or claim by the other tenants, is evidence from which a jury would be anthorized to infer or presume . an actual ouster, and that on similar evidence a grant may be presumed. This is undoubtedly true as a general proposition, but it falls also under the head of laches, and is cognizable in equity. In Hall v. Law, 102 U. S. 461, long-continued possession of this kind was held to be sufIicient to authorize a decree dismissing the bill, on the ground that the claim set up by the was stale. There is therefore no reason why upon this proposition the case should be sent to a jury. The answer denies that the complainants are descendants of Mary Grafton, and denies their heirship, and it is contended that this is a denial of title, and hence that the defend!l-nts' motion must be granted. It is urged that the asserted,claim of the complainants depends wholly upon their heirship, which lies at the threshold of their' case, and that upon it depends their whole title. The case of Wilkin v. Wilkin, 1 Johns. Oh. Ill, is cited; but in that case whether the complainants were heirs of the person last seised, was only one of the questions in dispute. In this case it is admitted by the defendants that the land described in the bill descended in accordance with the provisions of the will of William Barr, Sr., to the heirs at law of Mary Jane Barr. The denial ofthe heirship of the complainants, therefore, raises a question of identity, ralher than of title, and does not, \'Ie think, make it necessary or pNper to submit the question to a jury. The last objection which we think it necessary to cpnsider is that the complainants are nol in possession, and that it matters not for how short a time the adverse possession has been maintained, for 21 days is as good for this proposition as 21 years; and, if this adverse possession is estahlished, the' tenants do not hold together, and the plaintiff must try his title in ejectment before he will he in a position to sue in partitioD'. But we have already seen that the admissions by the defendant in the pleadings are sufficient in themselves to defeat the claim that there has been an adverse possession. Moreover, this suit was brought in a state court, and removed to this court, and, as was held in Tabler v. Wiseman, 2 Ohio St. 207, a right of entry will entitle a party to the proceedings in partition, in Ohio, without the actual seisin required in some other states. states it has The authorities are not uniform on this point. In been held that the complainant must allege that he is seised, which imports a as tenant in common or and that a mere right of entry,if shown, will not be sufficient. It has been so held in New York and in Vermont. In other states, as in Maine, Massachusetts, New Hampshire, Indiana, Minnesota, and Illinois, it has been held, on the other hand, that a disseised co-tenant may have partition.
FEDERAL REPORTER. Y01.
This being the rule inOhio. we think it should be the rule in thia case. Recurring to the holding in Luca8v. King, 10 N. J. Eq. 280, cited in the ruling made by thisCQurt upon the exceptions to the answer, (40 Fed. Rep. 564,) that "if, when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to complainant's title, there is no reasou why the court should not proceed to ,order the partition," (see, also, Overton's HfJirs v" Woolfolk, 6 Dana, 374.·) o\Ucouclusion is that the defendants' motion must be ove1'1u1ed.
BL1.QE " 01.
".HENRYG. AI.Lmi' Co.,
SCRIBNER et' al. ". SAME,
(No. 4,718.) SAMlll ". SAlOl,
(Circuit Court., B. 1). New Yor7c. .Tuno 26, 1880.)
L tJonllten:-I1m\INGlDIBNT. ,:, ,: A.,COPY righted bOOk,:' P,Ubushedb,7 th.e co,nsont andUcense, of the author u, a ,pan . of a toi'e1gn tbe remaindeJ;' of whicb Is the produotlon ot allens no\ .' protected bi the copYtight .laws ot the lJ'nlted,States does not thereby become pubUc property, and. oatlDot be. UICld without the cODllClnt at tho au'hor in a reprln' of! th lt enoyolopledia. . ot tbo foreign encyolopledla procured copyrlghted·artl,.. ·Olllll·fromcl.tizena ot, the StlIotestor the expren purpose the ,, 'work: from being reprbitild In the United States, does not deot w pro. , tAIOltbe copyright lil the courta of tbe United States. . " interest in a copyright may be aulgned.
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" '., A bill praying for. an inj\1Dction,' and' whlohfa not w be ue4 &II eTlc1eaoe, IUMll1 be at the tlDle It lB signed. ' . I. PLSADING. " ',' .' , : , AbW which sets ouUhe t.ertnS'ot the 'agreement between tho author and his cop1alntUfs, tbe publishers. and Iltates that, It such agreement lB not an assignment, , '- an exclusive Ucense, correctly pUblishers' title to the copyright by thus ,' a1l8i'lnr the tacts, and stating the oonoluslons thetefrom III the alternative. , tereet by instrument In
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, ita tidrlngement, it lBinnl1aterlBl whether the equitable owners acquired theh'm.
the legal an4 tlClul.1jable own,er\l of copyright join ,in a complaint to enjoin ,
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, . 4n appointed In one state cannot matn.tain an action in that capac. ., tty In 'another state· Ul1l11s'B he take out· ancillary letters of administration In the latWi but,such anoiJlM'Y1etters ,maybe ta)ten' out alter the blU fa 1Ued, and averred ' . lU'amendment.. .."COP'ttU'Gitr-DIlIFBRBNT PuBLICATIONS. , I , ;:, contained! ,111 a lItatlstioal atlas. need not. be· soparately copyrighted, . to: i :r:31t:otr::24.COPYJ;'lght entire work. , . ·.": , i All. inchoate, rlght'tio a oopyrlght Iila1be transterfed b1 paiol'prlor to the takin&'
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