¶1The opinion of the court was delivered by
¶2The charge of the county court, in this case, was, in substance, that the possession of the defendant was such as to avoid the deed executed to the plaintiff by Bly. To give that effect to the possession of the defendant, it must have been adverse to Bly, the grantor. It appears from the charge of the court, that the defendant entered into possession of the premises under a contract for the purchase of the same, and claimed his right under and by virtue of the contract. It would have been well to have made the contract a part of the case; but this has not been done. We believe, however, that the possession of the defendant, under such a contract as stated, cannot, in any view of it, be deemed adverse to Bly.
¶3The contract implied, that the title was in Bly. If the defendant has fulfilled, he could compel Bly to perfect the contract by giving *223a deed ; and, inasmuch as he was in possession, Ripley, the plaintiff, would be affected with notice of his equitable interest under the contract. If he had not fulfilled, it was his duty to surrender the possession. While there subsists any contract, express or implied, for the purchase of the title, between the parties in and out of possession,'the possession cannot be adverse. The extent of the possessor’s claim is measured by his contract; he cannot dispute the title of the person under whom he purchases, hut holds subservient to him ; and until he does some unequivocal act, to manifest a repudiation of the contract and bring this home to the knowledge of the other party, he cannot be considered as holding adverse to the person, under whom he took possession ; — at least, nothing short of this unequivocal act and notice can be considered as constituting an adverse possession in him.
¶4These principles have been repeatedly recognized in this court. The case of Bowker v. Walker, 1 Vt. 18, was a very strong case on this point, — in which it was held, that, if the possessor sold to a person, who had no notice of his contract; the possession of the person purchasing would be subservient to an acknowledged paramount right in the owner. The case of Tuttle v. Reynolds, 1 Vt. 80, was decided on the same principle. The case of Selleck v. Starr, 6 Vt. 194, and the case of Hall v. Dewey, 10 Vt. 593, are very decisive of the case before us. Indeed, the latter case may be considered as carrying the doctrine to the extreme verge of the law on this subject. It was determined, that a possession decidedly and unequivocally adverse to the grantor, and declared so to be to his agent, would not operate to defeat a deed, executed by the grantor, because the agent had not given notice to his principal. That decision was adverse to the decision, which had been made in the county court; yet the principle, on which it was founded, was never questioned, though I might have entertained a different view of its application in that case. The authority of that case, however, is directly in point in the case before us. The possession of the defendant, Yale, under the contract with Bly, was not adverse, so as to avoid the deed executed by Bly to the plaintiff.
¶5The judgment of the county court is reversed.