majority">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.

*16It 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 conveyance of the title on payment of the purchase money, there can be no adverse holding, even if possible then, until the condition on which the conveyance depends, has been performed. Jackson vs. Bavel, 4 Johns., 231. Jackson vs. Camp, 1 Cow., 610. 5 Cow., 74. Gwynn vs. Jones, 2 G. & J., 173. Colvin vs. Warford, decided June Term, 1863.

In this case, Reese appears to have entered into possession under a contract for a deed on payment of the purchase money, and although the bill alleges that the purchase money was subsequently paid, yet there is no evidence of that fact, other than the simple declaration of Reese himself to a third party, that he had paid it, and none at all as to the time when the payment was made. And although *17the proof is, that the purchase was made from Kelley, yet the hill states that the land belonged to Mrs. Kelley, in her own right, who appears not to have been a party to the contract of sale. The appellee also avers that no deed has ever been made in compliance with the contract of Kelley, and that he and his wife have never been able to obtain one, by reason of the fraud and obstinacy of Mrs. Kelley, and that he intends to institute proceedings against the appellants, Mrs. Kelley and others, to compel a conveyance of the lands to his wife. The possession relied on, thus appears to have been taken and maintained under a contract for a title which is alleged to be still outstanding; and further, that the contract for a conveyance of the title was made with one who was not the owner of the land, The rules to which we have referred, áre applicable to this case. It surely cannot be said, that the possession of the land under the contract from Kelley, was of such a character as to bar the appellants’ right of entry Under their deed, or raise a presumption of a grant to those claiming under that contract, for that would be inconsistent with the solemn averment in the bill, that the title is still outstanding ; and, relying on the contract, without the aid of a presumption from adverse possession, it cannot be said that the wife of the appellee has acquired any interest in the land that a Court of Law or Equity can protect. The contract was made with one who had no such title as the contract calls for, although possessed of an interest jure mariti, and, as a matter of course, those claiming under it after his decease, were vested with no interest adverse to that of the real owners. We think, under these circumstances, that the appellee is not entitled to the relief prayed, and shall therefore reverse the decree of the Court below, dissolve the injunction, and dismiss the bill, with costs to the appellants.

(Decided April 28th, 1865.)

Injunction dissolved, and bill dismissed.

Citation profile

How this case has been treated — in progress