majority"> Gardiner J.

The testator, Nathaniel Olmstead, senior, after a previous devise to his wife during her widowhood, directs that “ at her death, the above lands and buildings are to be equally divided between his sons, Nathaniel Olmstead, jr. and Joseph W. Olmstead. The question is whether the sons took a fee in the lands there referred to, of which the premises in question are a part. If the entire premises had been devised to Nathaniel, without words of limitation, he would have taken an estate for [63] life. We so decided in Harvey v. Olmstead, 1 Comstock, 483, in giving a construction to this same will. How his sitúa *63 tion, or that of his brother, is improved, and their respective life interests in the property enlarged to a fee, by having the land divided between them, has not been satisfactorily explained, and I am unable to perceive. (5 Cowen’s Rep. 221.)

(a) Ante, p. 56.

Some stress was laid upon the circumstances, that a previous freehold estate was given to the wife of the testator. But limitations of successive life estates, in the same property, was no uncommon occurrence when this will was drawn; and there is nothing very extravagant in the supposition which the testator probably entertained, that his sons might survive their mother. (Compton v. Compton, 9 East, 267.) In Doe v. Clark, (5 Bos. & Pul. 343,) the testator gave to his son, after the death of his wife, certain houses described, and then charged the whole of his property with the payment of legacies. It was held, that the son took but a life estate, notwithstanding.

This we think, was the estate of the sons of the testator, as devisees in the land in controversy in this suit. The other questions made in relation to the will of ¡Nathaniel Olmstead, have been disposed of in Harvey v. Olmstead, supra, and in Mary Olmstead v. Samuel Olmstead, decided at the present term, (a.)

2d. The plaintiff claims that he has succeeded to all the title and interest of ¡N. and J. W. Olmstead : and that they, as heirs at law of ¡Nathaniel, senior, were entitled, each, to an undivided fourth of the lands in suit; and to that extent, he has a right to recover, at all events. The j udge directed a verdict for the defendant, His ruling can be sustained upon the ground only, that the plaintiff and defendants were tenants in common, and that no ouster by the latter, of his co-tenant, was proved upon the trial.

By the provision of the revised statutes, (2 R. S. 307, § 27,) the plaintiff was bound to prove that “ the defendant actually ousted him, or did some other act amounting to a total denial of his right as co-tenant.” This was the rule of the common [64] law. The denial must be such, when made, as to amount to a disseisin of the co-tenant; or such as will establish an ad *64 verse possession upon the part of the wrongdoer. (Clapp v. Bromagen, 9 Cowen, 556, 563; 7 Wheaton, 59.) The defendant, from any thing that appears, entered upon the premises as tenant in common with the plaintiff. Being in possession, “ he claimed the same as owner in fee.” If the claim had stopped here, it would he difficult to designate any part of the premises of which he was not the owner. Not the exclusive owner, it is true, but still, an owner in fee of every parcel of them. He did not cease to be a proprietor, because others sustained the same relation to the property with himself. All were owners; and owners in fee; the interest of each extending to the whole, and not to any particular part, of the land. The defendant was not sole proprietor, the exclusive owner, nor did he claim to be. On the contrary, he exhibited a deed as the sole evidence of his title, from a child and heir of the testator, by which she released and quit-claimed the premises to the defendant. This, as the terms of the conveyance import, was a yielding up to him, and for his benefit, her claim and title to them. (9 Cowen, 18; Coke Litt. § 446, p. 265, a b.) Her interest was undivided, and she therefore properly transferred by the deed, her claim to the whole property described by metes and bounds. She, in a word, assumed to convey her claim and right, whatever it was, and nothing else. The defendant, by “ virtue of the deed from Anna Olmstead,” claimed nothing more.

The character of her right must have been fully understood by the plaintiff, who in this suit claimed the whole lot, under a will, in which it appeared that Anna was the daughter and heir at law of the testator, who died seised of the property. The claim of the' defendant, therefore, so far from being a total denial of the plaintiff’s right as co-tenant, was entirely consistent with it. Here was no demand made of the possession by the plaintiff or of his share of the rents and profits, and no denial of either, by the defendant. There is no proof even of the receipt of the rents and profits by the latter.

Sound policy demands, that where declarations made, not to [65] the plaintiff, but for aught we can'say to a mere stranger, are *65 the only evidence of an ouster, that they should he unequivocal in their character. There would be no safety for tenants in common, if those who were occupants of the land could be made disseisors, or an adverse possession be established, and the statute of limitations commence running against those who were out of possession on the evidence contained in this bill of exceptions. (4 Peters' Cond. Rep. 606, 608.) There is no adjudged case that goes so far. In Doe v. Prosser, (Cowp. 21Y,) it was said, that a refusal to pay rents and profits to a co-tenant, is not sufficient without denying his title: But, if upon demand, by the co-tenant of his share, the other denies to pay and denies his title, and continues in possession, such possession is adverse. (Doe v. Hilling, 11 East, 49; Sigler v. Van Riper, 10 Wend. 415.; Ricard v. Williams, 7 Wheat. 60.)

Valentine v. Northrop, (12 Wend. 495,) is the strongest case for the plaintiff I have been able to find. The defendant held under a title derived from five of the heirs of one Fish. The defendant claimed the whole premises as his own, had offered to sell them, and being told that all the heirs had not signed - his deed, he said they had received their share of the consideration, and he thought equity would compel them to sign it. This was held to amount to a denial of the right of the plaintiffs, who as heirs of Fish, were entitled to four-ninths of the property.

In this case the defendant, at most, asserted his own title, without denying that of his co-tenant. Neither his declarations nor acts, are inconsistent with the supposition that he acquired and now holds possession of the premises as tenant in common with the plaintiff.

We think the direction of the judge right, and that the judgment of the supreme court should be affirmed.

Judgment affirmed.

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