“ But a co-parcener or tenant in common may be barred by the statute of limitations, if the possession of his companions be adverse, or, in other words, amount to an actual ouster. So long as there is nothing adversary, the possession of one is the possession of all: but if one parcener usurp the whole, and hold out his companion, he is a deforciant, against whom a writ of entry will lie as well as a writ of partition. Here the co-parceners of William never had possession at all. ”

“ It would be strange, indeed, that when the estate of the heirs in the land, which is but a continuation of the estate of the intestate, is extinguished by the statute, the estate should still be considered as a subsisting estate of the intestate himself. That the administrator should possess a power over the property which the intestate could not possess if living; and that a lien created by operation of law should have a more permanent duration of efficacy, than if created by the express act of the party. ”

“ There is not, as has been already intimated, any proof, that William Dudley died seised of an inheritance in the land; and there is direct proof that he asserted the inheritance to be in his son Joseph; and the entry of the guardian of Joseph as well as his own entry, after his arrival of age, was under an exclusive claim to the whole, not by descent, but by title distinct or paramount. There is certainly no incapacity in an heir to claim an estate by title distinct or paramount to that of his ancestor ”

“ A grant of land may as well be presumed, as a grant of a fishery, or of common, or of a way. Presumptions of this nature are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possessions. They are founded upon the consideration, that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession. ”

“ But if one tenant in common enters into actual and exclusive possession of the land, taking the rents and profits to his own use, and openly assert his own exclusive property in the lands, and deny the title of any other, it will be considered as an adverse possession by him, and those claiming under him, and an ouster of the other claimants. ”

“ The effect of possession is to bar actions against the possessor by those who are entitled to bring the actions. It does not operate like a grant, or any other mode of alienation, which may be circumscribed and limited. His claim of a life estate only did not create a remainder in favour of any other, so as to give to that other, for the first time, a right of action on his death. It did not contribute to exclude actions during his life. The person entitled might as well have sued, within the time of limitations, whether William claimed a life estate or not. ”

“ But it is said that Joseph's possession barred his co-parceners, represented by William; and as William's estate is barred, the lien which attached to it is gone of course. The answer is, that the bar may exist for one purpose, and against some parties, and not for every purpose, and against all parties. Joseph still retains his character of heir, and by barring the other heirs, the claim of the creditors is not barred. Being heir, he has kept out his companions by deforcing them; but being heir, he cannot destroy the statuteable lien by his own wrong, for his own benefit. ”

“ As then when he entered, claiming the whole of this property as his own, William could have had no grant from his co-heirs; and as his possession must be presumed to have continued under the same claim of title under which he originally entered, it seems to be a presumption against all law, that he ever had a grant from his co-heirs.
It is a well established rule that the declarations of a person in possession of land as to his title are evidence against him and all persons claiming under him. ”

“ Cases may, indeed, be conceived in which it would produce a limited effect; as, for example, if the heir should hold against tenant in dower, or by the curtesy. But there is nothing there to bar but the tenancy in dower or curtesy. If there was, the bar would extend to it. In our case, the whole fee is against the possession by wrong, and his possession is against the whole fee. His declarations, that he claimed only a life estate, did not give him a life estate. ”

“ For the heirs, qua heirs, are in no accurate sense in the estate as trustees of the creditors. They hold in their own right by descent from their ancestor, and take the profits to their own use during their possession; and the most that can be said is, that they hold consistently with the right of the creditors. The creditors, in short, have but a lien on the land which may be enforced through the instrumentality of the administrator acting under the order of the Court of Probates. ”

“ Every possession is adverse where there are circumstances to destroy a presumption, that the defendant is in under the plaintiff's title. Jackson v. Todd, 2 Caines 183. There is no ground to presume that Joseph entered into possession, intending to hold subject to the incumbrance of William's debts: especially, as there were strong reasons to suppose he entered claiming a title in himself, not derived from his father. It seems clear, that this length of possession would have barred William Dudley himself, if he had lived. ”

“ By analogy, also, to other cases of a like nature, at the common law, as, for instance, a power given by a will to executors to sell an estate for payment of debts, it may be true that a descent cast will not toll an entry, for there is a distinction between a right of entry, and a mere power. ”

“ If it be of such a nature, great public mischiefs must inevitably occur, and many innocent purchasers, fortified as their possession may be, by length of time, against all interests in the land, may yet be the victims of a secret lien, or power, which could not be forseen or guarded against, and which may apring upon their titles when the original parties to the transactions are buried in the grave. ”

“ Possession is adverse only to those who have a right of entry. The creditors had no right of entry, and the demandants had none till the sale to them by the administrators. The estate of the creditors was merely potential. ”

“ And unless the declarations of the possessor suspended the right of action, so as that the proprietor could not sue by reason of it, the statute reaches the case; since, it bars all rights of action subsisting during the adversary possession, and not exerted within the time limited. A possession by a man claiming an estate tail, but having in fact no title, would bar all the proprietors having a right to sue. ”

“ But because this may be, I contend the present case is within the principle of the cases which have been decided by the analogy of the statute of limitations, and on grounds of public policy. It is well known that many cases which are not within the letter of the statute, are construed to be within it by analogy. The statute, for instance, does not apply, in terms, to proceedings in equity; but they are affected by analogy. ”

“ When William died these creditors knew their rights, and no doubt knew his title papers might at that time have been produced to show what were the respective estates of William and Joseph in the premises. If, then, the creditors had not been conscious that William did not own the fee of the lands, they never would have remained so long quiet, seeing another enjoy the lands, and taking the rents and profits.
3. By the statute of Connecticut, no person has a right of entry into lands, but within fifteen years next after his right or title shall first descend or accrue, with the usual savings. ”

“ For the law will never construe a possession tortious unless from necessity. On the other hand, it will consider every possession lawful, the commencement and continuance of which, is not proved to be wrongful. And this upon the plain principle, that every man shall be presumed to act in obedience to his duty, until the contrary appears. ”

“ In the present case, a creditor, twenty-eight years after the death of his debtor, causes letters of administration of his estate to be taken out, proves his debt, or gets it contessed, and attempts to enforce his general lien as creditor on the debtor's land, after this lapse of time, against bona fide purchasers buying without notice of the claim. ”

“ I have already shown that he did not enter into possession as devisee of Thomas, his father, because the latter died intestate; nor as heir at law of his father, for he was not so; but he entered, claiming that the estate, subject to his mother's right of dower, was his for life, and upon his death, would descend to his eldest son. This is the claim under which William's entry was made, and under which the property has been possessed from 1769 down to the present hour; a possession of 53 years; a possession, in favour of which any presumption would be justifiable ”

“ They descend to his heir at law, subject to a naked power in the administrator, in case of an insufficiency of the personal property to pay the debts of his intestate, to sell the lands for the payment of those debts. The administrator or executor may lawfully sell them, whether they be in the possession of a devisee, or an heir, or their heirs or assigns, or of a disseisor of a devisee or heir: for, say the cases, the naked authority of an administrator to sell on license cannot be defeated by the seisin of a devisee, or heir, or by their alienation or disseisin. ”

“ To permit this would be opposed to justice and equity, and to the whole policy of the law. If twenty-eight years will not bar such a claim, what lapse of time will bar it? or is it to be perpetual? The general mischiefs of such a doctrine are abvious. ”

“ There is nothing in the law which prevents the disseisee from considering such a person as a mere trespasser, at his election; or which makes such an entry, under mistake for a limited estate, a disseisin in fee absolutely, and, at all events, so that a descent cast would toll the entry of the disseisee. But, were it otherwise, in order to apply the doctrine at all, it must appear, that the party found in possession entered without right, and was, in fact, a disseisor ”

“ Where a party has an equitable lien, if he be guilty of such negligence as would bar him at law, he shall be barred in equity. In relation to the whole class of incorporeal hereditaments, whether the cases arise in equity, or at law, the bar is furnished, nor by the terms of the statute of limitations, but by its analogy. ”

“ For if a man enter into possession, under a supposition of a lawful limited right, as under a lease, which turns out to be void, or as a special occupant, where he is not entitled so to claim, if he be a disseisor at all, it is only at the election of the disseisee. ”

“ An entry, and sole occupation of the whole, keeping the co-tenant out, in sufficient. 5 Burr. 2604; 1 Atk. 493; 2 Ibid. 32; 1 Ld. Raym. So, also, in a subsequent case, although it was strenuously contended at the bar that there ought to be a receipt of the rents, and an actual hindering of the co-tenant from entering, which did appear in the case, yet the Court held that 'one tenant in common in possession, claiming the whole, and denying possession to the other, is evidence of an ouster.' Doe v. Bird, 11 East 51. ”