court that the certificate of the officer is false and fraudulent, and even a preponderance of evidence iess than sufficient to establish a moral certainty to that effect is not sufficient."

Sec. 21. Proof by subscribing witness. A notary public's certificate that the subscribing witnesses to a deed had, respectively, stated under oath, after the grantor's death, that they saw her sign, seal and execute the instrument, is not proof of the execution of the deed within the meaning of Wis. Rev. Stat., § 2227, providing that "when any grantor shall die, * * * not having acknowledged his conveyance, the due execution thereof shall be proved by any competent subscribing witness thereto before any court of record; and if all the subscribing witnesses to such deed shall be dead or out of this state, the same may be proved before any such court by proving the handwriting of the grantor and of any subscribing witness thereto." Shattuck v. Bates, 92 Wis. 633 (66 N. W. Rep. 706).

Sec. 22. Acknowledgments by married women.. Particular facts held insufficient to impeach a married woman's acknowledgment for fraud or to show that the wife was not privily examined by the officer. Thompson v. Southern Bldg & L. Ass'n. Tenn. (37 S. W. Rep. 704). Tex. Rev. Stat. 1879, Art. 4309, construed and applied - particular acknowledgment by married woman held sufficient. Adams v. Pardue, Tex. Civ. App. (36 S. W. Rep. 1015).

ADVERSE POSSESSION.

EPITOME OF CASES.

Sec. 23. As to what constitutes-General Principles. Adverse possession need not be upon a paper title. Minnesota & M. L. Imp. Co. v. Brasier, 18 Mont. 444 (45 Pac. Rep. 632). It is held that every presumption is in favor of the possession in subordination to the title of the true owner

and ac against him, adverse possession must be established by clear and positive proof. Barrs v. Brace, 38 Fla. 265 (20 So Rep. 991). The test of the possession to fully mature title depends upon the question whether the right of action had existed for the statutory period when the suit was instituted in favor of the parties against whom the benefit of lapse of time is claimed. Everett v. Newton, 118 N. C. 919 (23 S. E. Rep. 961). "The accidental and unintentional inclosure of land lying near and along a line which is not clearly known constitutes no adverse possession." East Tenn. Iron & C. Co. v. Ferguson's Heirs, Tenn. (35 S. W. Rep. 900). In order that the inclosing of land shall constitute evidence of adverse possession, the inclosure must be made by the party claiming to hold adversely and not by another. Storr v. James, 84 Md. 282 (35 Atl. Rep. 965). It is held that possession in order to be adverse must be hostile, actual, visible, notorious, conclusive, continuous and under claim or color of title. Heavner v. Morgan, 41 W. Va. 428 (23 S. E. Rep. 874).

Sec. 24. As to what constitutes-Particular cases. A mere flowing of the land for mill purposes, does not constitute such adverse possession as will create a title to the fee. Before there can be any presumption of a grant of the fee simple or even an easement, the party claiming the same must show that the exercise of the privilege was an active interference with the rights of the dominant owner in such a manner as to entitle the owner to legal redress to which he may have resorted. Terre Haute & I. R. Co. v. Zehner, 15 Ind. App. 273 (42 N. E. Rep. 756). The possession of a vendee under a bond for title does not become adverse to the vendor until there has been the assertion of a hostile attitude towards the vendor, the burden of showing which is upon the vendee. Bradsher v. Hightower, 118 N. C. 399 (24 S. E. Rep. 120). A railroad company which enters upon a strip of land and constructs its embankments and prepares its roadbed thereby takes adverse possession of such strip for railroad purposes. Nashville, C. & St. L. Ry. Co. v. Mathis, 109 Ala. 377 (19 So. Rep. 384). The possession of a pre-emptor of public lands before the same was put on sale by the government is not

adverse to one claiming under a grant from the general government which had never put the lands on sale. Doe v. Beck, 108 Ala. 71 (19 So. Rep. 802). See Public Lands. The use of water, the right to use which belongs to another, is not adverse to the latter where it is in accordance with an agreement between the parties. Smith v. Hope Min. Co., 18 Mont. 432 (45 Pac. Rep. 632). For cases depending upon particular facts and which illustrate what constitutes adverse possession, see Gage v. Thompson, 161 Ill. 403 (43 N. E. Rep. 1062); Hayden v. McCloskey, 161 Ill. 351 (43 N. E. Rep. 1091); Twohig v. Leamer, 48 Neb. 247 (67 N. W. Rep. 152); Harrison v. Spencer, 110 Mich. 215 (68 N. W. Rep. 125); Beck V. Schick, 110 Mich. 665 (68 N. W. Rep. 984); Link v. Connell, 48 Neb. 574 (67 N. W. Rep. 475); Lampman v. Van Alstyne, 94 Wis. 417 (69 N. W. Rep. 171); McRee v. Gardner, 131 Mo. 599 (33 S. W. Rep. 166); Downing v. Dinwiddie, 132 Mo. 92 (33 S. W. Rep. 470); Halbert v. Maysville, & B. S. R. Co., 98 Ky. 661 (33 S. W. Rep. 1121); Herbst v. Merrifield, 133 Mo. 267 (34 S. W. Rep. 571); Wilson v. Purl, 133 Mo. 367 (34 S. W. Rep. 884); East Tenn. Iron & C. Co. v. Lawson, Tenn. (35 S. W. Rep. 456); Waller v. Leonard, 89 Tex. 507 (35 S. W. Rep. 1045); Hornsby v. Davis, Tenn. (36 S. W. Rep. 159).

A mere

Sec. 25. Necessity of actual occupancy. entry upon premises, followed by the erection of a house and the enclosure of a small portion of the land, even where the original entry was under color of title, when unaccompanied by an actual occupancy is not such a prior possession as that, if the improvement be destroyed by fire, the person so entering can, by proof of such prior entry only, maintain as against any person a petition to enjoin the commission of trespass thereafter about to be committed by cutting the timber growing upon such land. Flannery v. Hightower, 97 Ga. 592 (25 S. E. Rep. 371). The court say: "An actual possession of some portion of a tract of land is indispensable to the creation of a title by prescription. It is the outward visible sign of occupancy, and not the mere intention to occupy, which, coupled with an entry in good faith, constitutes the elements of a prescriptive title. A mere entry unaccompanied

by an actual occupancy, is no possession at all. It indicates a purpose to occupy, which purpose if carried into actual execution by a continuous occupancy for the period of time prescribed. by law, will give a prescriptive title; but, if the possession itself be discontinued, the person entering cannot, by proof of such prior entry only, maintain against another person a petition to enjoin the commission of a trespass thereafter about to be committed by cutting the timber growing upon such land. In such a case the right acquired by such entry, even as against a wrongdoer, extends only to the improvement actually made. Of course, whether rightfully or wrongfully, if one build a house upon the land of another for the purpose of occupying it, and a stranger should come along and destroy the house, while the builder of the house would have no title to the land and no title to the house as against the true owner, he would still, as against a mere wrongdoer, be entitled to the possession, and would be entitled to recover, as against such wrongdoer, any damages for his interference with that possession. But a mere entry under color of title, if the entry be not prosecuted or supplemented by an actual occupancy, would give no right in favor of the person entering against another person who might likewise choose to enter upon the land."

Sec. 26. Uncultivated lands held under conflicting patents-Sufficiency of possession, While lands remain uncleared or in a state of nature, they are not susceptible of adverse possession against the older patentee, unless by acts of ownership effecting a change in their condition; and, to constitute adverse possession, there must be occupancy, cultivation, improvement, or other open, notorious, and habitual acts of ownership. Where lands have been granted by the commonwealth to different persons, by conflicting patents, the junior patentee cannot, under any circumstances, disseise or oust the older patentee from, or acquire an adversary possession of, the land in controversy, but by the actual occupation of such part thereof, or the use or enjoyment of some part thereof, by acts of ownership equivalent to such actual occupation, and that, while such patented lands remain completely in a state of nature, they are not susceptible of a disseisin or

ouster of, or adversary possession against, the older patentee, unless by acts of ownership effecting a change in their condition. Harman v. Ratliff, 93 Va. 249 (24 S. E. Rep. 1023). Defining adverse possession, in a recent case the supreme court of Alabama say: "It is not necessary that land which is uninclosed and uncultivated should be inclosed and cultivated, merely because it was capable of inclosure and cultivation. The possession is gauged by the actual state of the land, and not with reference to its capability of being changed into another state which would reasonably admit of a different character of possession. Openness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable; and near akin to these are the acts evidencing the element of hostility towards all the world." Goodson v. Brothers, 111 Ala. 589 (20 So. Rep. 448).

Sec. 27. Extent of possession-Under deeds. Where a deed conveys several distinct tracts of land lying contiguous to each other, but not covered by one general description which would embrace them all, and the grantee enters into the possession of one of such lots only, prescription will not run in his favor as to the other of such lots until after his deed. has been recorded; but as to that lot into the possession of which he actually enters, prescription will run, whether such deed be recorded or not. Carstarphen v. Holt, 96 Ga. 703 (23 S. E. Rep. 904). Where a person goes beyond the limits of the land described in his deed and claims to hold the land adversely, unless he does so under color or claim of title he is limited to his inclosures. Heavner v. Morgan, 41 W. Va. 428 (23 S. E. Rep. 874). An entry under a deed or written muniment of title purporting by sufficient description to convey certain premises, although void on its face, will give constructive possession of the whole tract described in the deed, although not all inclosed or improved, provided it is not in the adverse possession of anyone else, and the premises consist of a single tract adapted to be managed and used as one body,