Page:Federal Reporter, 1st Series, Volume 3.djvu/393

 S86 FEDERAL REPORTER. �One other question requireg consideration. The plaintiff olaims title by virtue of an alleged exclusive, adverse, and notorious possession in Horbach and his grantees since 1860, and he pleads the statuts of limitations. It appears in evi- dence that Horbach enclosed a large tract of land, inoluding the premises now in controversy, and exercised acts of own- ership over the whole. �It does not, however, in my judgment, sufiSciently appear that, as to the tract now claimed by defendant, there was such adverse holding, under claim and color of title, as the law contemplates. Holding, as I do, that Horbach had sold this tract, by warranty deed, to Griffith, it follows that, to givô him the benefit of the statute of limitations, I must be Batisfied that he held adversely to his own grantee. I do not say that in no case a grantor, ■who has given a warranty deed, can hold adversely to his grantee, but I am clearly of the opinion that such holding must be established by clear and undoubted testimony, showing a change in the relations of the parties toward the land. The evidence here simply shows that Horbach enclosed this tract with other lands owned by him, and the presumption of the law in such a case is that, as to the portion which he had sold and conveyed, he was in possession in amity with, and in subservience to, the title he had given. �Where there is no claim of right the possession cannot be adverse to the true title. It follows, from these considera- tious, that there must be decree for the defendant. ����