Page:Federal Reporter, 1st Series, Volume 7.djvu/589

 HEEBMANS V. 8GHMALTZ. 577 �purchase, may subsequently deny such title, set up title in himself, and show that his acknowledgment vras produced by imposition or made under a misapprehension of hisrighta; but a party entering into possession under an agreement to purchase, canhot dispute the title of him under whom he enters until after a surrender of the possession. Jackson ex dem. v. Spear, 7 Wend. 401. �Now, it cannot be claimed that Merrick's possession was hostile in its inception. It began in subservience to the interest and title of Pello ws. Such having beeh its charaeter at the time of his ehtry, Merrick's possession thereafter retained its original quality, because there never was a legal eviction of Pellows under a paramount title, nor was notice given to him of Merrick's intention to hold under such a title, nor waa there ever a surrender of the possession whioh flowed from the original entry. There was not an entry intb possession by Merrick under the present claim of title, exclusive of ahy other right, which the statute makes essential whether the possession be of 20 years under a claim not founded upon a written instrument, or of 10 years under a claim founded upon such an instrument. And, under the authorities, the case seems clearly one, especially in the light of all the testi- mony, in which the defendants are estopped to deny the title of Fellows and to assert paramount title by adverse posses- sion. The alleged possession under the Worthington deed began after the contract with Pellows was made, and after the entry under that contract, and, as has been shown, the testimony discloses acts and admisBions by Merrick which point to the conclusion that he held under his contract. Further, it is shown that in 1876 Merrick took prooeedings under the statute of this state to acquire a tax deed of the promises, and in the af&davit which the statute required him to make, and which is part of the prooeedings, he swore that the owner of the land was a non-resident of the county of Milwaukee. It was argued by defendant's counsel that by this allusion to the owner he meant himself; but that is quite inconsistent with the nature and reason of the transac- �v.7.no.5— 37 ��� �