Page:Harvard Law Review Volume 32.djvu/187

151 TITLE BY ADVERSE POSSESSION 151 to the tangible acts of ownership which will amount to adverse possession. Delivery of actual possession of part of the land held under color of title may well be considered constructive delivery of possession of the entire tract described, even though the deed of conveyance be without a seal or scroll or be otherwise defective. It is the very purpose of the doctrine of adverse possession to cure technical defects in the evidence of title. The underlying theory of title by adverse possession is put to the acid test by the problem presented when one disseisor or con- verter, B, has been, in turn, dispossessed by another wrongdoer, C. The question is whether the successive adverse holdings have a different effect on the right of the original owner. A, than where the holdings connect by means of a transfer. A few courts and writers looking at the owner's continuous laches rather than at the possessor's consistent claim of title, have discarded or con- demned the requirement of privity for acquiring title by adverse possession. For them it should be enough to show that the owner has been continuously kept out of possession for the statutory period. Thus Dean Ames, in his well-known essay on the nature of owner- ship,®® says, "C, although a disseisor, and therefore not in privity with B, may tack the time of B's adverse possession to his own to make out the statutory period against A. This tacking is allowed in England, Canada, and in several of our States."®^ Dean Ames argues that the widespread opinion to the contrary must be deemed erroneous. "The laches of the original owner who remains continuously dispos- sessed throughout the statutory period, is the same, and should be '^ Lectxtres on Legal Hist. 204; 3 Harv. L. Rev. 318, 321. " He cites the following cases: Doe v. Carter, 9 Q. B. 863 (1847); Willis v. Howe, [1893] 2 Ch. 545, 553; Kipp V. Synod, 33 Up. Can. Q. B. 220 (1873); Fanning v. Wilcox, 3 Day (Conn.) 258 (1808); Smith v. Chapin, 31 Conn. 530 (1863), {setnble); Shannon v. Kinny, i A. K. Marsh. (Ky.) 3 (181 7); Hord v. Walton, 2 A. K. Marsh. (Ky.) 620 (1820); Wishart v. McKnight, 178 Mass. 356, 59 N. E. 1028 (1901); Fitz- randolph v. Norman, 2 Tayl. (N. C.) 131 (1817). (Presimiption of grant from state though no privity.) Candler v. Limsford, 4 Dev. & B. (N. C), 407 (1839). (Pre- sumption of grant, though no connection proved.) Davis v. McArthur, 78 N. C. 357 (1877); Cowles V. Hall, 90 N. C. 330 (1883); i Dart, Vendor and Purchaser, 6 ed., 464; Pollock and Wright, Possession, 23. See also Salter v. Clarke 4 S. R. (N. S. W.) 280, 21 W. N. (N. S. W.) 71 (1904).