Page:Harvard Law Review Volume 32.djvu/189

153 TITLE BY ADVERSE POSSESSION 153 the English statute, 3 & 4 William IV, without privity, so as to use the prior possession as a shield, but not to use it as a sword. The result of that case, and the companion one of Doe v. Carter,''^ would seem to be that the widow, while in possession, could bring trespass against, or resist ejectment by, the true owner, but being ousted could not sue in ejectment against a stranger, because she was not in privity with the prior possession of her husband, but showed title to his possession to be in her son. Apparently under this theory the rightful owner may be barred, although the last holder has neither acquired the statutory title nor possession good against third parties. The true owner cannot eject the last tres- passer in possession, but if the tables are turned the last trespasser cannot eject former owner if put out by him. In Groom v. Blake ^^ the case of Doe v. Carter is stated and criti- cized and the anomaly is pointed out in this doctrine that property should become quasi-derelict without a rightful owner under the operation of the statute. If the statute does run against the true owner, it will enure to the benefit of the first rather than of the last or the intermediate trespasser. Doe v, Barnard is overruled by Asher v. Whitlock in so far as it holds that a defendant may justify interference with the possession of another by evidence of an out- standing title under which he does not claim. In Willis V. Earl Howe'^^ Kay, L. J., expressed the opinion that " a continuous adverse possession for the statutory period, though by a succession of persons not claiming imder another, does, in my opinion, bar the true owner." But in Dixon v. Gayjere,''^ Romilly, M. R., held that as between successive trespassers the law could not ascribe a title to any one of them, neither to the first nor to the last nor to any intermediate holder, and that the trespassers could not tack possessions which were not continuous. ^^ If the statute does run against the true " 9 Q. B. 863 (1847). " 6 Ir. Com. L. Rep. 400, 410 (1857). » [1893I 2 Ch. 545, 553. ^« 17 Beav. 421, 430 (1853). " See Johnson v. Brock, [1907] 2 Ch. 533, 535, 538; Lightwood, Time Limit on Actions, 120, 124; Banning, Limitation of Actions, 3 ed., 87, 88; i Dart. V. & P., 7 ed., 473, 474; 19 Halsbury's Laws of England, "Limitations on Actions," 158, § 322.