Opinion by
Mb. Justice Williams,
The plaintiff claims an undivided one fourth part of the tract of land described in his writ, and has traced the title to the whole tract from the commonwealth down to himself, his two brothers, and his sister, the defendant, as tenants in common. *255She does not attack the validity of this title, or the regularity of the conveyances, but seeks to interpose between herself and it the statute of limitations. This makes her an actor, and requires her to show by competent evidence all the ingredients necessary to make a title by possession. She most show an actual, visible possession, exclusive and hostile, and continued without interruption for twenty-one years prior to the bringing of this suit. The first step to be taken is to show when and how her possession, or the possession of those under whom she claims, began, in order to fix the point from which the computation is to be made. Upon this subject she sought to show that her grandfather, John Shepherd, entered upon the tract and made the first improvement upon it some time prior to 1827, and on the tenth day of January of that year sold and transferred his possession to his daughter, Sallie Ann, then the wife of William Collins, by an instrument in writing. Her contention is that Sallie Ann Collins went into possession under this sale to her, and remained with her family, living upon and cultivating the land till her death in 1879. This possession extending over half a century, she claims to have acquired by means of a sheriff’s sale made in 1884 to one Morris, whose title she now bolds. Iu this way she seeks to show a possession beginning prior to 1827, transferred by John Shepherd, her .grandfather, to Sallie Ann Collins, her mother, and, by means of tbe sheriff’s sale of her mother’s title, now vested in herself. As this action was brought in 1889 and the entry and improvement are thus placed as early as 1826, sbe claims to bave shown a possession just three times as long as tbe statute requires. To defeat this title by possession the alleged transfer by John Shepherd to Sallie Ann Collins was attacked. A recovery in ejectment by the holders of tbe legal title against her husband and Truxton Benedict was shown. Declarations of her husband were admitted tending to show that he claimed some title to the land independently of her. The facts that the defendant joined her brothers in purchase of tbe legal title and that she took, or allowed her name to be used in taking, a lease from them for the land, were set up as a recognition by her of the legal title, sufficient to change the character of her possession and defeat her title under the statute.
To guide the jury in passing upon these questions of fact *256the court was asked to give instructions to them upon certain legal questions submitted in writing, and it is with these instructions that we have to deal. The first assignment of error calls attention to the following instruction given by the learned judge while speaking of the transfer by John Shepherd to Sallie Ann Collins, and its effect. He said: “We instruct you that the circumstances are not sufficient to overcome the radical, legal presumption that the possession of a husband and wife in joint occupancy of premises as a home is the possession of her husband.” In the absence of evidence upon the subject, the legal presumption supplies the want of evidence, but here, evidence was given tending to show how the possession of the family of Mrs. Collins began and under what right or title it was taken. If the jury rejected this evidence as untrustworthy then resort could be had to the legal presumption. If they did not reject it then they would be justified in finding that possession was entered upon under the title shown. It was a mistake therefore to take this question from the jury by a binding instruction. It is true, as the learned judge said, that it did not appear that John Shepherd had any title to the land. He might have gone further and stated that it was evident he had no title. He had a possession, however, if the testimony on that subject was credited. This possession if undisturbed might ripen into a title under the statute of limitations. A transfer of his possession to another who entered under it would enable the transferee to tack that possession to his own in order to complete the statutory period. It was therefore competent evidence on the subject of how Mrs. Collins and family entered upon the premises, to show that she had acquired the possession of a mere trespasser; and if she did acquire it, and enter under it, she had a right to tack the possession so acquired by her to her own. In the eighth assignment substantially the same error is pointed out. The learned judge was asked to say that if the jury should find that Mrs. Collins entered under the transfer from her father, and continued uninterruptedly in possession claiming the lands as her own for twenty-one years prior to the recovery against her husband and Benedict, then her title was complete at that time and would not be affected by thg/t recovery. This the learned judge answered in the negative. Having told the jury as matter of law that she did not so enter, *257but was conclusively presumed to have entered under her husband, this answer was consistent; but if, as we hold the question under what right or authority the entry was made and possession taken was for the jury upon all the evidence, then this answer was wrong. Again in the ninth assignment our attention is called to an answer that may have been made upon the same theory. The court was asked to say that if the jury should find that she took possession in her own right and continued it for twenty-one years her title would not be affected by the acts or declarations of her husband. The reply was “ this is answered in the negative.” As applicable to the facts in this case as they are alleged to be by the defendant, this was error. The point assumed a finding by the jury that Mrs. Collins had entered under the transfer from her father, and had continued for twenty-one years after her entry to hold possession. Upon these facts the court was asked to say that her title could not be talked away by her husband. The point assumed a valid title under the statute. We do not see how her husband could talk away this title any more than if his wife had acquired her title by deed from those who held under the patentee. No matter how her title accrued, when once it was vested, neither her husband nor any one else could destroy it by his acts or words. We regret to disturb this verdict and protract this litigation, but we cannot say that the verdict might not have been different had the jury been left to pass upon the evidence relating to the transfer from John Shepherd to his daughter, and the alleged entry under it by Mrs. Collins and her family.
The judgment must be reversed and a venire facias de novo awarded.