Opinion bv
Mr. Justice McCollum,
There is but one question raised by the several specifications of error in this case, and that is whether the evidence is sufficient to support a finding by a jury of an open, notorious, continued and adverse possession by the appellants of the land in dispute for the period of twenty-one years prior to the institution of the suit for its recovery. In considering this question it should be borne in mind that the land in controversy is part of inlot No. 591 which appellant William Bell, by deed, with covenant of general warranty, conveyed to William Street on the 11th of October, 1865, and that appellee Eliza J. Connor now has and relies on the title which passed by this conveyance. It will thus be seen that Bell claims the land in opposition to his own deed and covenant of warranty, and rests his claim upon an adverse possession. It appears that when he sold to Street, the land in dispute was inclosed by a fence with inlots Nos. 592 and 593 which he then owned and occupied, and that since the sale he has continued to occupy the land within this inclosure as he had formerly done. Possession of the portion of inlot No. 591 thus inclosed was never taken by Street or his successors in title. Street purchased the lot and immediately took possession of a portion of it for the purpose of drilling an oil well thereon, and, on the 6th of March; 1866, he sold and conveyed it to the Alice Bell Petroleum Co. The possession taken by Street was maintained by the parties claiming under him, and neither, prior to 1887, had any notice that his grantor claimed a part of the land covered by his deed.
There is no evidence showing that the fence was a consentí*448ble line, or that it was regarded by the parties in interest as a boundary of inlot No. 591. The alleged adverse holding was a mere continuance by the vendor of the possession he had when he sold to Street. Was such continued possession of a portion of the lot conveyed by him sufficient, in the absence of any word or act indicative of a hostile claim, to defeat the title of his grantee ? This question is not a new one, and the negative answer returned to it by the learned court below is supported by our own decisions and the current of authority in this country. In vol. 1, page 247, note 4 of the Am. & Eng. Eney. of Law it is said that “ the mere possession of the vendor of lands is not adverse to his vendee.” In Buckholder v. Sigler, 7 W. & S. 154, as in this case, the vendee occupied a portion of the land conveyed to him, and his vendor continued in the possession and use of a part of it as before the sale. It was held that the possession of the yendor was in subservience to the title of his vendee. In Olwine v. Holman, 23 Pa. 279, it was said that “ a vendor after conveyance and before delivery of possession is to be regarded as a trustee for the vendee so far as regards the possession, just as he was a trustee of the title before conveyance. If he wishes to change the character of the possession he must manifest his intention by some act of hostility to the title of his vendee, plainly indicating to the latter the intention to deny his right and to hold adversely to it.” This principle is sound and not denied by any decision of this court. Its application to the evidence in this case is a complete vindication of the judgment. The land in dispute was never delivered to the purchaser, and the fact that he occupied a portion of the lot conveyed does not change the rule.
The specifications of error are overruled.
Judgment affirmed.
Mk.. Justice Mitchell dissented.
Cf. Ingles v. Ingles, 150 Pa. 397.