On the first question the case of
Bronson
v.
Payntor,
4 Dev. and Bat. 393, is in point. Jt tvas
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there determined, that a plaintiff might recover upon the demise of the tenants in common, to the extent of their right, though a third person did not join, and also in that case and in
Godfrey
v.
Cartwright,
A defence of this nature admits the better right to have been in one or more of the lessors of the plaintiff. The
onus
is on the defendant to
shew
a
possession, adverse to
the other claimant, and continued for the full term of seven years; and this ought to be established by evidence, that does not leave the point of his possession doubtful— since the original right ought to prevail, unless the bar plainly appear. Now, for a period of four and a half or five months — from June until, at the earliest, about the middle of November — there was no actual occupation of the premises ; and the point is, ■whether it can be said, that the possession then was legally in Kinney. The general rule is, that where there is no actual possession by some person, it is constructively in the owner. Therefore the possession of Kinney, if existing, must, in order to answer the defendant’s purpose, be deemed in a legal sense, the actual possession. And here the remark occurs, that
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the whole question turns’on the first'instruction prayed, and that the two others, as expressed, and as far as they differ from the two first, ought, without doubt, to have been rejected. For an intention to occupy cannot amount to occupation, unless denoted by actual occupation, prior and subsequent, so near together as to shew an uninterrupted exercise of ownership, or continued assertion of right, and liability at all times to the possesory action of the owner. And secondly, as there was no evidence of “ the usage cf landlords” in the town of Elizabeth in particular, or of Kinney’s motives for leasing or selling the premises before November, or of his closing the house for short intervals, the defendant could not demand an opinion cf the Court upon the hypothesis of a usage, or that Kinney closed the house, and much less that he did so for want of a suitable tenant. The merits of the controversy then depend on the point first raised ; which is, whether the defendant has shown, that, from June until some time in November 1888, the possession is to be taken, in point of law, to have been in Kinney. We cannot undertake to say, what interval between two actual personal occupations, under the same claim of title, will interrupt the possession in a legal sense. A day, or week, or month, or even a longer time between the outgoing of one tenant and the incoming of another, may not of itself, perhaps, make a chasm in the possession; especially, if in the mean while, there be any use of the premises, or liabilities incurred on account of the premises — as by listing by one, as owner or occupant, for taxes, or by putting or leaving property there, though of little value, as in the case given in the books, of beer in the cellar or hay in the stable ; or by locking up the house and keeping the key. But there is in this case, nothing of that kind; nothing except that in June a tenant of Kinney left the premises, and four and a half or five months afterwards, the defendant purchased from Kinney and went into pos-session. It is to be taken, that Eslick leased only for
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the time lie occupied, since nothing more appears; and therefore, that Kinney might have immediately entered, or leased to another person. Eslick says, indeed, that he surrendered the possession to Kinney, and it is insisted that Kinney is to be deemed thenceforward in possession. But that is not a just inference. It does not follow, because Eslick’s lease and possession were determined, that Kinney then took, much less that he continued in possession for the next five months. It is argued, that the case is within the reason of the rule.
Blair
v.
Miller,
Per Cuiuam. Judgment affirmed.