The opinion of the Court was delivered by
Lewis, J.
The plaintiff in error exhibited on the trial below a complete paper title to the land in controversy. The defendant theis# relied on the statute of limitations. This ejectment was brought on the 23d February, 1852. The adverse possession must therefore go as far back as the 23d February, 1831. But how are the facts ? Both parties claim under James Bones. On the 28th November, 1814, James Bones conveyed the ground in dis*284pute to Jacob Nailor and James Dilworth. On the 14th April, 1831, James Bones conveyed to Anthony Olwine a farm of 152J acres. This tract included within its boundaries certain lots of land which had been previously conveyed by James Bones to other persons, among these, lot No. 47, being one of the lots in dispute, but in that conveyance James Bones expressly reserved from the eonveyance to Anthony W. Olwine, lot No. 47, the same having been previously sold to Nailor and Dilworth. This deed is not set forth in the paper-book, and we therefore take the reservation from the statements of the parties and from the facts given in the charge of the Court. The defendant below claims under Anthony W. Olwine, as well as under James Bones, and is therefore bound by all that is contained in the deed between these parties of the 14th April, 1831. This deed is, in judgment of law, a recognition of the title derived from James Bones, prior to the conveyance to A. W. Olwine; and, if executed by the parties, is conclusive upon the question of adverse possession against Olwine, the grantee, and all persons claiming under him by title subsequently derived. Whatever may have been the state of the possession before the execution of that deed, it ceased to be adverse to the legal owner at that time. It is true that if a complete title had been acquired by 21 years’ adverse possession before the execution of that deed, the recognition of title in others contained therein would not have concluded the rightful owner; but when no title had at that time been acquired, when it was only in process of acquisition, and when the acquisition depended altogether upon the existence and duration of an adverse possession, any act of those whose privilege it was to keep up such possession, showing conclusively that it was not kept up, is decisive. If the continuity of the possession be broken for a single day before the 21 years have elapsed, the previous possession goes for nothing, and the wrongdoer must commence de novo.
Entertaining this view of the case, it does not seem necessary to consider the nature ’of the possession which existed previously to the 14th April, 1831. But even if the case depended upon that possession, unembarrassed by the deed of that date, we do not see how its character is shown to be adverse. When a vendor sells a piece of land enclosed with his other land, and the piece sold continues afterwards to be enclosed, and used and occupied by the vendor as before, such occupancy will be deemed to be in subservience to the right of the vendee, and not adverse thereto. This principle was announced in Burkholder v. Sigler, 7 W. Ser. 160, and we have no hesitation in reaffirming it on the present occasion. 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 posses*285sion, 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. We have no evidence of such intention during the time that Bones held possession. Nor is there any evidence that Olwine’s possession, before the conveyance, was of a character different from that of Bones. We see nothing to show that he was anything more than a tenant of Bones. His subsequent purchase from Bones, and the circumstances under which he came there, tend to repel every presumption that he held in hostility to the title so purchased. Tibe first act of hostility to the title of the plaintiff below is to be found in the mortgage which Olwine made to Woodward on the 15th April, 1881. Even this is susceptible of explanation. It was perfectly proper in Bones to reserve lot No. 47 from his conveyance to Olwine on the 14th April, 1831, because the former did not claim any title to it, and did not intend to convey it; but when Olwine, the next day, was about to grant a mortgage to secure a debt to Woodward, it was equally just that lot No. 47 should be included, because Olwine was the owner of a moiety of that lot by virtue of a previous conveyance from James Dilworth, of the 1st Jime, 1828. He was a tenant in common with the person from whom the plaintiff derives title. The proper course of describing the extent of his interests ought to have been adopted, but the omission to do so may have been from carelessness, and not from any intention to claim the whole of the property. Be that as it may, the claim to the whole, even if then made, came too late for 'the purpose, because the ejectment was brought within twenty-one years from that time.
The Bath lot seems to stand in the same category with lot No. 47. There was no evidence from which the jury could properly find an adverse possession of either for the period of 21 years. It is of the utmost importance that land titles should be held by rules of property not likely to be varied by the feelings or prejudices growing out of each particular case. In all cases where the facts are clearly ascertained, and the question is one of law merely, the Court should take the responsibility of deciding it. The title of the rightful owner should be protected with unshaken firmness. Under the evidence in the cause, the jury ought to have been told that the plaintiff was entitled to recover.
Judgment reversed and venire facias de novo awarded.