The opinion of the court was delivered,
by Agnew, J.
The 18th assignment contains the only serious error in the instructions of the court which needs notice. The court charged that “ a vacancy in the possession caused by a tenant’s going out even for a few months, before another tenant comes in, does not break the continuity of the possession, if the landlord have his title upon record, and does not intend to relinquish his possession and put another tenant in before his possession is disturbed by another claimant. Peter A. L. Quick had his title upon record in 1844; but John B. Quick, who claims to have been in possession by his tenants up to that time, had no title; and a vacancy of one day prior to 1844, caused by the tenant’s going out before another came in, would have broken the continuity of the possession.” As an unqualified instruction upon the doctrine of the Statute of Limitations, this portion of the charge is erroneous. The distinction between a trespasser without, and one with title on record, in its effect upon the continuity of possession, has no place in the law. The deed from John B. to Peter A. L. Quick, which the learned judge calls title, is nothing but the link connecting together the possession of these two persons, whose possession otherwise would be independent and distinct trespasses. Where the question is upon the éxtent of possession, of one without title, the deed, warrant, survey or other evidence of supposed title may give color to and extend the possession by presumption beyond his actual enclosure or cultivation; but it can have no possible effect upon the fact whether he has continued in the possession or left it. In view *198of the circumstances of this case, the latitude of time allowed by the judge to preserve the continuity of possession, is important. A few months, because of the favor shown to the man with a deed or record, might be six, eight or ten. Now, clearly, it is not the law that possession can actually be abandoned for so many months, even though the trespasser intend to return. There is no resemblance in this respect between the case of a trespasser on the title of another, and a settler by improvement on vacant land. The animus revertendi, which evinces the intention of the settler to gain a rightful title under the authority of the state, cannot, in the case of a trespasser, supply the place of an actual possession to obtain a title by wrong. As a circumstance of evidence, the animus revertendi may, with other indicia, tend to show that the actual possession has not been abandoned, as where the party leaves crops in the ground, and large improvements, or cattle grazing in the fields. Even non-residence will not toll the statute where the party keeps up his possession by cultivation. It is well settled that actual possession may be either by residence or by cultivation, and need not be by both. Had the court qualified this portion of the charge, so as to give the jury to understand that they meant only a suspension of residence and not a vacancy in possession, there would have been no error. But the language was “a vacancy of possession for a few months.” In this case it was important that the instruction to the jury should be carefully guarded, for the improvements on some of the tracts were very insignificant, while the occupancy consisted partly in mining coal at intervals; the tenants were numerous, their removals frequent, and altogether the possession bordered closely on the loose and roving. The case of Cunningham v. Patton, 6 Barr 355, has been cited to show that an interval of four months will not destroy the continuity of possession. The facts of this case are very briefly reported, and it is evident the language of Coulter, J., has reference to features not presented clearly. The judge in the court below charged “ that there was no suspension of the possession by reason of Duval having left it for a short time under the circumstances.” What these circumstances were, is the defect in the report, but the only point made in the argument of the counsel for the defendant in error was, that residence is not necessary to make an adverse possession; while Coulter, J., remarked, “ that during these four months the trespasser could not have returned the land unseated” — “there were the house and barn, and the land cleared to 'warn him to inquire after the settler” — “his absence was during the period when the farmer does not bestow his labor on the soil, it was neither seed-time nor harvest.” It seems to be a case not of a suspension or abandonment of possession, but of residence, where there were indicia to show that the possession was otherwise kept up, and in view of this the animus *199revertendi was a circumstance in the evidence, leading the Justice to resemble it to the case of a settler. If the case were not of this character it cannot be sustained; and the analogy to the case of a settler would well deserve the strong criticism of Gibson, J., in Stephens v. Leach, 7 Harris 262. In the last case the correct principles of the statute were stated by the former Chief Justice. “ Adverse possession,” he says, “ professing as it does to be founded not on title but on trespass, is essentially aggressive, and the stamp of its character must always be preserved by acts on the premises. A man does not discontinue his possession by locking up his bouse in town, or suspending his cultivation in the country, provided he do not suffer the buildings in the one ease, or the fields in the other, to be thrown open; but he is bound to continue a positive appearance of ownership, by treating the property as his own, and holding it within his exclusive control. An intention to resume a suspended intrusion of which the owner of the title may know nothing, is short of the requirement of the statute. The question is not, what did the outgoing occupant intend, but what did he do ? Did he keep his flag flying and present a hostile front to adverse pretensions ? An adverse possession ought to be such as to challenge the right of all the world; but when an occupant has evacuated the place and suffered it to go to wreck, he hauls down his colors and his challenge is withdrawn.” The language is perhaps too figurative to be entirely plain, but the scope and purpose of it is to show, that when one leaves the ground personally, he must leave it under circumstances indicating that he has not left the possession, but still holds it. There must be that in the condition and appearance of the premises themselves that show to the world that there is still a person in possession. The unqualified language of the judge below, in the present case, would scarcely lead the jury to distinguish between a mere interval in the occupancy by personal residence, and an interval of actual possession, which would break the continuity of possession; and the obscurity was not diminished when he referred to the continuity being broken by a single day’s vacancy of possession, where the title was not on record. He must have meant the same kind of vacancy of possession when referring to that of a single day and to that of a few months; and if not, then his charge was contradictory. This part of the charge was therefore erroneous, for it left the jury without a consistent rule to guide them in this complicated case, upon its facts.
We are not very clear as to some of the bills of exception to the admission and rejection of evidence. In a case of such numerous facts and complication of detail, it is not easy to pronounce upon every exception. We may say, however, we are not clear that the rejected evidence referred to in the 10th assignment of error was irrelevant. Phillips being found in possession *200of a part of tbe property, it would seem to us that her account while in possession of the manner she came there would be competent to show under whom she was living there, and this whether she was a married woman or not. The character of the possession of a party as stated by himself while in possession is part of the res gestee. It was not offered to affect the rights of her husband or of his landlord, if he had any, for so far as we understand the evidence (in which indeed we may err), there was no possession of the husband or lease to him; but the offer seems to relate to an independent possession by Mrs. Phillips herself, which it was the right of the party to have referred to the jury.
Nor do we see why the record in the action of partition brought by Clark against Frost & Loring trustees, was irrelevant, though it was rather unimportant. We shall, however, not refer to the bills of exception in detail further than to say that some are not sustained, others were saved by the introduction afterwards of the deeds and other writings notin evidence when the objections were made; and others are not sufficiently before us to decide them. Among the last class is the exemplification of the record from Pike county, of the case of George Biddis v. John B. Quick. The certificate of the prothonotary is not printed for us, or it may be there was no general certificate attached to the exemplification. It would seem from the statement in the bill of exception, that the record consisted of loose and detached parts. If that be the fact, there was error in receiving the detached papers. The record must be made up and certified as a whole. This error, if it be one, can be corrected by making up a proper record and certificate.
Judgment reversed, and a venire facias de novo awarded.