Page:Federal Reporter, 1st Series, Volume 8.djvu/410

896 FEDERAL REPORTER, �In Miller v. Mcintyre, 6 Peters, 61, it was decided, following Elmendorf V. Taylor, 10 Wheat. 168, that in equity as well as at law a statute of limitations is a bai* when the confiicting titles are adverse in their origin, and one was equitable and the other legal. Mr. Justice McLean, concluding his opinion, and speaking for the court, said : �"From the above atithorities it appears the rule is well settled, both in England and this country, that effect will be given to the statute of limita- tions in equity, the same as at law. And as, in this case, there eould be no doubt, if the complainant's ancestor had held by grant at the time the adverse possession was taken, that the statute would have barred the right of entry, the same effect must be given to it in equity " �In the present case, certainly, the complainant cannot ask to be placed in any better position than she would have been in if, at the time possession was taken under the Wallaee and Gregg patents, she had received, as heir at law of Archibald Gordon, a patent for the land covered by his entry and survey. On that supposition what would have been her rights' at the time she began the present suits? Wallaee obtained his patent for 60 acres, on survey No. 14530, on April 8, 1842, being at that time the owner by patent of 150 acres adjoining on the west. In 1844 he conveyed by one deed the whole of both tracts, but as an entirety, to Sutton, who entered into pos- session soon after, which possession in him and his suceessors by deed I find to have been continuons, uninterrupted, open, notorious, and adverse from that time. The Gregg patent was issued Novem- ber 20, 1855, and possession taken under it in 1856. �It is admitted by counsel for complainant that, as to 21 acres at the north end of the Gordon survey, there has been an adverse occu- pancy under the Wallaee title for more than 30 years ; but the ad- verse possession for more than 12 or 15 years is denied as to the resi- due, being the 29 acres at the south end of survey No. 14530. This deniai rests upon the ground that the deed, under which Esther Denni- son, and those under whom she claimed, claims to have title, embraced other lands in suryey No. 13693, not in dispute, and on which the actual improvement took place; that now in controversy being left in woods, uncleared and unimproved. But this distinction cannot be supported. In Clark v. Potter, 32 Ohio St. 49, it was decided that "one who enters upon land under oolor of title intending to take possession of the entire tract, no part of which is held adversely at the time of his entry, is deemed to be in possession to the extent of his claim." These bills were filed November 2, 1879. The cause of action, as to the land ��� �