Page:Harvard Law Review Volume 32.djvu/186

I50 HARVARD LAW REVIEW This theory is believed to be erroneous. Privity of estate means succession to the possessory title. Suppose the adverse possessor, A. has previously sold and conveyed his possessory title to B, who fails to enter, and then deUvers possession to C by oral agreement. C enters and holds for the balance of the period. There is privity of physical possession, but not privity of estate between A and C, except as to a new adverse possession which A may have initiated since his grant to B. Oral tacking is allowed because the inchoate prescriptive title may be transferred by the possessor by mere delivery. If he aban- dons or conveys to B he has nothing to transfer. But the grantor can hardly set up the possession, which he has abandoned by de- livery, as a title in an action of ejectment against his grantee.®^ An oral agreement of transfer would be vahd as against third par- ties at least, even if questionable under the statute of frauds as between the immediate parties to the grant.^ In tacking constructive adverse possessions under color of title, it has been held in New York that there must be a regular deed or formal conveyance from holder to holder. It is argued that a void deed will not place the successor in the predecessor's shoes as to such claim of title. "Every adverse possession is a wrong amount- ing to an inchoate right." To make continuity of estate with the prior constructive adverse possession, it is essential that this in- choate title pass along the Une by conveyance, as there is no cor- poreal seisin which can be transferred by livery.^ It has, however, been held by certain other courts, that a formal deed under seal is not necessary to tack constructive possessions. If there is some written instrument, and a colorable transfer, so that the latter claimant shall apparently hold by right of the former, this will be sufficient.^^ It is the legislative and judicial policy to favor those claims of title that are evidenced by written instruments of trans- fer, both as to the period within which they will be quieted and as •2 Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027 (1904); 18 Harv. L. Rev. 62; Innis V. Miller, 10 Mart. (La.) 289 (1821). «* McNeely v. Langan, 22 Ohio St. 32 (1871); Cunningham v. Patton, 6 Pa. St. 355, 357 (1847)- " Simpson v. Downing, 23 Wend. (N. Y.) 315, 316 (1840). - « Kendrick v. Latham, 25 Fla. 819, 6 So. 871, 875 (1889); Crispen v. Hannavan. 50 Mo. 536, 549 (1872); Watts v. Parker, 27 HI. 224 (1862); Barger v. Hobbs, 67 111. 592, 597 (1873).