the statutory period. The action was ejectment to recover a lot in a cemetery. This point was con cisely laid down, and the court concluded as follows : "But the question arises, what is the nature and extent of the adverse possession required in order to ultimately ripen into a title to an easement of a burial lot? It seems to us burial of the dead body is the only possession, where claimed and known, necessary to ultimately create com plete ownership of the easement, so as to render it inherit able. And as long as it is inclosed as a burial place, or even, without inclosure, as long as gravestones stand mark ing the place as burial ground, the possession is, from the nature of the case, necessarily, and therefore in legal con templation, actual, adverse and notorious. Moreover, there cannot be an actual ouster of possession by an intruder, or running of the statute of limitation in his favor, while such gravestones stand there, indicating by inscription the pre vious burial of another. It appears that appellee does not now nor has he resided in Paducah for many years. But non-residence does not divest an heir-at-law of such ease ment; the gravestones of his parents being, as long as they stand, conclusive of his claim of ownership as well as right of entry. The last instruction seems to require as evidence of adverse possession some visible acts of ownership by the claimant in the preservation and use of the ground for burial purposes; and in that respect it was rather prejudi cial to appellee." Marriage — Estate by Entireties — Di vorce. — The Supreme Court of Tennessee decides in Hopson v. Fowlkes, 23 S. W. Rep. 55, that where land is owned by husband and wife by en tireties and they are afterwards divorced, they thereby become tenants in common and the entire estate does not vest in the survivor of them by right of survivorship. The court rely chiefly on Hawes v. Wallness, 85 Ill. 197. The court did not cite Steltzt/. Schreck, 128 N. Y. 263, and Thornley v. Thornley, 68 L. T. Rep. (N. S.) 199, holding exactly the same doctrine, the former disapproving the contrary holding in Appeal of Lewis (Mich.), 48 N. W. Rep. 580. Marriage — Wife's Necessaries — Money. — The Supreme Judicial Court of Massachusetts, in Skinner v. Tirrell, decide that one who furnishes money to a wife, living apart from her husband for justifiable cause, which she expends for necessaries, cannot recover therefor from the husband, on the principal of subrogation, as there never was any liability on the part of the husband to those furnish ing the necessaries, they having been sold to the wife and paid for by her, and that there is no ground on which recovery can be had in equity against the husband for moneys so advanced to the wife. The court put this on the ground that a volunteer cannot compel subrogation. But it seems that the plain ques tion is whether money is a necessity. The court say :
"There are ancient and modern cases in England which hold that a person advancing money to a married woman under circumstances like those in this case can recover the same of the husband in equity. Harris v. Lee, 1 P. Wms. 482; Marlow v. Pitfeild, Id. 559; Deare v. Soutten, L. R. 9 Eq. 151; Jenner v. Morris, 3 De Gex, F. & J. 45. See, also, In re Wood, 1 De Gex, J. & S. 465. These cases have been followed in this country in Connecticut (Kenyon - Farris, 47 Conn. 510; 36 Am. Rep. 68), and there is a dictum in a case in Pennsylvania (Walker v. Simpson, 7 Watts & S. 83). to the same effect. Certain text writers, following the English cases, have stated the law to be as there held. Bish. Mar. & Div. §§ 621, 622; 1 Bish. Eq. § I93'< 3 Pom. Eq. Jur. §§ 1299, 1300; 2 Kent Comm. 146, note by Holmes, J.; Schouler Ilusb. & Wife, § 61, note. But those cases do not appear to us to rest on any satisfactory principle. It was apparently conceded by the Lord Chancellor in Jenner v. Morris, supra, that they did not. He seems to have yielded to them simply as prece dents which he was bound to follow. The earliest one (Harris v. Lee, supra), on which the subsequent ones rely, referred the jurisdiction, without much discussion or con sideration of it, to the principle of subrogation. For reasons already given, we think that principle inapplicable. It is said that equity has jurisdiction because there is no remedy at law. It is admitted that there is none. Neither is there any right or claim at law on the part of the plain tiff against this defendant. To sustain the bill on that ground would require us to hold that equity may create a legal right where none exists, and then enforce it by equit able remedies. We do not understand that it can do so. The only remaining ground of jurisdiction is that the de fendant was bound to furnish his wife with necessaries; that the money which the plaintiff advanced to her was actually expended in good faith by her for necessaries; that it will be no hardship upon the defendant to be obliged to pay for necessaries which the law would have compelled him to furnish; and that, in the interests of justice, equity should compel him to pay the plaintiff the sums which she has advanced. In effect, this is the same as saying that in equity money advanced to a wife living separate from her husband for justifiable cause, and ex pended by her in good faith in the purchase of necessaries, should itself be regarded as necessaries, and recoverable accordingly. At law, it is entirely clear that a married woman has no right under such circumstances to borrow money on her husband's credit, even for the purchase of necessaries. We can see no reason why the power should be withheld at law and given in equity. There may be strong reasons why married women, compelled, by their husbands' misconduct, to live apart from them, should be allowed to borrow money on their husbands' credit for the purchase of necessaries. Such reason would apply equally at law and in equity. It is for the legislature, if it deems it advisable, to give them such power." It appears to us sheer nonsense to admit that a man may supply a wife with a barrel of flour out of his shop as a necessary and hold the husband, but that he cannot hold the husband for money furnished her to buy the flour from somebody else when he has it not himself.
