There can be no doubt that even in 1852, it was a long call from the day, when the husband was permitted by law to even moderately chastise his spouse. The social status of woman during those years underwent a great evolution, and man irrespective of the law, grew to look upon woman, less as a necessary evil and more as a God-given help-mate.

It is submitted that, in line with this general trend of the social consciousness, the Legislature of the State of New Jersey in 1852, did enact the Married Women's Act for the purpose of putting woman on the same footing legally with man, and that too, whether she were a feme sole or married; that it was the intention of the Legislature to abolish any fiction of the common law, which would make an estate by the entirety possible; and that the courts of New Jersey have carried out that intention only as to a portion of such an estate, and have erroneously retained the old fiction of the common law as to the remainder.

In conclusion, it is probably worthy of mention that, at the same time that the New Jersey courts have established the rule above adverted to, the rules have also been followed or established that a tenancy in common or a joint tenancy may be created in husband and wife by apt terms; that where husband or wife are tenants in common or joints tenants before coverture they remain in the same relationship after coverture; and that divorce changes the tenancy by the entirety to one in common. Without going

into the reasons given for these latter rules, it is sufficient to say that 'even at common law they were recognized. It is perhaps not going too far afield to point to these decisions as evidencing a tendency, even in the courts themselves to get away, where possible, from the rigors of the common law rules with reference to the estate by the entirety and to get closer to the spirit of the Married Women's Act.

Be that as it may, it is submitted that the contemporary New Jersey courts did not catch the true spirit of that act in its effect upon the estate by the entirety; that later judges have hesitated to enunciate a new rule, lest the titles to land be affected seriously, and that the proper remedy is by further legislative enactment, which would clarify the law on this point beyond all question. CLYDE D. SOUTER.

NEWARK, N. J.

Fulper v. Fulper, 54 N. J. Eq. 431 (Err. and App. 1896). 'Buttlar v. Buttlar, 67 N. J. Eq. 139-139 (Chan. 1904).

NEW JERSEY LAW REVIEW.

PUBLISHED BY THE FACULTY AND STUDENTS OF NEW JERSEY LAW SCHOOL.

REAL PROPERTY-ADVERSE POSSESSION-PRESCRIPTION-TRUSTEE AND CESTUI-QUE-TRUST.-In 1882 the Holly Beach City Improvement Company became the owner of property, of which the premises in question were a part. The company sold a tract thereof to a Mr. Taylor, who was at that time the president of the concern. Taylor took possession, not only of his grant, but also a strip of land adjoining, which he and his grantees, the defendant in the present action, have held for twenty years. The plaintiff herein, the grantee of the Holly Beach City Improvement Company, now sues the defendant in ejectment, and he sets up as a defense, adverse possession. The trial court refused to charge that defendant could not count the time during which Taylor held possession and was at the same time an officer of the concern against whom it is claimed that he held. On appeal, held this was error, for the possession of the president was the possession of the corporation, to which he stood in the position of a trustee, and the statute during that time did not run. Leigh v. Howard.1

Adverse possession is a possession inconsistent with the right of the true owner by one having no title, whereby the possessor becomes entitled absolutely to the property, and the owner is deprived of any action to recover it.2 Such title is irrebutably presumed under the presumption of a lost grant; evidence that there was in fact no grant is inadmissible. Because of the power by unauthorized user to deprive an owner of his title, adverse possession must be clearly and posi

187 N. J. Law 113; 93 Atl. 680 (N. J. Sup. 1915). 2Snyder v. Snover, 56 N. J. Law 20; 27 Atl. 1913

Lehigh etc. R. Co. v. McFarlan, 43 N. J. Law 605; Stevens v. Paterson etc. R. Co., 20 N. J. Eq. 126.

6

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tively shown and proven. There must be no doubt but the claimant's possession was, for a period of twenty years,5 (1) actual, not constructive, (2) exclusive, notorious and visible, (3) continuous and uninterrupted,8 (4) adverse and hostile, and (5) under claim or color of title.10 The absence of any one of these five elements will allow the record owner to recover possession by an action in ejectment. The most vital element of the five is adverse and hostile use. Possession cannot be adverse if held under a higher title, or consistently with the interest or estate of the owner. Entry and possession of one tenant in common, or of one joint tenant, will not be looked upon as adverse or inconsistent with the rights of the cotenant, for the possession of one is the possession of all.11 Hostility can only be shown by an ouster and a domination over the whole premises antagonistic to the right of the cotenant.1 There must be manifest an intention to ignore and repudiate the title of the cotenant in order to accomplish a disseisin. And so it has been held, that possession of a life tenant cannot be adverse to the remainderman, for, until the life tenant dies, he has the right of exclusive possession, the remainderman has no right of entry.1 13 After the death of a life tenant, a person may hold adversely to the remainderman, and the statute will run. 14

12

No tenant or subtenant can acquire title under this doctrine, unless there is an unequivocal act of exclusion of the owner.15 The evidence to sustain an ouster by a tenant must be stronger than that to sustain ordinary adverse possession.16 The situation is the same in the case of mortgagor and mortgagee, the possession of the mortgagor will not be adverse to or bar the mortgagee's right to foreclose till there is an open and explicit disavowal and renunciation of such right.17 When a vendor remains upon the land, he is looked upon as a tenant of the vendee, until such time as he expressly disclaims such relationship.18 In any event, where the entry is with the actual consent and permission of the true owner, the statute will not run till the holding is declared adverse and hostile, and notice of the change is brought to the attention and knowledge of the holder of the legal title.

Where there is an express trust, the possession of the trustee is that of the cestui-que-trust; and not until the former repudiates the trust and claims thenceforth to hold the estate as his own, and not subject to any trust, and the cestui receives notice thereof, does the

'Carlisle v. Cooper, 19 N. J. Law 256.

'Clark v. Lane, 2 N. J. Law 417; Sen v. Wright, 7 N. J. Law 175, 1 Am. Dec. 546.

"Townsend v. Reeves, 44 N. J. Law 525; Saxton v. Hunt, 20 N. J. Law 487.

'Foulke v. Bond, 41 N. J. Law 527.

Carlisle v. Cooper, supra; Cornelius v. Giberson, 25 N. J. Law 1.

'Colton v. Depue, 60 Eq. 454; 46 Atl. 728; 83 Am. St. R. 650.

10Wright v. Mattison, 18 How. (U. S.) 50; Saxton v. Hunt, supra. "Foulke v. Bond, supra.

12Florence v. Hopkins, 46 N. Y. 182.

18 Pinkney v. Burrage, 31 N. J. Law 21.

"Pinkney v. Burrage, supra; Christie v. Gage, 71 N. Y. 189.

15Campbell v. Shipley, 41 Md. 81; Whitney v. Edmunds, 94 N. Y. 309.

18 Barret v. Coburn, 3 Metc. (Ky.) 513.

"Colton v. Depue, 59 N. J. Eq. 126; 44 Atl. 662.

18Butler v. Phelps, 17 Wend. (N. Y.) 642.

statute run.19 When the trust is implied by law, the statute begins to run immediately, unless the cestui is innocently ignorant of his rights or is incompetent to assert them.20 Where a person enters into possession of land as the agent of another, his holding is that of the principal until he openly disclaims the title under which he entered, and that assertion of hostile holding is brought to the knowledge of the owner.21

The courts have generally held that where one holds land consistently with the interest of the true owner, the possession will not be looked upon as adverse and so they have held in all cases where the claimant and the rightful owner stand in a fiduciary relationship. Upon the doctrine it was, no doubt, that our court held that an officer of a corporation holds for the concern unless he expressly notifies the board of directors that he holds adversely; mere open, notorious possession is not adverse, it must be presumed that the president of a company is holding for it.22 "The director of a corporation occupies a position of trust and agency for his company of such a character that dealings between him and the company, where his interest is opposed to that of the company will be subject to close scrutiny and not sustained against the stockholders, unless consistent with good faith and fair dealing on the part of the director."28

E. A. S.

SURVIVAL OF ACTION-LIBEL AND SLANDER.-In a recent case1 the Supreme Court of New Jersey decided that an action for slander is a personal action and as such the action does not survive the death of one of the parties; no special damage to property rights having been shown. In this case the defendant died after the plaintiff had filed his complaint in an action for slander.

By the common law actions for slander and libel die with the person.2 While at common law slander abates upon the death of either party the rule is otherwise after verdict and judgment in favor of plaintiff. But where judgment in an action for slander is arrested after verdict in favor of plaintiff and he dies before its disposal the action abates, since no judgment has been rendered. It has been held, however, that at common law, where there is a judgment against the defendant, and he appeals, and after the appeal the defendant dies, the judgment dies with him. However, in Fitzgerald v. Stewart where plaintiff died after having recovered a verdict for slander, and while motion for a new trial was pending, it was held that, although the action abated, judgment might be entered nunc pro tunc upon

5

Elmendorf v. Taylor, 10 Wheat (U. S.) 119; Lewis v. Hawkins, 23 Wall. (U. S.) 119.

20 Strimpfler v. Roberts, 18 Pa. St. 283.

"Fountain Coal Co. v. Phelps, 95 Ind. 271. 22Leigh v. Howard, supra.

23 Marr v. Marr, 73 N. J. Law 643.

Alpaugh v. Conkling, 95 Atl. 618 (N. J.).

Renfro v. Prior, 25 Mo. App. 402; Long v. Hitchcock, 3 Ohio_274; Stroop v. Swarts, 12 Serg. & R. 76; Alpin v. Morton, 21 Ohio State 536. Lewis v. Daniel, 82 Mo. 577.

*Stroop v. Swarts, supra.

Faith v. Carpenter, 33 Ga. 79. $53 Pa. 343.

the refusal of the motion. Directly contrary to this is the case of Akers v. Akers,' which held that an action for slander is not abated by the death of the defendant pending appeal from a judgment in favor of plaintiff.

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In Morris v. Corson, which was an action for malicious prosecution, it appears that the plaintiff died the day before the trial, but after the first day of the term. The Court notwithstanding, proceeded to trial at that term, and a verdict was found for the plaintiff, on which judgment was entered, which related to the first day of the term. In Brown v. Wheeler, an action for trespass and assault and battery, where it appeared that the plaintiff had died after a verdict in his favor and before judgment, it was decided that judgment might be entered as of the date of the verdict; the court declaring that it made no difference whether the cause of action would survive or not. To the same effect is Dial v. Hollen,1o an action for slander.

The rule that slander abates upon the death of either party extends to other personal actions; viz., deceit, malicious prosecution, breach of promise, &c.

A cause of action for deceit in the sale of real estate does not survive the death of the person injured, under the Statutes of 4 and 31 Edward III, providing for survival of actions for wrongs to personal property, which became a part of the common law of this country.11 But an action in tort for negligence or deceit will lie against the personal representatives of either party to the contract.12

It is held in Ireland v. Champneys,13 that notwithstanding a statute providing that "in all actions, personal, real, or mixed, the death of either party between verdict and judgment shall not be alleged for error", where plaintiff in an action for libel dies after interlocutory judgment but before the next day in banc, the action abates, and the executor has no power to enter final judgment. However, in Palmer v. Cohen,14 a case arising under the same statute, it is held that where the plaintiff obtained a verdict and died before the final judgment, the action did not abate and the executor could enter judgment. And in Wood v. Boyle,15 a similar action arising under the same statute it also held that the action does not abate but that the verdict may be entered nunc pro tunc in favor of the administrator of the deceased plaintiff.

A case of malicious prosecution does not, under the common law or by statute, survive against the personal representative, unless as a result thereof property is acquired by the wrongdoer which inures to his benefit or enhances the value of the estate in the hands of his personal representative.16

At common law an action for breach of promise of marriage cannot be maintained by or against the personal representative of either

784 Tenn. (16 Lea.) 7; 57 Am. Rep. 207.

87 Cowan 281.

'18 Conn. 198.

106 Ohio N. S. 228; See also Griffith v. Ogle & Kimmell, 1 Binn. 172. "Ahearn v. McGlinchy, 90 A. 709; 112 Me. 58.

Tichenor v. Hayes, 41 N. J. Law 193; Dodd v. Wilkinson, 41 N. J. E. 567; Lippincott v. Barton, 42 N. J. E. 272.

134 Taunt. 884.

142 Barn. & Ad. 966.

1517 Pa. Co. Ct. 325.

1Hayden v. Vreeland, 37 N. J. Law 372.