out of that relation, and of necessity put an end to the contention that the defendants in that action then held the same adversely under claim of title exclusive of any other right, founding such claim upon the alleged written instrument relied on, namely, the deed of February 3, 1860. This made the defendant's claim of title necessarily, and his possession under it, in law, what it declared it to be in fact-that of a tenant in common with the other parties named in the decree; for, this deed aside, the defendant in this action, as well as James A. Stewart, who conveyed to him during the pendency of the former action, were also heirs at law of the said Alexander Stewart, deceased, with the rights of such as established by the judgment after their claim to the entirety had been declared void. And if their possession had been adverse up to that time, the judgment put an end to and interrupted its adverse character, and established the rights of all parties to the land equally as heirs of Alexander Stewart, deceased, and restored the seisin of all of them alike if it had been interrupted as to any, so that the possession of the defendant, if adverse prior to the judgment, cannot be relied on or tacked to his subsequent adverse possession, if such it has been, in order to make out his defense.

Any substantial interruption of an adverse possession before the lapse of the period required to constitute the statutory bar restores the seisin of the rightful owners of the legal title, and, in order to give rise to the statutory bar thereafter, a new entry and disseisin is necessary: Wood on Limitation of Actions, 574, 576; Haag v. Delorme, 30 Wis. 594. The running of the statute may be interrupted if the possession ceases to be adverse, although possession in fact continues. If the defendant had made a quitclaim to his coheirs of all his right, title, and interest in the premises acquired under the particular deeds under which he claims, there can be no question but that his continued possession would, in such a case as this, be considered as under and in subordination to the legal title of all the heirs as tenants in common, and not adverse and under claim of title founded on those deeds. After a valid execution sale of land and conveyance by the sheriff, the continued possession of the defendant in the execution is not adverse, but in subordination to the rights of the purchaser at the sale: Swift v. Agnes, 33 Wis. 228, 241.

The judgment in question operated and had in law the effect of a release by the defendant of all right, title, and in

terest acquired by him under the deeds upon which he now seeks to found his defense under the ten years statute of limitations; and it estopped him and disabled him in law from making any claim of title thereafter founded on those deeds: Gower v. Quinlan, 40 Mich. 572; Hoyt v. Jones, 31 Wis. 389, 402; Brolaskey v. McClain, 61 Pa. St. 166. A deed not delivered is not operative for any purpose, and is not, we think, a written instrument within the statute in question; certainly it cannot be considered such as between parties and privies to an action in which its nondelivery and invalidity have been adjudged. For these reasons the possession of the defendant after the judgment could not become adverse for the purposes of the ten years statute without he acquired a new claim of title, or made a new entry or its equivalent. His subsequent possession, even if adverse, has not been under claim of title exclusive of any other right, founding such claim upon some written instrument as being a conveyance of the premises in question, and therefore the defense under section 4211, Revised Statutes, has not been made out. His possession subsequent to the judgment did not continue twenty years before this action was commenced, so as to enable him to make out a defense under sections 4213, 4215. The case of Mabary v. Dollarhide, 98 Mo. 198, 14 Am. St. Rep. 639, and cases there cited, are distinguishable from this, in that the judgment or decree relied on to interrupt the course of the statute was not one between tenants in common, adjudging void a previous conveyance essential to the statutory bar, and that it had never been delivered, and that the parties to the suit held and owned the lands in question as tenants in common, so that by force of the judgment the possession of the defendant was made necessarily the possession of each and all of them, and thereby its former adverse character taken

away.

2. The silent possession of the defendant since the judgment, accompanied by no act which can amount to an ouster, will not be construed into an adverse possession: Challefoux v. Ducharme, 4 Wis. 554, 564. If the fact that the parties are cotenants is established, the burden is upon the one claiming to hold adversely to establish such a state of facts, known to his cotenant, as will amount to an adverse claim of title. Though in ordinary cases open and notorious possession is sufficient, in case of tenants in common the rule is different: Freeman on Cotenancy, sec. 22; Clymer v. Daw

kins, 8 How. 674; Barr v. Gratz, 4 Wheat. 213. In Sydnor v. Palmer, 29 Wis. 249, the rule is laid down that, "where one tenant in possession, having once acknowledged the right or title of the other tenants, seeks to oust or dispossess them, and to turn his occupancy into an adverse possession or enjoyment, so as to acquire the title of the entire estate by lapse of time under the statute of limitations, he must show when knowledge of such adverse claim, or of his intention so to hold was brought home to the other tenants; for from that time only will his possession be regarded as adverse." Such is always the rule, unless the exclusive use and enjoyment, or sole and uninterrupted possession and pernancy of the profits by one tenant in common have been so long continued as to give rise to the presumption of or justify the jury in finding knowledge or acquiescence on the part of the other tenants for the period prescribed by the statute. But, whatever view may be taken of this branch of the case, the defense of the statute of limitations, for reasons already stated, wholly fails. Authorities to this effect exist in great number, and we hold that the rule is the same where the cotenancy of the parties has been adjudged in a suit to which all the cotenants were parties. The evidence wholly fails to meet the requirements of this rule, and shows only an open and notorious possession by the defendant, which, as we have seen, is not, as between tenants in common, sufficient.

Our conclusion upon the whole case is that the judgment in the former suit prevents the deeds under which the defendant claims being made a basis or foundation for the ten years statute of limitations, and this view seems to be decisive of the merits of the case. As to the claim of laches, and of the defendant's equity founded upon his having made permanent and valuable improvements on the premises, it is sufficient to say that when the judgment was rendered in the former suit, which was affirmed by this court, the defendant well knew that he had no interest in the lands except as tenant in common with the other claimants. He has not, so far as the evidence shows, been misled by the conduct of his cotenants, nor did he notify them, after the judgment in the former case, that he claimed the entirety of the premises. According to his own testimony, he kept on claiming title under the old deed, disregarding the judgment which declared it void, and that it had not been delivered. He cannot now have any claim, except to an accounting between his coten

ants, which may, perhaps, afford him a remedy, but of this we express no opinion. For these reasons the judgment of the circuit court must be reversed, and inasmuch as there is no finding upon the question of mesne profits or damages, a new trial must be awarded.

By the COURT. The judgment of the circuit court is reversed, and case remanded for a new trial.

JUDGMENTS-SETTING ASIDE DEEDS, CONCLUSIVENESS OF.-A former recovery in assumpsit against the heirs of a deceased debtor to which they pleaded riens per descent, and the issue was found against them, may be given in evidence by way of estoppel in an ejectment suit, brought by them against a purchaser under the judgment in which they claim under a deed from their ancestor, which was submitted to and found invalid by the jury in the former action: Wood v. Jackson, 8 Wend. 9; 22 Am. Dec. 603. A judgment of a court of competent jurisdiction in Indiana, setting aside a deed to the grantor's wife, is conclusive in a suit in Illinois as to another deed made at the same time, by the same grantor, to a trustee, for his wife: Hanna ▼. Read, 101 Ill. 596; 40 Am. Rep. 608. A judgment in an action brought to set aside a quitclaim deed to certain real estate against the plaintiff in this action is conclusive and binding upon the plaintiff below in this case, on the question of title to the real estate in question: Oldham v. Stephens, 45 Kan. 369. A judgment affecting the title to real estate, until reversed or vacated, is binding and conclusive as between the parties to the action or their privies: Challiss v. Atchison, 45 Kan. 22; Broussard v. Broussard, 43 La. Ann. 921. A judgment against the parties under whom the defendant claims, setting aside the deed, so far as it purports to convey the interests of the children, is not conclusive on the liability of the widow and children on her covenants: Foote v. Clark, 102 Mo. 394.

ADVERSE POSSESSION-INTERRUPTION.-See extended note to Peabody v. Hewett, 83 Am. Dec. 497. Adverse possession must be uninterrupted for the statutory period to toll the owner's right of entry: Trotter v. Cassady, 3 A. K. Marsh, 365; 13 Am. Dec. 183. Adverse possession to be available as a defense or as title must have been continuous both in time and interest: San Francisco v. Fulde, 37 Cal. 349; 99 Am. Dec. 278, and note, and a vol. untary abandonment without the intention of returning and retaking posses sion, no matter for how short a time, destroys adverse possession: Doyle v. Wade, 23 Fla. 90; 11 Am. St. Rep. 334, and note with cases collected, and the same is true even if there is the intention to return: Louisville etc. R. R. Co. v. Philyaw, 88 Ala. 264, but a single instance of attempted interruption resulting in no actual interruption, followed by no attempt to test the right does not destroy the presumption of a grant founded upon a user in other respects sufficient: Connor v. Sullivan, 40 Conn. 26; 16 Am. Rep. 10. Adverse possession must be constantly continued by acts on the premises: Olewine v. Messmore, 128 Pa. St. 470.

ADVERSE POSSESSION BETWEEN COTENANTS-BURDEN OF PROOF.-The possession of one tenant in common is prima facie not adverse to his coten. ants: Warfield v. Lindell, 30 Mo. 272; 77 Am. Dec. 614, and note with prior cases collected; Berthold v. Fox, 13 Minn. 501; 97 Am. Dec. 243, and note; Warfield v. Lindell, 38 Mo. 561; 90 Am. Dec. 443, and note; Carpentier v.

Mendenhall, 28 Cal. 484; 87 Am. Dec. 135; see notes to Gillaspie v. Osburn, 13 Am. Dec. 140, and Barnard v. Pope, 7 Am. Dec. 228. The presumption is, that the possession of one tenant in common is the possession of all, and this can be rebutted only by proof of actual ouster: Israel v. Israel, 30 Md. 120; 96 Am. Dec. 571, and note.

FARR V. TRUSTEES OF THE GRAND LODGE OF THE
ANCIENT ORDER OF UNITED WORKMEN.

[83 WISCONSIN, 446.]

JOINT TENANCY IN LIFE INSURANCE.—A membership certificate of life insurance issued to a husband in which his wife and daughter are named as beneficiaries makes them joint tenants as to the fund, with right of survivorship.

Wickham and Farr, for the appellants.

John A. Daniels, for the respondents.

ORTON, J. On the twenty-eighth day of March, 1879, A. C. Peck became a member of the subordinate Banner Lodge, No. 17, at the city of Eau Claire, by virtue of a certificate of insurance duly issued by the Grand Lodge of the Ancient Order of United Workmen of the State of Wisconsin to the said A. C. Peck, by which said grand lodge promised and agreed, for a valuable consideration, to pay at the death of said A. C. Peck, according to the laws of the order, the sum of two thousand dollars to Ida B. Peck, the wife, and to Anna May Peck, the daughter, of said A. C. Peck (since intermarried with the coplaintiff J. F. Farr). On or about the eighth day of March, 1881, the said Ida B. Peck died. After her death the said A. C. Peck intermarried with the defendant Mary E. Peck, by whom he had one child, now living; and on the first day of March, 1891, the said A. C. Peck died. The defendant the grand lodge paid to the plaintiff Anna May Farr one half of said two thousand dollars on her giving bond, but refused, on demand, to pay her the other half of it; and she now demands the two thousand dollars by right of survivorship, on the death of her mother, as a joint tenant or joint beneficiary of the insurance. This being the controlling question in the case, no other need be considered.

It will be observed that the whole insurance of two thousand dollars is made payable to both Ida B. and Anna May Peck as an entirety. Since the death of Ida B., the grand lodge has so changed and amended its constitution and laws