considered in determining whether possession of the land in the enclosure not described in the deed was taken at the same time as the possession of the land described therein.

5. SAME-possessions may be tacked though deed to last disseizor is by a master in chancery. Where one in possession of a strip of land to which he has no title but which is enclosed with land to which he has title dies intestate, his estate is cast upon his heirs and his possession is transferred to them by operation of law, and if the heirs remain in possession until after a partition sale and then deliver possession to the purchaser, the possession of the heirs and their ancestor may be tacked to the possession of the purchaser, although his deed is made by the master in chancery in pursuance of the partition decree.

6. SAME―a transfer of possession may be proved by parol. A transfer of possession of premises from one disseizor to another need not be proved by deed but may be established by parol, as no deed is necessary to support a title by adverse possession where a party takes possession under a claim of ownership and holds the premises for the time required, under the statute, to complete the bar.

7. SAME what privity is required in order that possessions may be tacked. The privity required in order that several possessions may be tacked is that there must be a continuous possession by mutual consent, so that the possession of the true owner can not constructively intervene.

APPEAL from the Circuit Court of Tazewell county; the Hon. T. N. GREEN, Judge, presiding.

CHAS. A. WALTMIRE, PRETTYMAN, VELDE & PRETTYMAN, and DAILEY & MILLER, for appellant:

Tacking of possession is permissible only when the successive occupants have held the possession in the same right,-in other words, when there is a privity of estate between them. Sedgwick & Wait on Trial of Title to Land, (2d ed.) pars. 746, 747; Ely v. Brown, 183 11. 574; I Am. & Eng. Ency. of Law, (1st ed.) 269-271; 2 id. 449, 450; Erck v. Church, 4 L. R. A. 648; 1 Greenleaf on Evidence, sec. 189; San Francisco v. Fulde, 37 Cal. 353; Tyler on Ejectment, 911-917; Railroad Co. v. Hatter, 207 Ill. 88; Simpson v. Downing, 23 Wend. 315;

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Sawyer v. Kendall, 10 Cush. 241; Ward v. Bartholomew, 6 Pick. 408; Wade v. Lindsey, 6 Metc. 407; Jackson v. Leonard, 9 Cow. 653; Doe v. Campbell, 10 Johns. 475.

Christian Naffziger could not acquire title by mere possession of the strip in controversy. It must have been adverse possession, and whether it was adverse depends upon the intention with which it was taken or held. I Am, & Eng. Ency. of Law, (1st ed.) 227, 248, 249; Carroll v. Rabberman, 240 Ill. 450; McNamara v. Seaton, 82 id. 498; Jackson v. Berner, 48 id. 203; Zirngibl v. Dock Co. 157 id. 430.

JESSE BLACK, JR., POTTS & CONAGHAN, and J. M. POWERS, for appellees:

It was not necessary that the defendant should have intended to take possession of and hold land that did not belong to him, but if he occupied the land up to the fence for twenty years, claiming to own it, the Statute of Limitations was an effectual bar to plaintiff's action. Daily v. Boudreau, 231 Ill. 228; Rich v. Naffziger, 248 id. 455. A possession of land, in order to be adverse, need not be under any muniment of title. Adverse possession is a possession inconsistent with the right of the true owner and depends upon the intention with which it is taken and held, and an actual occupancy of land by one, accompanied by acts of ownership inconsistent with the fact of ownership in another, is, presumptively, adverse possession. Faloon v. Simshauser, 130 Ill. 649; Grim v. Murphy, 110 id. 271.

Adverse possession may be proved by a mere preponderance of evidence, like any other issue. Grim v. Murphy, 110 Ill. 271.

Where the evidence is conflicting it is the duty of the jury to determine the case according to the weight of the evidence. Noyes v. Heffernan, 153 Ill. 339.

Where several persons enter on land in succession the several possessions can be tacked so as to make a continuous possession, where there is privity of estate or the several titles are connected. The privity thus required to constitute continuous adverse possession may be effected by deed or conveyance or parol agreement or understanding. Kepley v. Scully, 185 Ill. 52.

The possession of Christian Schwarzentraub and Christian Naffziger was acquired and retained under claim of title inconsistent with that of the true owner. It was not necessary that such claim should be under a muniment of title. It is enough that a party takes possession of premises claiming them to be his own, and that he holds the possession for the requisite length of time, with the continual assertion of ownership. Turney v. Chamberlain, 15 Ill. 271; Flaherty v. McCormick, 113 id. 538.

The identity and continuity of successive adverse possessions may be shown by parol. No writing was necessary to establish the fact that the heirs of Christian Schwarzentraub transferred their possession of the strip in dispute to Christian Naffziger, and that Christian Naffziger took possession of this strip claiming under the heirs of Christian Schwarzentraub. Proof, by parol, of such a transfer is sufficient evidence of privity to permit the successive possessions to be tacked. Weber v. Anderson, 73 Ill. 439; Faloon v. Simshauser, 130 id. 649; Kepley v. Scully, 185 id. 52; Railroad Co. v. Keegan, 185 id. 70; Rich v. Naffziger, 248 id. 455; Wisehart v. McKnight, 178 Mass. 356.

Mr. JUSTICE FARMER delivered the opinion of the court:

This case was before us at a former term and the opinion then delivered will be found at page 455 of volume 248 of the Illinois Reports. We reversed the judgment and remanded the case for error in an instruction given for appellees, which, in effect, placed the burden upon appellant of proving that appellees did not have title to the disputed

premises by adverse possession. Another trial in the circuit court resulted in a verdict and judgment for defendants, and plaintiff has again brought the case to this court by appeal.

Our former opinion contains a statement of the case and a history of the controversy out of which this litigation arose. We will not repeat that statement here in full, but will briefly say the action was quare clausum fregit brought by appellant, and the issues made by the pleadings involved the title to a narrow strip of land off the west side of the north half of the south-east quarter of section 5, township 25, north, range 2, west of the third principal meridian, in Tazewell county. The strip of land involved is nine feet wide at the south end, fifteen feet wide at the north end, and extends from the south line of the north half of the south-east quarter of section 5 to the north line of said tract. Appellant has title of record to the whole of the south-east quarter of said section 5. Christian Naffziger owns the north half of the south-west quarter of said section, and his son, Peter Naffziger, is his tenant. Before Christian Naffziger became the owner of said tract the whole of the south-west quarter of said section 5 belonged to Christian Schwarzentraub, who died in November, 1888. By virtue of a decree in a partition suit between the heirs of Schwarzentraub the north half of the south-west quarter of section 5 was sold to Christian Naffziger on June 5, 1889, and a deed there for executed to him by the master in chancery. At the time of said sale Fred Schwarzentraub was in possession of said eighty-acre tract as tenant, and the decree provided the purchaser should have the rents for the year 1889 and the possession of the premises on March I, 1890. While the strip of land in controversy was a part of the eighty acres to which appellant had paper title, it was in the enclosure with the north half of the south-west quarter from 1885 until April, 1909, when appellant, without leave of or notice to appellees, removed the south forty

rods of fence from the line known in this record as the Oswald line, west to the line of the commission survey established in March, 1909. The fence was built on the Oswald line as early as 1885, and thereafter Schwarzentraub and his heirs had possession of and cultivated all the land on the west side of the fence until the sale to Christian Naffziger, and from March 1, 1890, he has continued in possession and cultivated all the land on the west side of the fence. Appellant and his predecessor in title have during all that time possessed and cultivated the land on the east side of the fence.

It will be seen Christian Naffziger himself had not been in possession of the disputed premises quite twenty years, but if the possession of Schwarzentraub be tacked to his, the period of adverse possession is more than twenty years. The proposition principally relied upon by appellant for reversal of the judgment is that there was no privity between Christian Schwarzentraub and Christian Naffziger, and therefore the possession of the former cannot be tacked to the latter. The rule of law as laid down by the decisions of this and other States is, that privity of estate or title is necessary between successive disseizors to authorize joining together the several possessions so as to make a continuous possession. Acts of possession at different times, by different persons between whom there is no privity, cannot be joined. Ely v. Brown, 183 Ill. 575.

It is conceded by appellant that if Christian Schwarzentraub or his heirs, if adults, had conveyed the north half of the south-west quarter of section 5 to Christian Naffziger and had delivered to him possession of the entire enclosure up to the division fence, the possession of Schwarzentraub could be tacked to that of Naffziger and form a continuous possession, but it is insisted that as the conveyance of the eighty acres to Naffziger was made by the master in chancery under the decree in the partition suit there could be no privity of estate or title between Naff