error.

A. B. MCMILLEN and CHILDERS & DOBSON for plaintiff in

Suits for the recovery of real estate in this territory must be brought within ten years from the time the cause of action accrues, except in case of certain disabilities mentioned in the statute. Comp. Laws, 1884, sec. 1881; Probst v. Board of Missions, 129 U. S. 182; Maxwell Land Grant Co. v. Dawson, 151 Id. 586, and the statute of limitation may be relied on by a defendant in ejectment under a plea of the general issue. Stoder v. Green, 94 Mo. 280; Hogan v. Kurtz, 94 U. S. 773, 775.

A person who obtains a conveyance of land holds adversely to the vendor and may controvert his title. He may disclaim the title under which he entered, and set up any other title or any other defense alike against his vendor and others. Croxall v. Sherred, 5 Wall. 268; Watkins v. Holman, 16 Pet. (U. S.) 25; Robertson v. Pickrell, 109 U. S. 608, 614; Blight v. Rochester, 7 Wheat. 535; Society, etc. v. Paulett, 4 Pet. (U.S.) 506.

The plaintiffs must recover, if at all, upon the strength of their own title. 6 Am. and Eng. Ency. of Law, 226; McNitt v. Turner, 16 Wall. 352-362; Watts v. Lindsey, 7 Wheat. 158; Marsh v. Brooks, 8 How. 223; Fussell v. Craig, 113 U. S. 550; Fussell v. Hughes, Id. 565; Fenn v. Holmes, 21 How. 481; 1 Chit. Pl. 189; Tyler on Eject. 72; Sedg. & Wait, Tr. Tit. Land, sec. 722.

Mere prior possession will not warrant recovery in ejectment against a defendant who claims adversely under color of title. Burt v. Panjaud, 99 U. S. 180; Sabariego v. Maberick, 124 Id. 261; Haws v. Mining Co., 160 Id. 303; Fowler v. Whitman, 2 Id. 270; Drew v. Swift, 46 N. Y. 204; Sedg. & Wait., Tr. Tit. Land, sec. 722.

At common law tenants in common could not join, but must sever in separate devises in an action of ejectment. 1 Chit. Pl. 62; Doe v. Herrington, 3 Nev. & Man. 616.

If plaintiff's ancestor acquired title by deed from the New Mexico Town Co., then the property in dispute was community property, and his widow became the owner of the undivided half thereof upon the death of her husband. Comp. Laws, 1884, secs. 1410, 1411; Ball. on Com. Prop., secs, 161, 162. See, also, Ball. on Com. Prop., sec. 240; Estate of Silvey, 42 Cal. 210; Beard v. Knox, 5 Id. 252; In re Gilmore, 81 Id. 242; Harrison v. Bowman, 29 Id. 347; In re Frey, 52 Id. 660; King v. Legrange, 61 Id. 221; 2 Jar. on Wills, 4, note; McGinnis v. McGinnis, 1 Ga. 496; Havens v. Sackett, 15 N. Y. 365; Leonard v. Steele, 4 Barb. 20.

An equitable title will not warrant a recovery in ejectment. Prentice v. Railway Co., 154 U. S. 163; Johnson v. Christian, 128 Id. 374; Langdon v. Sherwood, 124 Id. 74; Redfield v. Parks, 131 Id. 239; Morehouse v. Phelps, 21 How. 481; Hooper v. Shiner, 23 Id. 335; Sheirburn v. De Cordova, 24 Id. 423; Smith v. McCann, Id. 398; Oaksmith v. Johnston, 92 U. S. 343; Swayze v. Burk, 12 Pet. 11.

NEILL B. FIELD for defendants in error.

It was sufficient to show the deed to Ambrosio Armijo, and his possession under it is abundantly sustained. Sedg. & Wait., Tr. Tit., sec, 291; Isler v. Hailey, 24 S. C. 382; Orton v. Noonan, 19 Wis. 350, 355; Wissehunt v. Jones, 78 N. C. 361; Bank v. Harrison, 39 Mo. 433; Roosevelt v. Hungate, 110 Ill. 595; Miller v. Hardin, 64 Mo. 545; Jackson v. Streeter, 5 Cow. 528; Dowell v. De Lauza, 20 How. 32; Locke v. Whitney, 63 N. H. 597; Jackson v. Brown, 10 Johns, 292; Jackson v. Walker, 7 Cow. 637; Greisle v. McKinnan, 44 Ark. 517; Long v. Wilkinson, 57 Ala. 259; Keith v. Keith, 104 Ill. 397; Hasselman v. Mortgage Co., 97 Ind. 365; Woburn v. Henshaw, 101 Mass. 193; Wilcoxon v. Osborn, 77 Mo. 621; Huntington v. Prichard, 11 S. & M. (Miss.) 327; Kinsman v. Loomis, 11 Ohio, 475; Curlee v. Smith, 91 N. C. 172; Riddle v. Murphy, 7 S. & R. (Pa.) 235; Wilkins v. May, 3 Head. (Tenn.) 173; Bolling v. Teal, 76 Va. 487; McCusker v. McEvery, 9 R. I. 528.

"The possession of lands under an executory contract of purchase is not adverse to the vendor so long as the purchase money is not paid, or, until, by the terms of the agreement, the vendee is entitled to demand conveyance of the legal estate." Heermaas v. Schmaltz, 7 Fed. Rep. 566; Graydon v. Hurd, 55 Fed. Rep. 724; Kerns v. Dean, 77 Cal. 555; Catlin v. Decker, 38 Conn. 262; Eichelberger v. Gitt, 104 Pa. St. 64; Turner v. Thomas, 13 Bush. (Ky.) 518.

Title by election is equally available at law and in equity. Thellurson v. Woodford, 13 Vis. Jr. 220; Watson v. Watson, 128 Mass. 154; Smith v. Smith, 14 Gray, 555; Hapgood v. Houghton, 22 Pick. 480; Wilson v. Townsend, 2 Ves. Jr. 696; Devonshire v. Cavendish, 3 Doug. 47; Stoddard v: Cutcowpt, 41 Ia. 331, Cox v. Rogers, 27 Pa. St. 167; Weeks v. Patton, 18 Me. 42; Smith v. Guild, 34 Id. 443; Morrison v. Bowman, 29 Cal. 331.

Plaintiff in error is not a stranger to the Armijo title. Big. on Estoppel, 280, 281; Kinsman v. Loomis, 11 Ohio, 475; Greenl. Ev., sec. 523; Stacey v. Thrasher, 6 How. (U. S.) 158.

CRUMPACKER, J.-The facts as to which there is no dispute are, that prior to the fourteenth day of June, 1880, Ambrosio Armijo, was put in possession of the locus in quo, under a contract to purchase same from the New Mexico Town Company, by Harry R. Whiting, as agent of that company and on that day a deed was duly executed by that company to him, which deed was acknowledged and recorded in the manner provided by law. In the spring of 1882, Ambrosio Armijo leased the premises to John Boyle and Mary Boyle his wife, and placed them in possession of the same, and thereafter, on the tenth day of April, 1882, died, leaving a last will and testament which was duly admitted to probate by the probate court of Bernalillo, the county of Ambrosio Armijo's residence. On the first day of May, 1882, Perfecto Armijo, the eldest son of Ambrosio Armijo and Candelaria G. de Armijo, his widow, were duly appointed to execute the will

and qualified as such. The will left certain specified property to the widow, Candelaria G. de Armijo, contained one or two trifling bequests to servants, and devised the great bulk of the estate, including the locus in quo, to the ten children of the testator, share and share alike. The will declares that there were no gains of the marriage community composed of the testator and Candelaria Armijo, in the following language: "I declare and believe that I have no property acquired during marriage; I have only kept my capital intact since I married the second time, but according to Pedro Murilla Velarde and the laws of the country, I leave, direct and order my executors that there shall be delivered to my wife the two paragraphs above, entirely using about one-fifth of my property, which is what the laws of the country authorize." The inventory of the estate was taken on August 14, 1882, and concluded August 17, 1882, and is signed by the executors and by the appraisers appointed by the probate court, in which the locus in quo is appraised as "one lot and house occupied by John Boyle, $1,500." On August 26, 1882, in pursuance of an order of the probate court the executors made a distribution of the estate and executed and recorded hijuelas to the ten children of Ambrosio Armijo, in which to each is set apart one-tenth interest in the locus in quo, in the following language: "One-tenth on one lot and house occupied by John Boyle, $150." Each of these instruments is signed by Perfecto Armijo and Candelaria G. de Armijo, administrators, and is approved by Tomas C. Gutierrez, judge of the probate court, May 11, 1883, and is recorded in the office of the probate clerk, May 17, 1883. John Boyle continued in possession of the locus in quo, paying rent therefor to the executors until the execution of a deed to A. M. Coddington, on the twenty-eighth day of December, 1883. This rent was divided by the executors, one-tenth to each of the children. Teresa Armijo de Symington, wife of John Syming ton, was one of the children of Ambrosio Armijo, and on the twenty-seventh day of December, 1883, said Teresa and her said husband, made a power of attorney to Elias H. Armijo

to "sell our right, title and interest individually as guardians of the estate of Dolores Armijo, a minor, in lot No. 17 in block No. 5 as shown on the map of the New Mexico Town Company addition to the town of Albuquerque, situate on the street known as Railroad avenue, and to execute, acknowledge and deliver to the purchaser thereof a warranty deed with full covenants therefor." This power of attorney was duly recorded in Bernalillo county on the twenty-eighth day of December, 1883, Perfecto Armijo and wife, Jesus Armijo and wife, Mariano Armijo and wife, Elias H. Armijo and John Symington and wife, by Elias H. Armijo, as their attorney in fact, conveyed to A. M. Coddington, by warranty deed, with full covenants for title the whole of lot 17 in block 15, which deed was duly recorded in Bernalillo county, and on January 2, 1884, A. M. Coddington and wife conveyed the same property to Conrad Schenfield. Schenfield entered into possession of the entire property and remained in possession thereof, by himself or his tenants until his death, which occurred on the twenty-fifth day of June, 1888. By his last will and testament he devised lot 17 in block 15 to James A. Williamson and the said last will and testament was admitted to probate by the probate court of Bernalillo on the fifth day of July, 1888. Williamson afterwards received deeds from all the heirs at law of Conrad Schenfield and it is admitted that whatever title Schenfield acquired under his deed from Coddington and wife passed to Williamson. The record shows affirmatively that Williamson entered into possession of the premises under the will of Shenfield, deeds from Shenfield's heirs, and claimed by no other title. On December 16, 1890, Williamson conveyed to plaintiff in error, Neher, who continued in possession at the time of the institution of this suit. On August 28, 1896, Ambrosio Armijo, Dolores Armijo de Borradaile and John Borradaile, her husband, and Anita Armijo, an infant, by her mother and guardian, begun this suit in ejectment in the district court of Bernalillo county against George K. Neher for the recovery of the locus in quo. The defendant appeared and answered, interposing the general