Appellant filed a bill of complaint against appellees praying that the Court decree him to be the owner of certain property and that appellees be enjoined from exercising domain over it. The property was described as the "E I/2 of E I/2" of a section "less ten acres of cleared land, such ten acres being the 10 acres of cleared land excepted and reserved in deed from Frank Peacock and wife, as grantors, to C.W. Hagerman, dated May 15th, 1900, * * *."

Appellant deraigned title from the year 1873 through mesne conveyances to himself in 1934. The location of the tract excepted was not determinable from the deeds but counsel in their briefs fix its location along the east boundary of the property and largely in the northeast quarter of the southeast quarter of the section and east of Cowarts Creek, which meanders across the larger tract from its *Page 626 southwest corner to about midway of the east line of the southeast quarter of the northeast quarter.

The appellees claim title to all of the land east of Cowarts Creek, approximating fifty acres, by deeds executed in 1898 from T.W. Baxter and wife to J.M. West and from West and wife, in 1900, to J.K.P. Ketchum. During a period of thirty-five years appellees have possessed the cleared tract and they take the position that this possession of a tract, excepted from appellant's deed as early as 1881 is possession of all property between the east line of the section and Cowarts Creek. The chancellor agreed with them and dismissed the bill after considering the testimony.

The question is, did appellees' possession of the ten-acre tract, although excepted from deeds in appellant's chain of title antedating the first conveyance in appellees' chain of title become possession of that part of the section east of Cowarts Creek which was also included in appellant's chain? It is more clearly illustrated by the diagram appearing in appellant's brief and apporved by appellees.

At the outset the superior title to the parcel of 160 acres of land, east and west of the creek was vested in appellant, excepting only the ten-acre tract which in the chain was set apart even though not definitely described. Long after it was specifically excepted appellees' predecessors in title conveyed all property east of the creek although they had power to transfer but the ten acres.

It is difficult to conceive how possession of the smaller parcel in these circumstances could be expanded to include other land to which grantors had no title.

It is said in I Am. Jur. 908 that: "possession without color may ripen into title to the land actually occupied, but with color it may ripen into title, not only to the land actually *Page 627

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 628 occupied, but to all the land described in the color of title."

This would be the rule had no exception appeared in appellant's chain, but it seems to us that the very definition of adverse possession contradicts the assertion that appellees claim under it. It is possession hostile to the true owner. I think it cannot be successfully argued that possession of the tract excepted in the prior chain of title can be in opposition to that chain, and, consequently, cannot become the basis of an adverse interest to other property beyond its borders.

I am not apprised of any case precisely in point but am constrained to conclude that this is the exception to the rule that possession of part of a parcel of land held under color may ripen into title to the whole. Had the ten-acre tract been ignored in appellant's deeds appellees could have become possessed adversely of all land east of Cowart's Creek, that being included in their deed, but when appellants and their perdecessors in title made no claim to the excepted portion, possession of it was not adverse, and lacking this quality there could have been no such possession beyond its boundaries.

For these reasons, I cannot agree with the opinion reached by a majority of the Court.

BROWN, J., concurs.