Opinion by

It is certain from the testimony in this case that at the time the four acres of land were allotted to the appellant they were in the actual possession of Ford’s heirs, and this fact was known to the appellant; but whether he. knew this fact or not is immaterial to the present controversy. He had no right to enter upon and oust the joint tenants then in the possession, so as to prevent partition, or to take from them the right to their respective interest when the division took place.

The appellant, however, nor his vendees, were never in the possession, unless the fact of the execution of the deed gave them possession. The land was not enclosed by them, except perhaps a small strip upon which a part of the-fence stood; nor' does it appear that the fence was built by either the appellant or his vendees. The land was surrendered to the appellant without an action against him; still, he has shown that he yielded to a paramount title, and the judgment below refusing to render a judgment for the note was proper, and is affirmed.