The opinion of the court was delivered, October 16th 1871, by

In this case but a single error deserves notice. It runs, however, throughout the assignments of error numbered as 11, 12, 13, 15, 16 and 18. Some of these standing alone are rather indefinite, but others can be sustained. The purpose of the offers contained in the bills therein set forth was to show the relation of John Neel as trustee for Samuel C. Neel his brother. It is quite possible the court below rejected the evidence of a trust upon the supposition that it was in violation of the provisions of the Act of 22d April 1856, because there was no writing to evidence it, and because it was barred by the proviso to the 6th section. But the purpose of the offer was not to claim title through the trust. The plaintiffs had rested their claims of title upon a possession of more than twenty-one years, under the Statute of Limitations, and to rebut the adverse character of that possession, the defendants had given in evidence a lease dated 12th March 1849, from Samuel C. and John Neel to John and Thomas Neel, sons of Samuel C. Neel. Though this paper bears date after the twenty-one years were alleged to have run against the title of John Neel, yet the inference to be drawn from it by a jury tended strongly to rebut the adverse character of Samuel C. Neel’s previous possession. The question would very naturally arise, if Samuel claimed title in his own right, why did he join with John in the lease ? But if John Neel were a trustee only of the legal title for Samuel, and admitted his relation, there would be nothing inconsistent in Samuel’s joining with John in the lease; and it would not contradict the fact that Samuel was holding for himself during the previous period of twenty-one years, and, therefore, that his possession was adverse to any claim of title by John Neel for himself. Whatever might have been the power of Samuel to sustain himself under the trust alone, before the statute had closed against John; clearly if John suffered him to hold the land as his own under an alleged trust for the statutory period, the statute closed the door against John’s title, and made perfect the title in Samuel. So far then as the lease had tended to contradict the adverse character of Samuel’s possession, it was Samuel’s right to rebut it by showing, by the admitted trust, that the instrument was not inconsistent with his previous possession in his own right. These offers should therefore have been received as rebutting evidence.

*305In connection with this, it was the intention of the plaintiffs, in their third point, the refusal of which is assigned as the 23d error, to ask the court to say to the jury that twenty-one years of unmolested possession, unqualified by any circumstances or considerations to the contrary, is to be presumed to be an adverse possession. It is very difficult to understand the point as drawn, and the judge therefore cannot be censured for declining it, especially in view of the rule of the court; but certainly where one holds a possession for himself, taking the profits of the land to himself exclusively for a period of twenty-one years, with nothing in the evidence to stamp upon it a different character, his possession is presumptively adverse to all others (excepting in the case of co-tenants), for he who holds for himself necessarily does not hold for another. The point when properly understood was important to the plaintiffs’ case in furnishing a rule to the jury from which they might infer the adverse character of the possession of Samuel C. Neel. But it was the fault of the plaintiffs that the point was so obscurely drawn. For the reasons already given, however, the judgment is reversed, and a venire facias de novo is awarded.