#### Den ex dem. of Joseph Rhem v. John Jackson.

Front Craven.

The act of 1791, (fiev. ch. 346) making’ twenty-one years possession, under visible boundaries, witheut-a grant foncUis’ve against the state, is founded upon the supposed loss of title papers setting forth those boundaries.

But possession for twenty-one years, up to a visible line, although it may be evidence in ascertaining t. e boundaries set forth in a deed, is not conclusive that the vis.b ie hue is the true boundai'y.

An interest in the event of a suit acquired aitei commencement, does not render a witness incompetent, unless that interest was acquired from the party offering him.

Ejectment tried on the last Circuit, before bis honor Judge Norwood. The lessor of the .Plaintiff and the Defendant, both claimed under one Polhk, jjand the only question on the trial was (he boundary of a lease made by Pollok to one Coart, in the year 1756, for the term of seventy-five years, under which the Defendant held the premises in dispute.

Upon the question of boundary, the Defendant offered, the testimony of one Russel, w hich was objected to by the lessor of the Plaintiff, upon the ground of interest. Upon his examination, it appeared that he had purchased since the commencement of this action, an interest in the residue of the term.. His Honor, thinking that this purchase did not render the witness incompetent, as to facts within bis knowledge before it was made, ovenuled the objection. This witness and others introduced by the Defendant, testified that soon after the lease made to *188 Coart in 1756, another was also made by Follok of the adjoining lands to one Pope ; that the reversion had been assigned to the lessor of the Plaintiff, and the lease had expired ; that botli Pope and Coart, and those claiming under them, had for more than forty years, cultivated up to the line contended for by the Defendant, ami had uniformly admitted it to be the boundary between the two leases.

June, 1829.

The act of 1791, {Rev. ch. 346) entitled ‘‘an act for quieting ancient titles, and limiting the claim of the State,” was read to the jury. His Honor, after instructing the jury as to the rules relative to boundaries of land, and the law of presumption and inference from facts in proof, informed them that if the line contended for by the Defendant was a known and visible boundary, and there, were other known and visible lines and boundaries, designating the land claimed by the Defendant for twenty-one years before the commencement of the suit, the act of 1791 would protect the. Defendant during the residue of the term, created by the lease, under which he claimed.

A verdict was returned for the Defendant, and the lessor of the Plaintiff appealed.

The case was argued by Badger, for the lessor of the Plaintiff, and by Gaston, for the Defendant.

Henderson, Chief-Justice.

The Defendant’s Counsel admits, that this case does not fail directly within the operation of the act of 1791, {Rev. ch. 346) entitled “ an act for quieting ancient titles, and limiting the claim of the State.” In making this admission, he is certainly correct j for that act relates exclusively to persons claiming under different titles, derived from the sovereign, and was made to supply the loss of grants and mesne conveyances, substituting for them a possession of twenty-one years, by known and visible boundaries. This, I think, is quite evident, both frbm the preamble and en*189actments of the statute. But he alleges, that the statute was read to the iury, and commented on, to show the great weight attached by law to long possessions, under known and visible boundaries, and that by analogy only, the statute had a hearing on the case. Had the statute been left to operate on the case in this manner only, there certainly would be no ground for complaint. But I collect from the charge of the presiding Judge, that he understood the case differently, and so in,sí? (tried the jury. For lie states, that he informed them, that if the line claimed by the Defendant was a known and \isible boundary, up to w hick he had possessed for twenty -one years or more, and there were other known and visible boundaries designating the, land claimed by the Defendant, twenty-one years or more before the commencement of this suit, the act of 1791 would protect the Defendant during the residue of his term, created by the lease to Coart. From this charge, I am compelled to understand the Judge as instructing the Jury, not that the long possession up to this line was matter of evidence to he considered by them, as tending to prove the real boundaries of the lease to Coart, and liable to be repelled by higher and more satisfactory evidence of that fact, but that the fact of such possession entirely protected the Defendant from the claim and action of the Plaintiff, during the residue of the term; thereby discharging the jury from the real question between the parties, to-wsf, the actual boundaries of the lease, and substituting for it twenty-one year’s possession, under known and visible boundaries, however well satisfied they might be that such boundaries were not those of the leased lands. 1 think this was a misapprehension of the operation of the act of 1791, and that there should be a new trial.

As to the admission of the witness Russel, the case in that particular is so imperfectly stated, that no opinion can be formed thereon. It does not appear, whether he purchased an interest in the lease from the Defendant, *190oj> from «01 up other person. If he purchase^ from the former, he was clearly inadmissible; for Wen the Defendant partieipated in (fie act, giving him an interest. If he purchased from a stranger, according to the modern rule, he is admissible.

Per Curiam. — Let the judgment below be'reversed* and a new trial granted.