#### John Den ex dem. of George Blair v. Elisha P. Miller,

From Ber{ie<

In ejectment, a continued possession of seven full years, with colour of title, is absolutely necessary to bar the right of entry. The possession need not be continued From day to day without interruption; but it must be a continued possession consistent with the usages of agriculture.

Therefore, when a crop was planted at the beginning of the seventh year, and at midsummer possession was abandoned, and never resumed, — held, that the right of entry was not barred.

A lease thirty years old is prima facie evidence of the time the lessee took possession, and is admissible, although produced by the lessor in support of his title — especially where it tvas admitted, that the lessee took possession about the lime of its date.

Ejectment, tried on the Fall circuit of 1828, before bis Honor Judge Daniei. The only question in the Court below was, whether one Greenlee, under whom the Defendant claimed, had seven years possession, so as to perfect a defective paper title.

The witnesses for the Defendant deposed, that Green-lee’s possession commenced in the year 1797 — that one Elrod, was a tenant of his, and occupied the land from January, in the year 1800, to August in the year 1806, when he left the premises in dispute, but left a small crop of cotton growing on the land. The lessor of the Plaintiff then introduced witnesses to prove that, the land was unoccupied during the year 1800, and that Elrod’s possession did not commence until December in that year. It was admitted by the lessor of the Plaintiff, that Elrod *408was a tenant of Greenlee’s, in this stage of the case, '^ie Counsel for the Defendant produced a lease from Greenlee to Elrod for1 the year 1800, and offered to intro-t]urp ag evidence that Elrod’s possession was taken in December, 1799. The Counsel for the Plaintiff objected to this testimony, because the fact of Elrod’s tenancy was not disputed, and insisted that the offer to introduce the lease, was nothing but an attempt to prove, by Greenlee’s written declaration, the time when Elrod took possession under him. For these reasons, his Honor rejected the testimony.

June, 1830.

The Counsel for the Defendants moved the Judge to charge the jury, that if they should find against the Plaintiff, upon the evidence as to the continuance of Greenlee’s -possession for the space of seven years, from the year 1797 j yet if they believed that Elrod entered into possession in December, 1800, and continued that possession for six years and four months, and then kept up his crop until August, and afterwards gathered his cotton in tiie seventh year — that in law this was a possession during the whole of the seventh year, and the act of limitations perfected the Defendant’s title. But his Honor refused so to charge the jury, and instructed them, that if Elrod took possession in December, 1800, his possession, in order to protect the Defendant, must have continued until December, 1807. A verdict was returned for the Plaintiff, and the Defendant appealed.

Seatvell, for the Plaintiff.

Gaston & Badger, contra.

Ruffin, Judge.

We all agree with the Judge below, in his opinion respecting the statute of limitations. Nothing short of seven full years will satisfy the act of Assembly. We do not mean to say, that the occupation must, be daily or weekly shown. For if a man has his field in crop, or under fence, as a part of his plantation, *409according to the usages of agriculture, it,will do. And so, if a landlord has a tenant on his land to make a crop every year, though it be not proved that one came in the day (he other went out. But we mean, that it will not be sufficient to plant a crop, and abandon the farm in the middle of the year, and not have an occupation after-wards. for instance, Greenlee had put another tenant on the land in 1807, that would have constituted a continued possession, by connecting him with Elrod. It would have proved the animus revertendi, and evinced that Greenlee never abandoned the possession. But when he leaves the land in August of the sixth year, and never afterwards enters, no such inference of occupation can be drawn.

We however think the Court erred in rejecting the lease as evidence.' It must be admitted', that the Defendant did not treat the,case quite fairly, in waiting for its introduction to the critical moment, when it would be most powerful in supporting the credit of his witnesses, as to the time of Elrod’s entry. It would have been most proper to have offered it in the first instance, as a part of his title , for such is possession uwltp* the statute. But it was evidence per se to the point to which it was offered, under the circumstances. That was, to show the time when Elrod took possession. We must take it for granted, that its execution was, or could have been duly proved, and that it was actually delivered to Elrod, and that he entered under it, because the Defendant's Coun - sel said, he would prove that possession was taken in pursuance thereto, and (lie Court rejected it because it was not evidence of the fact for which it was tendered, and not because it was not proved. Certainly, if it is' found in Greenlee’s pocket, and depends upon his acknowledgment or hand writing, it is nothing. It must be traced to Elrod at the period of his tenancy. Taking that for granted, how does the case stand i

*410It is admitted on all hands, that Elrod was Greenlee*s tenant. Witnesses come in and say, that he entered in 1799 ; others in December, 1800. Between this conflict 0p testimony, this document is most material to show, that one or the other set of witnesses is mistaken. Where a person is proved to have entered about a particular period, and that a remote one, the very timéis not conclusively shown by the date of his deed, it is true : but there is a strong probability raised by it, because owners of land are not presumed to let it lie idle ; and we will not suppose that one entered before he had title. If the conveyance be in fee, the presumption of an immediate entry is not so strong, as if it be for a less estate. But if it be for years, and’ especially for one year, the presumption is violent, that the tenant entered forthwith. It is in the nature of man, that he should endeavor to make the most of his property, and it cannot be supposed, that he who is paying rent, and has but one year’s estate, should not enjoy it. In such a case, the probability of occupation is as great, as that the date of a deed corresponds with the true time of its execution. The contrary may be shown, hut by itself it imports the truth, because men usually put the real date. So a lease for a single year, made thirty years ago, creates a probability, tiiat the lessee entered that year \ for we cannot suppose, that he would forego the present enjoyment of property thus fleeting, especially when the actual occupation is proved aliunde to have been about that time.

It may be proper to add, that this presumption might certainly be weakened by evidence, that he paid a rent in part of the crop instead of money, or other circumstances open to the other side. But of itself it is evidence, as a circumstance from which the time of possession may be collected.

Per Curiam. Let the judgment of the Court below life reversed.