#### John Den on dem. of Samuel Rogers, et al. v. William Mabe.

From long and uninterrupted possession of land as owner, a giant will bo presumed. This presumption is founded mainly upon the known inadequacy of human tribunals to ascertain the real truth of remote transactions, and does not depend upon a supposed correspondence between the fact and the presumption in each particular case, and its character is determined by its origin. It is not merely a presumption of fact which a jury may make, nor is it a presumption of law which cannot be rebutted; but it is a presumption which the law requires, and the court should direct the jury to make, unless proof is offered which shows the fact to be otherwise.

To raise this presumption between individuals twenty years is' sufficient, and (in cases not within the act of 1826, c. S3,) less than twenty years is not: as against the State, the precise period is not determined, but forty years is eertainly enough.

, This presumption extends not only to grants' and deeds, but to every thing necessary to support the title of the possessor.

The case of Pipkin v, Wynn, (ante 2 roí. p. 402,) approved.

When however, one enters originally not as owner, but under the title of another, even a very long possession will not raise this species of presumption; there, time however long, has only its usual and natural effect, as the foim, dation for an inference of fact which the jury may draw or not, as they may, or may not believe the fact in the particular case to compare with tno inference.

A call in a grant from a pond or a river, “ -west up the river to a stake,” is. in law equivalcnt.to “with the river,” and the line must pursue the course of the stream; this sense of the words might possibly be controlled by a call for a line of marked trees, or a visible and permanent marked comer, and a meaning thereby given to them equivalent to “up” not “with the river,” but by no call less certain can they'bo controlled.

The cases' of Sartsfield v. Westbrook, (1 Say. 258,) and Smith v. Jlul-dridge, (2 Say. 382,) stated, approved and applied to this case.

Where A purchases under an execution against B, takes a deed and on the same day conveys to B, though the purchase and conveyance be at the request of B, and merely to give him a color of title, without any money paid or received — the conveyance to B is a sufficient colorable title within the statute of limitations.

It seems,-that a sheriff’s deed gives by relation, color of title from the sale.

One tenant in common cannot in an action against his co-tenant, be examined as a witness to defend the posssession.

*181

This was an action of Ejectment, tried in Stokes Superior Court, before his Honor Judge Norwood, in which the plaintiff claimed, and sought to recover possession of the tract marked on the diagram “ 50 acres No. 1,” also of the tract marked “50 acres disputed,” and of the land lying south of. the last named tract, and. included between the lines S B, 53 0 and the river, of which the defendant was in the possession. The declaration stated a joint demise, and contained but one count. An order appeard on the record, allowing the. plaintiffs to amend the declaration, but no amendment appeared bn the transcript to have been actually made. On the trial the plaintiff produced and gave in evidence a grant from the State to Thomas Rogers, as assignee of Alexander Martin, dated- 5th November, 1795 for a tract of land, beginning “ on the north bank of Dan river, a small distance below the mouth of Seven-Is*182¿land Creek, at Hill's north west corner, running west, “ up 1he river, two hundred and twenty poles to a stake, , , , , , , ... . “north two hundred and ninety poles to a black-oalc, k east three hundred and seventy poles to a stake, south “ two hundred and ninety poles to a stake in Hill’s line, “then west, to the beginning.”

The beginning of the grant was shown to be at A; the course and distance of the final line, terminated at B, of the second line at C, where an old black-oak corner was found, but no marked trees appeared between A and B, or between B and C, or the river bank. The lines B C and B E exactly corresponded in length with the calls of the grant, but the line C D was six poles too long, and D E six poles too short. The grantee Thomas Rogers, was the father of the lessors of the plaintiff, who were his only children and heirs at law. It was insisted on the part of the plaintiff, that the true construction of those grants in law, was, that disregarding the course and distance, the river from A to S was the boundary, and thence the lines S C D E, it being alleged that the call “ up the river” was in law, exactly equivalent to “ with the various courses of the river,” and the jury were bound so to locate it.

The defendant gave in evidence a grant from the State to Robert Mabe, his ancestor, dated 16th July, 1795, and covering the tract of 50 acres, No. 1; and proved that Robert Mabe was in the year 1794 living in a house situate on the 50 acre tract, B N M 0, and that his plantation then covered part of that tract of land, extended nearly to the river, and had the appearance of a very old settlement, and that he and the defendant as his heir at law, had continued the possession ever since; that there were old marks from R to H,. and an old marked beach tree at M. The defendant farther proved that Robert Mabe came to that neighborhood sixty eight, or sixty nine years before the time of the trial, and settled on the river, that he sometime after removed to the ore bank, and then to the river again, and that he and his descendants have ever since continued in possession of the plantation on the river. The defend*183ant then showed by a record of the County Court, that Robert Mabe on the 25th of June, 1778, made an entry „ ....... , , , of 150 acres, including his improvements, to winch aca-veat was put in by Alexander Martin, and at May Sessions 1779, withdrawn. And the defendant showed that at March Session, 1807, a judgment was recovered against Robert Mabe, nn execution issued thereupon, and that under this execution the sheriff sold the land bounded by the lines R, H, Gr, P, B, O, and the river, to one Gibson, who on the same day on which he received the sheriff’s deed, being the 2d June 1810, conveyed the land to Robert Mabe. It appeared in evidence, that Gibson bought the land at the request of the sheriff and Mabe, and that no money was paid or received by Gibson. Thomas Rogers, the father of the lessors of the plaintiffs, died in 1809, and at the commencement of this suit, in 1826, one of the said lessors was of the age of a 32 years, another of the age of 30, another of the age of 28, and the other under the age of 21; and it also appeared that Thomas Rogers, in his life, and the lessors of the plaintiff since his death, have been in possession, on a part of the land granted to him, but not within the boundaries of the tracts claimed by the defendant. The plaintiffs proved that Alexander Mar tin died in 1810, and before his death in a conversation with Robert Mabe, told him that he should not be interrupted in his possession during his life, and that afterwards Robert Mabe in a conversation with one James Martin, enquired of him, if he remembered the promise of Alexander Martin, stating as a reason for the enquiry, that Rogers threatened to sue him for the land.

Amongst other witnesses offered by the defendant, in proving his case was one Shelton, who had intermarried with one of the daughters of Robert Mabe, but was not a party to this suit. The examination of this witness was objected to by the plaintiff’s counsel on the ground of interest, but the objection was overruled by the judge, and the witness was examined.

Amongst other grounds taken by the plaintiff’s counsel it was insisted that the conveyance from Gibson to *184\yas fraudulent and inoperative, because Mabe pretended to hold under Martin, and so holding, obtained the u deed solely to give himself a colorable title, within the* statute of limitations.

The Judge instructed the jury that it was their duty to ascertain whore the lines were, which were made by the surveyor, and intended to, be described in the grant; that in ascertaining these boundaries there was several rules relied on as guides to assist them, but those rules were not fixed principles of law conclusive on them, but if there was another guide equally certain, or more certain, they might found their judgment on it. That when a grant called for natural boundaries, these 'should govern notwithstanding any variance from the course and distance — and so. of-marked lines and corners made at the time of. the survey ; but that where neither natural objects nor marked trees were called for, the grant should be located by the course and distance specified. That in this case, as the river made a curve between O and R, the description “ west up the river, to a stake, and then north',” was uncertain, and it was for the jury to ascertain whether the first corner was at B, or on the line opposite to B at S, and that in determining this they Avere at liberty to take into consideration thedistanc.es as proved, and their accordance with the calls of the grant.

The Judge further intimated the jury that if Robert Mabe and his heirs had been forty or fifty years in quiet and peaceable possession of the land in dispute, claiming and ’using it as their own, and his entry covered it, the jury might if they thought proper, presume that a grant had issued on the entry, and if they found it bad issued before the §th November, 1/95 they should find for the defendant — that in connection, with the length of possession they might take into consideration the preferable right of Robert Male, to make an entry including his improvements — that he had made such entry,prosecuted his right till in 1799, all obstruction to bis obtaining a grant was removed.

The Judge further instructed the jury that there was no coloroftitlc until the deed from Gi&son to Robert Mabe, which *185was a sufficient color of title although the jury should believe from the evidence that it was obtained for that very purpose. That in order to make the possession held under the deed operate to bar the title of the lessors of the plaintiff, it must be a possession as owner and adverse to the right of Rogers, and hence that if Mfibc entered as the tenant of Rogers and held over, his subsequent possession would not become adverse until he did some act to change its character.

The jury under these instructions found a general verdict for the defendant, and the plaintiff appealed.

Hogg for plaintiff.

Winston for the defendant.

Huitín, Chief-Justice

The point principally argued in this case, is made upon the instruction of the judge who tried the cause, that the jury might presume a grant to the defendants ancestor.

The case upon which the instruction was given appears in the record to be this. Robert Mabe about the year 1763, settled on the land in dispute, which was then vacant and wild. He built houses, and opened a considerable plantation on it. After some time he removed to another place in the immediate neighborhood ; and then back to his former habitation; since which time, ho or his children, have continually occupied this land. The precise periods of those respective remováis are not stated; which is to be regretted, as it is embarrassing to decide a question of this kind, upon general allegations. But it was certainly anterior to 1794, that Mabe went back, and probably several years before; because there is no evidence that any body else ever occupied, and at that time the plantation which he had in cultivation was an old one, and appeared to have been cultivated many years, Indeed it is to be inferred from other parts of the case, that he had returned, and was in actual possession in 177 b, and had been for seven years. In 1778 he made an entry of tfie land, to which Alexander Martin put in a caveat; which he withdrew in May, 1779. A grant to Rogers issued in 1795, ■which covers part of the land claimed by Mabe, *186and purports to be founded on an entry made by Jl. Martin, and assigned to Rogers. The date of .Martin,g entl.y> or 0f the assignment of it is not given; nor are the grounds of his caveat stated.

On the part of the plaintiff there was evidence, that prior to 1810, (but when does not appear,') Martin promised Mabe, that he should nor be disturbed during his life; and that subsequently Mabe asked a witness, whether he remembered it, assigning as a reason for wishing to know, that one of the lessors of the plaintiff threatened to sue him for the land;

The court instructed the jury, that if Mabe and his heirs had been 4Ó or 50 years in peaceable possession, claiming and using the land as' their own, the jury . might, if they thought proper, presume a grant to have' issued on the entry made by Mabe, and that if they found it to have issued before the 5th of November, 1795, (the date of the grant t(rRogers, J they ought to find for the defendant.

It is contended for the plaintiff, that the ‘judge erred in thus leaving the case to the jury; first, because there . Was not sufficient in the evidence to authorise the presumption, that a grant had in fact issued; secondly, that the judge did not qualify his instruction by any. reference to the transactions with Alexander Marlin; and.thirdly, that the jury should have been told, that they could not act on the presumption of a grant, unless they were satisfied, that it was in fact made.

The. objection has been argued as if tlie court had directed the jury, that they ought to make the presumption. But that is neither the tenor iaor the meaning of the direction. Upon its face, it leaves the question, as being purely one of fact, to the jury. They were informed, that they might presume the grant, if they thought proper; which is an instruction, to find according to their belief of the truth of the case. The court did not state the effect of the'circumstances, if found by the'jury'to.exist, as grounds of presumption; but left those circumstances themselves, if established to their satisfaction, as evidence to the jury,, upon which they *187were to make their own inferences of fact, according to the intrinsic weight, to which, as circumstantial' proof, they might, in their judgment be entitled. Substantially the court only said, that if the jury presumed, from the possession of the kind supposed, a grant to Male, tli.ey might find for the defendant, although the grant was not produced on the trial, nor the loss of it accounted for. Upon the charge, the verdict must therefore be considered as finding, the very fact.. If that be upon insufficient evidence, this court cannot correct it; for that was-thc fault, not of the judge, but of the .jury, unless there, was no evidence upon which the presumption of the fact-could arise. That has npt been, and could not contended. The evidence certainly tend-ed to establish the'fact.

If the court did not give a wrong construction in point of law, the omission in the summing up, to draw the attention of the jury specifically to a particular circumstance, as a part of the evidence, is not an error for • which the judgment can be reversed. If a more-particular notice of it was material to the party, he ought to have prayed it. But the judge did substantially comply with the requisitions of the plaintiff. He stated to the ju-' ry, that the possession,, to be a ground of presumption with them, must be found by them, to be quiet and peaceable, and on a claim and use'of the land as the party’s own;, which directly presented the enquiry, whether the possession was adverse or was derived under Martin’s title, as an'antecedent one. In this view of the case, there is no.ground of complain thy the plaintiff"; because the improper inferences of the jury are nqt the subjects of review .here; and also because the judge left the case to the jury, much less favorably for the defendant, than it' seems to us, be might have done.

It would perhaps be sufficient if the court were upon this point to leave the case here, But as. there is to be a new tidal upon another ground, and the jury might not draw'again the same conclusion of fact, it is deemed proper to terminate this litigation, as far as the expression of our. opinion upon the nature and effect of *188f,)te presumption upon this evidence, will liave that effect.

The doctrine of presumptions Rmndationstated!

that ^1’8 11 °t a case in which the jury gj}0Uj(j j)avo jjeen †0](]? that they might presume a grant as founded upon their belief that it issued ; but should have been told, that they ought to presume it, unless from the other evidence they were satisfied that a grant did not issue.

In this State, time does not as yet constitute a title, which can be stated in pleading, to be such by prescription, unless it be of that peculiar kind created by statutes limiting actions or rights. In all other cases it is evidence. But its weight is different according to circumstances. Long possession is naturally evidence per sc, that it is adverse to the rest of the world, and on a claim of right, and by consequence is pregnant proof of the right. A right thus shown is prescriptive in its na--ture. But as the common law recognises but one manner of prescription, and within, that no case falls unless the right has been enjoyed beyond the memory of man, it has, since that idea of prescription was adopted, been found necessary and absolutely necessary, to allow to long possession, though within memory, a force and effect proprio vigore, by which certain inferences of fact are considered to be established upon a general principle, without Waiting for those who ordinarily try facts, to announce that they really make that deduction of fact, from the possession as evidence of it. The rule has been so long acted on that it is now settled. The court does not act upon the presumption as conclusive, but as being the next thing to it. The jury is directed that they ought to consider the fact that may be presumed, as existing unless the contrary be proved. The rule is founded partly upon the supposition that one man will not usurp the rights of another; and if he should, that the other will become cognizant of it, and seek to resume them, and ought to do so before the usurper has expended his substance, and employed his life in improving an estate which is to be taken from him. But it chiefly rests upon the consciousness of all human tribunals, of the imperfections and inadequacy of their capacity for ' *189the investigation of remote transactions ; touching which satisfactory conclusions can seldom be arrived at, as being the real truth. Of the proofs, many even of those in writing, will in the ordinary course of events be lost. — ■ Of the w itncsses, most must be dead ; and of the survivors the relation is not received with confidence; for it has not the ordinary claims to crddence. It is given, when from the decay of the faculties, the most upright man may deceive himself as to his recollection; and one without integrity may safely deceive others, because there is none to contradict him. Public policy forbids all enquiry into such transactions ; if upon the enquiry, rights are to be adjudged only as they are shown by affirmative proof to exist. Hence the necessity for presumption ; and to derive utility from it, any thing and every thing is presumed in favor of him who has had a long possession and exclusive enjoyment, and against him who seeks to disturb it; and this as a matter of right reason and moral certainty.

In Reed v. Brookman, (8 T R 159,) Mr. Justice Bull-' er said, that for two hundred years past it had been considered that grants, letters patent, and even records should be presumed from mere length of time. An instance of presumption from time is familiar to every student* upon the issue of payment at or after the day, in debt-on a bond. There are many cases, and the more numerous as we come down to our own times, in which the doctrine has been discussed and applied to the rights of property, both incorporeal and corporeal, at law and in equity. Examples are the bars of twenty years in suits for foreclosure or redemption of a mortgage; which, to be sure, is said to be in analogy to the statute of limitations. But the period is not fixed by law,- and in all cases, as was said in Ricard v. Williams, (7 Wheat 109,) the period deerded sufficient to raise the presumption in cases to which the statute does not apply is that fixed by the statute in cases of the like kind to which it does apply. It is manifest that the rule is nugatory, unless the necessity which calls for it, authorises the courts, in proper cases, to lay i,t down, and the jury to respect it as *190a rule of the law. In the cases just adverted • to, it lias been so adopted. It is applied as a .professional presumption to an existing, controversy, as one of a class of cases, rather than given in as circumstantial evidence-to the jury of the actual fact in each case. In Elbridge v. Knott, (Cowp. 215,) Lord Mansfield not only said that a grant might be presumed from great length óf possession, but that in many cases the court had told the jury, they should presume it, or any thing, to support a long possession and this not upon the idea that the jury believes, or .that the court thinks that they ought in the particular case to believe, that a grant had been made; for it is not probable that it was made; but the fact is' presumed from the principle of quieting possessions.— And in a case before Lord Erskine, in which-lie treats on the effect of time, he declared that he did not act on it as raising a direct presumption of • the fact from it, as evidence of the fact; but took the presumption, that might be made, for the fact, not because it proved the fact but because the fact could not be proved. The weight of evidence is estimated then, not by its influence over.the minds of the jury, but- by a rule which has become a part of the law ef evidence.

It is well established in England. In this country it is not so familia?, and especially in this State. Our origin is so recent, that there has been seldom an occasion calling f-iv the application of the doctrine, more especially as the sales of land here are so frequent, that almost every possession is clothed with a deed, w.liicli renders a possession of seven years a conclusive bar against individuals,- or one of twenty-one, against the State. But we are not without cases upon this subject. Several were cited-at the bar from the-courts of Ñew-York, and that of Ricard v. Williams (7 Wheat. 59,) Pipkin v. Wynns, (ante 2 vol. p. 402,) recognizes it in this State, and adopts the rule as that of the law. At this term in the case of Wilson v. Wilson, (ante p. 154,) this court approved of. a direction • from the court to the jury, to presume a grant of an easement from a possession of twenty-years or more-. The. act of 182b (c. 28,) is a legisla-*191live authority, that these are legal presumptions, and to he regarded with favor. That act treats some of the established presumptions from time, as rules, and proper ■ rules of law; and, without rendering them more concilia sive in their nature, strengthens their operation by shortening the time necessary to raise them. I do not perceive a difference between corporeal and incorporeal • things in this respect.' But it. has never been considered here, that the short period prescribed by our statute of limitations, was sufficient per se, to raise the presumption; for there can seldom he .a difficulty in. giving evidence,' either director bearingcvitli ordinary certainty,on events occurring within 'seven or eight years.' Twenty'years seems to be a reasonable-time, and as short as should be taken as the basis of the presumption against iridividu-.als ; but I think that ought to be sufficient, and without saying wh'at period exceeding twenty-one years, riot accompanied by color-of title, might.raise it against the State, certainly the length'of possession in this case,must be sufficient if any be. Upon the instruction given, it must be assumed that the apparent chasms' in the occupation •were satisfactorily filled up to the jury, and. the periods of • the removal of Mabe.so explained, as to leave a clear and. continued occupation of upwards of forty years, and plain and consistent proof relating to so remote a transaction is not to be expected. But from the dates given, if seems to have been for sixty-three years, . with the exception of the one interval of his removal.' In such a case the presumption ought to stand unless it •be clearly rebutted. The court leans to the presumption, and requires the evidence offered to repel it, to show the fact to be.otherwise. There is much to strengthen, it in the other facts. The land was vacant'when Mabe settled on it. He entered it, and the purchase money was . then payable-to the .entry.taker. Apparently then-he was entitled to a grant, and entitled to it not only as •against the State, but also in preference to all other persons. None contested it but Martin, and the ground of his caveat does not appear! But to take it most strongly. for the plaintiff, it ipiist be supposed, as -no-actual pos--*192session is shown in Martin, that it was founded in a for-me). 01)^,,y ju /j0r(i Granville’s office, or a prior one in t|10 state’s office, under the provisions of the entry law 0f 1777 ; which did not determine which amongst these several classes of claimants should be prefered. But the act of 1779, which passed in January of that year, provided that the preference should be given to the settler. who had been in possession for seven years, of land within the entry of another. The retracting of the caveat immediately after the passage of the act is evidence of the recognition by Martin, of the superior right of Male, as founded on a prior and adequate possession. Make then entered under the State and not under Martin, held not merely by the acquiescence of Marlin, but against him, and against his will.

If indeed Male’s entry had been upon Martin’s title, or upon a right in himself consistent with the title of Marlin, as an antecedent one, and that no vr asserted by the plaintiff adversely to Male be the title of Martin, there, would be nothing in the case on which the court could say there was a presumption of a conveyance from Martin or Rogers to Male. In a case of that kind an actual conveyance must be shown, or presumed by the jury; and there ought to be evidence that at some time the possession became adverse, and was thereafter so long continued, as to induce the actual belief that there was a subsequent deed. Such was the case of Doe ex dem. Fenwick v. Reed, (7 E. C. L. R. 79,) cited for the plaintiff. The defendant claimed by assignment from a creditor of the former owner, who entered into possession under an agreement with the debtor-, that he should hold the land until his debt was paid. The title deeds were retained by the former owner, and the agreement proved and the family of the debtor had, upwards of thirty years after the agreement, paid ecclesiastical dues which exonerated from tytlies the land in the hands of the occupier. The origin of the possession was unequivocally upon the title then vested in the plaintiff, and for a. particular estate, and that possession could not be set up as a presumption that a conveyance had been subse*193quently made in fee, without showing some fact that would make it adverse a great while before, and also a continuance of it, after that, for such a length of time as would induce the jury to believe that a conveyance had been actually made, which belief was the more difficult in that case, because the necessary conveyance to pass the fee was a fine, of which every memorial was not likely to be lost.

But in this case the origin of the possession was entirely different — not connected at all with Martin’s title and held against it. in such a case, even if the transaction with Martin was before his assignment to Rogers, it would be difficult to allow any operation to it, unless it was proved in such terms as would clearly give it the character of an attornment, which seems altogether incredible as being entirely inconsistent with the contest on the caveat, and the result of that proceeding. It would rather seem that what is called the promise of Martin was the vaunt of a vanquished man, who did not like to acknowledge the victory of his adversary, than the ac-knowledgement of Male that his title was inferior to his adversary’s. If however the period of the transaction had been fixed and the jury could infer from it, notwithstanding the evidence of record, that Male clearly recognized Martin’s title and therefore took no steps to complete Iiis own, then it would have been a question of fact for the jury, whether a grant had subsequently actually issued to Male, or whether Martin or Rogers had conveyed to him. But the plaintiff in the case made by him could not ask benefit from that principle, because it does not appear that the promise of Martin was made prior to his assignment, or had any connection with the title now vested in the lessor of the plaintiff. For the want of that there was nothing to repel the presumption, and it ought to have been laid down to the jury unqual-ifiedly as producing a legal inference, that a grant had issued to Male on his entry made in 1778, or on some other. It is the opinion of the court therefore, that in the instruction given, there was no error as against the plaintiff.

*194Construction of tlie calls in the ffrant.

This opinion would render it unnecessary to consider the exception to the charge of the Judge upon the question of boundary ; because the jury did not find their verdict upon that part of the ease, as appears from the verdict being generally for the defendant, although the patent to Sogers, under any construction of it, covers a part of the land claimed by the defendant. But as there is to be a new trial upon another point, it may be our duty to decide this point also, for the purpose of narrowing the controversy upon the next trial.

We have no difficulty upon the construction of the patent, and must say that our opinion does not concur with that of the Judge of the Superior Court. If the call of the grant bo for the river, it is a settled rule that the river is the boundary. The words are “ thence west up the river 220 poles to a stake,” which the Judge considered uncertain, and therefore left it to the jury to presume that a line was actually run according to the course ; and in substance, instructed them that such line, if found by them to have been run, was the boundary. There was nothing shown here as marked trees on the line, or at the corner, to control the calls of the deed, nothing but a stake being called for. The course and distance therefore, upon legal principles must govern, if there bono call for another object, and so the jury should have been instructed. But if there be a call for the river, upon the like principle, the instruction should have been that the deed extended to the river. The court considers it settled upon authority, that “ up the river” is the same as “ along the river,” unless there be something else besides course and distance to control it. In Hartsfield v. Westbrook, (1 Hay. 258,) “ thence down the swamp,” was held to mean “ along the swamp.” In that case no course was given, and for that reason, the argument was that a direct line from the corners called for in the deed was the boundary, but it was held otherwise. But in Smith v. Auldridge, (2 Hay. 382,) the decryption was ‘thence, south 50 degrees east down the creek to a white oak,” and the question was whether the creek or a straight line from the white oak to the preceding corner was the *195boundary, and it was held the former. We believe that these cases have since governed many others. These words might possibly be controlled by a call in the grant for a line of marked trees, or a visible and permanent marked corner, as a stone or a tree, found and identified, and not standing on the river ; as that might show that they were used only to denote the general direction of the line, subject to the restriction rendered necessary by the specific call for oilier permanent termini found to be up, but not on the ri ver. Upon the face of the deed, and state of the evidence, the river is the boundary by the judicial exposition ; and the Superior Court erred, as we think, in not giving it to the jury.

Color of title depends not on. the purpose, of taking a deed but on its apparently conferring an estate on the pop-sessor of land.

A further exception is taken to the opinion of the court upon the operation of the deeds from the Sheriff to Gibson, and- from the latter to Mabe. It is contended that they do not constitute color of title ; because there was no change of possession, ami because they were taken in fraud of Martin, under whom Mabe held.

Those deeds it is true, could not change the character of the possession, as between landlord and tenant. But that is a very different question from the present, which is, whether they exhibit a colorable title, so that if the possession was adverse, they would denote that the possessor had some estate on which his possession was grounded and not a mere naked possession. If one in possession take a deed in fee, from another who has no right, that is a colorable title, which apparently au-thorises the subsequent possession. If indeed he was the tenant of another,; the deed would not per se, as between them, operate as an ouster of the landlord, or make the possession of the tenant adverse. Still there would be a color of right. But this is not a mere continuance to get a proper title ; at least the court is not at liberty to consider it so upon the facts stated. It may be argued, that as no money was paid by Gibson, the debt for which the sale was made was not a true one— But that is not stated to be the fact: and it may well be that it was and that Gibson, purchased as the friend of Mabe to give him time to raise the money, and that he *196¿id raise it himself and satisfy the creditor. That would rebut every imputation of fraud, and the deed would then be a plain declaration to the world that he claimed the fee< The Superior Court held that the Sheriff’s sale was color of title only from the execution of the deed. To that extent at least we think it must be carried— Whether the deed when made, did not by relation constitute color from the sale, as it constitutes title from that time so as to overreach, an assignment of dower subsequent to the sale, is a question upon the affirmative of which much might be said. Connecting the deed, the execution, sale and return of the sheriff together, they would seem at least as plausible documents of title, as those enumerated in the first section of the act of 3 715, and that of 1791, from which we get our ideas of color. But the case does not call for a decision of the question, and therefore it is left to be further considered.

Compotoncy of one tenant, in neaTfor biseco-tenant,

We think the deeds are color of title. It results from this opinion, that all the lessors of the plaintiff, except the infant, are barred by the statute of limitations; and upon the authority of Hoyle v. Stowe, (ante 2 vol.p. 318,) as there is but one count, upon a joint demise, the plaintiff could not have judgment for even the infant’s share. It appears however in the record, that the plaintiff obtain-e(^ ^eave amen(i the declaration upon payment of costs, and we presume it was in this respect; which prevents ^10 coul't from affirming the judgment on this ground,

The only remaining exception is to the admission of the witness Shelton. The point to which he was examined is not stated, and therefore there must be a new trial if he was incompetent for any purpose. We think he was incompetent. He married a co-heiress with the defendant, who claims the .land, and is in possession as heir of their father. There has been no partition, and the wife is not stated to be dead, and is therefore taken to be living. The witness and the defendant are then tenants in common, and the latter is the tenant in possession, and the plaintiff claims the whole land against both.— The ground upon which the Judge admitted the witness is, that he was not a party to the suit. But there arc *197many cases in which persons not parties in ejectment, are not competent witnesses. He who is bound in a .warranty to one of the parties cannot be a witness in sujiport of the title he is to make good. Nor can a land - lord testify for his tenant. Nor we think, one tenant in common for another. They are all interested in the event of the suit, and not barely in the question. The possession of the defendant is prima facie that of the witness, and the recovery in the action would change the possession, and put out the person upon whom the witness has a right to call for an account as his bailiff. For this reason and for this alone, we think the judgment must be reversed and a new trial granted.

Per Curiam — Judgment reversed.