#### DEN ex dem. DANIEL MATTHEWS et Uxor v. JOHN SMITH et al.

Where a mother and her illigitimale children resided upon different parts of the samo tract of land, the latter, under a parol agreement for a conveyance from their mother, subject to a life estate in her, their respective possessions are consistent with her title; and however long continued no presumption of a deed arises from them.

Any disability in the owner is a circumstance to repel the psesumption arising from long continued possession, although such disability may have arisen since the commencement of the possession.

This was an action of ejectment, tried before his Honor Judge Pearson, at Rutherford, on the last Circuit.

The- lessors of the plaintiff deduced title in the feme lessor, as one of the heirs at law of Catharine Bailey, who purchased the land about the year 1800, and lived upon it until she died intestate, in the year 1811, leaving three legitimate and several illegitimate children. Of the legitimate children the feme lessor was one, and the other lessor had intermarried with her some time before the death of her mother.

The defendants set up title under a purchase made in 1833, from Augusta Bailey, an illegitimate son ,of Catharine Bailey, of a part of the land in dispute. For the defendants, it was proved, that the land, when purchased by Catharine Bailey, was in woods, and that she contracted verbally to convey to Augusta,- and Martin Bailey, another illegitimate son, in consideration of improving the land, erecting buildings thereon, and supporting her during her life; all which they had done: and further, that they had settled and lived upon parts of the land. It was also proved that Catharine Bailey, while on her deathbed, expressed a wish that a small part of the land should be set apart for a helpless daughter. The defendants then proved that, soon after the death of Catharine Bailey, her children, including the lessors of the plaintiff, met on the land, and divided it between Augusta and Martin Bailey, except twenty-five acres which they allotted to the helpless daughter; and that the lessor, Daniel Matthews was the most active in making the division. Augusta Bailey continued to occupy the part assigned to him, till he sold to *288the defendants, when they took possession,'and retained it until the commencement of this suit; and that from theyear 1800, the lessors of the plaintiff lived in the-immediate neighbourhood of the premises.

For the defendants, it was contended, that from the length of time and the other facts proved, the jury might presume a deed from Catharine Bailey, to her sons. Augusta and Martin; and that as the presumption in favour of the deed had commenced during her life, it was not impeded by the coverture of the feme lessor. It was also insisted for the defendants, that as the lessqr, Daniel Matthews, was present at the division of the land between Augusta and Martin Bailey, and took an active part in •making it, that the lessors were estopped from setting u,p title during his life.

His Honor charged the jury, that when a man held possession of land for many years, claiming and using it as his own, a jury might, in the absence of other proof to. repel it, presume a deed; but that in the present case, during the life of Catharine Bailey who lived on the land,, neither the length of time, nor the possession of her sons, was sufficient to justify the presumption of a deed. That, the. feme lessor being, at the death of her mother, under coverture, and continuing so till the commencement of the action, was a circumstance to rebut the presumption which might otherwise have arisen,.because the coverture put it out of her power to sue, unless she could get the, assent of her husband. That the position which had been, relied on, to wit, that a presumption which had commenced running, continued to do so, notwithstanding a subsequent disability, could not be supported. That such was the rule adopted as the statute of limitations, but it. did not apply to the doctrine of presumptions. His. Honor also ruled, that the fact of Daniel Matthews having assisted in the division of the land was no estoppel to bar a suit in his lifetime. The jury returned a. verdict for the lessors of the plaintiffs; and the defendants appealed.

D. F. Caldwell, for the defendant.

No counsel appeared for the plaintiff.

*289Gaston, Judge.

We do not perceive that any error has been shown in the charge of the judge to warrant a .reversal of the judgment rendered for the plaintiff in the Superior Court.

The entire tract of land, of which that in controversy is a part, is admitted to have been the property of Catharine Bailey, to whom Frances Matthews, the feme lessor is an heir at law. There is no circumstance.during the life of Catharine Bailey, raising, or tending to raise, the presumption of a conveyance to her illegitimate sons, under one of whom, the defendants set up title. It is true, that while she lived, these sons were settled on the tract, and made improvements thereon, but their mother, who held the legal title, resided thereon,also. There is not only na evidence that their possession was adverse to her, but the evidence offered by the defendants shows that such possession was consistent with, and in subordination to her title. At the time of her purchase of the tract, she had promised, if they would improve the land, and support her during the residue of her life, to give the land to them. No time was named for the execution of this promise; and unquestionably, she had the whole of her life to perform it in. An occupation by the mother and the sons, taken after this purchase and promise, and continued during her life, must be regarded as one, in assertion of their respective rights; that is to say, by her as the owner of the land; and by them, under the assurance that they would become its owners. The declaration on her deathbed of a wish that a small part of the land should be set apart for a helpless daughter, is not easily to be reconciled with the supposition that she had actually conveyed the whole of it away.

Soon after the death of Catharine Bailey, the possession of these sons became adverse to the title of her heirs at law. The heirs met on the premises, and after alloting twenty-five acres to the helpless daughter, divided the residue of the tract between the illegitimate sons. But at the time of this division, the feme lessor was under coverture, and has since so continued, up to the institution ' of this suit. If, therefore, the presumption arising from *290adverse possession long continued, is to be regulated, as'the counsel for the defendant insists it should be, in precise analogy to the provisions of the act of limitations, the presumption cannot, be raised, because Mrs. Matthews was under disability during the entire period of such adverse possession. But we do not adopt this position in extenso, or without qualification. Presumptions of the kind no.w under consideration, are indeed, principally, but not altogether artificial presumptions, drawn by the law itself, in advancement' of certain principles of public policy and convenience, but they are also in part natural presumptions of mere fact. As legal presumptions, they are the means or instruments by which Courts are enabled to extend the requirements of statutes or positive rules of law, to cases falling within a like mischief, but. not within their express operation; and thus considered, their extension is very properly governed by the analogies of such express requirements. But as presumptions of fact, they must necessarily be open to the influence of all collateral circumstances, tending to confirm or repel the fact sought to be inferred. Thus it is clear, that a forbearance to require payment of the principal or interest of a bond for twenty years after it becomes due, raises a presumption that it has been paid ; but this presumption may be raised by a forbearance for less than twenty years, combined with other circumstances, rendering the inference of payment probable ; and the presumption raised by a forbearance for twenty years may be repelled by evidence that the debtor, had not the means or the opportunity of paying. Fladony v. Winter, 19 Ves. Jun. 196.

The objection of estoppel has not been pressed here, and for obvious reasons cannot be sustained. The judgment is affirmed with costs.

Per Curiam. Judgment affirmed.