#### Den on the demise of Andrews v. Mulford.

Win re two patents or grants boar date on the same day, the number of the patents or grants must determine their priority. No possession except an actual one, by the claimant himself, or his tenant, commenced bona fide, under a patent or grant, adverse and continued for seven years, will give title under the act of limitations_ Wht n the act of limitations once begins to run, none of the impe- . diments mentioned in the act, will stop its course.

Ejectment. Andrews had lately purchased a tract of land of the heirs of Mr. Waddle., the patentee. Mu'ford deri'ed his title under Spikes, the patentee of an adjoining traer. He proved the beginning of Spike’s tract, and every line and corner mentioned in the patent, and located that tract beyond doubt. Jlndrews proved that a line called Waddles line, was seen when recently made, many years ago. by one of the witnesses on the other side; which line included a part of the land comprised in Spike’s patent; and this lire had been acknowledged in conver-, sation since, by Spikes, it. was also proven, that Wad- *359informed Spikes mas.y y or. rs ago, that that was his ]1))e> Both Spikes’ and li addle’s patents were datad on the S'tne day — Waddle’s was numbered with the number 4, and Spikes’ with the number 73 ; but Spikes’ ¡survey was made severa! months before Waddle’s. Spikes used this disputed part of the land, with the other part included wiihi'i ¡lie lines of his patent, very soon after it was issu. d, by keeping his cattle upon it; and continued to use it as a range until the year 1770, when he took actual possession in person. About the beginning of the la'e war, Mr. Waddle moved to Europe, carrying with him his two sons, infants of .very tender years, who returned and Came of age within three years previous to the bringing of this suit, which was commenced sometime in the year 1794. Spikes purchased his location of t!ir- land from a man who had built an hut, and lived upon it s veral years, intending to enter it in the land-office prior to the time of Spikes’ entry.

Counsel for Andrews.

The whole of the present controversy may he reduced to this — whether Spikes’ or Waddle’s is the preferable title. The evidence proves that tba land in dispute is included within the description of both patents — according to the common phrase, one. patent laps over upon the other — the line as laid down in the plat be-f°,e ^,e cou,,t* ve,,y probably may not be a true representation of the line actually run; but it is inconte-tibie, that there, was a line run ami marked as a boundary of Waddle’s patent, of the same course with the line there described. It is equally incontestible, that this line intersected the boundaries of the other patent. It was seen within these boundaries by one of the witnesses, who carried the (bain in surveying of Spikes’ tract. If was mentioned to Spikes by Waddle afterwards, and described to bt within these boundaries ; and Spikes gave as a reason wl-y he would not place his house near his boundary line towards Waddle’s tract, that Waddle’s line would take it in, it running some distance within the lines of his. Spikes’ paten*. The beginning part of Waddle's line that intersects the lands contained in Spikes’ patent, is a córner pine called for in the patent — but it is said, and pirhi.ps proven to be a corner of another tram — that, is no proof of I is not being also a corner of Waddle’s tract. It probably is so from this circumstance, that the other line terminating at this corner, is a marked line of the *360saíne course with that of Waddle’s. This line is said to be continued much further than the length of Waddles line will reach. It is useless however to labor this point» for if it be true that the line of Waddle’s -patent,-described as running from the pine to the swamp, be the line seen bv the witness ami acknowledged by Spikes, it intersects Spikes’ boundaries, atid rets off from his tract almost all the land we have sued for ; and that it is the line of Waddle’s patent, is sufficiently established by the evidence.

The next thing proper to he considered of, is, the date of these two patents, ami such other circumstances as may <serve to gite the one of them a preference to the other. The point of preference must be settled before it can be decided, which of the two litigants is entitled to the land in dispute. These patents are both dated on the same day- — ours was first numbered, though theirs was first surveyed. Heretofore priority of date in patents hath always been held in our courts to give preference of title. He who made the latter entry and latter payment of money, may have procured the first survey. A man entitled to preference in every view of justice, and who has paid his money, and made his entry, and hath been for some time perhaps settled upon the laud, and improved it, may have his survey postponed tosui* the convenience of the surveyor, and the survey he first made upon the other’s claim, inferior in every respect. The «urvey or any other proceeding prior to the grant, is no part of the grantee’s title — tuese are only preparatory steps towards obtaining that which will give a title — the grant is the only evidence of title that the law recognizes — should the first survey he made the criterion of preference, it would beget the utmost confusion — many olo grants have no plats annexed to them, and- none were ever annexed —there is no record preserved of the tune when the surveys were made — what decision shall be given in cases thus circumstanced ? Or what merit is there in a claimant getting his land first surveyed, more than there is in getting his grant, the complete evidence of title, first perfected ? There might indeed be some justice in saying, that iie who first made his entry and paid his money, should be entitled to preference j but i» this there would be very great uncertainty. The first entry and payment of money, might be aimed directly against the claim of a man who bad settled and improved, and who under the *361 existing laws was entitled to a grant preferably to any other. Add to this, that there never has been preserved any record of these entries. Without investigating the reasons of the rule orginally, it will be sufficient to say, that the priority of date in the grant, is the true criterion of judging which of two patentees has the best title, without regard to the, time of any other transaction. This rule has been so long and so firmly established, that it is known to every one to be the rule which hath always prevailed in our courts. If then the grant first issued be entitled to preference, when there are two grants for the same land both dated oil the same day, we must necessarily lay hold of some circumstance, the strongest tha' presents itself to turn the s^ale. Our grant is numbered with the number 4, theirs with the number 73, from whence the presumption is, that they were issued and registered by the Secretary in the same order in which they are numbered, and consequently that our grant was first perfected. ' The numbering them at all can he intended for no other purpose than that of shewing which w as first issued.

It will be argued, that we were never in actual possession of the land in question, nor of any part of fire tract of which the land in question is a part — this must be admitted. It will also be insisted, that the possession of the person who made an ax-entry, as it is called, added to the possession which Spikes had by his cattle, previous to the time when he took actual possession in person, is sufficient under the act of limitations to perfect their title and destroy ours. As to the possession of the ax-enierer, that was without any deed or colour of title. It was a possession of vacant land, and all the, right it could confer was a right of preemption perhaps. It receives no strength from the act of limitations, which was never designed to operate upon a possession of vacant lauds; and siich right of preemption was subject to be lost, if not exerted within a reasonable time, defined by tlie existing law. No length of possession could ever give a title to vacant lands, either before or since the Revolution ; because the maxim with respect to the lands of the King was, nullum tempus occ.umt; and therefore so far as regards the act of limitations, the possession of the ax-en-„terer, is tobe laid out of the consideration of tins case, as being of no avail whatsoever. As to thopossession which Spikes had by his cattle, that commenced in the latter *362part of the year 1763, or the beginning of 1764, wore not full seven years even of 'ii.it possession, previous to Mr. Waddle's departure to Europe; and besides during that time, Waddle passed through the land, and informed Spikes of his claim, so that it was not a quiet and peaceable, but a disputed possession. But what is a more complete answer, is, that the keeping of cattle upon lands, is not such a possession as tno act meant to ripen into title. Co. LilL 48 6. 2 Rep. 51 b. Such possession cannot be computed under the am of limitations, and if neither the possession of the ax-enterer, nor of the cattle, will serve them, neither will any such po«s< ssiort as they have proven subsequent to these, avail rhetn_ Spikes, and those claiming moler him, had actual possession only three years before she discontinuance of mtr Superior Courts in the year 1773; and soon after that period, Mr. Waddle went to Europe and died there. His sons did not return until several years after the war, nor came «f age till just before the commencement of this action. The act of iimitaTions expressly provides, mat time shall not he computed under that art, in favour of a man in possession, and against him that is out of it ano beyond seas, till after eight years; nor against an infant till after three years from his arrival to the age of twenty one years. Besides that, toe time elapsed between M srch 1773, and the fn-st day of June 1784, is struck om * f the computation of tune under the act ol limitations. Then all the time that can be computed in the present case, is, the time elapsed between the actual possession, and the time of Waddle's going to Erigían 1 — a space of about three years only. Possession therefore, in any way in which tiny have proved it, will avail them nothing; and this case must be decided, as it would have been'before any possession commenced, immediately af’er the issuing of the two grants. Om- patent, for the sea-o.is before given, is entitled to preference and die Plaintiff to recover.

E contra

it w.is argued by General Davie for the Defendants — No doubt can be entertained but that the land described in our patent, is the same land we now claim. The. beginning and each line is proven by the chain carriers present at ihe original survey, and also at the survey lately made by order ot this court; but it is extremely doubtful where the Plaintiff’s land ready lies— they have proven no beginning, nor any Une which they *363g}ly jg the boundary of their land. They have indeed proven the existence of a pine, marked as a corner tree, but the coui-^e of toe line from thvnce to the swamp, though it will intersect our land, includes much more land ¡han the line they have attempted to prove. The lim which the witness speaks of, was a plain marked line. The line ¡aid down in the plat is not a marked line. There is not a single marked free in it or near it. It is very probable that this pine is not a corner ni‘Wad-dle’s land. The evidence says it was a corner of an adjoining tract. If the course, leading to that pine he reversed, it will indeed be the course mentioned in Waddle’s patent, hut tin* evidence says it is the line of an adjoining tract. The surveyor say*- it was marked when this adjoining tract was suneye-,. Sí ill if may have been Waddle’s line, but it does not terminate at any such corner as < ,,!!(■<! for in Waddle’s patent.; and is continued much beyond the distance mentioned in Waddle’s patent, as being the di dance of the line of that course in the patent. These circumstances render it very improbable, that the lines described in the piat, and now claimed by Andrews, are r< ally the boundaries of Waddle’s land. It is probable enough, that Waddle’s land is somewhere near to, or adjoining this land of Spikes ; but it is incumbent upon them to show a bet.ier title than ours to the land in dis-put**. We have clear evidence that.this land is included within the boundaries expressed in our grant, and unless they can as clearly prove tliat it is included within theirs also, we shall be entitled to retain possession — our evi-de .re of title being not only equal but superior to theirs. In short, they must prove the location of their land, and tha’ it runs over ours, or they can never be entitled to recover. Tic* b'*ing able to raise a conjecture, that, their boundaries do int'wsect ours, can never be deemed evidence soffit lent to prevail against the positive proof of our tide. But let it be granted that their boundaries do reallv intersect ours, if will not then follow that; uiey are entitled to recover. Our grant is dated on the same day with theirs. Even admit the rule to he in general,' that the first gr-ut gives the best title, that rule is easily applied win-'.' tin* grants are of different dates, hut it cannot be ap;¡ *,.'d ■ * tin* case now before’ us.' It is impossible’.. t when of them was first issued. Any rule which pretends to ascertain this, will be, merely fanciful. *364We should depart from ihe genera! rule when it nolonger enables us to decide with certaintv, and we should adopt some other that is most likely to attain justice. 1 kn«w of none hitherto established for a decision of a case like the present, but none seems so likely to effectuate the purposes of justice, as to say where the priority of the grant cannot be ascertained, that the gran'ee shall be entitled to preference, who first purchased and paid f«r the land ; and that this shall be ascertained where the entry is not to be had, and the priority of payment cannot be actually proven, by the priority of survey. The first survey itself forms Some reason of preference independent of any other consideration in favor of the claimant tinder it ■ — he first makes the appropriation of that particular spot to himself — he makes that appropriation notorious, by going upon the land and surveying it, and separating it from the circumjacent lands by visible boundaries. — - These act® make known to the rest of mankind that be hath taken that spot for himself, it is unjust for any other to invade that right afterwards, and deprive him of it either by force or conttivanee. These considerations have considerable weight in a' case circumstanced as the-present is. Where the ordinary rule of decision is found to be incompetent, the rule proposed,' of giving prefer-once to the grant first numb* red, is too vagim. it is impossible to say whether the grant first issued was that which was first numbered or registered, or whether the numbering takes place upon the execution of the grant, or after the execution when the Secretary registers it in his office. If for these reasons, or any other, our grant, is to be preferred, the Plaintiffs'have no title — but if this point be against us, our possession has made us a title ; the ax-enterer was in possession five or six years, then Spikes purchased the location from him, and put in his cattle, and continued that possession till he began to clear and cultivate the land. This possession was previous to what they call the actual possession of Spikes, upwards of seven years, from 1757 or 1756 to 1770, nearly fourteen years ; aed by the act of limitations, seven years possession will give title to the possessor.

Per curiam — Haywood only present — Will it not be proper to consider, w he'her if (he act of limitation1-, began to run from the time actual possession was taken, (which is stated to have been in the lifetime o Mr. Wail-dls, the patentee, and about three years before he went *365f:o Europe) its operation can. be suspended by bis going j)eyond Hea> or by his death, leaving infant heirs.

Counsel for the Plaintiff

General Davie and myself have formerly considered of that question. It is a rule adopted only in (lie case of fines in England — it does not apply to the act of limitations.

Per curiam

The court thinks it is equally applicable in cases subject to the act of limitations. There are many authorities to that effect, and the reason of the. thing strongly supports that position. The court will inform the jury that is the law — if they should find accordingly, and you shell, be of opinion, upon further consideration, that the law is not so, a new trial may be moved for, and the court will hear this point more deliberately argued. ’ The counsel on both sides assented to this proposition.

Per curiam — The first point in order to be considered, is, whether the land in dispute he included within the boundaries of Waddle’s (latent. If it be, then other points will arise to bo considered ; if it be not, then the dispute is at an end. There is full proof that the land claimed, is within the boundaries of the {intent under which the Defendant claims. This is not doubted by any one — it is not disputed by the Plaintiff. For them to recover, it is necessary to show a title superior to that of the Defendant - — their patent is for land lying on (he same stream, very probably for a parr of the land in dispute — one of the chain carriers in making Spikes’s survey some weeks after, saw and shewed to Spikes a line then recently marked, running through the laud contained in Spikes’ patent; and as lie describes it, must have run somewhere between the boundary of Spikes’s patent and the line now described in the plat, and claimed to by the Plaintiffs-tliat line has beep since spoken of, and admitted in conversation by the Defendant. When Spikes sold, hr refused to warrant the land in dispute, because of Waddle’s claim.

1 The court then enumerated the other circumstance given in evidence relative to the coi ner pine, and the other fine spoken of at the bar — and concluded this point by saying, it is not the province of the court, to draw any conclusions with respect to this line, whether it existed, or where it is. Sucli conclusions can only be drawn by the jury. The court only recapitulates the evidence in the presence of the counsel, to assist the memory of fhejury, Rot for the purpose of directing them to lay stróss upon *366tins or (bat part of 'be testimony. S!,imld the court liver ‘an opinion wi’h 'c -p. » r to’tin *n ¡deuce, the jury are only bound by i . should ih: t opinion: coincide with their own, drawn from tb* evidence 1 hey have heard— should flie joey however, in the present case belie-o, diaí Waddle’s putei un-ered the lands in di«r.uf>\ then fhe ilex* circnms'aece Jo be considered is, which >>f-Ivsetwo patents i'- csui’l.-d. to prof.-re nee — Mi<*v boih da. ml on the same.day, Waddle'S is numbered with Hi" mnrth.-r 4, and Spikes’s with ¡he unumerf;; huf Spikes’ survey was made several months hef.ro IVaddle’s. The ride that bath hitherto prcv.rleo s-., !h.«t the- patent or go-mt of the first date shall be pr.Tprred. There is no cf or evidence of title by .ppr-.;prr.itioii of lands. but thst« r die grant. He. who first obtains his grant without fraud, obtains title; and from tiiat moment may exclude all others from the possession, We cannot tie influenced in determining a point of preference, by the- first survey or the first entry, or the first payment of money for the land— any of these circumstances, oral! of them together, make no title — if the grant, does not follow, they sign'd"} nothing — and when it does follow, they cease frotn the moment of its execution to be of any consideration — ‘bat and that only, creates the. title ; and that only is to be consulted where the, question of title arises between different claimants. Supposing ibis rule not to have been founded upon propriety at first, it would' be attend.-d with terrible consequences to alter or impair the force, of it at this day — rules of proper'y where they have once become fixed and known, and *o be generally acted under, should never he bri-kmi in upon, but for reasons of the most urgent necessity, and (lieu only by the Legislature, in such instances, it is of much more consequence that the rule should be certain and mdoHmis, than that it should be conformable t.o strict not}; ns of justice. Should we decide by preferring the grantee who had his land first surveyed, it might perhaps s«r-e ihe purposes of a decision well enough in the present instance ; yet many cases might occur, where the fact of the first survey «maH no* be ascertained: as in the case of old grants issued before the practice of annexing plats began, and in (ases of new grants, where the plat annexed to cither of teem was severed from the grant and lost. In all such i'.-imi-ces, it would he neceas-try to adopt another ride- f-tecision. It is better to follow' one that will answer for the *367decision of all cases whirl» may arise — by adhering to the old rule of preferring the grant fust perfected ; and when they aré dated on the same day. of preferring that e-rant, which from some circumstances apparent on the face of the deed, may appear the best, entúsen it in the present case, it appears in the fare of fVaddk-’s patent, that it was numbered with the number 4, whereas Spikes" was numbered with the number 73 : from whence ¡he. strong presumption is, that Waddle's grant was first completed, and that it was numbered in the same order with respect to the other deed, in which they were severally completed ; and if any other circumstance of equal weight, should appear in the face off he grant, it should have equal influence in deciding the preference, if Waddle's grant be entitled to preference, then it will be necessary to consider, whether Spikes or !hosu claiming under him, have acquired a tille hy possession under the act of limitations. It is urged that the jxmsc-.sior. of. the ax-enterer. as he is called, ef whom Spikes purchased the location, is to he taken in>o compulation : arid next, 'hat the possession which Spikes had by bis cattle, is to he reckoned. We will consider them, separately, and for that, purpose it is proper to state briefly, the true import and intent, of the act of limitations, so far as it regards the landed estates of the. country. That act had two objects in v tea — the one and principal object was, to fix upon a mode of settling disputes between different claimants of the same lands under different grants or titles.

The Legislature considered, where one of the claimants settled upon the land, and continued on it seven years, with the reasonable expectation of enjoying if in fee, ihf-.r his d«ed or grant gave him, that it was more agreeable to justice and the policy of an infant country that wanted settlers, to confirm the title of such a possessor, than to suffer him to be turned out of possession by anofhet, who had other merit (lian that his grant was first, dated. The. terra of seven years was fixed upon by the Legislature for ¡hat purpose. A prior patentee who would not enter, during the space of seven years, when the. subsequent patenter, and those claiming under him, were to the acfn-jí possession, giving open and public notice of his claim, was by that law deprived of his title forever. He >!!»;,(! take advantage- of an industrious settler and turn him off, after he has improved the land for *368seven years together : but then in order to gain a title by possession under tiiis art, these circumstances concur — Sie must be possessed of land which hath been actually granted ; a possession of vacant lands will not do, unless attended with su-\h circumstances as required by the late act of Assembly, for limiting the claim of the State — he must take possession with a belief that the land possessed is his.own, as under a patent, or deed, under some patentee — he must take possession with such circumstances as are capable in their nature, of notifying to mankind that he is upon the land, claiming it as his own, as in person or by his tenant — this notorious possession must be a continued possession., a soctcf taking possession and not continuing it, as it cannot answer the purpose of notoriety to adverse claimants, cannot extinguish their claim for not having been put in, in due time.— The other object of the act was, to quiet the possessions of such persons as before the passing of it had taken irregular conveyances, not strictly supportable by law; but yet, fair, and for valuable considerations. This is provided for by the first clause of fin* act, and need not be enlarged upon now. The case before the, court is no way affected by it. To apply these rules to the present case —the possession of the ax-enterer was of vacant and unappropriated lands, and is not a possession within tho purview of the aef. Such possession could operate, if at all, only :.g,.it¡ot the King or the Lords Proprietors, not as the act meant, against another individual claiming under them by another grant or deed. It is not the possession of a settler, having a belief that the land he settled upon was his own. As to the possession which Spikes kept by his cattle, that is not such a possession, as is calculated to give notice to the adverse claim' ant, that his land is occupied and claimed by another. Cattle may be a long time ranging upon land, wilbont iis being puniicly known whose tiiey are, or that they were put upon the. land ity their owner, or that he-meant to claim if: huí. if a man settles upon the land by himself or tenants, and continues that possession, builds a house, or clears the land and cultivates it, his claim then becomes notorious, and gives fair notice to the adverse claimant to lookto his title. As to the. circumstance of Spikes having once taken possession of lh< ¡and, and continuing there sonto time, and then leaving it again-**369a single act of taking possession, and then leaving the land will not do; for then every man who has ap (tentop deed fos L ed, and lives at a distance burn it, is in danger oí losing his» ti'le by some otiwr person having a co-lour of title, making a secret entry upon it, arid at the expiration of seven years afterwards, setting up that possession as a title. Were this the law, no man would ever be secure of his title for lands he did not actually i;eside upon, either by him.ei!', his tenant or agent. The possession that is capable of ripening into title, must, be notorious, and continued for seven years without entry,claim or action on the o-her side- As to the remaining possession that Spikes had — it is stated that about the beginning of the year 1770, or thereabouts, Spikes, or the person that claimed under him, took actual possession of the land in question, built a house upon it, cleared a field, and continued the possession down to the present day ; and that on the other side, fVaddle bad no actual possession of the lanjii included in his patent, or of any part of it; and that he was in this country wnen the adverse actual possession commenced, and for four or five years afterwards, when he removed to Europe. It is here proper to observe, that from the sixth day of March, 1773, u> the first day of June, in the year 1784, the whole intervening time is struck out of the computation of time under tne act of limitations, by different acts of the Legislature made in the time of the war and since, and is not to be regarded : and where a man is beyorid seas when his title accrues, and is of full age, he is allowed eight years to pm in his claim agaiust in adverse occupant. In the present case, Mr fVaddle was in this country when the act of limitations first began to run upon him, that is to say, when actual possession was first taken and continued by the adverse claimant; and Mr. fVaddle resided here for some years afterward',, and until aft r the discontinuance of our Superior Count* in the year 1773, so that at the time he went to Europe, the act had run upon him three years; md if we connect the sixth of March, 1773, with the first of June. 1784, excluding the intermediate time, am! compute on tid the time ol commencing his action, which was some time in the year 1794, there will be a space of computable nine of thirteen 3ears and more, between the first, taking of actual possession and the commencement of this action.. *370It is urged however, that there are two circumstances to interrupt the ruuing on of this time, Waddle's being beyond sea, and then his death, and the infancy of his sons to a period within three years before the commencement of this action. These circumstances will not hinder the running on of the statute, when it has once begun to run. The act of limitations regards the interest of both parties — it provides the term of seven years to the etui, the Plaintiff’s claim be not destroyed by too short a time; for the safety of the possessor, it provides that his possession shall not be disturbed after seven years, unless there are strong reasons founded in justice to the contrary, and these are pointed out in the exceptions it makes to the general rule established by the act, as coverture, &c. &c. but these provisions would be easily frustrated, if a man after the act has run upon him almost the whole seven years, could defeat its operation by going beyond sea; and the act would have but little effect towards quieting titles and possessions, if after a man had been improving and cultivating the lands for almost seven years, that possession would be all rendered nugatory by the death of the adverse claimant, or by coverture, imprisonment or the like, before the time had been actually completed. We may easily suppose a case, where the act of limitations would not be of any assistance at all toa possessor as the Legislature intended it should be — a man improves land and settles upon it,.and continues the possession for seven ¡years, lacking a few days- — the adverse claimant dies, his heir but just born, but a few days before his arrival to the age of twenty-four (for infants have three years allowed them after their infancy) dies, leaving his heir butjust born also — her»-, contrary to the plain meaning of the act, the possessor could not acquire a title after 54 or 55 years continued possession. As such cases must frequently happen, the law vviil not.allow itself to be defeated by making such use of its exceptions. The computation of time shall not be suspended by the occurrence. of any of these circumstances which would have prevented its attaching, liad the title of the party out of possession accrued during the time of their existence, as infancy, imprisonment, &c. but where the title comes to persons under such incapacities, and that title is already worn away by the attrition of several years time, with the quality of still wearing away, they must take it a1» *371tlipy fmd it, with its disadvantages as well as with its advantages, and must use the same diligence to prevent a total dissolution of title, as the ancestor or person from whom (hey claim was hound to use — and if this reasoning will apply to the cases of these persons whose hapless situation is not brought, on by their own means, as infants, persons insane and the like, much more will it apply to the rases of those who seem to act, as if they intended to avoid the operation of the act, as a person imprisoned, he that, removes beyond sea, or as a woman that marries after the act begins to attach. These voluntary acts of theirs, ought not in reason to defeat the possessor of the benefits intended for him, by the law of the country.— The conclusions resulting from this mode of considering the .subject are, that the title of the Plaintiff in the present rase, is barred by the'Defendant’s possession—There was a verdict and judgment for the Defendant accordingly, and the motion for a new trial was not made. Vide Eq, Ca. Abr 9. 2 P. Wil. 582. 1 Wils. 134.—Plow. 368 to 372. Stra. 556. 3 Bac. Ab. 655. L. Ray. 289. Co. Litt. 246 a. 259 a. 8 Rep 100 b. Litt 441. Cro. Jac. 101. 4 Term Rep. 810. Shep. Touch. 30. 4 Term 306, in a note, 2 Atk. 333. Co. Litt. 353 6.

Notf — i'he position th.it iff i.umlur of the patents or grants, when they beai ilute on toe same day, may be considered in a-certaining their priority, si\ ms to n„ve been doubted of by Williams, Judge, in Foreman v. Tyson, post 496, though Judge Haywood std! confinued of the o.-inioti iliat the number should have some weight in tile absence of other evidence of priority. This onimon of Haywood, up-pears n, ihvi: been approved of in Riddick & Wife v. Legget, 3 Mur. 539. though in that case, the grant of the lowest number was made to yit.io to -i sir. ng circumstance against it, to-wit, that the grant called for tin ja .ds me .tinned in the other grant. Upon the question, what Rindo, possession :m necessary tngive title under the act of limitations, see the note to Slrudwtckv. Shaw, ante 5, and the cases there referred to: -o.d partir.uf nay, .s 10‘n.-commencement of the possession being bona fide, see Riddick & Wife v. Legget cited above, and McRee’s heirs v Alexander, 3 Hawks 322. Tiia where the statute ofl'. nnUt-en-. once b, gins t.. run, noi'-mg will impede its progress, is now w ll svi‘led See Anonymous, post 416. Cobham v. Niel’s Exr’s. 2. Hay. 5 Pearce et al. v. House, N. C. Term Rep. 305.