#### Strudwick v. Shaw.

In 1728 the land in dispute, was granted to A, who in 1730 conveyed to B, who soon afterwards went to England. B sold to <1, who in came to this country, but soon went back again. In C returned to Carolina, where he remained, and in 1787 brought suit. One D settled on the lands in question in 1751, lived upon them thirteen years, and died in possession, leaving a son. The son assigned to some person, who assigned to the Defendant, who had lately procured a grant. Under these circumstances, it was held, that the Plaintiff’s jus possessionis was lost.

Ill tiie year 1728, the premises in question were granted to one Foster; in 1730, Foster conveyed to Governor Burrington, who soon afterwards went to England In the year Burrington sold_ and conveyed to Strud-wick, by á general description of all ids lands in North* Carolina. Strudwick came to this country in the year but soon went to England again, and in 1 he year returned to Carolina, where he remained, and in 1787 brought suit. — One Hopkins settled on the lands in question in 1751, and lived upon them 13 years, when he died in possession, leaving a son. This right of possession was afterwards assigned by him to some person, who assigned it to the Defendant, who, under this right, had lately procured a grant from the State.

*9The argument of Davie for the Defendant

The Plain-1 tiff has shewn a title as his Counsel alleges, to tiic premises mentioned in the declaration, and the location being settled by former determinations, Shall not be brought into question at present: but there are several material objections against the Plaintiff’s recovery.

1st. It does not appear that there has been any actual possession in the lessor of the Plaintiff, or the persons under whom lie claims since the year 1738; therefore, if the Plaintiff ever liad a right to recover in an action of ejectment, that right has been lost by his laches.

The nature of the title to lands is such, as to make it divisible into three distinct species of property, or kinds of right. It may consist of the naked possession or a right of possession, or a mere right of properly. The first, may happen, where a person in this country should enter upon a woodland, though granted estate, and settle and cultivate it, and thus actually occupy, without the shadow of right or colour of title, as it is called in our Courts. The second will take place, where the patentee submits to the unsanctioned occupation of the settler, who has the actual possession, while the right of possession resides in the person to whom the land was granted. The third species of property will be found, where the grantee may have “ the true ultimate property of the Sands in himself, but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a Court of justice,* the presumptive evidence of that right is strongly in favor of his antagonist, who has thereby obtained an absolute right of possession.” ZBl.Com.l 95,196, 197. Co. Lit. 345, 385. Gilb. Ten. 18.

Ejectment being a possessory action, it lies only where the lessor of the Plaintiff could rightfully enter, and the title to support a recovery must therefore he inseparably connected with the right of possession, and must have this ingredient at least. The title of the Defendant is entirely out of view. It is an old maxim that a man must recover by the strength of his own title in ejectment, not in consequence ofauy weakness in that of his adversary. Every Plaintiff in ejectment, says Lord Manseiei», in the case of Mkins v. Horde, must shew a right of possession, as well as a right of property j therefore, the Defendant, need not plead the statute., and the *10must shew that his lessor had a right to enter: and this can only be effected by proving a possession within seven years in tiie Plaintiff, his ancestors, or the persons under whom he claims, and such possession must be an actual possession. I Burr. 119. Bunn. 113, 113.

By the statute of 31 Jac. 1 ch. 16, “None shall make an entry into land, but within twenty years after their right or title shall first descend or accrue.” Our own act of limitations only alters the phraseology to “ shall thereunto enter or make claim,” and shortens the limitation to seven years : so that the English decisions may be considered authorities as to the operation of tills part of the statute; and it will appear by all these, as well as the opinions of every writer on the subject, that where there hath been no possession during the time limited in the statute, either in the lessor, his ancestors, or the persons under whom he claims, the Plaintiff in this action will be nonsuited, unless his case may be brought within some of the exceptions allowed by the act of Assembly. The action of ejectment is only competent where the Plaintiff may enter -, and the right of entry is, in this case, completely taken away, by the statute, and the claimant, by such default, utterly excluded and disabled from any entry, or claim to be made, after the seven years are expired. This is not only the plain letter of the law, bnt the construction- has been uniform. Bunn. 14 to 17. Salk. 305. 5 Bur. 2635. 6 Mod. 44. Cas. K. B 5.73. 2 Keble 137. 1 Bur. 119.

Thus the neglect, of the Plaintiff, in this case, to enter, or make claim, as I take it, has wrought an actual bar ; not by the Defendant acquiring title, but by his losing or destroying his own right of action; and to the authorities already adduced, may be added the case in Strange 1142, and the law as stated in 2 Black. 196, 197, 198. The law presumes that the tenant in possession, either had at first, a good title, in consequence of which he entered on the lauds in question, or that since his entry he had acquired one $ and therefore, after so long an acquiescence, his possession shall not be disturbed, without enquiring into the absolute and real right of t.he property, unconnected with the right of possession.

He said that the legal notions of possession in tin’s country have been extremely vague and indefinite, but he did not recollect any case in which this doctrine had been settled with due precision. The constructive pos*11session, mentioned in some cases by our Judges, is doctrine unknown to the common law ; but he held that the correct idea of that possession, which would arrest the operation of this act, is such a possession as is described by Coke Inst. IS. Quasi pedis positio — That the claim must be made by suit in law under the express terms of the 2d sec. of the act, and that the entry must be an actual entry, and the possession an actual possession. Bui. 102, 103. 1 Balk. 285.

Independent of the operation of the 2d sec. of our act of limitation, by the determinations in England, received as authority here, seven years adverse possession is not only a negative bar to the action, or remedy of the Plaintiff, but a positive title to IhcDefcndaut j and therefore, where A had the possession of lands for twenty years in England, without interruption, and then B got into possession, on which A was put to his ejectment,: here, though A was Plaintiff, yet his possession for twenty years was deemed a good title, and lie recovered accordingly. This was ruled by Hoit, Chief Justice, saying that a possession for twenty years, was like a descent, which tolls an entry, and gives a right of possession, which is sufficient to maintain an ejectment. Salk. 421.

In the present case there lias been an actual uninterrupted and adverse possession for thirty-six years by the Defendant, and those under whom he claims, whereby be has acquired a title, upon the strength of which he could recover in this form of action against the Plaintiff himself, who has now nothing left but the mere right of property.

The Court will also please to observe, that this objection, under the form of the title acquired by the Defendant from possession, collects additional force from a comparison of the statute of James w itli the act of North-Carolina. The 3d sec. of our act is an abstract from the 1st sec. of the English statute, and operates on the right or title of the person who is out of possession, without appearing to touch in any manner whatsoever, the right or title of the tenant in possession.

The 2d sec. of our law enacts, “ that ail possessions of, or titles to any lands, tenements or hereditaments whatever, derived from any sales made either by creditors, executors or administrators of any persons deceased, or by husbands and their wives, or husbands in right *12(>f their wives, or by indorsement of patents, or otherwise, of which the purchaser or possessor, or any claiming under them, have continued, or shall continue in possession of the same, for the space of seven years, without any suit in law, be, and are hereby ratified, confirmed, and declared good and legal, to all intents and purposes whatsoever, against all and all manner of persons: any former or other title, or claim, act, law, usage or statute to the contrary, in any wise, notwithstanding.” In the whole of the statute of James, there is nothing like this section, yet the adjudications in this country have always followed the construction of that statute, and have generally fallen short of them, without noticing the extensive and beneficial operation of this clause.

It will be remarked, that this clause relates only to the right of the tenant in possession, operating in such a manner as to ripen an inchoate or defective right into a complete title.

That the act embraces “all possessions of lands,” as well as “.titles to lands,” derived from any sales made to creditors, &c. or by indorsement of the patents, or otherwise. Thus every “ sale,” whether of the possession, or right of occupancy, or the title comes within the purview of this clause, which goes to the absolute confirmation of the title of the purchaser.

The act appears to have embraced expressly both the cases of a mere right of occupancy, and what is usually called a title, by the expressions of “ all possessions of,” or “titles to,” “which the purchaser or possessor So that sales of the right of occupancy, a very common case in this country, ever since its first settlement, are clearly within the letter and policy of the act. The sale and assignment of the possession by the heir of Hopkins, connected with a continued possession, a possession that has not been interrupted by any suit at law, wc contend has now ripened into a complete title, absolutely ratified and confirmed by this act to the Defendant, any former or other titles notwithstanding.

It is not necessary to enquire in this case, whether the Defendant has acquired a title under the 2d sec. of this act, that would resist a writ of right: the Court, however, would permit him to observe, that if this act contained no more than the statute of James, there could have been no question as to this point; but our law has a much higher regard for possession, and connecting it *13with the circumstance of time, makes it the strongest evidence of title; and it is from the full and strong tx-pressions of this clause of the act, that he liad held, a title like this could not he disturbed by a writ of right in this country.

The statute of limitations, as far as it respects real estates, is a law of the utmost importance to the peace and happiness of the community. The leading motive of entering into society, was the protection of property, and the great object of the law is, to secure and quiet men in the possession of it: this policy is strongly expressed in the preamble of the act, “ Whereas great suit, debate, and controversy hath heretofore been, and may hereafter arise, by means of ancient titles to land derived from patents granted by the Governor of -Virginia, the conditions of which patents have not been performed, nor the quit-rents paid, or the lands have been deserted by the first patentees, or for, or by reason, or means of former entries or patents granted in this Government; for prevention whereof, and for quieting men’s estates, and for avoiding suits in law, Be it enacted,” &c.

The case under the consideration of the Court, is precisely one of the cases contemplated by the act. Where patentees have deserted their lands still a wilderness, and others, ignorant of such appropriation, have settled upon them, and improved them by the labor of many years, expecting to acquire a title in the course of time, on the usual terms from Lord Granville or the King; it would be incompatible with the principles of justice, or the policy of an infant Government, struggling wit!» the difficulties of settlement and a feeble population, to turn the improving tenant out of possession.

11c said he relied with confidence upon these objections arising out of the statute, supported by an uniform train of decisions, and no determination in this country could be said to have shaken these authorities, unless the case of Mallett and Minns in this Court, should be considered as militating in some measure against the construction contended for on the first point. In that case, two points were determined, 1st. That the delivery of the grant to the grantee, should raise a constructive possession, sufficient in law to preserve the grantee’s right of entry where there is not an adverse possession. 2d. That the Plaintiff shall be put to prove an actual possession in himself within seven years, only where the Do-*14fetulant sets up an adverse possession for that time. In this case, there has been an actual adverse possession ever since the year 1751 ; and for more than seven years by the Defendant himself; so that this new doctrine of constructive possession, which owes ils birth to this case of Mallctt and Minns, will not serve the Plaintiff in this instance.

It may perhaps be said, that the absence of Burring-ton beyond sea, as well as that of the lessor of tiie Plaintiff, and the time struck out on account of the interven.tion of the war, will bring this case within the exception of the act of Assembly.

To this he answered, that the proviso of the act of Assembly saves the right of action to persons beyond seas, only for eight years after their title shall accrue, the words of the act being, “ or persons beyond seas, within eight years after the title or claim becomes due, shall lake benefit and sue for the same.5’ So that it becomes necessary to bring suit within eight years after the adverse possession took place, even upon the doctrine delivered in the case of Mallett and Minns. It is also to be observed, that Mr. Sirudwick came to this country in the year , after the sale of Barrington to him, and that the act certainly attached upon his right at that time, and his returning to England would not prevent the statute running ; so that after strikingNout the ten years from March ’73 to ’83, there is sufficient time for the statute to have complete effect; and when the act begins to run, it cannot be suspended on account of any after defect or impediment whatsoever. To prove this point, he cited Plowd. 368 to 376, saying that indeed this was the case of a fine, but that the reason and principle was the same in a common case under this act; and that the determination upon the statute of limitations bad ever since followed the decision in the case of Stowell v. Lord Zouch. See 2 Will. 582 3. I Will. 134. Stra. 556.

There is one other point of great importance, which lias not yet been sanctioned in this country by any direct decision. He said, I admit the doctrine has been questioned, but there is no part of the common law more clearly settled than that, when a descent is cast, the heir of the disseisor has the jus possessionis, because the dis-seisee cannot enter upon bis possession, and evict him, but is put to his real action, because the freehold is cast by the law upon the heir. Howell was thirteen *15years in possession, died in actual possession, and the law cast the freehold upon his son ; and the reason of the law as stated in 2d Black. 177, applies to this country as strongly as any other. The law, says he, will presume that the possession, which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be judicially shewn; and therefore, the heir shall not he evicted by a mere entry, although such a measure would have been competent in law to have dispossessed the ancestor. The alteration by the statute of the S2d Henry 8th, of this common law rule, only requires that the disseisor should have five years peaceable possession next after the disseisin, and a descent cast-under these circumstances tolls an entry, unless the dis-seisee should have made continual claim. He therefore concluded, that there being a descent cast in this case, the right of entry of the lessor was also thereby taken away, arid that therefore, the .Plaintiff could not recover in tills action j and relied as to this point, upon Inst. 250, 223'. Sec. 426. fritó. Ten. from 21 to 36.

Mr. Moore, in reply,

cited Burr. Rep. 60, to shew the doctrine of seisin and disseisin, and to prove there could be no disseisin in Ibis country. The Court, consisting of Judges Wiiiiams and Macay, after advising together on the bench for some time, said that the jus possessions was lost by the Plaintiff; and without giving their opinions at large, directed the Plaintiff to be called : and accordingly he was called, and nonsuited.

Note. — The Court gave no reasons for their decision in this case, so that we know not with absolute certainty upon what grounds their opinion was formed. Whether the. Plaintiff lost his right of possession by laches, or by the descent cast: Whether the possession of the Defendant and those under whom he claimed, operated only to bar the Plaintiff’s remedy, or likewise to perfect his own title, are matters left for conjecture. A reference to subsequent cases may perhaps point out to us the principles upon which it should have been decided. If the descent cast was relied upon by the Court, I know of no decision in tlris State, either affirming or overruling it, and it would be presumptuous in me to venture to predict what would be the decision of our Judges upon a case in which that point should arise. The question might occur in the case of a person who had obtained, and continued in possession of lands for five years, either with or without colour of title, and then should die in possession leaving heirs ; with the additional circumstance, in case where he had colour of title, that his death should be before the expiration of seven years. Where the possessor had no colour of title, I presume, according to the present notion of such a possession in this State, his heir would acquire no greater right than he had ; but if the possession was accompanied with colour of title, it would be for our Courts *16(0 say whether the English law was founded upon doctrines which do not suit the circumstances of this country, or whether it is not equally politic here to protect at least the possessory right of an heir claiming under such descent. If the Court, in this case, were influenced by the length of the Defendant’s possession, which, with that of those under whom he claimed, was said in argument to be thirty-six years, we shall find that later decisions have put a different construction on the statute of limitations. It will be remarked, that the Defendant’s possession in this case, was a naked one without colour of title. In the case of Young v. Irwin, 2 Hay. 9, it was said by Haywood, Judge, that the Plaintiff need not have been in actual possession within seven years: that his title by deed, or grant gives him a constructive possession, which preserves his right of entry, until it be destroyed by an actual adverse possession, continued for seven years under colour of title. Slade v. Smith, post 248, decides, that when a man has obtained a grant of land, be has a constructive possession until an actual adverse possession commences, which adverse possession must be a continued one for seven years before the jus intrandi of the grantee is lost. And the case of Borrets v. Turner, 2 Hay. 97, and of Stanly v. Turner, Con. Rep. 533. S. C. 1 Murph. 14. shows, that the adverse possession must be under colour of title. Vide the observations of Haywood, Judge, upon the case of Armour v. White, 2 Hay. 87 inserted likewise in a note to Stanly v. Turner, 1 Mur. 14. As to what is a sufficient possession under the act, vide Andrews v. Mulford, post 311. Grant v. Winbourne, 2 Hay. 56. Anon. ib. 76. As to colour of title, vide - v. Ashe, 2 Hay. 103. Pearce v Owens, ibid 235. Evans v. Satterfield, 1 Mur. 413 Hill’s heirs v. Wilton’s heirs, 2 Mur. 14 Trustees of University v. Blount, N C. Term Rep. 13. Jones v. Putney, 3 Mur. 562. Tate v. Southard, 1 Hawks 45. Campbell v, M’Arthur, 2 Hawks 33 Episcopal Church of Newbern v. Newbern Academy, ibid 233. Rayner & wife v. Capehart, ib. 375. Tate’s heirs v. Southard, 3 Hawks 119.