#### BENJAMIN BYNUM vs. GEORGE W. THOMPSON & AL.

June 1843

declaration of a tenant in possession of a piece of land, that he claimed according to the boundaries of a patent, with which he cannot connect himself by a chain of title, is not admissible evidence for himself or those claiming under him, to shew that his constructive possession in law extended beyond his actual possession by cultivation, fences, &e.

If one enters into land under a deed or will, the entry is into the whole tract described in the conveyance prima fade, and is so in reality, unless some other person has possession of a part, either actually or by virtue of the title. But when one enters on land, without any conveyance, or other thing, to shew what he claims, his possession cannot by any presumption or implication he extended beyond his occupation de facto.

A partition of land, made by order of court on the petition of parties interested, is a good color of title.

Whferé one, tinder a partition of land made by order of court according to the act of Assembly, takes actual possession of a part of the share allotted to him, his possession will be deemed to extend to the boundaries of the share so allotted, in tho same manner as if he had taken possession under a deed. The cases of Graham v Houston, 4 Dev. 232; Smith v Wilson, 1 Dev. & Bat. 40, and Davis v Campbell, 1 Ired. 482, cited and approved.

Appeal from the Superior Court of Law of Wayne county, at Spring Term,- 1843, his Honor Judge Bailey presiding.

This was an action of Trespass, quare clausum fregit. On the trial, much testimony was introduced as to the boundaries claimed respectively by the plaintiff and defendants, it is unnecessary to' state if, as the following are the only facts, upon which the questions arose, on which the Supreme Court decided. The plaintiff claimed title to the land in dispute under a patent, granted to Richard Brasswell, dated the 11th day of July, 1739, which was produced, and was *579alleged (o cover the locus in quo. The plaintiff then in-Iroduced deeds from Saunders Lane and others, heirs of John Lane, to himself, dated in 1830, which he also contended was for the same land. He then proved by the witness actual possession of part of the land in the Brasswell patent (though not of the locus in quo) in Thomas Lane and others under whom he claimed for sixty years past.— He also proved the declarations of those in possession, that they claimed under the Brasswell patent. The evidence of these declarations was objected to by the defendant’s counsel, but was admitted by the court. A trespass was admitted on the part in dispute, if it belonged to the plaintiff. The defendants claimed under a patent, which they introduced to Stephen Dewey and Blake Baker, dated the 14th April, 1761, which, they alleged, covered the locus in quo. They then introduced a deed from one Burwell Mooring to Joseph Green, dated 7th of October, 1802-v.also a deed from the said Green to Zadock Thompson, dated the 2d of July, 1804 — and a division of record among the heirs of the said Zadock Thompson, made in the year 1826 ; all of which they alleged covered the land in dispute. The heirs of Thompson lived upon the several lots assigned to them by that division, each of which, it was alleged, covered a part of the locus in quo; and the plaintiff also lived upon the land included in the boundaries of the grant under which he claimed. But neither of the parties had ever had actual possession of the part now in dispute.

The court, after instructing the jury upon the questions of law applicable to the evidence in relation to the lines, as claimed by the respective parties, proceeded to charge, that, if the plaintiff and those under whom he claimed had been in possession of the land within the boundaries of the patent to Brasswell for the space of fifty or sixty years, claiming it as theirs, under that patent, up to the time of bringing this suit, and those boundaries included the land in dispute, the law would presume all the necessary mesne conveyances to give the plaintiff a good title ; unless the defendant could shew a superior title : that if they believed the Dewey *580and Baker patent, the deeds from Mooring and Green, and the division under the heirs of Thompson, included within their boundaries the locus in quo, and the Braswell patent ajgQ included the same; then the plaintiff would be entitled to recover, provided he, and those under whom he claimed, had been in posession more than sixty years, claiming under the Brasswell patent. The court further charged, that, if the jury believed there was a vacant space betweeen the true lines of the Braswell patent and the Dewey and Baker patent, and that the deed from the Lanes to the plaintiff covered that vacant part, on which it was admitted the alleged trespass was committed, the plaintiff, having had actual possession of a part of the land included in that deed (though not of the locus in quo) for more than seven years, was entitled to recover against the defendants as wrong-doers, although no grant from the State could be shewn for that vacant part. The court also instructed the jury, that they had aright to take into consideration the division among the Lane heirs, (offered by the defendants) to shew how far they claimed under that division ; but that the plaintiff was not precluded thereby from claiming beyond the boundaries of the said division, but might go to what they believed the true line of the Brasswell patent, notwithstanding a reference in the plaintiff’s deed to the said division.

The jury found a verdict in favor of the plaintiff, and, judgment being rendered pursuant thereto, the defendant appealed.

Henry for the plaintiff.

J. H. Bryan and Mordecai for the defendants.

Ruffin, C. J.

The court perceives no error in those parts of the instructions given to the jury, which were intended to enable them .to ascertain the boundaries of the patent of 1739 to Braswell, and of that of 1761, to Dewey and Baker. But the opinion of the court does not accord with *581other views taken of the case by his Honor. In one of the case, it is assumed that the jury would find that the grant to Braswell covered the locus in quo, and that the other did also, and in that case, the jury was instructed, that the plaintiff could maintain the action, because the title was in Braswell, as the elder patentee, and that the- title was vested in the plaintiff. Of course, the consequence was stated still more clearly to follow, it the grant to Dewey and Baker did not cover the locus in quo at all. The necessity for thus considering the question of the superior fitlé did not arise, because title is indispensable to maintaining this action, which is trespass; for there is no doubt that possession alone will support it against every person but the owner. But the necessity arose in order to determine, whether the plaintiff was really, in a legal sense, in possession. The case states, “ that neither party was in the actual possession of the locus in quo,” which we understand to mean, that neither party occupied it by cultivation, 'inclosure, or the like. But it has been long held in this State, that such an occupation is not necessary to maintain trespass, but that it is sufficient if the plaintiff have the title, and the actual possession is in no one else. For the law adjudges the possession, by construction, to be in the owner. Graham v Houston, 4 Dev. 232. But if the plaintiff fail to prove title to the locus in quo, then he must prove possession by enclosing or improvements thereon. Smith v Wilson, 1 Dev. & Bat. 40. It was thus essential to the plaintiff to shew title. This we think he has not done. He produced deeds from the Lanes to himself made in 1830, which cover the locus in quo, but he omitted to produce a conveyance from the patentee Braswell to the Lanes. To supply that hiatus he gave evidence that the Lanes had been in possession sixty years, declaring “ that they claimed under the Braswell patent,” and the evidence was admitted, as the foundation of a presumption of conveyances made by Braswell to those thus in possession. That evidence was, in the opinion of the court, improperly received. The declarations of a tenant .of land .are competent to qualify his possession, as .that he *582does not hold for himself, but under another. So one, who takes actual possession ot one parcel, may shew that he then declined any possession of another tract, for that is against interest. Davis v Campbell, 1 Ired. Rep. 482. But the declarations of a person in possession, that the land is his, cannot be received to supply the place of a conveyance and constitute a title. But it is said, that they were not offered as in themselves forming a title, but, in conjunction with a long possession, to shew the extent of that possession, and to raise a presumption of a conveyance from the owner for all the land, to which the possession, thus extended by the declaration, applies. But in effect, that is making a title by the mere declaration of the party himself. It is admitted, that upon a long possession, all necessary assurances may and ought to be presumed. But the question is, what is possession for that purpose? Plainly, it must be actual possession and enjoyment. It is true, indeed, that if one enters into land under a deed or will, the entry is info the whole tract described in the conveyance, prima facie, and is so deemed in realty, unless some other person has possession of a part, either actually or by virtue ol the title. But when one enters on land, without any conveyance, or other thing, to shew what he claims, how can the possession by any presumption or implication be extended beyond his occupation defacto ? To allow him to say, that he claims to certain boundaries beyond his occupation, and by construction to hold his possession to be commensurate with the claim, would be to hold the ouster of the owner without giving him an action therefor. One cannot thus make in himself a possession, contrary to the fact. It is against principle, and no case in support of the doctrine has been cited.— In the case at bar it is clear, that the Lanes had no actual possession of the disputed land, and that the object of the evidence, that they claimed under the Braswell patent, was to include that part of the land in the presumed conveyance to them, as well as those parts which they cultivated or otherwise occupied. Now it may well be, that Braswell conveyed to Lane one part of the land granted to him and not *583llie other part, and so far as possession raises a presumption of such a conveyance, it is necessarily confined to the possession in fact. If, indeed, Lane, like the plaintiff, had entered under a deed from some one else, though not from Braswell, it would have been different. His possession would then have been to the limits of his deed, and a conveyance from Braswell would have been presumed accordingly. But, as it is, it cannot be, because Lane’s possession is limited to his occupation, and the possession of the plaintiff under his deeds has not been of sufficient duration. As far, therefore, as appears to us, the title remains in Bras-well’s heirs, and.consequently, the possession, and the plaintiff could not recover. The court also took another view of the case, in which it is supposed, that neither patent covered the land in dispute, and under that aspect the jury was instructed, that the plaintiff could recover, because his deed covered the locus in quo, and he had been in the actual possession of a part of the land included in the deed for more than seven years, and thus was to be deemed in the possession of the whole. We concur in that opinion, as to the presumed extent of the plaintiff’s possession, and it is obvious that, it either of the patents cover the land, the plaintiff would have a title to the land under the statute of limitations, unless there was a' like and prior possession of the same part of the land.in the defendants. Such, in the opinion of the court, was the fact. The deeds to the plaintiff and his possession taken under them, were in 1830. But in 1826, there was a partition between the defendants under a judgment of the court upon petition, according to the statute, and therein the several shares, five in number, are described by metes and bounds, which include .the locus in quo, and under the same, the defendants respectively then took possession in severalty. The possession thus token must extend to the limits of the tracts allotted to the respective parties, upon the same principles on which the plaintiff claims to have possession co-extensively with his deed. It was taken under a permanent written and recorded muniment of title, describing accurately the land claimed and entered iiv *584The partition does not indeed constitute a title, except as against the parties to it. But it certainly constitutes a color of title, as much as any of the defective instruments ’ which have been thus deemed. If the parties had made a deed of partition, it could not be doubted that it was color of title for each party for his share, severally, and so we think must a partition by judgment. The defendant’s constructive possession, therefore, being prior to that of the plaintiff under his deed, it was not tolled by the plaintiff’s entry, without title, into a part of the land covered by his deed, which part did not include the locus in quo. We are not considering, how either of these parties might claim the possession as against the owner of the disputed land, so as to make a title under the statute of limitations, after a grant.— However that may be, we think the plaintiff cannot make out a possession of the locus in quo in himself, without establishing, on the same ground, a prior possession of it by the defendants, and, therefore, that he cannot maintain this action.

Per Curiam. Judgment reversed and venire de novo.