#### DOE EX DEM. H. B. CALLENDER & AL. vs. BRADFORD SHERMAN & AL.

Neither the tenant oí land, nor any person claiming title by or through him, can dispute the right of the landlord to recover the premises in ejectment, after the expiration of the lease, upon the ground ef a defect of title in the landlord.

A paper, purporting to he a will of lands, which has but one subscribing witness, and which has never been proved as a will, is not such a color of title as will ripen a seven years’ possession under it into a good title.

No length of possession of lands will in law amount to a presumption' of title, when the origin of the possession is shewn; but such possession, with its attendant circumstances, must be left to the jury as a matter of fact, from which they may or may not infer that a legal conveyance of title had been made to the person claiming under the possession.

At any rate, the original consistency of relation, between the possession and the opposite title, must have been clearly dissolved and turned into an adverse possession for many years before suit, in order to make it available as a ground oí presumption of title.

Appeal from the Superior Court of Law of New Hanover County, at the Spring Term, 1845, his Honor Judge Pearson presiding.

This was an action of ejectment for a lot in the town of Wilmington» The defendants admitted themselves in possession, and claimed to hold for St. John’s Lodge, No. 1.

It was proved that the lot belonged to one Joseph Dean, who, previous to the year 1803, had rented it td a Mrs. Cook. Mrs. Cook went out of possession in the year 1802, and Dean rented the premises, consistingof a tavern and boarding house and outbuildings and lot, for the years 1803 and 1804, to a Mrs. Smith, at a yearly rent of $250. Dean died sometime in the year 1804, while on a trip to the West Indies. He was a native of the State of Massachusetts, but had his domicil in the town of Wilmington, iu this State, at the time of his death, and had resided there ior many years. It was proved that the lessors of the plaintiffs were the heirs at law of Dean.

*712The defendants claimed to derive title for the Lodge under sa“^ Dean ; and for this purpose read in evidence certain paper writings, purporting to be the last will and testameut of sa¡¿ £)eaI1) and t0 devise the premises to the Lodge. These papers were proved to be all in the handwriting of Dean, but there was only one attesting witness, and it was not shewn that they had been placed in the hands of any person for safe keeping, or that they were found among the valuable papers or effects of the deceased. The defendants proved, that, soon after theMeath of Dean, the Lodge set up .claim to the premises, under the papers purporting to bé the last will and testament of Dean, and, after the lease to Mrs. Smith for the year 1804, had expired, to wit, in the year 1S05, the Lodge, with the consent of the gentleman appointed executor of Dean, caused the premises to be put up at auction to rent for the term of one year, when Mrs. Smith, who had not moved out of the house, but who did not object to the premises being thus exposed for rent at auction by the Lodge, became the last and highest bidder, and accordingly gave her note for the rent of the year 1805, to the Lodge. The premises were thus exposed to rent for one year, for each and every year afterwards, until the houses were burnt down in the year 1830, and Mrs. Smith thus rented the premises each and every year during ■that time, and-paid the rent to the Lodge. After the fire the 'lot was not occupied for some two or three months, but another building was then erected, and the defendant Sherman went into possession, as the tenant of the Lodge, and has so 'occupied it ever since. The defendants also proved that the Lodge had paid the taxes upon the lot from the year 1805, up to this time, and for a good portion of the time had paid for the insurance of the premises. It was proved that the lessors of the plaintiffs were inhabitants of the State of Massachusetts, and it did not appear that either of' them liad ever been in this State. It was also proved that the Lodge-always claimed the lot under the supposed will of Dean, and never alleged or asserted title in any other way.

The defendants’ counsel insisted that the papers, offered as *713a will, constituted a devise of the said lots to the Lodge, and that the age of the papers and the possession consequent thereon superseded the necessity of any further proof of the éxe-cution of the papers as a devise. Secondly, That the papers were color of title, which was ripened into a good title by the possession of the defendant, Sherman, as tenant, from 1830 to to 1839. Thirdly, That, as the Lodge had been in possession for thirty years, from 1805 to 1839, claiming the lots as its property, a presumption of property was raised, or the jury should be instructed by the judge to presume a title in the Lodge.

The plaintiffs counsel insisted, first, that the papers, offered as a will, were not color of title: secondly, that the possession of Mrs. Smith was not the possession of the Lodge, as she held over after the death of Dean, but possession for the heirs at law of Dean, the lessors of the plaintiffs; that at least it was not such a possession, as would raise a presumption of title in the Lodge from the lapse of time, as she had never surrendered possession to the heirs, nor had she gone out of possession and left the premises vacant, nor had the heirs at law been notified, or otherwise informed, of her consent to become the tenant of the Lodge ; thirdly, that if the possession of Mrs. Smith was otherwise, yet, upon the facts proved, the presumption of title in the Lodge, against the heirs at law, was not an imperative one ; but the facts, as proved, might be sufficient to justify the jury in refusing to make the presumption.

The court charged that the paper writings exhibited as a will did not constitute a color of title. The court further charged, that, when possession ivas held adversely for a great many years (say thirty-four) without interruption or claim made, the jury should presume a title. This presumption was to be made for reasons of policy and to quiet estates ; and it did not depend upon whether the jury, in point of fact, believed that a proper deed or title had been executed or not. In this case, if the jury were satisfied, that the Lodge had held adverse possession for some thirty-four years, in the absence of any sufficient reason, why the lessors did not make *714during all that time ; and none had been proved, (for ^act ^lat: f^e lessors lived in Massachusetts and had never been in this State was not sufficient) the jury should presume ¡n (¡ie L0clge; and the fact that the Lodge never averred that a deed had been made, but always claimed under the paper,supposed to be a devise, but which was not duly executed, would make no difference, because it was not an open question of fact, to be decided by circumstances, but the law gave to such long, uninterrupted possession, a technical force, over and beyond that, which it would naturally have. This case fell under that class of presumptions, which'the jury were to make, with the instruction and advise of the court— which the court could not make, but on which it was their duty to instruct the jury, that, under a given state of facts, they should make the presumption.

As to the possession before the year 1830,, by Mrs. Smith, the court charged, that, had .the proof been, that Dean made a long lease to Mrs. Smith, say for thirty years, a nd, after his death, no alteration was, made in the possession, except that she paid the rent to the Lodge instead of to the heirs of Dean, a different question might have been presented. But, as the proof was that Mrs. Smith rented, of Dean, year after year, paying an aunual rent, and, after his death, the Lodge, claiming the lot under the supposed will of Dean, caused the lot to be put up at auction for one year, when Mrs. Smith,' as the highest bidder, rented for one year, and continued so to rent until the fire in 1830, and at the renting, Mrs. Smith became a bidder upon equal terms with others, claiming no preference from the fact, that sh“e had been the tenant of Dean in his lifetime, or from the fact that she had not actually gone out of his house and taken her furniture out, all of which facts were ■ not controverted, the court was of opinion, that this state of facts made her the tenant of the Lodge, and her possession, after that, was the possession of the Lodge. So that, taking the evideuce to be true, the Lodge had been in possession for some thirty-four years, and this authorized the jury to make the presumption of title. And the court instructed the jury, that it was their duty so to presume, from the fads stated.

*715The jury found a verdict for the defendants, and from the judgment rendered thereon the plaintiffs appealed. s

Wm. H. Haywood for the plaintiffs.

Strange for the defendants.

Daniel, J.

The lot of land in controversy belonged to Joseph Dean. He leased it to Mrs. Smith for the years 1803 and 1804, and she entered thereon as his tenant. Dean died intestate in the year 1804, and, before Mrs. Smith’s 'lease had ended. She was in law, therefore, the tenant of the lessors of the plaintiffs, who are the heirs at law of Dean. And so long as she continued in the possession of the lot, her possession was the possession of the lessors of the plaintiffs. It is a well settled rule of law, that the tenant cannot be heard to dispute his landlord’s title, on a supposed defect in the title. Driver and Oxenden v. Lawrence, 2 H. Black, 1259. Nor, when the tenant' in possession has paid rent to the lessors of the plaintiffs, can a third person come in and defend as landlord without the tenant, and dispute the lessor' of the plaintiff’s title. Neither the tenant, nor any one claiming by him, can controvert the landlord’s title; he cannot put another person into possession, but must deliver up the premises to his own landlord. Doe and Wright v. Smythe, 4 M. & S. 347.— Stephens N. P. 1377. If the lessors of the plaintiffs had given Mrs. Smith six months notice to quit, at any time during her possession, she could not have had any defence against their action of ejectment. She had the positio pedis, and not the Lodge; and her possession could not in law be adverse to that of the lessors of the plaintiffs. The judge erred, we think, when he told the jury, that in this action the possession of Mrs. Smith was the possession of the Lodge. After the house got burned down, Mrs. Smith left the place, and the defendant, Sherman, entered as a tenant of the Lodge in the year 1830 ; and he continued in adverse possession for the space of nine.years, when this action was brought by Dean’s heirs. But the judge said, that his (Sherman’s) possession was without color of title ; as the two papers offered as a will of Dean *716did not on their face profess to devise the land, there bein kut one w^tness t0 a°d although it was in the handwritin of Dean, it had never been proved as a will, nor was there any evidence that it had been lodged in the hands of a third person for safe keeping, or had been found among Dean’s valuable papers or effects, as the statute requires. We agree with his Honor that the two papers were not color of title to ripen Sherman’s possession into a good title for the Lodge, by force of the act of limitations. bD bjD

It was then insisted for the defendants, that the great length of time, (35 years) which had elapsed since any rent had been paid to Dean or his heirs, and the constant receipt of the said rents by the Lodge, and also other' acts of ownership by it, raised a presumption that the heirs of Dean had made a conveyance of the lot to the Lodge. The judge said, ¿‘taking the evidence to be true, the Lodge had been in possession 34 years, and this authorised the jury 'to make the presumption of title. And the court instructed the jury, that it was their duty so to -presume from the facts stated.” We think that the judge erred in the above charge as applied to this case.— If the heirs of Dean had actually made a deed of conveyance of the lot to the Lodge at any time since the death of their ancestor, of course it would defeat the plaintiffs action. And to ascertain that fact, the jury were the judges. That the 35 years time which had elapsed since the Lodge set up claim to the lot, was only to be taken as evidence, which was to go to the jury, with any other evidence or circumstances in the cause, to enable them to find or not to find, whether any such conveyance had actually taken place. In Doe & Fenwick v. Reed, 5 Barn. & Ald. 232, where a defendant’s ancestor came into possession of certain lands in 1752, as a creditor under a judgment obtained against the owner of the land, and the defendant’s family had continued in the possession ever since to 1821: Held, that the original possession having been taken, not under any conveyance, but as a creditor, and the possession being thus accounted for, the length of possession was only prima facie evidence, from which a jury *717alight infer a subsequent conveyance by the original owner or some of his descendants, but that it might be rebutted, and that the jury must not presume such conveyance from that length of possession, unless they were satisfied that it had actually been executed. At any rate, the original consistency of relation between the possession and the opposite title must have been clearly dissolved, and turned into an adverse possession for many years before suit, in order to make it available as a ground of presumption. 1 Mer. 125. Here the possession ceased not in the lessors of the plaintiff’s tenant until 1830. There are many American cases to the point, as that of Fenwick v. Reed: They may be found collected in 2 Philips Ev. 365. 5 c. Amer. ed. The judge, we think, mistook the class of presumptions to which this case belonged" It was only evidence to aid in raising a presumption of a fact, in the ascertainment of which, the judge could not say it was their duty to presume the existence of the feet. In the case of Fenwick v. Reed, the jury found for the plaintiffs against forty-eight years possession by the Reed family, and the court refused to disturb the verdict. There must be a new trial.

Per Curiam, New trial awarded.