#### Young vs. Irwin.—Ejectment.

HP HE land in question, was granted by the King to SolomcD -*• and James Ogden on the 20th of February, 1735 ; they conveyed to Clark in 1737, and he to Gabriel Johnston in 1738..— Johnstoa devised in 1751, that his executors should sell; his widow being his executrix., intermarryed with Rutherford, and they conveyed to Grme in 1754, who in the same year ie-con-veyed to Rutherford, who in 1763 conveyed to Duncan, and he iiuhe same yea;; re-conveved them. Rutherford ia li 73, pur*10suant to a o5' the court of Chancery, conveyed to Murray, and in 3774 Mmrfc)' conveyed to Young, who died, leaving the •plaintiff hio heir 5 Lin. before the decree, Rutherford contracted for a sum ef money to self to Irwin, and to convey when he should have paid the consideration money. — Irwin in 1757, made his will and died. He left Rutherford his executor, and it was proven that Rutherford wrote his will: he directed money to be raised out of his personal estate to discharge the debt due for the land, and then devised it to his sons John and James s he died in possession, which he took, pursuant to the contract. Soms time in the year 1753, Rutherford as executor, took the whole personal estate, to a much larger value than the debt in question, but said he had expended it in the payment of debts ; what was the precise amount either of the personal estate, or debts of the deceased, did not appear.

Taylor, for the plaintiff,

rested his case here ; saying he had deduced the title from the original patentee to the lessor of the plaintiff, and should expect a verdict unless some material objection, more than he could at present forsee, should be stated against the plaintiff's title.

The counsel 1a: the defendant argued,

that the lessor of the plaintiff should shew himself to have been in possession within seven years, otherwise he is not entitled to recover in ejectment. He cited Bull. N. P. 102, and other books, to establish the same doctrine. Secondly, he argued that an adverse possession in the defendant for the space of seven years, without any colorable title, will take away the plaintiff’s right of entry; and that here was such an adverse possession for forty-three years and upwards ; during all that time, the land in question has been occupied by the defendant and bis ancestor, who have claimed the same as their own, pursuant to their contract with Rutherford. Erwin the ancestor, did not, as suggested by the court, take possession as a tenant at will. 2. HI. Com. 145. An estate at will, is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor. If the tenant by force of this lease obtain possession, the lessor may determine his will and put him out when he pleases- — Did Irwin eater under any such condition ? Was it.understood that he was to be turned out whenever Rutherford pleased! No! he took possession of the land, to be enjoyed as an inheritance never to be turned out of possession if he paid the purchase money; and this he did pay, for he charged his personal estate with it; and Rutherford, who was the debtee, in his capacity of executor received more than enough of the personal estate, and so by operation of law was paid; and then it is not only against all equity, but also against the express stipulation of Rutherford, under whom the plaintiff claims, that the defendant should be turned out of possession, Thirdly, if colour of title is necessary to accompany *11a seven years possession, in order to form a right of possession in the defendant and create a bar against the plaintiff’s claim, then, here is the will of the ancestor proven in the year 1760and made in the year i 757, and a possession under it in the devisees, from that time to the present.

Taylor replied.

Per Curiam»

Haywood, Justice only in court.»

-After stating the facts as- they were proven on the trialThe legal title-has been, regularly deduced from the original proprietor to the lessor of the plaintiff, and he is entitled ta.recover in this action unless, barred by the act of limitations, or by Rutherford’s sale, ©r the joint operation oí both.. With respect to the contract to sell and the taking possession in consequence thereof, by the permission of the vender if that be considered independent of any concomitant or subsequent circumstances,, it can give no title whatsoever ; the land could not pass nor any, estate in it upon the making of the contract and taking possession pursuant to it by the vender’s consent. A deed properly executed a»d registered, is- at least required to pass an estate of inheritance in this country; and this to avoid the danger of claiming estates as passed from the owner’s verbal testimony, and of turning men out of their estates and possessions, by. corrupt witnesses.— When a purchaser in a case like the present, takes possession, he takes.it by consent of the ownerj and may continue it until he fails in payment, and then is liable at law to be turned Out: ha does not take a tortious possession and gain a tortious fee, as has been contended: if he is not strictly speaking, a.tenant PS will, his possession is- that of the owner, and.not a distinct independent possession opposed to his s if he is ousted of possession by a stranger, he cannot regain it by an action in his own name, but only in an action which sets up and affirms the vender’s title. Such possession of the purchaser is therefore not an adverse possession to the vender; and if by the act of limitations, an adverse possession is necessary to bar the plaintiff’s title, such art one as has been in the present case, will not answer that description. Under the act of limitations, it is. very true the English 3Law Books require the plaiotiffin ejectment to prove himself to have been in possession within twenty years ; but by our law he need not be in actual possession within seven years * if he has a title by deed or grant, he has a constructive possession 'ey operation of law, which preserves his.rigbt of entry, until it be destroyed' by an actual adverse possession, continued for seven, years together, if he has never seen his-land — rif he has not entered upon it for fifty years, his title may be good, if his-adversary hath not been ia possession for seven years continually, during, the whole time with .a colour of title. The act of limitations-operates between individuals haring different grants oí the same lands, or claiming by mesne conveyances under them, where *12there were two such claimants. The legislature' in the year 1715, when this country was a wilderness, and the great object was to procure settlers, thought it more politicto prefer a paten-tee or a grantee under him who had actually settled upon his land and continued in possession for seven years, than another who had not settled upon the land, though he had a prior grant or deed ; but it did not mean to give any preference to an usurper who settled upon the King’s or proprietors’ land, without obtaining a title at all or paying for it; or who settled upon the lands of an individual proprietor, knowing he was a trespasser in doing so, which he must have known if he had no co-lourable title. It is argued that the will of old Irwin was a co-lour of title in his devisees=-»in some cases perhaps, a will may be so considered : it cannot, however, in the present case, because this will expressly takes notice that the title was in Rutherford, and provided for the obtaining a title by payment of the money — -so here is neither an adverse possession nor colour of title, both which' are necessary to accompany a seven year’s possession, in order to give a title to the defendant. .

"There was a'verdict and judgment for the plaintiff.