#### DEN ON DEMISE OF VINCENT REED & AL. vs. PETER EARNHART & AL.

Where A., B , C and D. had had possession of a tract of ¡and for upwards of forty years, under successive conveyances from A. to B., from B. to C. and from C. to D , with the exception of five years, between the twentieth and twenty fifth year, during which period no possession was proved. It was held that, notwithstanding, a presumption arose of a grant from the State.

A continuous, unceasing possession is not necessary to raise such a presumption.

The presumption of a grant, from long possession, is not based upon the idea, that one actually issued ; but because public policy and “the quieting of titles make it necessary to act upon that presumption.” The presumption can only be repelled by proof of the fact that the State never did part with its title.

Ruffin, C. X, dissentiente.

Tiie cases of Fitzraniolph v. Norman, N. C. Term Rep. 131, Chandler v. Lunsford, 4 Dev. and Bat. 407, and Holdfast v. Shepard, 6 Ired. 3(54, cited and approved.

This was an appeal from the Superior Court of Law of Rowan County, at the Fall term 1847, his Honor Judge Pearson presiding, transferred from the Supreme Court at Morganton to this Court, by order of the Court.

*517A grant to the lessor of the plaintiffiskued in June 1845. The defendant relied upon color of title, land seven years possession, and the presumption from lon¿ possession, that the title was out of the state. He reacl in evidence a deed from David Woodson to George Miller, dated in May 1802 and registered in 1809, a deed from Miller to one Wallace in 1811, a deed from Wallace to Peter Earn-hart in 1812, a deed from said Earnhart to one Buchanan in 1829, for a part of the original tract,, which is not sued for, and a deed from said Earnhart to the defendant in 1836, for the part now in controversy. He proved, that Miller took possession in May 1802, and held possession by his tenants until he sold to Wallace in 1811; that Wallace lived on the land from the time he purchased until 1812, when he sold to Earnhart, who lived on the land until 1821, when he put one Peirce in possession, as his tenant, who lived on the land until the fall of 1822. '- In 1827 Earnhart put Buchanan in possession, who lived on the land for several years, and in 1829 Earnhart gave him a deed for 103 acres of the tract, and in 1830-put one John Earnhart on the remaining 90 acres of the tract, who lived on it, as his tenant, until 1835, when the said Peter Earnhart sold and conveyed to the defendant, who immediately took possession, and has been in possession ever since. To prevent the presumption of title out of the State or repel it, the plaintiff proved, that from the fall of 1822, when Pierce quit the possession, up to 1827 ¡ when Buchanan entered, the land was unoccupied, and the house and fences had rotted down. The Court intimated the opinion, that, notwithstanding this proof, it would be the duty of the jury, to presume title out of the State, if the evidence offered by the defendant was true. In deference to this opinion the plaintiff submitted to a non-suit, and appealed.

Boyden and B. F. Moore, for the plaintiffs.

W. II. Haywood, for the defendants.

*518Pearson, J.

ff’he single question is, was it the duty of the jury to presume title out of the State, from the fact that actual possession had been held of the land from 1S22 until 184(5, under a connected chain of registered deeds, with the exception of five years (from 1822 to 1821) during which [it was unoccupied ?

The presum'ption of a grant, from long possession, is not based upon the idea, that one actually issued ; but because public policy and “the quitting of titles” make it necessary to act upon thkt presumption. It is the duty of the Court to instruct the jury,-when land has been for a long time treated and enjoyed as private property, to presume that the State has parted wdth its title, unless the presumption is repélled by proof that such is not the fact. Long 'possession changes the truth of proof: and a grant is to be pursumed. not because the jury believe, as a fact, that one issued, but because there is no proof that it did not issue. So if one suffers water to be ponded upon his land for twenty years, the jury are told topresume a grant of the easement, not because they believe a deed was executed, (for, ifso. it would be seldom worth while to rely upon the presumption.) but because there is no proof that one was not executed: so if a bond has been standing for twenty years, (ten by Statute,) the jury are told to presume it has been paid, unless it be shown that it was not paid. So if a woman swears a child, under the bastardy act. the jury are told to presume the person charged to be the father, not because the evidence satisfies them that he is, but because he is to be so considered for the purpose of maintaining it,unlesshe can show that he is not the father.

These instances are stated to explain the nature of the presumption, upon which the defendants’ title rests. What will raise the presumption and what will repel it. are questions of law, about which it is the duty of the Court to direct the jury; whether the fact be proved or not is solely for the jury ; but whether there be a presumption, *519or whether it be repelled, are not open questions, for the jury to decide, according to their belief of the fact, upon circumstantial evidence.

In England a possession of sixty years or more is required. The earlier cases in this State also required sixty years. But the necessity of the rule, and its manifest good policy, in a new settled country, induced our Courts to shorten the time ; and by successive decisions it has been reduced to fiftv, forty, thirty years, and an intimation is made that it might be supported by twenty-five years.

The necessity of the rule arises from the difficulty of making proof in relation to transactions of a remote date. The loss of papers, death of witnesses, treachery of memory, make it almost impossible to establish with legal precision, the existence of facts which occurred many years ago. Reasonable presumption must therefore be acted on. Long possession affords this reasonable presumption. To require proof of particulars and of detail, as to past occurrences, would be inconsistent with the necessity, which gives rise to the rule, and render its practical application impossible. For instance, it has been proved that for sixty years a tract of land has been occupied and treated as private property, first by A., then B., C. and D. This general fact can be proved. But, if, before the presumption of title out of the State can be made, it be necessary to go into particulars and show the connection between A., B., C. and D., and how one claimed and derived title from the other, &c„ these particular facts cannot be proved. This difficulty of making proof is the foundation of the rule. Hence to require such proof is inconsistent with the reason of the rule, prevents its practical application, and renders it illusory and useless, in the very cases where it is most needed. We find it therefore settled in Fitzrandolph v. Norman, N. C. Term Rep, 131, which is followed by the recent case of Chandler v. *520 Lunsford, 4 Dev. & Bat. 407, that a connection between the occupants need not be shown, but the general fact, that the State or its agents allowed first one and then another to use the land as private property for a long time, raises the presumption, that the State had granted the title to some one. It is not necessary to fix upon any one in particular as grantee, so the title is out of the State. These tw o cases, it seems to me, settle the question. For the very same reasons, which dispense with the necessity of showing a connection between the occupants, also show that it cannot be expected and is inconsistent with the reason of the rule, to require proof of a connection between the periods of time, when such possession was held, as that when A. quit the land, B. immediately entered ; so with C. and D.; for it is just as impossible, after the lapse of a great many years, to show the particulars, as whether it was a month, six months, a year, ten years, fyc., after A left before B. entered, and so as to C. and D., as it is to show by what title B., C. and D. came in ; and there is the same reason for dispensing with proof of the one as of the other. The substance of the rule is, that the land shall be held as private property, for a great many years, and as the occupants need not be connected, so the periods of time need not be, provided the time it is so occupied (for this is the essence of the rule) be for sixty years or more, as the rule at first stood. But it is said, since the time is reduced to thirty years, there is not the same difficulty of proof, as to the period of time, when one went out and the other came in. True, nor is there the same difficulty of proof as to the connection of the occupants. But as to this latter circumstance, it is not pretended that the rule is changed by shortening the time : why should it be so,.as to the former? There is no intimation, in any of the cases, that the timéis made shorter,upon condition, that there should be a compensating change by showing a connection between the persons and the periods of pos*521session. On the contrary, the decisions are put upon the ground, that the rule remains the same in other respects. Its policy is so beneficial, that the time should be made shorter. So, if a connection between the periods of possession was not necessary, when the time was seventy years or more, there is no authority for making it necessary, now that the time is thirty years.

The course of the Courts in shortening the time has been concurred in by the Legislature. The Act of 1791, under certain circumstances, gives title from a possession of twenty one years. That act does not supersede the common law rule, but gives a new mode of acquiring title, leaving the common law presumption as it was. It gives a title against the State from twenty-one year’s possession, if these things concur, color of title, connection between the occupants, and continued possession. It is certain that the first two are not requirements of the common law rule, and the connection, in which the third is used, tends to confirm the conclusion that it was not. At all events the fact that the Act of 1791 requires a continued possession, furnishes no proof that the common law rule did so. The argument proves too much, for it ■would follow that color of title and connection between the occupants were requisite by common law, as they are required by the act. Care should be taken not to confound the common law rule, with this statute. I have no doubt that a failure to keep the difference in mind, has, among the profession and in the reports, introduced a confusion in the use of words, which is the next thing to a confusion of ideas, and unconsciously leads the mind to a false conclusion. In the English books nothing is said about continued possession, and I find no case where an interval in the possession, such as occurred in this case is noticed or made a point of. The language of the books is, “title will be presumed from long possession” — “a possession for a great many years, authorizes a presumption *522of any thing to support the title” — -and when the expres. sion of “uninterrupted possession” is used, it is not to convey the idea of “continued” in the sense we use it — incessant, unceasing — but to convey the idea, that the occu* pant has not been “interfered with” or “evicted” by the assertion of an adverse title. His possession is not considered as interrupted, although he may not, as few owners do, find it convenient at all times to keep “his foot” upon the land. The phrase, in reference to prescription, of which the rule of presumption isa modification, is not that the enjoyment has continued — incessant, unceasing —but that “the memory of man runneth not to the contrary ;” that is, no living man can recollect a time, when the enjoyment was prevented or hindered, by one denying the right, which would be a notable fact, apt to arrest public attention. Whereas the silent fact of permitting a tract of land to be unoccupied for a season would escape attention, and no stress was laid upon it. In our books, although there has been a decision upon it, the Judges^ in treating of the common law presumption, frequently use the words “long continued possession of the party or those under whom, he claims” These words are as much out of place, as would be the words “color of title,” in re» ference to the common law presumption; but when a connection between the occupants appears in a case, and no question is made as to the continuance of possession, the use of these words, it is supposed, does no harm, and they are unconsciously imported from the Act of 1791, and this imperceptibly creates an impression, that the common law rule had similiar provisions.

The. Act of 1791 creates a legislative grant, and the act of 1715 ripens the title. Hence it was proper, not only to require color of title, but a connection between the occupants and a continued possession. On the contrary, the common law rule does not confer a title, but simply raises a presumption, that the State has parted *523with it. As there is such a difference in the results, it would be strange if the requirements were the same

A plaintiff in ejectment shows color of title and seven years possession in the lessor. He then shows a grant to the defendant; this entitles him to recover So, if he shows that the defendant was in possession, under color of title twenty-one years or without color of title thirty years, or that the defendant was in possession twenty-four years when the lessor evicted him. The defendant’s possession for twenty four years, added to the lessor’s possession of seven years takes the title out of the State, which is sufficient for the purpose of the plaintiff, if the State is presumed to have parted with her title, because A. is permitted to keep possession twenty-four years, and R. (who evicts him) seven years. The like result would follow, it would seem, if A. is permitted to keep possession twenty years at one time and fifteen at another, after an interval of five years ; for, in both cases, there is a new possession, and, if that does not prevent the presumption in the one, there is no reason why it should in the other. In the latter case, A. has been permitted to keep possession thirty-five years. This is inconsistent with a title in the State, and the fact that the land lay idle for five years, has no bearing on the question, because it does not tend to prove that the State had not granted the land, unless this state of things was caused by actual possession being taken for the State or some assertion of her title ; for if A. let the land lie idle, merely because it was not convenient for him to occupy it, it is difficult for me to conceive how perfect inaction, on the part of the State and its agents, can repel a presumption, which otherwise would be made, and show that the State had not granted the land. The proposition involves the absurdity of making the title of the State depend upon a mere accident, not affected in the slightest degree by any action on her part; the very reason for making the pre*524sumption, being the inaction of the State and her agents, for a great many years, while individuals are using the land as private property.

The argument urged to show that there must be continued possession is, that, at the end of twenty years, if A. goes out, the State, not having lost her title, has a constructive possession, so that when he comes back, after five years, he has a new possession, and thus there is a new point of departure, from which , the time begins to run. The same reasoning would show the necessity of a connection between the occupants ; for when a third person takes possession, there is a new possession. But in truth the reasoning is fallacious, as applicable to a common law presumption, and is an importation from the act of 1715, which takes away the right of entry of the owner, if he fails to enter or make claim in seven years next after his right accrues. Under this act, if the possession is left vacant, before the seven years expire, and the trespasser afterwards enters, this sécond entry isa new trespass, a new cause of action and the time begins to run from such new right of action. So if a third person enters and evicts the first trespasser, before the seven years expire, this is a new cause of action and the time begins to run from that date. For as the object is to acquire a title under the statute, its provisions must be rigidly complied with. Holdfast v. Shepard, 6 Ire. 364. But where the object is to show title out of the State merely, the matter is entirely different. The connection between the occupants is not necessary and the possession need not be continuous. The fallacy of the argument lies in attempting to draw an analogy from a statute and apply it to a rule of the common law, and in not giving due weight to the distinction, that the statutes perfect title; the common law rule only presumes title out of the State. The statutes countenance and aid the common law rule, and, by no fair inference, can this be máde to abridge it.

*525The defendant cannot show title in himself undqr'the act of 1791. His actual possession was only continued' twenty years and six months at any one time, and the requirements of the statute must be rigidly complied with. But the rules of the common law are more pliable and Jit themselves to every combination of circumstances, when there “is the like reason.” Its admirers boast that, “reason is the life of the law,” and ‘‘when there is the like reason, there is the like law.” If a continued possession for thirty years, without color of title, and without showing a connection between the occupants, raises a presumption, that the title is out of the State, does not the “like reason” call for the same presumption, when there has been a possession for forty-two years, by persons claiming under a connected chain of registered deeds, with the exception of five years, when the land was unoccupied'? Is not the probability, upon which the presumption is founded in aid of proof, as great, if not more so, in the latter case, than in the former? or can that system of law, which in the one case secures the title, and does not in the other, deserve the high distinction of being the “perfection of reason ?”

The objection, that, in order to justify the presumption, the possession must be shown to have been unceasing for thirty years, (if an interval of five years be fatal, five months must have the like effect,) is nowmade for the first time. Its.novelty certainly doesnot recommend it. There 'is no decided case to sustain it. The only countenance it receives is from a few loose expressions, evidently drawn from the act of 1791. The reason of the thing and the foundation of the rule of presumption directly oppose it.

Nash, J., Concurred.

Ruffin, C. J.,

dissentienle. The possession of the defendant was for about twenty years, and he then abandoned *526the premises and they were vacant for five years. Sub* sequently he entered again, and was in possession for fifteen years, before the issuing of the grant, under which the plaintiff claims. The tendency of the adjudications in this Country follows the current of legislation, in shortening the periods, in which presumptions may be made, whether of deeds or grants or other things; and I have concurred with my brothers heretofore, and now, in saying thirty years possession of lands will authorize the presumption of a grant of them. That, I think, is the shortest period, which can be stated, as, in itself, creating a legal presumption of a grant. Some particular time must be fixed on ; and until the Legislature shall think proper to alter that prescribed by the statute, where the presumption from possession is aided by the other two circumstances of a colorable title and known and visible boundaries, it would seem the Courts could not admit less than a possession of thirty years to have that effect. In all the cases hitherto there has been a possession for the period of thirty years or more, expressly' stated, except one ; and in that it was said to have been for twenty five or thirty years by continued cultivation, and for several years more by such acts of ownership, as gettihg timber annually. 1 should think, therefore, that there had been a sufficient length of possession here — for about thirty-five years at different times — if it was of such a nature in other respects as to authorize a conclusive legal presumption, that a grant had issued for this land. It seems to me, that it is not of that nature, because of the chasm of five years between the different possessions ; so that there has been at no time a sufficient possession to constitute in itself a title. It has been the prevailing impression» that nothing less than along, continued possession will lay the foundation of a presumption of a deed or grant. As Lord Keeper Henley said, in Fanshaw v. Rotheram. 1 Eden 275, quieta, langa, el pacifica possessio is considered *527as the best evidence of title. But it would seem from the very terms used in speaking of it and-from the nature of the thing, that it must be one possession, long and quiet. When we say that possession raises a presumptiop, we must admit, at the same time, that, when the possession ceases, the presumption must fall with it. Therefore it would seem, if the possession do not continue long enough to afford an inference of title in itself, that, upon its termination, the whole inference, which the possession up to that time tended ultimately to establish, vanished and the title was set at large again. When we say, that a particular thing or state of things creates a presumption in law, that thing or state of things must be complete, in order to have that effect.' This thing of possession, for example, may, though short of thirty years, be, with other facts and circumstances, very proper to be weighed by a jury as evidence, that a deed was formerly made ; but, if it be at all less than thirty years, it fails to establish, by presumption in law, the existence of the grant alleged. The reason why a possession, which is required by law of a particular duration, must be completed by an efflux of the whole time before it ceases, in order to its being at all efficacious is, that upon a cesser, the possession, being vacant, vests in the true owner by implication. Here upon the defendant’s going out, the possession, as well as the title, was in the State. It is like the case of a payment of a bond, presumed after the lapse of twenty years after it falls due. Less than twenty years will not authorize the Court to direct the jury to find the payment: and, if the obligor make a payment in the twentieth year, the day of that payment is the point of departure, not for the completion of the twenty years that were going on, but for a new twenty to commence then and be complete before the presumption will again arise. For my part, Í acknowledge, that it has always been my understanding, that, in all such cases, the benefit of a previous possession

*528was lost, if interrupted before the whole period was ac. complished. Such are the terms of our statute of limitations, barring the entries of individuals or the title of the 'State. They require a continued possession under a claim of title. That provision is not arbitrary, but it is apt to the conclusion, which the acts allow to be drawn from the possessions prescribed in them. A possession continued for twenty one years, under certain circumstances, is a bar to an entry under the State. Why did the statute require the possession to be continued for that period ? Plainly because a continued possession only is any evidence of title. Men, who own land, do not generally, if ever, abandon it after taking possession. It would be the duty of the Court to require the same species of possession, when used to raise a presumption of a grant at common law, which the statute prescribes as to the cases within it. But the truth is, that the statute is expressed in that manner, only because at common law and in the nature of a presumption from possession, such possession must be continual, to be efficacious. That no one thought otherwise appears from the language, which fell from the Judges in almost every case that has come before them. In Hawks v. Tucker, 2 Hay. 147, it is called a “uniform” possession for twenty one years. In Fitzrandolph v. Norman, N. C. T. R. 132, there was a continued possession for forty six years and by the defendants •for thirty-five, and Chief Justice Taylor spoke of a “long continued possession” going to the jury independent of the act of 1791. It is true, that disconnected possessions •were then received in evidence ; but it was not as authorizing the Court to pronounce upon the presumption from them, but expressly as circumstances tobe weighed .by the jury. In Rogers v. Mabe, 4 Dev. 180, the Court .take notice, that there was a clear and “continued” occupation of the land for forty or fifty years after filling up all chasms. So in Chandler v, Lunsford, 1 Dev. & Bat. *529 407, there were thirty-five- years of “continued possession”by persons under each other. And in Morris v. Commander, 3 Ire. 500, the Court said, there must be an enjoyment “continually” for twenty years. So Lord Coke says, in Bedle v. Beard, that it is “in respect of an ancient and continual possession” that lawful grants are intended. 12 Rep. 5. Indeed, if disconnected possessions of this sort would answer, I presume some case would be found, either in England or in this Country, in which effect has been given to them. There are cases, in which divers, possessions and other acts of ownership have all gone to the jury together, as evidence to be weighed by them ? but, as far as 1 have been able to examine, consistently with my other duties, I have not been able to find a single-one, in which the Court has ventured to declare the presumption of a grant, where there was not continual adverse possession for the prescribed' period ; and I am for-adhering to the rule, as I know not what mischiefs may grow from the Court’s making these artificial presumptions, with less and less grounds for them. I think there-is but little danger, that possessions, when continual, cannot'be proved for the period adopted in this State. But in the present case, the fact is affirmatively shown, that the defendant was out of possession five years? and, therefore, this is no-t an instance, in which it can be apprehended, that the defendant with a good case had failed to prove it. For these reasons my opinion is that the judg* ment ought to be reversed.

Per Curiam.

Judgment affirmed.