#### DOE ON DEMISE OF HENRY BULLARD vs. GEORGE T. BARKSDALE.

It is established, as a general proposition, that from a long and peaceable possession of land, hpbh a claim df the right, a presumption arises, that the possession was rightful, and therefore was under such grant; deeds and asstir'aSCes, asare necessary to impart to it that character.

The presumption is not deduced as an inference of fact from the possession, as evidence merely and according to its influence on the minds of the juryj in producing, or failing to produce, a conviction, that the presumption is according to the truth, but the deduction is made; without régard to the very fact, bv a rule in the law of evidence.

The force of this presumption is not destroyed or in any degree repelled by evidence, which tenders R probable, that; in truth, a grant was not issued.

The grant is presumed, not because the jury believed that one issued, but because there is no proof, that it did not issue; indeed, in the nature of things, it would seem, that there can be no sufficient negative proof of the kind supposed.

Where a long possession, under a claim of title by a grant, as in this case of forty-seven years, has been proved, and to rehut the presumption it was shewn that the party so claiming was unable to produce a grant, declared his belief that it never existed, and made efforts to obtain another grant j the Court ought not to have submitted to the jury, upon this evidence, to find whether there was a grant or not, but should have instructed them, that, from the possession alleged, they should presume a grant, and, as matter of law¡ that there was no evidence to oppose and repel thepresum'p* tion.

The cases of Heed v Barnhart, 10 Ire. 516, and Burly v Morgan11 Dev. & Bat. 425, cited and approved.

Appeal from the Superior Court of Law of Sampson County, at the Fall Term 1850, his Ho¡nor Judge Battle presiding.

*462This was an action of Ejectment,

The premises are situate in Sampson County and contain 440 acres, and were granted to the lessor of the plaintiff in 1845, who instituted this suit in May 1846 : the defendant gave evidence at the trial, that, in 1847, he purchased the premises from a person then in possession, and immediately entered and had been in actual possession of them ever since, and that his vendor and those, under whom he claimed, had been in the actual continued possession of the premises from the year 1777 to 1847, claiming them as their own, under known and visible boundaries. On the part of the plaintiff, evidence was then given, that, in 1S44, the defendant said he could not find a grant for the land, and that one Black, a surveyor, had said to him, that some one might- trouble him, and advis* ed him to enter it and get a grant; that the defendant accordingly made an entry (after that of the lessor of the plaintiff) and took out a warrant and had his survey made and sent it to Raleigh by a messenger in haste, for the purpose of being before the lessor of the plaintiff in getting a grant, if he could.

The counsel for the defendant insisted that, by reason of the long continued, and peaceable possession of the premises by the defendant, and those under whom he came in, claiming them as their own, a presumption of a grant from the State, prior to that made to the lessor of the plaintiff, arose, and that, for that reason, the plaintiff could not recover. The Court declined giving the instruction in that form, but directed the jury, that, if they believed the defendant, and those under whom he claimed, had been in possession of the land under known and visible boundaries for the period alleged by him, they were bound to presume that the defendant, or one of those under whom he claimed, bad a grant for it, unless they were satisfied from other evidence offered, that, in fact, no such grant existed.

*463The counsel for the defendant further moved the Court to instruct the jury, that, if they found such a possession, on which a grant was to be presumed by them according to the foregoing instruction, there was no other evidence offered in this case, which could rehut that presumption, and that the defendant was entitled to a verdict. But the Court refused to give this instruction, and directed the jury that the declarations and acts of the defendant, respecting a grant, were evidence tending to rebut the presumption, which was proper to be considered by the jury, and the Court would not intimate an opinion, whether it was sufficient for that purpose, but that the jury were the judges of its weight, and were to consider, whether those declarations and acts were the result of knowledge or of ignorance and mistake in the defendant, as one might by mistake admit that he had no title, when he had a good one. There was a verdict for the plaintiff, on which judgment was entered, and the defendant appealed,

D. Reid, with whom was Dobbin, for the plaintiff,

submitted the following argument:

Presumption of legal title, by grant or otherwise, founded on great length of possession, is not conclusive; in other words it is not an inference of law, to be made by the Courts, yet it is an inference which the Courts advise juries to make, whenever the presumption stands unre-butted by contrary evidence.

There are two kinds of presumptions, the one a conclusive presumption of law, which cannot be contradicted ; the other a species of evidence. 1 Starlcie on Ev. 78.— For instance, the law raises a conclusive presumption of title on an adverse possession of twenty-one years under color of title, but long adverse possession without color of title is only evidence from which a title may be inferred.

*464In Fitzrandolph v. Norman, N. C. Term Rep. 131, Chief Justice Taylor says. “There is a distinction made by the law, between length of time operating as a positive bar, and that which is only used by way of evidence, The first is conclusive upon Courts and juries, but when length of time is relied upon as evidence, the jury will believe it or not, according to the attending circumstances.” In the same case, Seawell Judge, says, “a possession was a circumstance and nothing more, from which the law warranted the jury in presuming a grant.” This is the leading case in this State, and has been frequently cited by this Court with approbation. Candler v, Lunsford, 4 Dev. & Bat. 407 Wallace v. Maxwell, 7 Ire. 135. Heed v. Earnlutrt, 10 Ire. 516. Rodgers v. Mabc, 4 Dev. 180. In this latter case, Ruffin, Chief Justice, observes, “The jury should have been told, (here the possession was upwards of forty years) that they ought to presume it, (grant) Unless from the other evidence, they were satisfied a grant did not issue. In this State, time does not as yet consti* tute title, unless it be of that particular kind created by statutes limiting actions on rights 5 in all other cases it is evidence.”

The English authorities are to this extent: grants from the Crown, may, after great length of possession, be presumed. 3 Starkie Ev. 915. Sav,nd, 728. 1 Covjp. 110. Camp, 103,

The rule laid down in the case of Maxwell v. Wallace, 10 Ire. 110, and relied on by the counsel for the appellant, as applied to the facts of that case, is correct, but it would be extending the rule too far, to say, that in every case of long adverse possession, the law presumed a' grant and the jury ought so to find. Lord EpuoN has intimated, that the doctrine of legal presumption ought not to be extended. 6 Ves. 194. (Evans v, Bichnell.)

It is next to be inquired whether there'was in this case any evidence to rebut the presumption of a- grant.

*465The rule was adopted by the Courts from principles of public policy and convenience, founded upon the supposition, that every possession is upon a claim of right, and the inadequacy of human tribunals to investigate the truth of remote transactions, and the loss and destruction of title deeds from lapse of time. Then the acknowledgement and acts of the person in possession, to whom the law presumes that the grant did issue, to the effect that he had no grant, is certainly some evidence, tending to rebut the presumption that the grant did issue, and had been lost or destroyed in the course of nature. Whether the evidence was sufficient in the minds of the jury to repel the presumption, was for them to consider, and is not a ground for venire de novo.

Strange and W. Winslow, for the defendant.

RfjTFfN, C, J.

There have been so. many adjudications upon titles set up under the presumption of conveyances, from ancient and continued possession, after full discussions, that one is under no necessity of going back to the nature and grounds of the presumption, in order to consider them in detail. It is sufficient to say, that it is established, as a general proposition, that, from a long and peaceable possession, upon a claim of the right, a presumption arises that the possession was rightful, and, therefore, was under sueh deeds and assurances as arc necessary to impart to it that character. The presumption is not deduced, as an inference of fact, from the possession, as evidence merety and according to its influence on the minds of the jury, in producing or failing to produce, a conviction, that the presumption is according to the truth ; but the deduction is made, without regard to fho very fact, by a rule in the law of evidence. It is a rule of reason and of policy, calculated to make men dili - gent and active in asserting their rights before proofs, *466once existing, may be lost, and while there is no insuperable difficulty in ascertaining the real truth. If, indeed, one enter for a particular estate or under a particular title, and the nature of the original entry be shewn, then the presumption, that the possession, though very long, was upon a claim of the possession to the estate, does not arise as a legal inference ; and it can enure to transfer the estate, only when the possession is so very long and upon a claim of right, as, with other circumstances, to induce the actual belief, that subsequent to the possession taken, there were other dealings, upon which conveyances were in fact made That, however, concerns mainly transactions between individuals touching estates already vested in one of them; ior, considering the state of our law respecting the public domain, its management and disposition to private citizens, it is seldom, if ever, to be supposed, that possession is taken of any part of it for any particular estate or purpose, which can give a character to a long possession, by which it may be disconnected from the purpose in the possessor of obtaining the absolute title from the State,'or from the apparent exercise of the rights of one who is already the owner of the land by having a grant for it. The only question in such cases is, whether the possession has been long enough to justify an implication against the sovereign from the laches of the public servants, and the omission of private persons to appropriate the land. But it is manifest, from the necessity, which gives rise to the presumption, and from its nature, that it is not supposed to establish as a fact, that a grant was issued ; and that its force is not destroyed, or in any degree repelled by evidence, which renders it probable, that in truth a grant was not issued. If that were the sort of presumption the law raises, or if it could in that way be repelled, it would poorly serve its purpose, and be, really, worth nothing. For, as to the actual probability upon the point, the facts, that the grant is not produced, *467that it does not appear upon the registry in the County, and that no counterpart is enrolled in the department of State, and that no survey or entry is exhibited, nor credit for the payment of the purchase money at the treasury, would, in every case,constitute a mass oí evidence, which could not fail to overturn the artificial presumption we are considering, and is in itself much stronger in its tendency to repel the presumption, than the acts and declarations of the defendant, which were offered in this case. But, as first remarked, it is hardly pretended in any case, that a grant was actually made out; for, it was truly stated by Lord Mansfield, in Eldridge v. Knott, Cowp. 215, that the Court often told the jury to presume a grant from long possession, when there was no idea that the jury believed, or the Court thought they ought to believe, in the particular case, that a grant had been made, and when it was not probable it had; the fact being presumed upon a principle of quieting possessions. These probabilities to the contrary, therefore, do not at all answer the presumption. The same position is very distinctly laid down in Reed v. Earnhart, 10 Ire 516 ; and in that all the Judges concurred. It is there said, that the grant is presumed, not because the jury believe that one issued, but because there is no proof, that it did not issue. Indeed, in the nature of the thing, it would seem, that there can be no sufficient negative proof of the kind supposed; for, whatever-probabilities may be shewn, that there was no grant in fact; yet the probability of its existence remains, which is. sufficient to serve the presumption created by long possessian under a claim of title by a grant. Such a possession was admitted to exist here —being for 47 years. That constitutes a title under a presumed grant. The existence of the grant, thus presumed, is not disproved by the inability of the party to produce it, or even by his declaration of a belief that it never existed — much less by his efforts to obtain another *468grant, since he might wish it, as the most direct and pef-manent evidence oí title. Indeed, the obtaining of a new grant does not disprove the existence of a former one, nor even render it highly improbable, where there has been a long possession, as under an old grant; for, there is noth* ing inconsistent in a person’s making sure his title by further conveyances, and especially in getting a patent, which proves itself, instead of relying on witnesses to establish an ancient possession, under a claim of right, as a foundation for presuming a grant. . A second grant could only shew the party’s caution and vigilance, evinced in making out a title under two distinct grants — the one presumed to have existed, and the other shewn to be existing, Hurly v. Morgan, 1 Dev. & Bat 425. The Court therefore' holds it to have been erroneous to submit this question to the jury on this evidence, as one of fact to be found by them, according to the weight they might give to the circumstances. as evidence to their minds. The instruction ought to have been, that, from the possession alleged, they should presume a grant, and, as matter of law, that there was no evidence to oppose or repel the presumption.

Per Curtam. Judgment reversed and venire de novo.