DEN ON DEMISE OF REBECCA R. CRUMP vs. JOSHUA H. THOMPSON.
An attempt to procession land, under the Act, Roy. Stat. ch. 91, is not embraced in the last proviso of the first section of the Act of Limitations, Rev. Stat. ch. 65, so as to prevent actions of ejectment from being barred, if brought within one year after a failure to recover in a preceding action.
Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1851, his Honor Judge Bailey presiding
The action was commenced on the 16th day of August, 1845. On the trial the plaintiff, gave in evidence a grant from the State to Thomas Monroe, dated November, 1792, which covered the premises described in the declaration, and proved that he died before the year 1845, and that the lessor of the plaintiff was his only child. The plaintiff further gave evidence, that the defendant was in possession of a part of the land covered by the grant. On the part of the defendant a grant to one Dolan and Holeman, dated in 1752, and a deed from Dolan and Holeman to Edward Williams, were given in evidence; but the defendant did not give evidence that those conveyances covered any part of the premises. The defendant then gave in evidence a deed from Edward Williams to Richard Pearson, dated in 1791, which covered the part of the premises which was in the defendant’s possession; and also a deed for the same from said Pearson to Nathaniel Peebles, dated in 1817, and that the defendant, in 1844, came in by mesne conveyances under Peebles. The defendant further gave evidence, that, in 1.835, Peebles built a cabin, and also a still-house on the land claimed by the defendant, and placed two of his slaves in the cabin, and his stills and stilling apparatus in the *151still-house, and that his slaves remained there, and he used the distillery, until the Spring of 1838, when he removed the slaves, and stopped distilling, but that the stills and beer-tubs remained in the still-house: and that, in June, 1838, the defendant leased, the land to one To we, for a term of years; but that, in August, 1838, To we, by the consent of the defendant, repaired the dwelling house, and prepared and farmed a piece of land around the house, to make a crop of turnips, and sowed them on the 10th day of the month, and in December, 1838, he, To we, removed to the place with his family, and he and the defendant continued in possession afterwards, up to the commencement of this suit.
The plaintiff gave in evidence a record from the County Court, wherein it appeared, that, on the 3d of July, 1845, the lessor of the plaintiff gave to the defendant a notice, in writing, that, on the 15th day of July, <l I shall proceed to procession my land, to begin at the hickory tree, on the river bank, and commence at 9 o’clock A. M.,” and that to the next County Court, sitting on the second Monday of August, 1845, the processioner returned his certificate, that being called on to procession the lands of Rebecca F. Crump, he commenced, on the 15th day of July, 1845, at a hickory on the river bank, and run thence, &c. to a store; £iand then was about to run east twenty chains to a post-oak, when I was forbidden to. proceed any further, by Joseph F. Thompson, who contends that the line runs from the said store, south, fifty-five degrees west, instead of due east; and, consequently, the lines lie in dispute between said parties.” And it further appeared therein, that the proceeding was dismissed at that time.
The counsel for the plaintiff therefore prayed the Court to instruct the Jury, that, even if they should believe, that Towe fenced, and sowed a turnip patch on the premises as *152early as the 10th of August 1833, and that he and the defendant have continued the possession ever since, the plaintiff would be entitled to recover, because the proceedings begun by the lessor of the plaintiff in July 1845, to procession her land, constituted such a suit, or claim as prevented her right from being barred at the commencement of the present suit. The Court refused to give the instruction, and told the Jury, that, if the possession of the defendant, and of those, under whom he claims, did not commence before the 10th of August 1838, yet, as it had continued ever since, and lor more than seven years, the plaintiff was not entitled to recover. 'Verdict, and judgment for the defendant, and the plaintiff appealed.
No Counsel for the plaintiff.
Gilmer and Miller, for the defendant.
Ruffin, C. J.
It must be understood, that the lessor of the plaintiff made no entry, in July 1S45, on the land claimed by the defendant; but stopped at the corner, lrom which the first disputed line ran ; and, therefore, that the single question is, whether an attempt to procession land is within the last proviso, in the first section of the act of limitations: which is, that, after failing in one action of ejectment, the party may bring another within one year, though the latter be brought after seven years ad verse possession. The Court is of opinion, that it is not. Before that proviso was inserted in 1836, the owner of land, in order to avoid (he bar of such possession, was obliged to assert his claim by making an actual entry before the expiration of seven years. But under the proviso it may be done by an ejectment “ lor the recovery of the lands because in that mode the possession will betaken from the wrong doer, and given to the owner. That is, instead of entering on his own authority merely, upon *153a claim, of right, the law substitutes his effort to obtain peaceable possession by process of law, after an adjudication.of title, and makes that keep alive the right of entry for a year after the determination of the action, in which the possession wasjdemandeJ. The nature of processioning, however, seems to. be entirely different. Its purpose is solely to establish, as the true boundaries of the land of the party asking it, the particular lines reported by the processioner or freeholders. But there is no judgment given of recovery by the Court, much less an execution affecting the possession. On the contrary, the possession is not demanded, and the proceeding does not suppose one, adverse to the processioning party, but, rather’ that he is in possession of what he claims, so far as any can be distinctly collected. For. in the fourth section of the Act, Rev. Stat. ch. 9!, which prescribes the effect of processioning, as it is ealled, the provision is, that every person whose lands shall be processioned two several times, shall be deemed the true owner, and that, upon any suit for such lands, the party in possession may plead the general issue, and give the Act in evidence. It seems to have been the purpose merely, that persons, possessing or claiming contiguous tracts of land, instead of resorting to an ordinary action at law, to try the question of boundary, might have this less expensive, and sometimes, perhaps, as satisfactory, summary mode for settling the boundaries; and, when thus settled, to make the proceeding evidence of title up to those lines, as the true boundaries. But it was not intended, that the possession should be drawn in question, nor, in other respects, to substitute this proceeding for an ejectment, by submitting to five freeholders in the premises the general question of title, arising upon inquiries as to the due execution of a will, the construction of • the devises in it, an allegation of fraud in a conveyance, or the length' and nature of a party’s possession in reference *154to the Statute of Limitations. At all events, the proceeding is not to effect the possession of either party, but that -is left as the subject of another suit, unless voluntarily' abandoned upon the settling the boundary. Therefore, the defendant’s possession was not disturbed, nor even demanded, until it was done in this action; which was a few days too late. . •
Per Curiam, Judgment affirmed.