
    Elijah Cabiness vs. John Mahon.
    No excuse can be made for not recording a conveyance under the act of 1/85, as to subsequent purchasers, and the only case in which a prior conveyance, not recorded, has been regarded as valid against a subsequent purchaser, whose conveyance was duly recorded, is where the subsequent purchaser had received explicit notice of the prior deed. Presumptive notice will not do.
    ■Where adverse possession for 5 years is proved, a written muniment is of no other use than to shew the extent of possession.
    THIS was an action of trespass to try titles to a tract of land in Laurens district.
    The plaintiff proved a regular paper title from the original grantee' of the land through James Wright to himself. The conveyance from James Wright to the lessor of the plaintiff, was dated in the year 18 — , neither the plaintiff nor his lessor Lad ever been in possession of the land in dispute.
    The defendant bad been in possession of the land for SO years prior to the commencement of the action. He went into possession under a duly executed deed of conveyance from James Wright, who was permitted to remain in possession of a part of the land for several years. In a short time after, the defendant went into possession of the land, by some means Wright got possession of his deed, and destroyed it. It was not recorded. Wright left the land several years prior to the commencement of this action, after having had much altercation with the defendant about it. Some evidence was given of conversations which had passed many years ago (prior to Wrights departure) between himself and the defendant, as to this land ; but from the confused accounts of these old and loose conversations, nothing material to the issue could be collected. The presiding judge, in his charge to the jury, stated that the deed from Wright to the defendant, not having been recorded, the title of the plaintiff under the Subsequent deed by Wright to the lessor of the plaintiff must prevail. A verdict was accordingly rendered foi*-' the plaintiff.
    A motion was now made for a new trial, on the ground.' of misdirection by the court.
   Mr. Justice Sieger

delivered tíre opinion of the court;'

The act of 1785, declares that all conveyances not recorded in six months after execution shall be legal and valid only as to the parties and their heirs, but shall be void as to subsequent purchasers, whose conveyances shall be recorded as the act prescribes.

The object of the act was the protection of purchasers against fraudulent conveyances. To admit as an excuse for not recording, the destruction of the deed, is to expose the purchaser to the very fraud against which the act was intended to protect him. The only case in which a prior' conveyance not recorded, has been regarded as valid against a subsequent purchaser, whose conveyance was duly recorded, is that of Tait fy Crawford, (1 McCord’s Rep. 265, 479,) where the court declared, that if the subsequent purchaser had received explicit notice of the prior sale, his conveyance would have been held valid.— It is not pretended that the lessee of Wright had explicit notice of the prior conveyance to' the defendant, but it is contended that the possession of the defendant ought to be regarded as presumptive notice of a prior conveyance.— But Wright was himself in possession, which raises as strong a presumption against the defendant’s possession as his could against Wright’s. If to Wright’s possession be added the conveyance to him on record, there remains no ground for presuming that the lessee of Wright had notice of his prior conveyance to the plaintiff. But presumptive notice will not do; it must he explicit, or the act will soon become a dead letter.

Had the jury therefore been instructed that the paper title of the plaintiff was superior to the defendants, and their attention been directed to his statutory claim by possession, this motion must have failed. But it appear? •that the defendant’s title by possession was regarded as contaminated by his paper title. That a party may succeed on his possession when he has failed to prove a paper title, is not now to be questioned. Where adverse possession for five years is proved, a written muniment is of no other use than to shew the extent of possession. The defendant had twenty years possession of this land. During the whole of that period he held adversely to Wright. The deed of Wright was unimportant to the defendant after the first five years, except to show the extent of his possession ; and this might be done by evidence much less formal than a deed duly executed and recorded in the register’s office.

Porter, for the motion.

Dozens, contra.

The motion for a new trial is granted.

Justices Qantt, Colcock and Richardson, concurred.  