
    BOLES v. SMITH ET AL.
    (S. C., Thomp. Cas., 214-218.)
    Nashville,
    December Term, 1859.
    [This case was previously before the court in 5 Sneed, 105.]
    1. VOID LAND SALE. Sheriff's deed does not connect with previous deeds.
    Where an execution sale of land has been declared void, in ,a previous case [for insufficient levy], as against the person under and throug-h whom' title is deraigned and claimed, and in which the court concurs, the person so. deraig-ning and claiming title is cut off from all connection with ’ the grant and conveyances previous to the sheriff’s deed under such execution sale. [Sheriff’s deed. Code, secs. 4781-4785, and notes. Sufficiency of levy on lands. Code, sec. 4755, and notes 32-52.]
    Cited with approval: Huddleston v. Garrott, 3 Hum., 629.
    2: STATUTE OF LIMITATIONS. Successive trespassers cannot connect their possessions.
    Where a vendor has not held possession of land under a sheriff’s deed founded on a void sale for a sufficient length of time to perfect his title by operation of the statute of limitations, he is a trespasser, and his vendee is a trespasser, and their x>ossessions cannot be connected so as to make a continuous possession under the statute' of limitations. [See Code, sec. 4456. As to connected possessions, see notes 42-53 under sec. 4461 of the Code.]
    3. SAME. Adverse possession in case of conflicting titles.
    Where there is a conflict in the titles, there must be’an adverse possession of some part of the land in dispute. Possession of a part of the owner’s land not in dispute is not, sufficient. [See note 36 under sec. 4461 of the Code.]
    Cited with approval: Stewart v. Harris, 9 Hum., 714; Smith v. McCall, 2 Hum., 163; Talbot v. McGavock, 1 Yer., 262. .
    4. ESTOPPEL. Parol disclaimer of title to land, when; no outstanding title.
    Where the owner of land makes a parol disclaimer of title to land, abandons it, and encourages or induces another to expend his money in acquiring a title by entry and g-rant to the land thus disclaimed, he, and all persons claiming under him subsequent to such disclaimer, are estopped to assert any claim or title to the land thus appropriated by another, and the title of such disclaiming owner cannot be reg-arded as an outstanding title.
   McKinney, J.,

delivered tbe opinion of the court:

This was an action of ejectment, brought by Boles ag’ainst the defendants in the circuit court of Overton. There was judgment for the defendants, and the plaintiff appealed in error. The plaintiff claims under a grant issued to him for one thousand acres, dated 16th of October, 1837.

The defendants attempt to deraign their title by a connected series of conveyances, under a grant from North Carolina to Donelson and Terrell, for forty thousand acres, issued the 4th of February, 1795, which covers the entire tract of 100 acres, embraced by the subsequent grant to the plaintiff. It is manifest, however, that the defendants’ title has no connection with the grant to Donelson and Terrell. Their title is founded upon an execution sale made on the 3d of March, 1834. And this sale was declared void, by reason of the vagueness of the levy, in the case of Huddleston v. Garrott, 3 Hum., 629, in which determination we concur.

The defendants then are left alone to stand upon the sheriff’s deed to Huddleston, dated 28th of February, 1837, and the conveyance from Huddleston to Allen McDonald (the ancestor of defendants), dated 27th of December, 1839. Being cut off from all connection with the grant, they, of necessity, occupy the condition of trespassers upon the land, unless they have acquired a title by operation of the first section of the act of 1819.

Whether Huddleston had actual possession of the land in the interval between the date of the sheriff’s deed to him, and his conveyance to McDonald, does not appear satisfactory, nor is this fact important, for being himself a trespasser, and McDonald, his vendee, also' a trespasser, the latter could not connect his possession with that of the former. Hence the title of the defendants, in the most favorable aspects of the case for them, cannot relate beyond the date of Huddleston’s conveyance to their ancestor, on the 27th of December, 1839, and that is subsequent to the date of the plaintiff’s grant.

Passing the question for the present whether either of the parties has acquired any valid title as against the heirs of John Mclver, we proceed to inquire, as between the plaintiffs and defendants, which had the better title.

The grant of the plaintiff and the deed of the defendants cover in part the same land. The defendants in February, 1856, a few days before the commencement of the present suit, took actual possession of part of the land within the limits of the conflict. It does not satisfactorily appear that the plaintiff has had actual possession of any part of the land included in his grant. There is proof tending to establish that the defendants have had possession for a number of years of part of the land within the boundaries of their deed, but entirely outside of the conflict.

With reference to this state of the case, his honor instructed the jury in substance, that if the defendants had had an actual adverse possession under their deed, for seven years, of a part of the land, though it were outside of the boundaries of the plaintiff’s grant, and plaintiff had no possession, the statute of limitations would perfect the defendant’s title to the extent of the boundaries of their deed. This instruction is erroneous. As between the parties, the plaintiff has the older, and consequently, the better title; other considerations aside. It is a well settled principle in this state that the party having the legal title has also a constructive possession, which cannot be displaced by anything short of an actual adverse possession in another. There cannot be a possession, either actual or constructive, of the same land in two> adverse claimants at the same time. Hence, it is clear that the actual possession of the defendants of a part of the tract claimed by them, outside of the boundaries of the plaintiff’s grant, was no ouster or disturbance of the plaintiff’s constructive possession, resulting from his title; it was no interference with his right, and neither gave cause of action or complaint.

It is a familiar principle that the possession necessary to perfect an inferior or defective title under the statute of limitations must be an actual possession of some part of the land in dispute. Stewart v. Harris, 9 Hum., 714; 2 Hum., 163; 1 Yerg., 262.

In the present case, neither party having had actual possession of any part of the land covered by both titles, the statute of limitations did not apply, and the question is purely one of title. The remaining question is in regard to the supposed paramount title in the heirs of John McIver, who holds under the grant to Donelson and Terrell.

There is proof in the record tending to. show that prior to the date; of the entry on which the plaintff’s grant is based, Mclver, after surveying various distinct portions of the better lands within the bounds of the 40,000 acre grant to Donelson and Terrell, stated to- different persons that he had appropriated as much of the lands as his grant called for, and did not want the remainder of the lands. It is true, as a general proposition, that a party cannot be divested of his title to land by a mere parol disclaimer. But, if, in addition to such disclaimer or abandonment of title, he encourages or induces another to expend his money in acquiring a title by entry and grant to the land thus disclaimed, we are of opinion that he, and all persons claiming under him subsequent to such disclaimer, would be estopped to assert any claim or title to the land thus appropriated by another. And, of course, the title of the former owner, in such a case, could not be regarded as an outstanding title.

We express no opinion in regard to the effect of the evidence upon this point, as the case must be again submitted to a jury.

Judgment reversed.  