
    Bream v. Cooper’s Heirs.
    Argued February 14th, 1815.
    1. Ejectment — Bill of Exceptions — Possession.—If it be stated in a Bill of exceptions, upon a trial in ejectment, that the testator of the defendant departed this life in possession of the land, which possession he had held “adverse to the lessor of the plaintiff ’ for a specified time; itmustbe understood that such possession was adverse to those under whom the lessor of the plaintiff claimed; especially, if it appear from another bill of exceptions in the same trial, that the title of the lessor of the plaintiff did not commence until after the death of the said testator.
    2. Same — Same—Same.—If it appear from the record in ejectment, that the defendant, or his testator, had adverse possession of the land, at the time when a deed of trust, under which the plaintiff claims, was executed, judgment ought to be rendered for the defendant, although the nature of his title does not appear.
    The appellant Bream brought ejectment in the Superior Court of Mason county, against the appellees, for a tract of land lying in that county, and the parties being at issue went to trial.
    At the trial the plaintiff filed three bills of exceptions ; the first of them stating, in substance, that the plaintiff offered to prove by circumstantial testimony, which is set forth at large, *that the testator of the defendants had notice of the title of the lessor of the plaintiff;— whereupon the Court instructed the Jury that such evidence was not sufficient to prove notice as aforesaid, and refused to permit the same to go in evidence to them, to which opinion the plaintiff excepted, &c.
    The second stated, that the testator of the defendants departed this life sometime in the fall of 1807, in possession of the land in the declaration mentioned, and the possession of which he had held adverse to the lessor of the plaintiff from the year 1797. — The plaintiff offered to prove, by other oral evidence, that the present defendants, since the death of their testator, had notice of the title of the lessor of the plaintiff; but the Court also refused to admit such oral evidence to go to the Jury, and instructed them, “that the lessor of the plaintiff having an adverse possession at the time of the deed of trust being executed, and that possession being continued, the Jury ought to find for the defendants.” — To this opinion the plaintiff also excepted, &c.
    The third bill of exceptions stated, that the plaintiff to support his title 'offered as evidence a grant from the Commonwealth to Andrew Lewis, bearing date on the 24th of July 1787 ; a deed of trust from Lewis to a certain Francis Follette, bearing date on the 13th August, 1806, conveying the land to him as trustee for the payment of a debt due to the lessor of the plaintiff, with a proviso for sale, &c. on default of payment, &c. —To the admission of this deed as evidence, the defendants objected, because it did not appear to have been proved by three witnesses, and recorded within the time prescribed by law ; two of the witnesses only having proved it within eight months, and the other witness having proved it after the eight months had expired ; which objection was sustained by the Court. — The plaintiff also offered in evidence a deed from Follette to the lesser of the plaintiff, bearing date on the 29th of January 1810, reciting a sale, &c. in conformity with the terms of the deed of trust, a purchase by the lesser of the plaintiff, &c. To the admission of which deed also the defendants objected, “unless the plaintiff did shew *that Francis Follette the trustee had duly and legally advertised and sold the land agreeably to the stipulations of the said deed of trust,” which objection was also sustained by the Court. Whereupon the plaintiff again excepted, &c.
    A Verdict was found for the- defendants, and judgment rendered accordingly.
    Wickham for the appellant,
    relied on the following points :
    1st. That the court erred on the point stated in the first bill of exceptions ; first, in instructing the jury on the sufficiency of the evidence, and then in prohibiting that evidence from going to the jury on the ground of its insufficiency.
    2d. That, on the point stated in the second bill of exceptions, the court erred in instructing the jury that they ought to find for the defendants, as it does not appear from the bill of exceptions that the possession of the defendants was adverse to those under whom the plaintiff claimed, but only to the plaintiff himself ; and the nature of that possession, or the title set up by the defendant, does not appear.
    3d. That the court also erred on the two points stated in the third bill of exceptions ; first, because the deed offered in evidence, whether recorded in due time or not, was good, except as to creditors and subsequent purchasers, and it does not appear that the defendants were either the one or the other; and, secondly, because, whether the sale to the lessor of the plaintiff was in conformity with the trust deed or not, the legal title passed to him by th(e conveyance from the trustee, and if there was any irregularity in the sale, Lewis, the person who conveyed in trust, could alone object to it, and that only in a Court of Fquity.
    Wirt, contra, insisted that, upon the whole record, the case was clearly against the plaintiff ; for no title passed by the deed of trust, or by the conveyance from the trustee, because a person out of possession cannot convey, according to the cases of Tabb v. Baird, Hall v. Hall,  and Clay v. White ; that therefore judgment should be given against him, whether certain parts of the evidence were admissible or not. 
    
    
      
       Bill of Exceptions. — See monographic note on “Bills of Exception” appended to Stoneman v. Com., 52 Gratt. 887.
      Conveyance of Land — Necessity of Possession by Grantor. — To the point, that an owner of land, whose seisin is interrupted by the actual entry and adverse possession of another, cannot, while out of possession, effectively convey such land by deed of bargain and sale, the principal case is cited in Williams v. Snidow, 4 Leigh 17. See further, footnote to Clay v. White, 1 Munf. 162.
    
    
      
       Note. So in the Recordbut it seems the meaning- is that, “there beingr a possession, adverse to the claim of the lessor of the plaintiff, at the time of the deed of trust being executed, ” &c. — Note in Original Edition.
    
    
      
       3 Call 475.
    
    
      
       Ibid. 488.
    
    
      
       1 Munf. 162.
    
    
      
       Wood v. Luttrel, 1 Call 232; Davies v. Miller, 1 Call 127; and Preston v. Harvey, 2 H. & M. 55.
    
    
      
       For monographic note on Rape, see end of case.
    
   December 9th, 1815,

JUDGE ROANE

pronounced the court’s opinion :

The court is of opinion, that, it being stated, in the second bill of exceptions, that the testator of the ap-pellees died in possession of the land in controversy, in the fall of 1807, and had held possession thereof, “adverse to the lessor of the plaintiff” (the appellant) “from the year 1797 that the possession is not to be taken to relate to the said appellant only, in exclusion of Lewis and Follette, under whom he claims ; especially as the said appellant’s title did not commence until after the death of the said testator, viz. on the 29th of January, 1810. The said possession, therefore, being considered as adverse to Lewis and Follette, under whom the appellant claims, the court is of opinion that there is no error in the instruction in the said bill contained, which states, that the testator of the appellees having had an adverse possession at the time of the deed of trust being executed, and that possession being continued, the jury ought to find for the defendants.

On this ground, without considering any other, the court is of opinion to affirm the judgment.  