
    MARTIN v. BURGESS.
    Nonsuit — -Trespass—Damages—Title.—Proof by plaintiff tending to show that he had been in possession of land for more than ten years, and that both parties claim from a common' source, is sufficient to prevent nonsuit in action for damages for tortious eviction and trespass.
    Before BENET, J., Anderson, March term, 1901.
    Reversed.
    Action by A. F. Martin against Elizabeth Burgess. From order of nonsuit, plaintiff appeals.
    
      Messrs. Carey, McCullough & Martin, for appellant.
    
      Mr. Martin cites: Other grounds for sustaining nonsuit cannot be considered: Cir. Ct. Rules V. and XVIII.; 20 S. C., 114; 53 S. C., 220; 53 S. C., 132; 54 S. C., 205. Nonsuit improper, there being some evidence of title by commoÁ source: 53 S. C., 220; 48 S. C., 243. Title by adverse possession: 50 S. C., 297-8, and cases cited there. Presumption of deed in this case from transaction proved: Abb. Tr. Ev., 898, and cases there cited. Plaintiff tortiously evicted by defendant; hence, ordinary rule as to recovery on strength of title does not apply: 17 A. & E. Ene. L. (1 ed.), 289; 15 S. C., 272-3. Not necessary to prove title here; possession sufficient: 15 S. C., 271-2; 60 S. C., 401.
    
      Messrs. Tribble & Prince, contra.
    
      Mr. Tribble cites: To maintain trespass, claure clausum fregit, plaintiff must have actual or constructive possession of the land: 4 Rich., 104; 1 Dud., 340; 32 S. C., 291. As to admissions: 1 Ency. D. & Prac., 1033; 2 Speer, 291; 22 L. R. A., 297. When 
      
      title is claimed, by adverse possession it must be clemdy proved: 53 S. C., 216; 2 MeC., 260. As to tort by another than defendant: 39 S. C. (Henderson v. Wendler).
    April 11, 1902.
   The opinion of the Court was delivered by

Mr. Justice Jones.

This action was brought for damages for tortious eviction and continuing trespass, and for recovery of possession of a small strip of land. At the conclusion of plaintiff’s testimony, a motion for a nonsuit was made and granted upon the grounds that there was no1 evidence of title to the land in dispute in the plaintiff, by proof of deeds back to the grant or by proof of exclusive possession for twenty years in the plaintiff and those under whom he claims so as to presume a grant, and also that the evidence of possession for ten years does not give title, but is a mere matter upon which to base a plea of the statute of limitations.

The appeal questions the correctness of the nonsuit. We think the nonsuit was improperly granted. It is settled in this State that one who holds land adversely for ten years acquires a good title, which may be affirmatively asserted against one not protected by some disability. Harrelson v. Sarvis, 39 S. C., 14; Busby v. R. R., 45 S. C., 312; Cave v. Anderson, 50 S. C., 297. It is also well established that in an action to recover real estate, the plaintiff need not show a perfect claim of title back to' a grant, if it appears that both parties claim from a common source. Geiger v. Kaigler, 15 S. C., 269. There was evidence in this case tending to show that plaintiff and defendant both claimed the land in dispute under a common source, John C. Rogers. This appears by the pleadings, the admission of defendant’s counsel on the trial that the defendant claimed under John Rogers, and the testimony of one of the plaintiff’s witnesses that defendant told him that John C. Rogers had given the land to her in 1894. There was testimony tending to< show that about eighteen years before the trial, John C. Rogers owned the land in dispute, and that plaintiff then went into possession thereof under an agreement and arbitration between plaintiff and John C. Rogers, whereby plaintiff became the owner, and that plaintiff fenced in the disputed land as a pasture and so used it for at least ten years exclusively as his own. This was sufficient to warrant sending the case to the jury.

The judgment of the Circuit Court is reversed, and the case remanded for a new trial.  