
    Duncan M‘Raa against Isaac Smith.
    
      Columbia,
    
    1802.
    Possession of underV<aJ sale aiu™ who^has a judgment against him, will be a good bar against a judgment creditor, or those claiming under him, who has laid by that time without renewing his judgment, or bringing suit against such possessor.
    The lien which a judgment gave on the lend, is lost by the sale of defendant to a third person ; and a quiet possession under it for the space of five years, bars any action for the-recovery of it.
    MOTION for new trial.
    This was an action of trespass to try the title to a lot of land in the town of Camden, before Waties, J. in which there was a verdict for the defendant. Plaintiff moved for a new trial, on the ground of misdirection, and as a verdict against law.
    The case was as follows : CoL Thomas JJde., in his lifetime, to wit, in the year 1786, obtained a judgment against Fielding Woodroof, then an inhabitant in Camden, to whom the lot in question belonged. The plaintiff, Mr. dFRaa, who had administered on Col. Tide’s estate, with the will annexed, in the year 1797, had this judgment revived against Woodroof and by virtue of an execution this lot was . sold at public sale by the sheriff of Camden district, at which sale the plaintiff was the purchaser, and in support of his title, he produced the sheriff’s deed for the lot, and there rested his case.
    The defendant. Smith, claimed under Caspar Schutt, who had purchased from Woodroof in the year 1788 ; and he, Schutt, and the defendant Smith under him, held and possessed the premises from the time of Schutt’s purchase, down to the time of the commencement of the present action ; so that the question between the parties was, who should have the lot, the plaintiff under the sheriff’s deed, or the defendant by virtue of his possessory right ? The conveyances from Woodroof to Schutt, and from Schutt to Smith, were put entirely out of the question. The defendant relied entirely on the statute of limitations for his title.
    The presiding judge who tried the cause at Camden, stated, that he had charged the jury in favour of the defendant, and told them that judgments as well as executions might be barred by die statute of limitations, as they were within the mischiefs intended to be guarded against by the statute, although not particularly mentioned in it; but that it must be understood to extend only to possessions under bona fide sales for valuable considerations, where there is no fraud or collusion between the purchaser and defendant, to cheat the . judgment creditor, as had been too often practised in many parts of the state; which, however, had not been alleged in the present case. The jury, agreeably to the judge’s charge, found for the defendant.
    This case was argued by Mr. Blanding and Mr. Falconer, for the plaintiff ; and by Mr. M'Credie, for defendant.
    In support of the motion for a new trial, it was contended, that by the common law, judgments bound without limitation of time, and that every subsequent purchaser lrom the defendant took the lands subject to any prior judgment; that the statute of limitations was in derogation 01 the common law, and therefore should be so construed as not to affect common law rights, unless expressly declared in tht statute ; that there were no words in the statute which included judgments, or which could be construed to impugn in the smallest degree their binding efficacy; that the judgment gave a lien or mortgage on the land, which nothing but payment could remove, and there was nothing in the statute of limitations which took away or impaired this lien.
    That a judgment was matter of record which was of public notoriety, and due notice to all the world ; therefore, the defendant could not plead any thing like surprise ; he must have purchased with his e) es open, and under a full knowledge of the circumstance of the lot being bound by the judgment. It was, therefore, his own fault in purchasing lands which he knew were encumbered, without seeing the encumbrance removed.
    They admitted, that if the plaintiff, Mr. M'Raa, had not brought his suit within five years after he got the sheriff’s titles for the lot, he would have been barred, because the land was no longer bound by the judgment ; the lien had been removed by the sale, and the estate was vested in the plaintiff by operation of law, and his suit for recovery of it is within five years, the time allowed by law for bringing his suit, so that there was nothing to prevent his right of action.
    
      For defendant, against the new trial, it was not denied;, that judgments bound the defendant’s property without limitation of time, as long as the fee of,the land remained in him, but the moment he sold and conveyed it away to another, the statute of limitations came into operation ; not to defeat the judgment against the defendant, but to protect the bona fide purchaser in the quiet enjoyment of the property purchased, and five years’ peaceable possession without suit gave him a title against all the world, except persons beyond seas, feme coverts and infants, and it was upon this ground the defendant rested his title. Schutt, under whom he claimed, purchased in 1788, and he held two years, and sold to defendant, who has possessed ever since, so that here is nine years’ peaceable possession after Woodroofs sale, which) is four years more than the act of limitation requires. Under the statute, therefore, the defendant is unquestionably protected.
    The act of limitations, it was said, made a great alteration in landed estates in this country, and in many instances altered the common law entirely. The law of descents and inheritances, one great branch of the common law, was in many instances altered by the operation of it, as five years’ quiet possession of land will cut off the descent from the ancestor to the heir at law, and prevent him from inheriting. If, then, so great a change in the common law is effected by the operation of the statute of limitations, is it to be considered as strange and unreasonable that it should equally affect the lien on land, when the land itself, and the right of the fee, is changed by its operation, and transferred to a peaceable possessor ? It surely is not. It is because men 6'leep upon their rights, that the act carries it away from them. Here eleven years had passed away, after this judgment had been entered up, before it was renewed by an administrator ; a length of time quite long enough to presume the judgment had been paid off or settled, during all which time, or nearly so, the defendant had been in the quiet enjoyment oí the premises, and had made many valuable im-proveniente upon the lot, and expended large sums in the construction of them. It would therefore be extremely unjust, that the plaintiff should run away with the fruits of so many years of the defendant’s labour. The counsel then urged, that the court was bound to give a favourable construction to the act, in order to support his client’s right.
   The Judges,

after maturely considering this case, were unanimously of opinion, upon the true construction of the limitation act, that the motion for a new trial should be refused. The act declares, “ that any person or persons to “ whom any title to lands shall descend or come, who do not “ prosecute such right to the same within five years after “ such right or title accrued, all such persons, and all per- “ sons claiming under them, shall be for ever barred from “ recovering the same.” After which period the right and title of the occupant is completely and fully established, except in cases where there are feme coverts, infants, or persons beyond seas, who have respectively a further time for bringing such actions ; but there were none of those exceptions in the present case.

Lido's judgment could not possibly have given him a higher or better claim to the lot of land in question, than an absolute conveyance from Woodroof would have given him, yet it is very clear that if Woodroof had made hun such conveyance in 1786, and another to Schutt in 1788, who immediately thereafter entered, and hide and those claiming under him had not brought their action against Schutt or Smithy to turn them out of possession, within five years after their entry, the right would have been gone for ever ; or, in other words, the act would have been a perpetual bar to it. If Woodroof had never conveyed to Schutt, or any other person, the judgment would certainly have bound the land without limitation of time ; but as he had conveyed the fee in this case to a bona fide purchaser, the act comes in aid of such purchaser, and secures his title after five years’ quiet possession.

See ante, p.

The great policy of this act is to quiet possessors in their claims to lands which they occupv, and therefore such pos-have always been highly favoured in this country,

not only on account of the improvements which may have been made on such lands, but for the prevention of suits and liugations; and therefore it has been determined, over and over again, that possessory rights are good against grants under the seal of the state, and against absolute conveyances for valuable consideration. If so, then judgments and executions, which are only inchoate rights, cannot possibly have a higher or greater validity than absolute and unconditional ones. Upon this ground it was that the case of Cholett and Hart was determined, after solemn argument, that four years’ possession of sundry negroes, sold by a defendant some years after a fieri facias had been lodged in the sheriff’s office against him, should secure the right to the bona fide purchaser and possessor, notwithstanding the lodging of the execution, which had not been renewed for several years.

Rule for new trial discharged.

All the judges present, viz. Grimke, Waties, Bay, Johnson, Trezevant and Brevard.  