
    
      James Floyd vs. Briant Mintsey.
    
    A paper cannot be read to a witness examined by commission, for the purpose of refreshing his memory, where it is neither sent with the commission, nor referred to in the interrogatories.
    One cannot show that his permissive was changed into an adverse possession, without proving that notice of the change was, in some way, received by the landlord.
    Acts and declarations of the tenant in this State, and the fact that the landlord made no claim to the land during the period the possession was alleged to be adverse, are not sufficient evidence that the landlord, whose residence was in another State, had notice that the tenant had changed the character of his possession from a permissive to an adverse one.
    
      Before Frost, J., at Horry, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trespass to try title. For the plaintiff, it was shown that the land in dispute had been assigned to Isabella Floyd, for her distributive share in the lands of her deceased husband, Francis Floyd, in 1806. The land assigned to her consisted of one hundred and twenty-five acres, part of a grant to Samuel Floyd, on which the deceased, Francis Floyd, r§sided at the time of his death, and of an adjoining tract of five hundred acres which had been granted to Francis Floyd. Isabella Floyd, with her seven children, continued to reside on the Samuel Floyd grant, for four years, when she married one Lee, and removed to North-Carolina, where she died in 1837. The plaintiff showed title to the distributive shares of two of her heirs ; which constituted his interest and claim in the land.
    “ The defendant resisted the plaintiff’s claim on two grounds, first, that Isabella Floyd had, before her marriage, by deed, conveyed the land to Theophilus Floyd, one of her sons ; and that it had been conveyed to the defendant by the sheriff by sale under an execution of the administrator of Johnson against Hugh and Theophilus Floyd ; and if he failed in this defence, the defendant relied on the title of Theophilus Floyd, acquired by adverse possession against his mother, Isabella Floyd.
    “ The report of a former trial of this case, made on appeal, will be found in 5 Rich. 361, to which reference may be had for a statement more in detail than is required for the purposes of the present motion.
    “ Hugh Floyd, whose testimony was taken by commission, testified that Isabella Floyd “deeded” the land to Theophilus Floyd ; that the deed was written by Samuel Floyd, (deceased,) and was attested by the witness and Gilbert Johnson (deceased). He said the deed conveyed one hundred and twenty-five acres, part of the Samuel Floyd grant; and five hundred- acres of the Dawsy grant. A grant to Dawsy was situate between the Samuel and Francis Floyd grants. The third interrogatory to Hugh Floyd was, ‘How was the land bounded in 1808?’ This answer was, ‘It was bounded as the sheriff’s deed to the defendant describes.’ It was objected that this answer should not be received in evidence; but it was admitted. The boundaries described in the sheriff’s deed to the defendant embraced the Francis Floyd grant. The sheriff’s deed was not referred to in the commission; and on this ground, the competency of the answer was opposed. But it was held that the witness might describe the boundaries by reference to any existing document in which they might be found, as well as by a particular verbal description.
    “ Thomas A. Beattie, one of the commissioners who took the deposition of Hugh Floyd, was asked whether Hugh Floyd knew the contents of the sheriff’s deed. The question was excepted to, but admitted. The witness said, he heard the deed read in the presence of Hugh Floyd, before he was examined. He did not know who carried the deed there. He accounted for the reference to the sheriff’s deed, for the description of the land, by the statement, that when the commissioners went to Hugh Floyd’s to take his deposition, they had no paper in which to write his answers; and so the answers were compressed and interlined between the interrogatories; and for necessary brevity, they described the land by reference to the sheriff’s deed, instead of writing out Hugh Floyd’s answer in full. This statement of the case is made with reference to the third ground of appeal.
    “ The sheriff’s deed to the defendant for the land in dispute, was excluded as evidence of title, as it had been on the former trial; because there was not sufficient evidence of a decree against Theophilus Floyd, on the summary process of the administrator of Johnson against Hugh Floyd and Theophilus Floyd. But evidence was admitted of the fact of a sale by the sheriff, and that it was bid off by the defendant; and the description in the deed was permitted to be read, as evidence of the extent of his claim.
    
      “ Francis Floyd, a son of Theophilus Floyd, had been employed to go to Alabama and make search for the alleged deed of Isabella Floyd to Theophilus Floyd. The grounds of appeal do not require his testimony to be reported. It is sufficient to say, that in his testimony respecting the loss of the deed, part evidence of its contents was admitted. He had said, in his examination, that he made no claim to the land. He was asked, why he made no claim? In reply to this question, he was proceeding to state the cause of action in the sum. pro. suit of the administrator of Johnson, when, on objection made, he was stopped. But he was permitted to say that he did not make any claim to the land, because the defendant had bought it; and after the defendant’s purchase, he never heard his father claim the land. He also stated that the sheriff came to North-Carolina, and his father gave a man money to go and pay the debt recovered by Johnson’s administrator. Theophilus Floyd then lived on a tract of land through which the boundary line between North and South-Carolina passed.
    “ Felix Foley testified, that Theophilus Floyd sent money by him to pay the execution of Johnson’s administrator, but it was not enough ; and the land was bid off at sheriff’s sale by the defendant; and the witness informed Theophilus of that fact. This statement is made because it is required with reference to the fifth ground of appeal; but it was immaterial to the issues submitted to the jury. The deed of the sheriff to the defendant, which was dated in 1828, having been excluded, no claim was made under that deed for the defence. The only effect of the evidence was to show a title in the defendant by possession adverse to Isabella Floyd during her life, or to her heirs after her death, or to Theophilus Floyd. But the counsel for both plaintiff and defendant concurred in the intimation to them, that the defendant could not claim against Isabella Floyd by adverse possession; because he purchased in 1828, and she died in 1837 ; nor against the plaintiff and others, claiming the land since her death, because their title was protected by the minorities of some of the grandchildren of Isabella Floyd, who were also distributees of the land ; and if title were shown in Theophilus Floyd that was a sufficient defence — if Theophilus Floyd had not title, an adverse possession against him could avail defendant nothing in this suit.
    “In addition to the testimony of Hugh Floyd, Francis Floyd, a son of Theophilus, testified that he had seen the deed before, and soon after his father’s death, when it was read over to Norton, the administrator, and delivered to him. He said that the deed was signed and sealed, and attested by two or three witnesses, and that the description comprised the lands in dispute.
    “ Johnson Floyd said, that his brother Theophilus claimed the land after his mother’s marriage: but the witness did not know how much.
    “ Patrick Hocks said, one day, that he did not know that Theophilus claimed the land; but the next day, he said The-ophilus claimed the land under a deed from his mother. This witness and Francis Floyd also stated that Theophilus was in treaty for the sale of five hundred acres not many years after his mother’s marriage; but the lines which they said he showed did not extend beyond the Samuel Floyd grant.
    “The deposition of Hugh Floyd was admitted, (notwithstanding objection,) to the effect, that after the execution of the deed, he never heard Isabella Lee, or her husband, make any claim to the land. The admission of this evidence is the subject of the second ground of appeal. My remarks to the jury on the evidence of the execution and loss of a deed from Isabella Floyd to Theophilus were unfavorable to the defendant.
    “ On the issue of title in Theophilus Floyd by adverse possession to his mother, the evidence was, that she married Lee about the year 1810, and soon after moved to North-Carolina, where she died in 1837. Theophilus and Johnson Floyd were living with their mother at the time of her marriage. When she went to North-Carolina, they continued to occupy the house she had left, and planted fields under one enclosure, which included parts of the Samuel and Francis Floyd grants. After one or two years, Theophilus married, and he and Johnson remained a year or two longer, planting together and sharing equally.
    
      “ Johnson Floyd said, that Theophilus claimed land, but he did not know how much. Patrick Hocks lived with Theophi-lus nine or ten years, when Theophilus removed from the land, and Hocks continued as his tenant to occupy and plant the land, as Theophilus had done, for two or three years. Hocks and Francis Floyd testified to the treaty for the sale of five hundred acres to Rawles, before mentioned. Lee and his wife made no claim to the land, nor was any rent paid to them. The land was sold under the execution of Johnson, administrator, in 1828, and the defendant entered, and by himself and his tenants, held possession till about the time of Mrs. Lee’s death. One Elliott, the son-in-law of the defendant, about that time claimed the land, and occupied it for several years by himself and his tenants ; and then the defendant again entered and had possession until this action was brought.
    “It was assumed in my instructions to the jury, that the statute of limitations would run against a married woman; and that an action for the recovery of land by her, would be barred after seven years before the Act of 1824, and after twelve years since that Act; and that the disabilities of coverture and residence “ beyond seas,” in the case of Isabella Lee, terminated at the same time. The time of Theophilus’s possession, if it were adverse, in this view of the law was so clearly sufficient to bar the right of Isabella Lee, in her lifetime, that the only point to which 'their attention was directed, was the character of his possession. On this subject, they were instructed, that if an entry on land is permissive, the occupant or tenant cannot claim by the statute of limitations; and that a possession commencing in permission has to be presumed to be permissive as long as it continued, if there was no evidence that the character of the possession was changed. They were told, that such change in the character of the possession could be proved by other evidence than direct notice from the tenant to the landlord, that he intends to hold adversely; and that it might be inferred from the acts, and declarations, and conduct of the parties. On the evidence, it was submitted to the jury to decide if the possession of Theophilus was adverse to his mother; and in giving effect to his acts and declarations, they were told that the residence of Isabella Floyd out of the State, should operate for her protection. The jury found a verdict for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial on the grounds, inter alia
    
    3. Because it is submitted his Honor erred in permitting one of the commissioners appointed to examine Hugh Floyd — a witness examined for the defendant by commission to prove the contents of a lost deed — to prove that the commissioners read to the witness a sheriff’s deed, containing a description of the land in dispute — which deed, or paper, was neither in the commission, nor mentioned in any interrogatory.
    4. That as the possession of Theophilus Floyd was, in its origin, permissive, it was incumbent on the defendant to have shown when, and in what manner, it assumed an adverse character ; and that the parties whose interests were to be affected thereby, should have had explicit notice of the same. All of Which, it is submitted, his Honor should have charged the jury.
    
      Lord, Simonlon,
    
    for appellant, cited, on 4th ground, Rochell vs. Holmes, 2 Bay, 491; Ang. on Lim. 83, 85, 103, 105; Cal
      
      houn vs. Perrin, 2 Brev. 247 ;■ Anderson vs. Darby, 1 N. &• McC. 369 ; 2 Rice Dig. 328, § 100; Wilson vs. Weathersby, 1 N. & McC. 373 ; Whaley vs. Whaley, 1 Sp. 225 ; Act 1744, 3 Stat. 612 ; Richardson vs. Broughton, 2 N. & McC. 417.'
    
      Harllee, contra,
    cited, on 4th ground, Roberts vs. Roberts, 2 McC. 268 ; Floyd vs. Mintsey, 5 Rich. 374; Sumner vs. Mur-phey, 2 Hill, 488.
   The opinion of the Court was delivered by

Glover, J.

Several grounds have been relied upon by the plaintiff to sustain his motion for a new trial, but the opinion formed by this Court on his appeal requires the consideration only of the third and fourth.

A title was established in the plaintiff for two undivided shares of the land in dispute, which had been the inheritance of Isabella Lee, who died in 1837. The defendant traced his title through Theopbilus Floyd, a son of Isabella Lee, and relied upon adverse possession in him to bar the legal title of the plaintiff. This defence made it necessary to show the boundaries which limited the claim of Theopbilus Floyd. A claim, accompanied by continued, notorious and adverse possession under the statute, may defeat the actual title, and will be extended to embrace more than the pedis possessio, but there must be satisfactory evidence showing the limits within which the possession of a part will avail to confer title to the whole.

Hugh Floyd was examined by commission, and his evidence, in part, related to the identity of the land. In reply to the third interrogatory, which referred to the extent of Theoph-ilus Floyd’s claim, he answered, that the land was bounded as the sheriff’s deed to the defendant describes.” This deed was not alluded to by the interrogatories propounded to the witness, but was read to him before he was examined. The plaintiff was not advertised that a paper executed by Theophi-lus Floyd, when he parted with his possession, would be used to aid the witness in proof of an important fact, and he was, consequently, deprived of the opportunity of a cross-examination touching the deed, and the reason of the witness’s conclusion respecting the boundaries. It is necessary to guard with care and circumspection, the execution of commissions to examine witnesses. No rule should be relaxed which may secure the faithful performance of their duty by commissioners, otherwise the confidence which the Court is compelled to repose in persons who are often strangers and without its jurisdiction, might be abused. Personal service on the opposite party is required, that he may be enabled to file such questions in reply, as the direct examination suggests, and to prevent an ex parte examination. If the plaintiff had been advised, that the sheriff’s deed would be exhibited to Hugh Floyd to assist his memory in defining boundaries, it may have been advisable to ask the witness, in reply, if he had confounded the boundaries described in the deed, which was alleged to have been lost, with those in the sheriff’s deed ; and if the deed was produced and read to the witness for any other purpose, it was irregular and improper, unless it had accompanied the commission, or been referred to by the interrogatories. The Court is therefore of opinion, that the answer of Hugh Floyd to the third interrogatory should not have been received.

The plaintiff showed title from two of the distributees of Isabella Lee, and until a disseisin was committed by one who entered with a claim of adverse possession, he was in possession by force of his title. In bar to the legal title, the defendant relied on the possession of Theophilus Floyd. He undertook, therefore, to show that it was hostile when it began, or after-wards assumed that character. When Theophilus Floyd and his brother entered, it was not under color of right, and after Isabella Lee married and moved to North-Carolina, their joint possession was permissive — and if it afterwards became adverse, the burthen of proof was on the defendant. If Theophilus Floyd entered and held by her permission, the presumption of an adverse claim is rebutted, and he could not change the relation in which he had placed himself towards the legal title which he acknowledged, unless his hostile claim were made known to the legal owner under whom he entered and held. The possession of land without the assertion of claim, is merely a trespass and not a disseisin.

If it be conceded, that the evidence proved a hostile claim, beginning after permissive occupation, Isabella Lee should have received notice of it. The proof made by the defendant was too slight to raise a presumption that she was informed of his purpose to hold in hostility to her title. A possession of up-, wards of ten years was shown ; but was it adverse in its character, and so notorious, as to supersede direct notice to Isabella Lee? Her residence in North-Carolinarebuts the presumption arising from the acts of the occupant; and because neither she nor her husband, living in another State, made any claim to the land, is only negative testimony, and too unsatisfactory to change a permissive into an adverse possession. There was no evidence that Isabella Lee was informed of any acts or declarations of Theophilus Floyd, showing an intention to change the character of his possession — and it cannot be inferred because it was continued, as that was not inconsistent with his permissive tenancy. If one enter and hold as tenant, he must terminate his tenancy by a disclaimer, and notice to the landlord must be proved. The verdict of the jury is not sustained by the evidence offered to prove notice, and the motion is granted.

Motion granted.

O’INeall, Withers and WhitNer, XT., concurred.

Wardlaw, X, absent at the argument.

Munro, X, having been of counsel, gave no opinion.

Motion granted.  