
    Saml. Hutchison admr. of Sarah Horsey dec'd. v. Wm. Noland.
    
      Tried before Mr. Justice Evans atNeivberry — Spring Term, 1833.
    
    Thirty years adverse possession of personal property, is not ™anc!y adrfrom which a jury thcia*s”oftime! m^Mdnbuf ” in itself, a good tíuir In ubtho title.0 “preJiimp-ííw’ThK0 evÉccf ofaOT muniments of ti-presumptionla-donee, it must decided by the jury ¡ but if ownslewing!*» §££?&£ non-suited.y
    
      His Honor the presiding judge, made the following VCDOl't l r
    . . “This was an action of trover, for eight negroes. — ■ The ancestor of these negroes, (a woman named was proved to have been the property of one Daniel Horsey, who was killed during the Revolu-lutionary war, leaving a widow, Sarah Horsey, and one son named Abel Jones Horsey. Daniel Horsey, before his death, made a will, whereby he directed his estate to be divided between his widow and son. — • «e-third 1° the widow, and the residue to the son. T^e widow, Sarah Horsey, was appointed sole executrix. Abel Jones Horsey died also, during the Revolutionary war, leaving a widow, but no issue. — ■ The widow of Abel Jones lived some years after the war, in the neighborhood of Sarah Horsey .- — There was no proof that any administration was ever taken out on Abel Jones Horsey’s estate, or any partition between his widow and Sarah Horsey. CoL Rutherford said he had heard that Mr. Ruff had bought her share, and that he had seen a deed Sarah Horsey to Ruff, for a tract of land, which he supposed was for the share of the widow of Abel Jones Horsey. '
    “Sarah Horsey kept possession of all the rest the property, until her death, in 1797. After her death, one Anderson took possession of the negroes, claiming, under a deed from said Sarah, which was alledged to be a forgery. Anderson lived with one of Mrs. Horsey’s daughters by a former marriage. Major Lewis Hogg, who had married a daughter of Mrs. Horsey, sued Anderson. The suit was tried, and Hogg recovered. Anderson appealed, but they compromised the law-suit. — Anderson kept a part of the negi'oes — the rest were delivered up to Hogg.— Among the negroes, which thus came into Hogg’s possession, were Bet, and her daughter Omai, who is the mother of the negroes sued for, in this action.— In 1801, Hogg advertised that the negroes would be sold at his house on a certain day, by order of Horsey, administrator of Daniel Horsey. This advertisement was preserved by Col. Rutherford, and produced in Court. On the day of sale, Hogg, who. seemed to have the entire control, proclaimed the terms to be cash before delivery, to be paid in specie within two hours, or a resale at the risque of the first purchaser. One Mancil went to the sale with $700 in specie, to buy negroes: but did not bid: Hogg told him he need not bid, as he would not get a negro. At the sale, all the negroes were bid in for Hogg. Hogg held the woman Omai, two or three years, and then gave her to his daughter on her marriage with Abery Noland. The present defendant was in possession of the negroes, by virtue of his marriage .with Abery Noland’s widow. From the sale in 1801, Hogg claimed Omai as his own property, and as such, gave her to his daughter Mrs. Noland, in whose husband’s possession, sbo and her children have remained ever since. The plaintiff administered on Mrs. Sarah Horsey’s estate very recently. The Ordinary, Mr. Wilson, proved, that so far as appeared from the record, in his office, (both of the County Court and the ordinary of Newberry district) no administration had ever been taken out on Sarah Horsey’s estate, until granted to the plaintiff.
    “After the plaintiff closed his evidence the defendant moved for a nonsuit on two grounds :
    “1. That the evidence proved, that the property was the estate of Daniel Horsey.
    “2. That 30 years possession as their own property by Hogg and the Nolands, was conclusive evidence of title.
    “If by the plaintiff’s own shewing, he is not entitled to recover, he has no right to go to the jury. The general rule certainly is, that the plaintiff’ is not to be nonsuited on what constitutes the defendant’s defence, but then the rule applies only where the decision goes on the defendant’s evidence. In such case the jury alone can decide. But if the defendant’s defence be established by the plaintiff’s witnesses, then the objection does not apply. The real question in this case is, whether the 32 years of Hogg and Noland’s possession, clearly adverse to all other titles, is a mere circumstance from which a jury may presume a title to have existed, which in the lapse of time has been lost or mislaid, or whether such a possession is not in itself a good title, or a substitution in the place of a paper title from the righful owner. Since the decision of the case, I have looked into all the authorities so far as my library has enabled me. In general, I ñnd the rule laid down, that after 20 or 30 years possession, a jury would be directed as a rule of law, to presume whatsoever was necessary to give legal efficacy to such possession. In 12 Vesey 266, Lord Erskine speaking of presumptions, says, “ they are not questions of belief or disbelief, but legal inferences intended to supply, and take the place, in matters of antiquity, of individual belief.” These are not the words but is the substance of the eloquent opinion referred to. I think it is clearly deducible from all the authorities that presumptions are rales of law, which, in themselves, are evidences of, or muniments of title, which a jury is as much bound to give effect to, as to a deed which is unimpeached. If the presumption arisesout of the defendant’s evidence,then from the organization of our Courts, it must be decided by the jury, but if from the plaintiff’s own shewing, the presumption of title in the defendant arises, then he has proved the title out of himself, and may be nonsuit-ed by the Court. If an action be brought on a bond, which has been due upwards of 20 years, and the defendant plead, solvit ad diem, and no evidence be offered to rebut the presumption, would the plaintiff be entitled to go to the jury? If the jury in such case were to find for the plaintiff, such finding would be against law, and a new trial would be granted, as often as they so found. If my recollection is correct, the rule laid •down in the case of Young v. Stockdale, (May, 1830) was that 20 years continuous possession was as good a title as a deed. The question presented by this case was, whether from the facts proved by the plaintiff he was entitled to recover. I was of ooinion he could not, and therefore nonsuited him. In the notice of appeal, something is said about the defendant’s possession, commencing in fraud. There was no proof of fraud, but if there had been, I do not suppose that would alter the legal effect of the possession.”
    The plaintiff appealed and now moves to set aside the nonsuit on the following grounds :
    1. That the defendant’s possession having commenced in fraud, and when no one represented the estate of Sarah Horsey, can confer no title.
    2. That lapse of time affords only a presumption of title, which may, and in this case was, rebutted by proof; that its effect is a question of fact, and not of law, and should therefore have been submitted to the jury.
    
      Caldwell & Fair, for the motion.
   Curia, per

Johnson J.

The presiding judge hat taken a full, and as we think a very correct view of the material points in this cause.

The motion for a new trial must therefore he dismissed.

O’Neall J. concurred.

Harper J. absent.  