
    HAMPTON'S LESSEE vs. M'GINNIS.
    Ejectment. Plea not guilty. The lessor of the plaintiff claimed under a grant upon a county warrant for 262 acres to Jacob Warmack, dated the 24th of October, 1782. A deed from Warmack to himself was produced.
    The defendant claimed under a grant to William Richie, upon a county warrant for 300 acres, dated the 18th of November, 1788, describing certain metes and bounds. Inman conveyed the same to M'Namee, by deed of the 19th of September, 1789, and M'Namee conveyed to the defendant 230 acres part if the 300 by deed dated the 23d of May, 1793.
    This cause was lengthily and ingeniously argued by Campbell and Kennedy for the plaintiff, and White and William for the defendant.
    
      To enable a enable defendant in ejectment avai him- self of year possession, it is not ryto shew a regular chain of conveyances from the grantee himself.
    
      The defendant relied on the statute of limitations, seven years possession with color title.
    To this the plaintiff's counsel objected, that the defendant could not avail himself of this defence, because he could not shew a regular chain of title from the grantee, Richie to himself. At the time Richie conveyed to Inman, 6th November, 1788, he had no title himself and consequently could not convey any. Richie did not get a title by grant front the sate, until twelve days after he conveyed to In-man. The deed might operate as a covenant to convey, but nothing more. The act of 1797, c. 43. s. 4. has these words, “that in all cases where any person or persons, shall have had seven years peaceable possession of any land by virtue of a grant, or deed of conveyance, founded upon a grant, and no legal claim by suit in law, by such person set up to the said land, within the above said time, that then, in that case the person or persons, so holding possession as aforesaid, shall be entitled to hold possession in preference to all other claimants, such quantity of land as shall be specified in his, her, or their said grant, or deed of conveyance founded on a grant as aforesaid ; and any person who shall neglect for the said term of seven years, from the time of such peaceable possession having been obtained, to avail themselves of any title or legal claim, which he, she, or they have to any land within this state, shall, and are hereby declared to be forever barred" with a proviso in favour of minors, &c.
    This act is explanatory of the act of 1715, c. 27 Ird. 12. It clearly shews what the understanding of the legislature was, and as such is a safe guide. The act contemplates only such possessions as are covered by a grant, or a deed of conveyance founded on a grant. Now it is manifest,that the conveyances from Richie to Inman, was not founded on a grant, because he had no grant at the time the conveyance was made, to found a deed on. This being the case, any subsequent conveyance through Inman, could not be founded on a grant. The foundation being, taken away the superstructure must fall.
    
      White, e contra.
    The defendant took possession in the fall 1793, and has continued that possession until now ; the writ did not issue until the 8th of September, 1802. It is true that Richie did not obtain a grant from the state for twelve days after he had conveyed to Inman ; but it is sufficient to give color of title, which is sufficient to cover the possession. If a person out of possession leases to another, the lesssor is estopped, 3 Cun. Bac. 441. If we cannot avail ourselves of possession we would be in a worse situation than a mere tenant at will. The act of 1715, c 27. s. 2. respects imperfect titles already obtained : Section 3d, is levelled against plaintiffs, or those who wish to oust possessors : In this section the situation of the claim of the possessor, is not taken into consideration at all. No matter what kind of claim the defendants may have, the plaintiff is barred if he does not assert his claim within seven years.
    Verdict for the defendant : Upon which there was a rule for a new trial previous to the disposition of the rule, the judges delivered their opinions, Which included their reasoning in the charge to the jury. In this charge however Campbell J. stated,that he was inclined to think with the plaintiffs counsel.
    Powell, J. Did not give any opinion,at that time.
   Overton, J.=

In considering the question before the court, the ideas of Dickenson, j. 4 Dall. appendix, upon another occasion, appear to be correct. “ That the best way of discovering how far arguments, deduced from resolutions of congress can be applied upon this occasion, will be to consider them not separately, but conjointly, as forming a system that existed in force at the time of the transaction." So it seems with respect to the acts of 1715, c. 27. and c. 38. s. 5. Ird. 12. and 23. These two acts are so inseparably connected, in the consideration of what is necessary to constitute a title, that we cannot have a full view of the first without the other. We will however consider how the law stood previous to the passing of those acts.

By the common law conveyances of real property might be made without deed by feoffment,therefore the statute 21. J. 1. c. 16. did not contemplate title by deed, so as to enable the possessor or defendant to avail himself of it. That statute related only to the claim of the plaintiff, in relation to the time, that constituted a bar. Our statute of 1715. c. 38. s. 5 enacts, that “ no conveyance, or bill of sale for lands, (other than mortgage) in what manner or form soever drawn, shall be good and available in law, unless acknowledged, or proved, and registered in the county where the land lies, which shall be valid without livery of seizin, or ether ceremony whatever.” This section manifestly does away all other modes of conveying real property, than that by deed. The legislature in their, act of the same session, c. 27. declared their reason for passing that act usually called the act of limitations. The caption is “ for avoiding suits in law.” The preamble states, “ that great suit, debate and controversy, hath heretofore been, and may hereafter arise,” and after stating the causes, from whenee those inconveniencies arose, it proceeds “for prevention whereof, and quieting meas estates, and for avoiding suits in law."

The fourth section, after prescribing seven years, perpetual bar against all manner of persons Whatever,” gives a reason," that the expectation of heirs may not in a short time,leave much land unpossessed, & titles so perplexed,that no one will know of whom to take or buy land.” Taking into view this act only, it would seem, that no deed, or colour of title by deed would be necessary, on the part of the defendant. Possession alone would be sufficient to enable a possessor to avail himself of the statute; but when it is considered that the 5th section of c. 38, passed during the same session, forbids all other modes of conveyance; than that by deed; it will result as a presumption or inference of law that possession alone will not imply right ; nor he sufficient to exclude the idea of trespass. As conveyances by feoffments, which might rightfully possess a person of land, without deed, is not allowable, a bare possession without deed or authority under a deed, would always imply a trespass. And hence has originated. the idea of giving colour of title to the possessor by deed, so as to exclude the idea of trespass. No tortfeasor, or trespasser on land shall derive & benefit from seven years possession; as being contrary to a moral principle, and sound maxim of law, “that no man, shall take advantage of his own wrong.”

The argument of the plaintiffs counsel, respecting the effect of the deed from Richie to Inman, seems to be a sound one. Richie having no legal right; could not convey any. It might operate by way, of estoppel to Richie, and his heirs, or by way of covenant to make a legal right, but these are different considerations from that of conveying a title to Inman.

Haywood and Taylor, in their Reports, both say, that it is necessary for the possessor to have colour of title, and Haywood in 2 vol. 103. 4. says that nothing less than a deed will give colour ; a bond will not do it.

This seems to be correct. The act of 1715. c. 38. s. 5. will not acknowledge any other Method of conveying. It excludes all others, so that a bond with that view would be a nullity.

The main and important question however, is whether it were necessaay to give this colour, that the defendant should shew a regular chain of conveyances from the grantee to himself. Let the question be considered.

First, independent of the act of 1797. c. 43, s. 4. Secondly, under the alterations introduced by that act. Thirdly, the argument of the defendants counsel, if they should fail in shewing colour of title in themselevs that they have shewed a better subsisting title out of the lessor of the plaintiff, to wit in Inman, and therefore the lessor of the plaintiff ought to be barred

No decision can be found, in Haywood’s, or Taylor’s Reports in point. General reasoning upon the statute may be found in 1 Hay. 68 70 ; in page 320 of the same book, the court say be must take possession with a belief that the land is his own.” And in 2d Hay. page 57. “ it was the intent of the act; that where a man settled upon and improved lands, upon supposition that they were his own, and continued in occupation for sever years, he should not he subject to be turned out of possession,” hence arises the necessity for a colour of title, for if he has no such colour or pretence of title, he cannot suppose the lands are his own, and he settles upon them in his own wrong.

Though these authorities do not decide, whether it were necessary for the defendant to connect his title with the original grant by a chain of mesne conveyances, yet, there is a strong presumption that it was not thought necessary, or it would have been expressed,when we consider the reason of the statute, and the necessary effects resulting from the position contended for by the plaintiffs counsel, no doubt can remain.

The statute was made to quiet mens estates ; it has already been in operation nearly one hundred years, and for ought we can say, it may continue as many thousand more.

Nothing can last always ; and as records as well as deeds, may not only cease to exist by the decay incident to the lapse of time ; but may be lost if not by design, by accident from fire, water or wind, it would be unreasonable, that mens estates should be lost with them. This would not be answering the views of the legislature, in “ quieting mens estates,” and " leaving tides so unperplexed, that a man might know of whom to take or buy land.” Such a construction does not arise, either from the letter or meaning of the acts of 1715. c. 27. and 38.

Lord Coke says, “tempus est edax rerum," and it is not by the act of limitations, that colour of title is necessary at all, but by the policy of the law, introduced by the act, of 1715. c. 38. that a bona fide deed to the defendant is necessary, so as to exclude an idea of trespass on the land ; it would be carrying the principle of requiring a deed further than the reason which gave rise to it,to make it neecssary, for the defendant to produce a regular chain of title ad infinitum. Cessante ratione legis cessat ipsa lex.

The reason of the law is attained when we require a bona fide deed for land (which has been granted) to the defendant himself. It shews that he is not a trespasser; and that he took possession of the land believing it to be his own. One of the most important objects of the act; was to guard against the accidents of time, by the loss or destruction of title papers ; and by requiring proof of this regular connection of title, the highly useful, and beneficial effect of the act would be nearly all lost.

This reasoning accords with the cases in 4th T. R. 300 306. 6. East Rep. 80. 1. Caines, 64. The observation in 2. Fonb. 314." that the maxims of the common law which refer to descents, discontinuances, non claims, and collateral warranties, are only the wise acts and inventions of the law, to protect and quiet the possession, and strengthen the right of purchasers,” equally applies to the statute of limitations.

Upon the second ground, it is sufficient to observe, that the act of 1797. c. 43. s. 4. does not apply to this case, if the construction of the plaintiffs counsel were correct The statute began to run before the passage of the act. There was the inception of right which the legislature could not divest. Decl. of Rights, s. 20. When the statute begins to run, the saving in favour of Feme coverts &c. will not hinder it, 1. Hay 322.

It occurs however strongly, that the act of 1797 will not bear the construction insisted on by the plaintiffs counsel, but upon this no decisive opinion is given.

Before dismissing this question, which is of much consequence to the interest of society, it may not her amiss to refer to an act of North-Carolina, 1791. c. 15 1 Hay 468. Though not in force here it deserves respect,as being a legislative interpretation of the act of 1715. This act after referring to the statute of limitations, and viewing the several imperfect claims contemplated in the second section enacts, that a naked possession for twenty years shall bar the state, upon the presumption of the loss of a grant. It would seem to be highly absurd, that the legislature should bar the state, under the want of a grant, and yet that no time should bar as between citizens, where a link of the chain of title, happened by accident to be broken. Had they thus considered the law they could not avoid making provision for an evil of the same kind, but of vastly greater extent in its consequences.

As it respects the third and last proposition ; whether it were competent to the defendant, to oppose the claim of the plaintiff by shewing a better title, cut of the lessor of the plaintiff, he had no doubt but the common law authorised it. In the discussion of land business, three principles might present themselves.

Two by title, and one by repulsion.

First, by title deeds alone.

Secondly by prescription, or possession, which in England was available without shewing any title papers.

Thirdly, by repulsion.

The first two may be brought into operation, as well for the plaintiff as defendant. The defendant alone can avail himself of the last by shewing a better subsisting title, out of the lessor of the plaintiff. In this country however, this should be a clear unembarassed legal title : And when this is shewn it seems to me that the plaintiff cannot recover, agreebly to the principle, that he must do so, by the strength of his own title, and not by the weakness of his adversaries. The statute well applies to the case of the defendant.

Campbell, J.

The equity of the case is with the defendant, and upon that ground he would let the verdict stand, but since the former argument, he was inclined to think the statute did apply.

Powell, J.

Said he did not feel prepared to give an opinion in the cause not having heard all the arguments.

Overton J.

In ejectment he conceived, the principle of not disturbing a verdict, because the equity of the case was with it, was unknown. Either party must prevail, upon legal principles, and none others can be recognised. It was of great importance to society, that the rules of law governing real property should be fixed, certain, and uniform. The essential interests of society founded on those of agriculture, and the peace of families require it.

Note. It was moved before the jury by Kennedy to introduce a witness to prove the existence and substance of an entry in Carters office. The books having been last or destroyed, and cited 1 Hay. 410

Per Curiam.

There is better evidence in existence of those entries than that proposed. The list of entries contemplated by the 45th section of the act of 1806. c. 1. will shew whether there was such an entry. Upon shewing there was such an entry in that way, you may be permitted to shew its purport by oral testimony, but not before. 
      
      
         1 Dall.434. &c. 463. 2 Binn. 119,
     
      
       2 John. Rep. 593.
     
      
      
        See 1 Cr. 100. Hardin's Rep. 461.
     