
    Lea’s lessee vs. Netherton.
    A tenant cannot during the term, by disclaimer or by adversely holding for another, resist a recovery by his landlord: but when a disclaimer by the tenant is known to the landlord, the possession of the tenant becomes adverse, and if the landlord permit him to holdjiossession for seven years thereafter, he will be barred by the act of limitations
    A[demand of possession by the landlord, and a refusal to surrender it by the tenant, on the ground that he claims title himself, is evidence of actual ouster.
    Where a defendant claims title only by seven years possession, without any color of title, he must show under the provisions of the act of 1819, c. 28, ⅞ 2, that possession was taken in hostility to the true owner, and was so continued; in such a case he is only protected to the extent of his actual enclosure.
    This is an action of ejectment, in which the defence mainly relied upon, is the act of limitations.
    The proof shows that the defendant was in possession of the premises in dispute in the spring of 1823, and from that time until the commencement of this action in 1833, he continued to hold uninterrupted possession, claiming them as his own. The land originally belonged to John Lea, the father-in-law of the defendant, who in the spring of the year, 1823, put the defendant into possession,.informing him at the time, that he intended to give him the land to raise his children on, and that he never would take it away from him. In 1825, John Lea went to the defendant, Netherton, and informed him he must quit destroying the timber Jon the land, to which defendant replied he would not. Lea, then requested him to leave the place, which he refused to do. John Lea died in 1882, and the lessor of the plaintiff claims the land in dispute ■ by devise from John Lea.
    The circuit court charged the jury, “that, between landlord and tenant, the rule of law was that, the tenant must surrender the premises at the termination of that relation; that in this case the defendant was but a tenant at will, or from year to year, and that by ojpenly and notoriously disclaiming the title under which he entered, he would forfeit his right, and might be turned out of possession by an action of ejectment: that a tenant could not during the term, by disclaimer, or by adversely holding for another, resist a recovery by his landlord; but that when a disclaimer by the tenant is known to the landlord, or when the landlord is actually ousted by the tenant, the possession of the tenant will become adverse, and if the landlord permit him to hold possession for seven years from that time, his right of entry would be barred by the statute of limitations; that a demand of possession and a refusal by the tenant, on the ground that the defendant, claims title, or holds adversely, was evidence of actual ouster. That where the defendant claims title, only, by possession held adversely for seven years, without a grant or deed, he must show, under the provisions of the act of 1819, c. 28, § 2, that the possession was taken in hostility to the true owner,, and was so continued, and that the statute does not bar a recovery of land so held, except for so much as is actually occupied by enclosure, definite, positive and notorious.”
    The jury found a verdict for the defendant, for the land actually occupied and enclosed, in his possession.
    A motion for a new trial was made, and overruled by the .court.
    
      J. P. H. Porter and R. Jl. McKinney, for plaintiff in error.
    
      Pryor Lea, for defendant in error.
   Turley, J.

delivered the opinion of the court.

The charge of the circuit court is strictly correct; it is al most in the very words used by this court, in the case of Duke vs. Harper, 6 Yerg. Rep. 280.

This court has always said that it will not grant new trials, which have been refused by the circuit court, where there is any proof by which the verdict maybe supported. In this case the proof shows that the defendant, from the time he entered on tile premises, always claimed them as his own. If his landlord, Lea, knew of this, and permitted him afterwards to keep possession for seven years, his action is barred. That he did know of it, may be presumed from the length of time the defendant so claimed the land; the notoriety of such claim, and from the fact, that in 1825, when he desired him to quit the premises, the defendant positively refused to do so. It is then manifest there is testimony supporting the verdict of the jury, and the judge who tried the case, had of neces*-sity, a better opportunity'of knowing whether the justice of the case was attained than we possibly can have. He, hav? ing refused a new trial, we are bound by what we conceive to be the correct practice in such cases, and by the uniform decisions of this court, to affirm the judgment.

Judgment affirmed.  