
    
      Levi Moore vs. Daniel M. Johnston.
    
    1. In an action of trespass to try titles, the defendant produced a grant to his father, junior to that of the plaintiff, for the same land ; the latter, since 1816, having claimed the land, cut timber on it, and paid taxes, and was also one of the devisees of the senior grantee to the land, whose death was shewn, and his will produced.
    2. For the purpose of shewing a title by possession out of the plaintiff, defendant proved a tenancy under the junior grantee, prior to 1818, and till 1840, when the tenant died, a short time before the death of the grantee, and her son afterwards remained in possession up to the time of the suit. The extent of the tenant’s possession was a cleared enclosure of 15 or 20 acres, cultivated, and cut by one of the lines of the tract into two nearly equal portions, the house being originally on the part outside of the tract, but for many years past had been inside. Between the plaintiff and the junior grantee, a suit concerning the land was compromised in 1818, by the execution of a relinquishment, on the part of the latter, of all claim to lands granted to the senior grantee, which might be older than the claims of defendant’s father, whose parol declarations were also proven, relinquishing all right of adverse possession to the land in dispute.
    3. Held, that from the time of the compromise and relinquishment, the possession of the tenant must be referred to the plaintiff’s title.
    4. Although the tenant had entered under a trespasser, it was competent for her to attorn to the true owner, by the consent of her original landlord. And this resulted, by operation of law, in virtue of the compromise and relinquishment,
    
      Before Wardlaw, J. Conwayboro'1, November Term, 1842.
    Trespass to try titles. Suit commenced March 10,1841. The land in dispute was a large tract of swamp and adjoining pine land on the little Pee Dee, the greater part of which was uncleared.
    The plaintiff shewed a grant of 1500 acres, the land in dispute, to Benjamin Moore, 6th February, 1792; the death of Benjamin Moore, about forty years ago, and his will, devising all his lands (of which he died seized of about fifteen or twenty thousand acres) to all his grandchildren, equally to be divided amongst them when the youngest should attain the age of twenty-one years, with privilege given to any of them to settle upon and cultivate any of the lands.
    
      Sixteen grandchildren were left, the youngest of whom attained to. the age of 21, fifteen years ago. All are now dead except four or five ; many have left descendants, who are now widely scattered. Since 1816, the plaintiff has claimed this tract, cut timber upon it, and paid taxes for it; and for 12 years last, no other of B. Moore’s descendants has laid any claim to it; but no division ever took place amongst the grand children.
    The defendant produced a grant to his father, William Johnston, dated 2d July, 1798, of the same land, described by the same trees, marks, courses and distances, but represented in quantity as only 500 acres; and to establish a title by possession out of the plaintiff, it was proved that Mrs. Cook, prior to 1818, was living on the land as tenant of Wm. Johnston, and so continued until her death, in 1840, (a short time before Mr. Johnston’s death ;) after which her son, Samuel Cook, who had lived with her, remained up to this time. It was also proved that William Johnston, jr., had, by permission of William Johnston, sen., cleared a field of about ten acres, and had since constantly cultivated it as a tenant of William Johnston in his life time, but the time between this clearing and the death of William Johnston, sen., was not sworn to exceed eight years, although sometimes spoken of as ten or twelve years.
    That Mrs. Cook was tenant of W. Johnston, was proved by her declarations; but as to the extent of the rights she claimed, it appeared only that she lived within a cleared enclosure of 15 or 20 acres, which she cultivated, and which was cut by one of the lines of the tract into two nearly equal portions: her house was originally, on the part outside of the tract, but for many years past has been inside.
    The plaintiff, in reply, proved that in 1818 a suit concerning this land was pending between the plaintiff and William Johnston, and was compromised by the said William'Johnston’s executing a relinguishment of all claim to lands granted to “ Ben. Moore and Edward Russ,” the grants of which might be older than the said Johnston’s claims, (which relinquishment, dated 9th September, 1818, was produced,) and by the plaintiff’s executing, at the same time, a conveyance to the said W. Johnston, of 100 acres of this land granted to Benjamin Moore, (which Conveyance was not produced.) The witness to this compromise also proved repeated parol declarations of W. Johnston, about the time of the compromise, relinquishing all claim and right of adverse possession to the land now in dispute.
    The presiding Judge directed the jury that the plaintiff", even if not exclusive owner, might, as one of many tenants in common, recover against a trespasser — that the possession of W. Johnston, jun., was tortious until he shewed it had been long enough-^-that by the relinquishment of W. Johnston, sen., the possession of Mrs. Cook, who had entered as his tenant, became the possession of the plaintiff! and could not afterwards be adverse to the plaintiff, without a going out and re-entry under a hostile claim, or some distinct act which would amount to an ouster; but that if Mrs. Cook was tenant of W. Johnston, sen., under an adverse possession, then the possession was his, and would avail to put him into actual possession of the w7hole land covered by his grant.
    The jury found for the defendant.
    The plaintiff appealed, on the following grounds:
    1. Because his Honor erred in charging the jury that where a party Sets up title by possession, established by an actual enclosure and cultivation, the extent of his possession is to be referred to his paper title, including but a portion of the enclosure, and not to his actual possession.
    
      2. Because the verdict of the jury was against the most conclusive evidence that the father of the defendant, under whom he claimed, and Whose only title was by possession, had expressly released and abandoned all title and claim, and did not hold adversely.
    
      Mitchell, for the motion-. Munro, contra.
   Curia, per

Butler, J.

From the fact that only a small portion of defendant’s possession (about a third of it,) was within plaintiff’s grant, there might have been good reason to conclude that it had been acquired by inching over, and should be regarded as altogether accidental. It appears, however, that the house in which the tenant lived, had been built and occupied for many years, and was on the land claimed by the defendant. This may have been deliberately done, with a view of acquiring a title by the operation of the statute of limitations, under a junior grant, and in this way would have been consistent with defendant’s claim. Under some circumstances, such a possession might have been availing. It could not have been so, unless the possession had been notorious, continuous and adverse in its character. Where one enters on land, acknowledging at the time the title of another, or subsequently recognizes it, he cannot make his possession adverse, without either giving notice of his design to the owner, or doing some act indicative of his adversary position. It appeared in this case, that William Johnston, under whom defendant claimed, had, in compromise of an action about this very land, relinquished all claim to it, and had made repeated acknowledgments that it was Moore’s land. After that, Moore had every reason to believe that his title was secure from any claim which Johnston might set up by virtue of any possession under Mrs. Cook’s tenancy. From the time of this compromise and relinquishment, Mrs. Cook’s tenancy should be referred to Moore’s title. Although she had entered under a trespasser, it was competent for her to attorn to the true owner, by the consent of her original landlord. And did not this result by operation of law, by virtue of the compromise and relinquishment of Johnston'? From that time the possession of the tenant should have been regarded as the possession of the true owner. Without some actual notice to the contrary, or without some act on the part of Johnston, shewing that he had again laid claim to the land, such should have been the conclusion of the jury. According to these views, the verdict was erroneously rendered for the defendant, and should be set aside. The motion for a new trial is therefore granted.

Richardson, O’Neall, Evans, Wardlaw, and Frost, JJ. concurred.  