
    Turpin vs. Brannon.
    The declarations of a party, when accompanied by an act, may-be received in evidence as explanatory of that act, as constituting a part of th eres geste
    
    
      So, where the plaintiff gave in evidence the acknowledgements of B. an incompetent witness, that he held as tenant for the plaintiff, the defendant may prove B’s declarations astohis motive» and the manner of his tenancy, as explanatory of the act.
    Where a tract of land was sold at sheriff sale as the property of C. in an action to try titles between A. against B. the purchaser, a plat of resurvey made for C. may be given in evidence to shew the extent of the defendants pos* session.
    There are some exceptions to the rule, that a judgment cannot be given in evidence to affect any but parties or privies; as where ilconstitutes a link in a chain of titles, or goes to establish a collateral fact; as to shew that the declarations of a tenant could have no affect upon the rights of the parties from the situation in which he fctood.
    No color of title is necessary to give a party a right by possession. 
    
    After the quiet enjoyment of lands for five years (now ten) the law presumes a tale in the occupant which may have been lost by accident. The possession is substituted in the place of title.
    The possession being proved by other evidence, the deed is only looked to as defining its extent, and for that purpose a mere survey is as high evidence.
    £f a person he in possession of a particular lot or tract of land, well known by a particular name, the bounds of which are distinctly marked, it would be sufficient to authorize (lie jury from possession of a part lo find a verdlcf for the whole, even though the possessor should have neither deed not-plat.
    Whenever, therefore, a person holds by possession ohly, a deed, plat or.any other color or semblance of title, will, usually, furnish of itself, sufficient evidence of the extent of his possession, without any other proof.
    When he has not such evidence, he may resort to any other; such as visible marked lines, adjacent ditches, fences, or any other that shall be satisfac: tory to the minds of the jury.
    Stale demands or claims of rand are not to be encouraged.
    Trespass to try title. •
    Spartanburg, Spring Term, 1824, tried before Judge Gaillard.
    The plaintiff’s title to the land in dispute, under a granS dated the 5th of March, 1787, was admitted. The defendant claimed the land as purchaser at a sheriff’s sale, made on the 6 th of January, 1823, and title from the sheriff dated on the-11 th of the same month. He also set up another claim under a deed from the sheriff, dated* on the fifth of February, 1822-The sale made on the 6th January 1823 was under a judgment of nonsuit against the plaintiff, by the defendant, entered up oh the 5'th of December, 1822. The judgment and execution were both ordered by the court to be set aside in April term,! 823.
    The other claim set up by the defendant was under a a deed from the sheriff, dated on the 9th of February, 1822., when the land was sold as the property of Hunt, at the suit of Turner. It had previously been sold as-Spear’s, at the suit of L. B. Fool, by the sheriff, on the 6th of September, 1.819, and bought by Hunt to whom the shei’iff executed a title-on the 9th of October, 1819. The land was admeasured and laid out to Spears, pursuant to a warrant from'James Smith, commissioner of location, by S. Dickson, a deputy surveyor, and a plat of it made by him on the 3rd of April, 1804j and another plat on the 19th of September, 1808. Spears was in possession of the land twenty odd years, and claimed it as his own, and continued in possession of it until ousted by Hunt. After the sale by the sheriff to Hunt, and hot before, he spokf-of his being the tenant of Turpin, and on the 21 st of Octobers 1820, acknowledged himself his tenant in writing. It was ' contended that the possession of Spears was of a fiduciary character, and that he could acquire no title to the land under the statute of limitations.
    His honor instructed the jury that the title of the defendant, under the judgment and execution of Turpin could not be sustained; that the character of Spear’s possession was ■a matter for their consideration. Besides the evidence that fie claimed the land for himself,. Dr.. Young swore he heard him say he was going to see Turpin, that they had sold his •(Spears’) land for little or nothing, that he. had offered to purchase it from Bunt, but that be would not give him a fair chance. He asked Dr. Young if he went and acknowledged himself Turpin’s tenant whether he could not .retain possession of it, and said they were suing him for the possession. His honor added, that whatever-might be the effect of the ac-knowledgement to Turpin if the suit were between Turpin and Spears, it could not affect the right of the defendant,, derived from Hunt, who purchased the land at sheriff’s sale in 1819.
    The jury found a verdict for the defendant.
    The plaintiff appealed on the following grounds, yias
    1st. Because the deed to defendant made by the sheriff at the time the land was sold as the property of the plaintiff, ought not to have gone to the jury; even under the charge of • the court that it ought not to avail defendant any flung.
    2nd. Because the declarations of Spear, under whom .defendant claimed to support his title, ought pot to have been given in evidence.
    3d. Because the plat of re-survey made in 1804, for Spear, was not legal evidence, or color of title to show the extent of his claim, and therefore ought not to. haye gone to the jury.
    4th. Because the evidence on the part of plaintiff shewed that Spear entered as a tenant, or under, a contract of 
      purchase from the plaintiff, and therefore the stat. of filis» could not barr the plaintiff.
    5th. Because the character of the possession was at most very doubtful, and on that account, could not avail the defendant.
    6th. Because the record in the case of William Hunt us, John Spear, was given in evidénce in this case.
    7th. Because the court mistook the law in stating to the jury, that although the tenant could not acquire a title by possession against his landlord, for his own benefit, but still as respected the rights of third persons the tenant might acquire a title by possession even against his landlord.
    8th. Because the verdict ought not to have given defendant more land than had been held in actual adverse possession by Spear for more than five years, the extent ofwhich was not shewn.
    
      Wallis Thomson.
    
    The sheriff’s title under a judgment and execution, which had been set aside, is not admissible. The' judge charged afterwards, that the jury should not regard it.It is contended that the judgment was irregular, and yet the sale under it was good: admitted that the purchaser was not bound to look to the regularity of the proceedings. But he did not controvert that doctrine where a stranger is the purchaser. But it was different with respect to the plaintiff, who has carried on the irregular proceedings. A party may obtain a confession of judgment upon a forged or fictitious instruments Here the deed was regarded as a nullity; yet it was allowed to go to the jury. What difference to the losing party if the judge admits improper testimony, and then tells the jury not to regard it- Who knows but the jury found pn that deed-(15 Johns. 239.)
    2nd. Because the declarations of John Spear should not have been admitted. He had no objection to the evidence of his living on the land, but to his claims of it. The evidence that Spears paid tax for some land was incompetent, -party’s declarations are not evidence for himself, or tÍJQgp who claim under kirn. Spear was in court, and if a competent witness be should have been sworn (6 Johns. 21; 7 Johns. 90; J! Johns. 185; i Johns. 339 ) The susveyor ought to Lave been produced to prove the survey. The objection that the record in the suit of Hunt vs. Spear should not Lave been admitted was valid, it was not proper evidence. .In relation to the question whether Spear had acquired a title by stai. oflimkarionS the evidence was unnecessary, ifHunt Lad acquired Spear’s title. The record was not evidence except between parties and privies. (1 Wheat. 6.)
    As to the statute of limitations, there was no evidence to shew marked lines, but the plat. The question was whether possession of a small part could establish a right to that extent. As to Spear’s letter, he said the judge instructed the jury that the letter was of no weight, without that to which it was an answer. The4lctter was before his title vested. It would shew that he was not holding adversely. It put Turpin off his guard. Spear said, when the land was sold as Lis property that it belonged'to Turpin. (Williams & ri.r‘Gee, Cons. Rep. 90.) Colour of title, he conceived, was any written muniment evidencing title.
    Henry, contra.
    A purchaser at sheriff’s sale is protected though the judgment be set aside. (i Nott ,.'1‘Cord 12. Ib. 408. 13 Johns Rep. 97. 8 Johns. 361.)
    
      Earle, against the motion.
    The deed was properly admitted. If a judgment be set aside, for matter dehors the record, a title which has accrued under it cannot be affected. (1 Phillips Ev. 131.) The declarations of tenants arc always admissible, so far as they relate to possession. (1 John Rep. 159.)
    
    
      
      ) See Williams vs. M‘Gee, 1 Conet Rep. 90.
      
    
   Nott, J.

The degree of confidence with which the defendants counsel has pressed his claim for a new trial, in this case, has excited something more than ordinary attention iu the court to discover if possible whether the motion really possesses the merit which has been supposed. But it has not appeared to us in the same point of view in which It has presented itself to the counsel. It appears by the first ground-, that thejudge permitted a deed to be given in evidence which was bottomed on a judgment that had been set aside. But it will be observed that when the deed was produced it could not be discovered that the judgment did not still remain in full force. And when it afterwards appeared to have been reversed, the judge instructed the jury that they must not regard it as constituting any part of the evidence. It will often happen that testimony may be admitted in an early part of a case, which may become improper by the after introduction of other testimony; or a judge may admit testimony of the incompetency of which he may afterwards become satisfied. , In such cases, the only method of preventing the mischief which might otherwise ensue, is, by instructing the jury not to regard it. And it- is always to be presumed, that they will be governed by such instructions. It would be very embarrassing if every such step were to be a ground for a new trial. I think, therefore, that every thing was done in this case, that . the party had a right to expect. And Í presume the verdict of the jury, was not at all influenced by that testimony.

The second ground, contains a very well settled rule of law, that the declarations of a person shall not be received in support of his own title. But the declarations of a party when accompanied by an act may be received as explanatory of that act, as constituting a part of the res gestee. The plaintiff had produced in evidence an acknowledgment of the witness, that he would become his tenant, thereby admitting the right of the land to be in him. The defendant had a right therefore, to give in evidence his declarations as to his motives' and the manner of his tenancy as explanatory of that act. The defendant could not have called Spear as a witness, because he had an interest in supporting his title, as it went to discharge a debt which he would otherwise have continued liable to pay.

3rd The plat of resurvey was not offered as evidence of title but as defining the extent of defendants possession.And for that purpose it was certainly admissible.

4th. and 5th. The fourth and fifth grounds presented questions for the consideration of the jury, in which the court 3s not disposed to interfere.

6th. With regard to the sixth ground, it is a very familiar principle that a record cannot generally be given in evidence to affect any hut such as are parties or privies to it. But there are exceptions to that rule; as when it consitutes a link in a chain of title, or goes to establish a collateral fact. In the case now under consideration, the plaintiff claimed tinder Spear, under whom the defendants claimed as his tenant, and contended therefore that defendants could derive no title from him. To rebut that evidence the record was produced to shew that Spear had actually been divested of his right before he acknowledged the right of the plaintiff. It was not offered as evidence of defendant’s title, but to shew that, from the circumstances of the case, and the relation in which Spear stood to the parties, at the time, his acknowledge-ments could neitherweaken the title of one nor strengthen that of the other.

7th. There does not appear to he any thing in the instructions of the judge to the jury which will’authorize the interposition of this court.

8th. With regard to the verdict, it belonged to the jury to determine the extent of the defendant’s possession. No colour of title is necessary to give a party a right by possession. The object of the law is to quie' persons in their possessions. After the quiet enjoyment of land for five years, the law presumes a title in the occupant, which may have been lost by accident. The possession is substituted in the place of title. Color of title, I think, at best, a far-fetched figure, and difficult to define; perhaps, however, it is the best that can be used iur reference to the subject to which it is applied. I think that in its common acceptation it is understood to mean any semblance of title by which the extent of a man’s possession can be ascertained. An actual deed from a person who has no right conveys nothing. It is not exclusive evidence of possession. The possession being proved by other evidence, the deed is only looked to as defining its extent. And for that purpose a more survey is evidence of as high a nature. Suppose a person to be in possession of a town lest, the limits of which are known by a general map of the town, or a tract of laud well known by a particular name; as for instance Tickle-berry or Palmyra, the bounds of which are well defined by distinctly marked lines, it would be sufficient to authorize the jury, from the possession of a part, to find a verdict for the whole, even though the possessor should have neither deed nor plat. And, for the most obvious reasons. A single deed or plat is as susceptible of destruction by fire or other accident as a complete chain of title. Whenever therefore, a person holds by possession only, a deed, plat, or other color or semblance of title, will usually furnish of itself sufficient evidence of the extent of his possession without any other. When he has not such evidence he may retort to any other, such as visible marked lines, adjacent lands, ditches, fences, or any other that shall be satisfactory to the mind of the jury. In the present case the evidence both with regard to the nature of the tenure, as well as the extent of the possession, were somewhat of an equivocal character. But they were questions for the consideration of the jury. If the verdict had been the other way, perhaps the court could not have said that the jury had done wrong: neither can they now say that they7 are dissatisfied with the verdict. The plaintiff has certainly been very negligent in delaying so long to prosecute his claim. These stale demands are not to be encouraged, Nothing tends more to disturb the quiet and repose of the community. Families are broken up, purchasers disturbed in their possessions, and creditors, who have trusted others upon the credit of their long possessions, are disappointed in their just expectations by some dormant claim which could not have been anticipated.

Upon the whole, the court do not see any ground upon vbich the plaintiff can claim a right to a new trial. The Questions of law and fact were so blended together that the court below had a much better opportunity of forming a just estimate of the merits of the case than could possibly be at~ forded to this court.

The motion therefore must be refused.

A. fV. Thompson, for the motion.

Earle and Henry, contra.  