
    
      John M’Elwee, jr. v. Thos. N. Martin.
    
      Before Mr. Justice Earle, at Yorh, Fall Term, 1834.
    The possession paroi°giftnfrom more^than /°e years, (beforo defined ^limits* win confer title „ „ ... Oil tllC SOR tO tllO extent of suck' iro^not^asier-taíncd, he *¡n hiifacuiarpe£s poseessio. 
      
    
    
      Trespass to try titles. Both parties claimed the land in dispute as purchasers at sheriff’s sale. The plaintiff purchased ^ as the property of Wiley Jones, and the defendant claimed it under a purchase as the property of Benjamin Jones. It was Pr°ved that it had been the property of Benjamin Jones, the father of Wiley: and the plaintiff set up title in the latter by virtue of a parol gift and possession for inore than five years, it being previous to 1824. Wiley Jones testified on the part of the plaintiff, that his father settled him on the land in question, being part of the tract on which he himself lived, saying he gave or would give him one hundred acres; and he told him where the dividing line should run. T-he witness un-1 , . • n rn ® , , , cierstood it as a gut. I hat he built a house, cleared out a plantation, and occupied it for eight or ten years without interruption, except one year, which his father worked his fields and paid him rent. The dividing line never was run, and when the surveyor, under the rule of Court, went to make a survey, there was some difference of opinion as to the course of the line. During the period of the son’s possession, Benj. Jones, the father, cleared and cultivated a portion of the land claimed, within the boundaries described, without asking permission of the son, who, on being asked on his examination on what terms this had been done, replied, “ 1 suppose he thought he had a right.” He further testified that he always intended to call bn his father for a “ right,” (a deed) and after 'he had been in possession for several years, he obtained from him a written promise or obligation for titles, which had been lost,or destroyed when his house was burnt.
    His Honor held that there was no proof of adverse possession by Wiley Jones — no act or declaration asserting an exclusive claim in his own right, and in defiance of the right of the father. That admitting that the possession under an actual gift is prima facie adverse, or that the jury would be authorized to presume it so, this presumption was effectually rebutted by the continuing possession of the father ; as also by his intention to call on him for titles, and his procuring a written obligation to make titles at a future day: that the payment of the rent for one year was equivocal in itself, and may have been a mere compensation for clearing the land; or regarding it as an admission of title, it is no more an acknowledgement of a title in fee, than of an estate for life, or a term of years. At most, as the boundaries were never actually surveyed and marked, Wiley could only acquire title to what he had actually cultivated. He accordingly granted a motion for a non-suit, which the plaintiff now moves to set aside on the grounds:
    1. That the possession of Wiley Jones was prima facie adverse, and sufficient to confer title to the extent of his claim, or at least to his actual possession ; and his Honor erred in his view of the law on this point.
    2. That the evidence was sufficient to have sent the case to the jury.
    
      Hill, for the motion.
    If the possession was adverse, and under defined boundaries, it is sufficient to confer title. What is adverse possession ? It'is a folding in one’s own light, and not in the right of another. Every possession is prima facie adverse, and is to be regarded as exclusively in the tenant’s own right; and it is only by shewing facts inconsistent with this presumption, that it can be rebutted. The son here held in his own right; the father had given him the land and defined the boundaries ; he had parted with the dominion; — taking an obligation for titles, shews that the son held in his own right;— and a conclusive evidence of right and acknowledgement of title, is the payment of the rent, which cannot (as was supposed) be regarded as a compensation for clearing the land, for the witness said it was for the use of his fields: and as for the circumstance that the father cleared and cultivated over the line, it was a mere privilege which a father might well exercise on his son’s land. But in any event, the evidence was sufficient to have gone to the jury, whose province it was to decide on the character and extent of the possession. Lyles v. Lyles, Harp. Eq. Rep. 288; Roberts v. Roberts, 2 M’C. 268; 1 Binney, 378; Judge Harper’s argument in Williamson v. Watkins, Law Journal, 113.
    
      Williams, contra.
    
      
      
         See Sumner v. Murphy, ante 488.
    
   O’Neall, J.

According to the views expressed by this ■Court in the case of Sumner v. Murphy, the nonsuit in this case must be set aside. For the possession of more than five years before 1824, under the parol gift, by well defined limits, or by such as could be ascertained and well defined by a survey executed according to the description given by the donor at the time he made the gift or put the donee into possession, would give title to their extent. In any event, however, the plaintiff was entitled to recover the actual pedis possessio of Wiley Jones.

The motion to set aside the nonsuit is granted.

Johnson and Harper, Js. concurred.  