
    
      Aly Slice vs. Andrew Derrick.
    
    In order to acquire a title by possession, against a grant, there must be an actual pedis possessio within its limits for ten years; a constructive possession arising from an actual possession outside of its limits, will not be sufficient.
    Fugitive trespasses, such as cutting timber, marking trees, and making an entry or survey, do not, of themselves, constitute such a possession as will bar the owner.
    A parol partition of land,' not carried into effect by possession taken by either party, is not binding on the parties. ,
    
      Before O’Neall, J. at Lexington, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action of trespass to try title. The plaintiff claimed and derived title from a grant to James Gregg, dated 6th January, 1812. The heir of the grantee conveyed the land to Thomas L. Yeale, by whom it was conveyed in moities to Frederick Kelly and the defendant. In the deed, one hundred and seven acres were conveyed without a warranty. Frederick Kelly conveyed to the plaintiff, November, 1829, between whom and the defendant a partition was soon after effected. The one hundred and seven acres, on that occasion, was separately divided between them, and they drew lots for choice of parts. The part in dispute fell to the plaintiff. No deeds were executed. The defendant claimed under a grant to George Hipp, in 1774. This grant covered the locus in quo.-The defendant purchased this grant subsequent to the partition before spoken of, (to wit, in ’43 or ’44.) The plaintiff had his land surveyed in 1833, (5th February); the re-survey plat covered the locus in quo; he cleared upon the land which he bought of Kelly, but outside of the Hipp grant, in 1829. His possession continued from that time to the trial, but he had no possession, at any time, within the limits of the Hipp grant.
    “ The jury were instructed, that to give the plaintiff a title by possession against the Hipp grant, it was necessary that the plaintiff should shew a possession of ten years within its limits. That his constructive possession of ten. years, arising from an actual possession outside of the limits of the Hipp grant, could not confer title against it. The only matter about which I entertained any doubt, was, whether the partition between the plaintiff and defendant, accompanied by ten years possession of other parts of the land, might not have the effect of estopping the defendant from denying the plaintiff’s title. But as I was not aware of any case in which a period short of twenty years had been held to be enough to presume the execution of a deed, I was reluctantly brought to the conclusion, that there was nothing in the case which would justify me in holding that the defendant was estopped from denying the plaintiff’s title. This being the case, and the defendant having the unquestionable legal title undivested by the plaintiff’s possession, the Jury found a verdict for the defendant.”
    The plaintiff appealed, and now moved for a new trial, on the following grounds, to wit.
    1. Because it was proved, on the trial, that the plaintiff held the land in dispute, by metes and bounds, more than ten years previous to the trespass; and this was known to the defendant.
    2. Because defendant admitted the metes and bounds of plaintiff’s lands, having agreed to the lines as established by Cook, the surveyor, on the 5th February, 1833.
    3. Because his Honor erred in charging the jury, that the possession of plaintiff for ten years, claiming by metes and- bounds, did not give plaintiff a statutory title.
    4. Because his Honor erred in charging the jury, that the plaintiff’s ten , year’s possession, as above stated, was not good against all the world, particularly the defendant, who agreed to the lines between himself and plaintiff, and subsequently claimed under a senior grant.
    5. Because the parol agreement between the plaintiff and defendant operated, after the lapse of ten years’ possession by plaintiff, as a deed from defendant to plaintiff.
    
      Simmer fy Carroll, for the motion.
    Boozer, contra.
   Curia, per O’Neall, J.

In this case, there can be no legal ground for saying that a possession outside of the Hipp grant, can have a constructive effect to defeat it. There is no case where a title has been defeated by any trespass not amounting to an actual pedis possessio within its limits, for the statutory period. Cutting timber, marking trees, and making an entry, as by a survey, do not, of themselves, constitute such a possession as will bar the owner’s legal title. They are too fugitive and uncertain to have such an effect. • It is true, the marking of trees on lines, or making a survey, may constitute color of title, which, when connected with an actual pedis possessio of part of the land covered by the adverse title, may give constructive effect to the possession, and make it coextensive with the boundaries claimed by the party in possession; and that is what is decided by the various cases in this State, to which reference was made in the argument of the plaintiff’s attorneys.

The only ground on which the plaintiff could stand, is that which is made by the 5th ground. If, at the partition, mutual deeds had been executed, I have no doubt the defendant could not have set up his subsequently acquired paramount title against the plaintiff. For, in such a case, he would have been estopped by his deed from denying that he had title when he executed his deed ; Ree-der ads. Craig, (the name really is Garey) 3 McC. 411. If the parol partition could have the legal effect of a deed, then, in like manner, the defendant would be estopped. There is no doubt, that if actual possession had followed the partition, it would have bound the parties; 4 Johns. R. 212. Here, however, there was no possession of either part of the one hundred and seven acres, and hence no effect can be ascribed to the division between the parties. It was not binding on either.

If Slice, in 1829, had actually possessed himself of part of the moiety of the one hundred and seven acres assigned to him in the partition, his possession (if it had been continued for ten years) would have given him title, not only against Derrick, but also against the legal owners of the Hipp grant. For, as is said in Wagner et al. vs. Aiton, Rice, 105, such possession would be equivalent to the conveyance of the Hipp grant to him. Indeed, under such circumstances, I would have held the possession enough to have presumed a deed from the owners of the Hipp grant, and also from Derrick, under the partition.

But the plaintiff’s misfortune is, that his possessions are all on a part of the Gregg grant outside of the Hipp grant, and which, by a separate partition between him and the defendant, although at the same time, was assigned to him. It may be, that i^ he had been twenty years in possession, holding under a 'general plat, covering the locus in quo, as well as his actual possessions, a deed might have been presumed from Derrick, coextensive with the plat. But no less time has been ruled to have such an effect. Hutchinson vs. Noland, 1 Hill, 222. The motion is dismissed.

RichaR,dson, Evans, Wakdlaw and Fhost, JJ. concurred.  