
    Y. J. Harrington vs. Aaron Wilkins.
    The possession of a slave, on lands, is not the possession of his owner, unless such possession was authorized by the owner; fortogaina right by possession, it must be such a possession as will enable the adverse claimant to sue.
    The character of possession to land, whether adverse or not, is a conclusion to be drawn from all the circumstances, and belongs to the jury to decide. An adverse charactermay, and most frequently is implied from possession alone. So, when the person under whom the plaintiff claimed, had said, “lam ignorant whether they (the defendants) have a right or not; I will not wrong them out of a farthing, and if their title appears, I will pay them for the land;” it was held that the possession was not such an adverse possession as would give title.
    Tried at Union, Spring Term, 1822.
    TRESPASS to try titles to land. The plaintiff derived his title from a grant to his father, John Earring ion, da? ted in 1787. There was an old field on the place at the time, consisting of four or five acres, and the plaintiff proved that John Harrington had possession by his tenant, William Harrington, for two years) immediately subsequent to the grant. After this, the enclosure was reduced to the half or fourth of an acre, which was planted in cotton up to the death of John Harrington, in 1793, and thence up to the marriage and removal of his widow in 1795. But whether this small patch was planted bj*- John Harrington and his widow, and for their benefit, or by one of their negroes for his own use, was doubtful from the evidence. Subsequent to this period, Smith, a son-in-law, and one of the executors of John Harrington, and who lived on an adjoining tract, way accustomed to make patches for sowing tobacco seed on a branch that ran through the disputed land up to the year 1800, since which, there had been no possession on the part of the plaintiff.
    The defendant claimed under, and derived a title from a grant to Matt< Porter, which was much older than that under which the plaintiff claimed. He proved that Porter cleared and settled the field in which the plaintiffs had had possession before the Revolutionary war, and that in the time of the war he left it, and went into- North-Carolina, where he died, so that the plaintiff's right to recover depended solely on his possessory title.
    The claim of the heirs of Porter was known to John Harrington, the grantee, under whom the plaintiff claimed, and was frequently the subject of conversation up f©the time of his death in 1793, and several of the witnesses stated that they had frequently heard him say, in relation to it, that “he would not -wrong them out of a farthing, and that if they would produce a grant and establish the lines, he would pay them for the land, or buy it of them. ''
    - The jury found a verdict for the defendant, and a motion was made for a new trial, on the following grounds:
    1st. That the plaintiff made out a good and sufficient title in law under, the statute of limitations, and was entitled to recover.
    2d. Misdirection of the court in the following particulars, viz:
    3 st. In- charging the jury that if they found that the possession of the small patch was tho possession of John Harrington’s slave, that possession could not enure to his benefit, unless it appear it was authorized by him.
    3d. In charging the jury that if they should find on the declaration ox John Harrington’s reasons to induce the conclusion that it was his determination not to use his possession in opposition to the better right of the heirs of Forte,', if that should appear, or that it was his intention to hold subject to that title, such possession could not enure to the benefit of the plaintiff.
   Mr, Justice Johnson

delivered the opinion of the court:

The grounds of the present motion involve two questions :

1st Whether the possession of a slave is the possession of the owner, unless it appear that such possession was authorized by the owner, and,

2dly. Whether the possession of one, claiming under a bad title, with the avowed intention of holding, subject to, a better title if it should appear, is or is not adverse ?

1st In remarking on the first of these, I shall assume the positions, that to give right by possession, it ought to he such a possession as will enable the party claiming adversely to sue, ( Bailey vs. Irby, 2 Nott & McCord, 343,) and that the owner is not answerable for a trespass committed by his slave, (2 Bay’s Reports, 345, J unless it bodone under his authority. It was doubtful from the evidence in this case, whether the possession of the small patch was the possession of John Harrington, or thq possession of his slave. If the slaye’s, there was no evidence that he ever authorized it; and from the positions laid down, it follows as a necessary consequence that an action could not be maintained against him for this trespass, and therefore could confer no right on him. And whether this was or was not such a possession, was a question submitted to the jury,

As introductory to the consideration of the second question, it is necessary to premise, that laying aside al,l other considerations, the possession of Smith wanted the permanency and notoi'iety necessary to give it effect as an adverse possession, (vide Bailey vs. Irby, supra,) and to piake out five years possession, it was necessary, with the two years possession of John Harrington by his tenant, to make out three years of a possession, concerning which, as heiore remarked, there were doubts whether it was his or the unauthorized possession of Ins slave. If his, then the second question propounded arises.

That a possession adverse to the claim of the rightful owner is necessary to give title, is a legal axiom that will not be controverted ; but whether it is or is not of that character, is a conclusion to be drawn from all the circumstances, and belongs to the jury to decide. An adverse character may and most frequently is implied from the fact of possession alone, or it may be marked by the most unequivocal circumstances ; as when one forcibly expels another, and takes and maintains the possession, and for the same reapo2is, a possession- apparently adverse, may assume an opposiic character, when taken in connection with the circumstances. Thus, where one entered undpr an agreement to purchase, (Jackson vs. Bard, 4 Johnson’s Rep. 230. ) So, to make a possession adverse, it must be hostile in its inception. (Jacksons s. Waters, 12 Johnson’s Rep. 365. J So the repeated applications of a defendant in ejectment to the lessor of the plaintiff to purchase the premises from him, affords a presumption that he came into possession under him, and repels the presumption that it was adverse. (Jackson vs. Hasbronch, 12 Johnson, 213. ) It follows therefore that it is ill the power of the party in possession to give it what character he please, either the most hostile, or its ponverse. What then is the character given by the plaintiff’s grantor to his possession ? The language which he holds in relation to the claim of the heirs of Porter is,. “I am ignorant whether they have a right or not, I will not wrong them 'out of a farthing. If their title appears, % will pay them for the land,” plainly implying that he could not submit to conyert a rigid rule of law into an in» slrumeut of injustice. This language is in accordance with the principles of natural honesty, and it would be an outrage on common sense to give it effect in such a manner as to compel him to be unjust contrary to his will.

O’Neal, for the motion.

Independent therefore of the finding of the jury, which I should regard as conclusive, on a doubtful question, the facts in this case leave no doubt in my mind as to the correctness of their conclusion.

The motion is refused.

Justices Gantt, Huger, Colcock and Noil, concurred,

—-3 contra.  