
    John Stockdale vs. Mary Lee.
    A deed will not be presumed, juris et de jure, without proof of twenty years’ possession.
    Eaots showing the existence, loss and contents of a deed, may authorise the presumption without the proof of possession.
    In the absence of such proof, a long possession, but short of twenty years, accompanied by possession of the grant and other muniments of title, may create a presumption of the deed.
    BEFORE EARLE, J., AT FAIRFIELD, SPRING TERM, 1832.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trespass to try titles. The plaintiff claimed under a grant to Geo. Evans for three thousand acres, from whom he deduced a regular title to himself. The defendant claimed under John Rutledge, in whom he attempted to establish a title by proof of an uninterrupted possession, as he alleged, of sufficient duration, when taken in connection with other circumstances, to authorize the jury to presume a deed of conveyance from Evans to Rutledge, for defendant also claimed under the grant to Evans. The proof of possession was to the following effect: One Alexander Johnson, about four years after the revolution, resurveyed the land for John Rutledge. He had the grant, called it Evans’ grant, and generally, after that, it was called Rutledge’s land in the neighborhood. Francis Lee and Wm. Lockwood were living on it at that time, and Lee agreed to pay something for rent, as an acknowledgment of tenancy, to Johnson for Rutledge. He stayed there three, four ox five years after, before he moved off. He then sold his improvement to Basil Meek, who remained two years, and talked of buying from Rutledge, but he was not informed that Lee was tenant, nor did he pay rent. After two years Lee purchased Meek’s improvement again, and returned and died there. His son, John Childers, who lived with him, continued there after his death for two years. They were not in possession under any agreement to pay rent after they purchased from Meek, but Minor Winn, as the agent of Rutledge, demanded rent of him for five years, which Childers paid. Childers sold his improvement to Thomas Lockwood for a big coat, and did not inform him of his tenancy.
    “ Thomas Lockwood was the son of William Lockwood, who made the same acknowledgment of non-claim to Johnson that Lee did. Pie died there, and Thomas succeeded him in the possession, but he never became the tenant of Rutledge. He remained on the land and bought Childer’s possession, to which he removed, and remained there till Hugh Yongue purchased seven hundred acres from Rutledge in January, 1799. He then procured land from Yongue and went on it, and sold his claim to Childer’s place to Yongue, who cultivated it one year at least. Yongue gave him a few gallons of whiskey for his possession at Childer’s place.
    “ Some other facts were proved in relation to the title of Rutledge, unconnected with possession.
    “ Andrew McDowell, being asked (by commission) if he saw a deed of conveyance from George Evans to John Rutledge, answers that “ I did, at the time Rutledge made the deed to Yongue ; I saw it but once ; George Evans’ signature was to the deed, but c|on’t know the handwriting.’ Was requested to resurvey the land by John Rutledge for Hugh Yongue. Rutledge gave him the original grant for three thousand acres to make the resurvey for Yongue of seven hundred acres.
    .“Patrick Duncan and James Nicholson proved that Mr. Rutledge, in the latter part of his life, was partially deranged and unfit for business.
    “ Dr. Charles Rutledge proves also, that his father, Mr. Rutledge, in 1799, was insane, and thinks he was in the habit of burning his papers.
    
      “ Minor Winn, bad tbe land resurveyed for John Rutledge under a power of attorney, and took acknowledgments of tenancy. He bad tbe original grant, and be believes also, the deed from Evans to Rutledge. Oliver Cromwell and Esther Evans were tbe subscribing witnesses.
    “ This whole title has been several times before tbe Court of Appeals. The. case of Stoohdale vs. Jonathan Yongue, was tried before me last Spring, and tbe evidence of possession was then much stronger than now. I bad then before me the opinion of the Court of Appeals, and charged tbe jury precisely in conformity to it. Tbe plaintiff recovered then and tbe verdict was sustained. I did not think the jury were authorized from the possession proved on the last trial to presume the deed from Evans. At the utmost it began three or four years after the revolution, say in 1787, and continued till 1799, or 1800. It was neither long nor uninterrupted, for there was an interval of two years during Meek’s possession; and in fact none of it was of that clear, open, notorious and unequivocal character, which is necessary to raise the presumption of a conveyance. The acts of ownership by Rutledge, were relied on as aiding the proof of possession, and no doubt they may be brought in for such a purpose. But I apprehend no case can be found where a deed has been presumed on such possession.
    “ The recovery in the case of the present plaintiff, John Stoehdale vs. Jonathan Yongue, was given in evidence to sustain plaintiff’s right. It was admitted by the defendant’s counsel that the present defendant claimed under Hugh Yongue, whose tenant she was, that Jonathan Yongue, the defendant in the former suit, claimed also under Hugh Yongue, that the actions were both for the same land, and that the same title was involved throughout.
    “ Since the commencement of this suit, Jonathan Yongue has acquired a title to the land in dispute under a levy and sale by the sheriff, as the property of the plaintiff. The title to the land is therefore out of the plaintiff. He recovered on the former trial damages up to the time of the sheriff’s sale.
    “ The recovery could not be pleaded by the plaintiff or was not put on the record. I could not therefore prevent the defendant from going into his title; but as evidence in support of the plaintiff’s right, I charged the jury that it was entitled to the greatest weight, and perhaps was conclusive.
    “ The jury found for the plaintiff damages to the time of the sale by the sheriff.”
    The defendant appealed, and now moved for a new trial, on the ground: '
    Because the Court charged the jury, that to authorize a presumption of a conveyance from one person to another, twenty years possession of the land was indispensably necessary; and that such was the opinion of the Court of Appeals, delivered in the case of the Plaintiff vs. Jonathan Yongue,
    
    Clarice, for appellant.
    
      Thomson, contra.
   The opinion of the Court was delivered by

Harper, J.

This was a case proper for the determination of the jury; nor do we perceive any error in that or the charge of the Judge, which will authorize us to grant a new trial on the ground upon which it is prayed. The Judge states in his report, “ that the case of Stockdale vs. Jonathan Yongue, was tried before me the last Spring, and the evidence of possession was then much stronger than now. I had then before me, the opinion of the Court of Appeals, and charged the jury precisely in conformity to it.” The Judge adds, that on the present trial he “did not think the jury were authorized, from the possession proved, to presume the deed from Evans,” and gives the reasons of bis opinion, in which we see nothing exceptionable. It was proper that he should express an opinion to the jury. We have reviewed the former opinion of this Court, delivered by Mr. Justice Oolcock, and do not perceive that it contains anything to which we are not now disposed to consent. He says, “There are two kinds of presumption ; the one may be called a legal presumption; the other -a presumption of fact.” As an instance of the first, which is said to be unconnected with actual belief, he puts the presumption of a deed or grant from an actual possession of twenty years. With respect to the presumption of fact, the Judge says, “ when the party undertakes to show that in point of fact a deed did exist, there he must first prove such circumstances, as will induce the belief of its existence; next, the loss or destruction; and lastly, the contents.” He afterwards objects to the proof in the case before him, because the witness, “ who testifies to having seen the deed, spoke of the subscribing witnesses, persons who were known to have lived in this State, the sister of the grantor, and Mr. Oliver Cromwell; and no account is given of them, nor any evidence to satisfy the mind whether they be dead or alive.” I do not perceive what exception can be taken to this. To raise a presumption of fact, is to prove the fact, so as to satisfy the jury of its existence; not indeed by the direct testimony of witnesses who knew the fact, but by circumstances. If the highest testimony cannot be procured, then direct and positive secondary evidence should be offered, if it can be had; as in the case of a lost deed, the testimony of the subscribing witnesses who saw it executed and knew its contents. If direct and positive secondary evidence cannot be had ; as if the subscribing witnesses be dead, and no copy of the deed be in existence, then circumstances may be resorted to, as that the party claiming has been long in possession; that he is in possession of the original grant and other muniments of title; and that, as in this case, a witness saw in his possession a deed purporting to be signed by the supposed grantor. But if the subscribing witnesses be alive, and their testimony procurable, certainly it ought to be produced; and this is what I understand to have been said by Judge Colcock in the opinion referred to.

The motion is refused.

JOHNSON and O’Neall, JJ., concurred.

Motion refused.  