
    Wallace vs. Hannum.
    A naked possession for seven years without color or pretence of right gives, under the 2d section of the act of 1819, a right of possession only, and not title •in fee.
    At the October term of the circuit court of the United States held at Knoxville in 1834 the president, directors and company of the Bank of the United States recovered a judgment against James Berry, Jacob F. Foute, Thomas Henderson and Daniel D. Foute for the sum of five thousand three hundred and seventy-two dollars and forty-seven cents and costs of suit. A Ji. fa. issued against the defendants to the marshal of the district of East Tennessee, and was by him levied upon three lots in the town of Maryville, in the county of Blount, known and distinguished in the plan of said town as lots No. 55, 5G and 57. These lots were levied on “as the property formerly occupied by James Berry,” and sold by Lyon, the marshal, on the 2d February, 1835, to William Wallace for eleven hundred and eleven dollars, he being the highest and best bidder therefor. Lyon executed and delivered a deed for the lots on the 2d February, 1835, which was acknowledged on the 3d and duly registered on the 6th.
    On the 17th day of July, 1835, Wallace instituted an action of ejectment in the circuit court of Blount county against Henry Hannum, tenant in possession. An issue having been made upon the plea of not guilty, after repeated continuan- • ces the cause was submitted to a jury of Blount county, judge Scptt presiding, at the June term, 1838.
    The plaintiff produced and read to the jury a grant for lots No. 56 and 57, from the State of Tennessee, issued on the 11th day of May, 1810, to John Lowry, and also a grant from the State to John Waugh for lot No. 55, issued on the 4th day of May, 1810.
    The. plaintiff then offered in evidence a deed from John Lowry to James Berry for lot No. 55, dated 29th March, 1817. The plaintiff also offered in evidence a deed from Josiah Mankin, by his attorney in fact, to James Berry, for lots No. 56 and 57. The reading of these deeds was objected to by defendant’s counsel and the objection sustained, in consequence of the defective probate of the deeds..
    The plaintiff then read the transcript of the judgment rendered in the circuit court of the United States under which the lots in question were sold, and the marshal’s deed.
    The plaintiff then introduced a witness, who testified that in 1823 James Berry took possession of the lots and commenced improving them, enclosed them, built houses upon them, and in 1824 moved into them and held possession of them for himself until 1833; that he then sold them to James White, removed, and delivered the keys to James Wilson, jyhp kept possession for White till 1834, when Hannum took possession under White; and that Hannum held possession at the time of the institution of this action, holding as tenant of Whitq.
    The defendant then read an article of agreement between James Berry, of Blount county, Tennessee, and James White, of Washington county, Virginia. This deed recites that Berry bargained, sold and cqnveyed to said White, by virtue of said article, lots No. 55, 56 and 57, in the town of Maryville, Blount county, for the sum of three thousand dol-. lars,. and that James Berry should make title to the premises in fee simple within two years from, that date clear of all incumbrances by that time, and to give White possession lyithin ten days from the date of the deed. This article of agreement was signed by Berry and White, and sealed with. their seals, and dated 6th April, 1833. It was proven by one of the subscribing witnesses on the 31st January, 1838, find-by the other on the 19th day of March, 1838, and was registered on the 12th May ensuing.
    Scott, the presiding judge, charged the jury that if Berry had been in possession of the lots in dispute, holding them adversely and for himself for the space of -seven years, he had acquired thereby a title in fee simple to them which would be liable to seizure and sale by fieri facias, although he had before such seizure and sale conveyed the lots to White and surrendered the possession to him, White’s deed from Berry not having been registered in due time, and being therefore void as to creditors and subsequent purchasers.
    The jury rendered, a verdict in favor of the plaintiff. The defendant moved the court for a new trial; the motion was overruled and an appeal in error prayed and granted to the supreme court.
    
      Jarnagin, for plaintiff in error.
    Is the title of the plaintiff under his purchase at execution sale good? Plaintiff must recover upon the strength of his own title.
    1. That nothing can be sold at execution sale but a legal title is generally true. What makes a legal or complete title?First, naked possession; secondly, right of possession; thirdly, right of property. An union of these three constitutes a complete title or title in fee. 2 Blac. Com. 198, 199. Lord Mansfield, in Taylor vs. Hord, speaking of the action of ejectment and of matters of defence for a defendant, said twenty years adverse possession was a positive title, not a complete title, because it did not give the right of propei’ty; and ejectment was a possessory action in which plaintiff must show his right of possession.
    2. Had Berry the legal title at the time of levy of the execution? There were, by the laws of England, various modes of conveyance, or ways by which lands could be transferred from one to another, but all these were superseded in North Carolina by the act of 1715, lest titles should become so perplexed that “no man would know of whom to take or buy land.” No conveyance for land is good unless proved and registered. 1 Scott’s Rev. 26, act 1715, ch. 38, sec. 5. This act, among other things, was “to direct the method to be observed in conveying lands,” &c. Lands were to be thus transferred alone, but it was competent for the legislature subsequently to prescribe other modes. How far has it been done? The statute of limitations is one. The act of 1715, ch. 27, sec. 2, (1 Scott’s Rev. 14,) ratified and confirmed and declared good and legal certain transfers under which seven years possession had been held. The third section is nearly as broad as the second section of the act of 1819, yet no one at any time supposed under this act a naked possession could by time become a legal title; on that subject there was no diversity of opinion. I am willing to admit that, under the provisions of the statute 21, sec. 1, ch. 16, and also the statute of limitations of South Carolina, Georgia, and perhaps some other States, and the third section of the act of 1715 of North Carolina, a possession of seven years without color of title gave a right of possession; but in North Carolina a uniform mode of conveyance by deed in writing was established in exclusion of all others by the act of 1715, ch. 38, sec. 5. Wealh-erhead and Douglass vs. the lessee of Bledsoe's heirs, 2 Ten. Rep. 360. The act of 1797, ch. 43, sec. 4, removed the presumption of right from the possessor, if it ever existed, and threw upon him the onus p-obandi, requiring the production of a paper title, &c. In Stanley’s case, in 1804, in North Carolina, it was settled there must be a paper title under the act of 1715. This opinion was sanctioned in the supreme court of the United States in 1816, in Patterson's lessee vs. Eastin: Dale and Hays vs. Good's lessee. Defendant must have a registered deed to protect himself. 2 Ten. Rep. 394.
    3. What is color of title? 4 Hay. Rep. 182. Color of title is where a possessor has a conveyance of some sort which he may believe to be a title. 5 Play. Rep- 286, Darby's lessee vs. M'Carroll-. Peck’s Rep. 215, Barton's lessee vs. Shall,
    
    
      Hynds, for defendant in error.
    1. The agreement between James Berry and James White, by which Berry agrees to convey to White in two years thereafter, cannot affect the case. Should it be regarded as a conveyance of title from Berry to White then it can have no effect. Although it is dated prior to the time of the levy and sale by the marshal, yet as it was not proved and registered until long after Wallace procured his title, it is void as against creditors and subsequent purchasers by the express provisions of the act of IS31.
    2. It is insisted that James Berry had no interest in the lots sold at execution sale that was subject to be levied upon and sold by fieri facias, because that there were no deeds of conveyance from the original grantees to himself vesting the title in him; and although he had been in actual possession of them for more than seven years, claiming to hold for himself, that the second section of the act of 1819 gave him no title, but only protected him in the possession;' that the statute of limitations only operated upon the remedy, and did not vest title in the possessor. For the defendant in error it is insist* ed that the construction to be given to the statute of limi* tations, when applied to protect a person in the enjoyment of property either real or personal, is not similar to that which is applied to executory contracts. In the latter case the tat-ute, it is said, only operates upon the remedy and does not divest the party of his right to the thing contracted for, although his remedy is lost, but in the other case it is insisted the rule does not apply. The statute of limitations, when applied to property, operates not only to extinguish the remedy of the person who may have the right to sue, but it operates in confirmation of the title of the possessor; it ex* tinguishes the remedy and operates to confer an indefeisi* ble title upon the possessor. Under the statute of 2Í James I, ch. 16, it has been uniformly held by the courts of England that twenty years adverse possession is a positive title to the defendant; it is not only a bar to the action or remedy of the plaintiff but it takes away his right of possession, and en* ables the possessor to maintain ejectment even against the person having the legal title, and drives him to seek his remedy by writ of right. Salk. 421, Stokes vs. Barry: 1 Ld. Raymond, 741: 1 Burrow, 119: 3 Thomas Coke, 169: 8 Carth. 353: 7 East, 299: Adams on Ejectment, 76: Run.» niugtbn, Eject. 14: Angel on Lira. 67-8. The same construction has been given to the statute of limitations by the cburts of this Country. Dycke vs. Gass, 3 Yer. Rep.: Anderson vs. Gilbert, 1 Bay’s Rep. 375: M’Read vs. Smith, 2 Bay’s Rep. 339: Strange vs. Durham, 2 Bay’s Rep. 429: 9 Vin. Ab. 341: 3 Ohitty’s Blac. 155. It has been held by the courts of this State that the adverse possession of a slave long enough to create a bar confers absolute title upon the possessor. Kegler vs. Miles, Martin and Yerger’s Rep. 426: 4 Yerger, 174, Porter vs. Badgei: 4 Yerger, 507, Henderson vs. Hays: see also 2 Bay’s Rep. 428 : 2 Bay’s Rep. 156. It is believed the same rule should be applied to the possession of real property.
   Green, J.

delivered the opinion of the courti

In this case the question is presented whether, under and by virtue of the provisions of the second section of the act of limitations of 1819, a complete title is acquired by the possessor whoa has been in possession without interruption for seven years.

This court decided, in the cáse of Dyche vs. Gass, 3 Yerger, 397, and in several subsequent cases, that a naked trespasser, who may have taken and held possession of the land 'of another for seven years without any color or pretence of right, is protected in that possession by the second section of the act of 1819. It is now insisted, and the circuit court so decided, that such possessor is not only protected in the possession, but that he has acquired a complete legal title t'o the land.

We cannot safely rely for the exposition of this statute Upon the decisions in England upon statutes in which language similar to that employed in this second section is used. Although by the statute 21 Jas. I, ch. 16, a possession of land for twenty years took away the right of entry of the true owner, it did not destroy his title nor vest in the possessor a fee simple. He might still assert his claim by bringing a writ of right. It is true that one who had been in possession for twenty years might have been permitted to assert his right of possession, even against the true owner, in an action of ejectment, because such possession is like a descent which tolls entry and gives a right of possession, which is sufficient to maintain ejectment. Salk. 421: 1 Ld. Ray. 741: Angel on Lim. 40. But it does not follow that such a consequence could result in this State from a seven years naked possession, because the analogy is not complete. The writ of right is not in use in this country; so that if the true owner were turned out by an action of ejectment it must be because his title is extinguished by force of the seven years possession, and by the operation of the second section of the act of 1819 is transferred to and vested absolutely in the possessor. This would be giving to this second section of our act a potency far beyond that which has ever been ascribed to the statute of James I. But if this were not so we could not safely ascribe to our legislature the meaning, although their language is similar, which the English courts understood to be that of the British parliament. Our legislature had before them the history of the statute of limitations in North Carolina and in this State. They knew what construction had been put by the^courts upon the acts of 1715 and 1797, and the struggles wííich had been made at the bar and on the bench to establish other views than those that had prevailed. With all these facts before them the first section of the act of 1819 was framed, and then the section under consideration was enacted.

With all these facts before us, surely nothing could be more delusive than to adopt the construction which was put on the statute of James as our guide, nor more absurd'than to abandon the clearer lights which are afforded' by the history of our own legislature. Although the act of 1715 did not by its language require a possessor to hold by any paper title in order to his protection, yet as the legislature (act of 1715, ch. 38) had declared that no conveyance for land should be good in law unless proved and registered, and that all deeds so done should be valid to pass estates in land without livery of seizin, attornment, or other ceremony in the law, the courts refused to extend the benefits of the statute of limitations to any person except such as held possession under some paper title, constituting what was called “color of title.’’

Much debate and difficulty arose in the courts as to what • would be sufficient to constitute color of title. To remove all doubt upon this subject the legislature passed the act of 1797, in which they declared that a party who should hold possession of land for seven years by virtue of a grant or deed of conveyance founded on a grant, should be entitled to hold the same against all persons whatsoever. A dispute arose in the construction of this act as to the meaning of the words “deed of conveyance founded upon a grant.” This produced the act of 1819, ch. 28. The first section of this act declares that a party who may have had seven years possession of land which has been granted, “claiming the same by virtue of a deed, devise, grant or other assurance purporting to convey an estate in fee simple, shall be entitled to hold the same against all other persons,” and should “have a good and indefeisible title in fee simple in such lands.” This section is drawn with much precision and care. In order that a party shall be protected who has held possession of land for seven years, he must claim the same by some assurance which purports to convey anótate in fee simple. In such case it not only protects his possession, but in express words it confers on him the title. “He shall have a good and indefeisible title in fee simple.” Now can it be believed that' the eminent lawyer who drew this act would have been so precise in his language as to the character of the estate under which a party must hold, or that he would have used express words to confer the title on the possessor, if he had intended that the same consequence should result from the provisions of the jsecond section? or can we, without charging the legislature with folly, suppose that they intended these two sections should mean the same thing? In construing an act of the legislature we must arrive, if we can, at the meaning of those who made it. The particular meaning of the words as used in a given case is very often to be ascertained by reference to the connection in which they are used; and taking the second section of this act in connection with the first, there can be no doubt but that the framers of it intended to give to a possession, by virtue of an assurance purporting to convey an estate in fee simple, a benefit which was not conferred upon a naked trespasser. But the natural import of the language of the second section simply bars the remedy, but does not take away the right. It enacts that “no person or persons, or their heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments but within seven years next after his, her or their right to commence, have or maintain such suit shall have come, fallen or accrued.” But there are no words that take away the right or confer the title on the possessor; nor does such consequence result necessarily from the prohibition to sue. _ If such effect be given to the second section it must be by construction, and not because it is the natural import of the language. But we cannot so construe it, because we are expressly told in the preceding section that this effect is to .be given to a particular class of cases there enumerated. Certainly, therefore, when in relation to other cases language wholly different is used, we are not to understand it as meaning the same thing.

To effect the intention of the legislature courts sometimes construe the language of a statute to mean a very different, thing from that which it naturally imports; but here the legislature evidently intended that which the words naturally mean: for if the argument for the defendant in error be correct there is certainly nothing in' the first section which is not embraced in the second. But to assume this is to * chaise the legislature with folly; with the double folly of embracing in the second section all the provisions of the first, and still retaining in the act that useless section; and this too, by the use of far less appropriate language than that they had previously employed.

The second section of this act, in other respects, is very broad in its provisions; and if the construction contended for was put upon it it would be most mischievous in its consequences. We think, therefore, that to extend its provisions beyond their plain import would be alike destructive of the interests of the country and subversive of the intention of the framers.

The charge of the court, therefore, that “if Berry was in possession seven years of the lots in dispute, holding adverse-Iy and for iiiraseli, he gained a fee simple,” is erroneous. A party who has thus held possession has acquired a right of possession, but not the title. We do not say an execution may not be levied on land thus held. But in this case Berry had abandoned the possession, and .the land was occupied-by another before this judgment was obtained. Berry had only a right of possession, which he had transferred to White before the judgment in the record was obtained, so as to create alien upon his right, if indeed a lien would exist in such case. It is therefore not like the case of Rochell vs. Benson, Meigs, 3. In that case the land was transferred and the possession was changed after the lien of the judgment had attached.

Let the judgment be reversed and the cause remanded for another trial.  