
    John M‘Clure against Alexander Hill.
    S‘>dpiiS5yfoi 20 j) a aumefont1 *8rMh
    This was an action of trespass to try title. The plaintiff gave in evidence a grant to Samuel Galla_ _ _ . - , mi • acres, dated 4th May, 1812. This was satisfactorily located, and included the land in dispute. He also gave in evidence a deed from the grantee to himself, conveying the land in fee to him; he proved a trespass, and closed his evidence. The defendant claimed under a grant to Andrew Turner for 163 acres, dated the 4th of July, 1785; also a grant to himself, dated the 1st of April, 1793, for 536 acres, which calls for its northern boundary on the defendant’s land, claimed under the grant to Turner. But though it thus calls for defendant’s land, an actual line was run, which coincided with what was supposed to be the southern line of the grant to Turner ; but neither according to the marks, courses, and distances which were delineated on the plat, nor according to the evidence of an aged witness, who Was present at the survey, could the southern limit of Turner’s tract be carried as far as the supposed southern line, which was the northern boundary of the grant to the defendant: except at the south-east corner of the grant to Turner, which was also the north-east corner of the grant to defendant. The defendant contended, that calling for his own land as a boundary, his new grant should be carried, without regard to courses and distances, to the actual line of the grant to Turner. The plaintiff admitted, if the grant to defendant had reference to an open line, the defendant’s rule would have been correct. But as the line was actually run, and referred to marks which were found, he contended it must stop at the line thus actually run. If the argument of the defendant prevailed, the land in controversy was included in his junior grant, which being older than the grant under which the plaintiff claimed, the latter was void, and he not entitled to recover. If the argument of the plaintiff prevailed, then between the southern line of the grant to Turner and the northern line of the grant to defendant, there was an acute angle containing about 25 acres covered by the plaintiff’s grant, the point of which lay to the east, and the base to the wrest. The defendant also claimed under the statute of limitations, and proved a possession in himself, and those under whom he claimed, of 30 years and upwards-All the buildings of the defendant, including the dwelling-house, were on the disputed land; and he had lived upon it upwards of 25 years. He had cultivated the greater part of it; and he had made the most ample use of the remainder, by cutting timber for firewood, rails, and building. The plaintiff did not deny that the extent and nature of the possession were such as would give a statutory title where land had actually been granted; but he contended that the land in controversy was included in neither of the grants under which defendant claimed; and that as the statute did not run against the state, the defendant had acquired no title by possession. The defendant replied, that after such possession for 30 years a grant ought to be presumed, and that there were other circumstances in the case which would aid the fact of possession; that adjacent, and very near to the land in dispute, there was land which had been cultivated long before the grant to Turner, which was called Buddin’s old field at the time of the survey of the land granted to Turner; and that the witnesses proved the existence of an old line, (the same which had been supposed to be the southern line of Turner’s grant,) which was probably the line of some other grant, of which Buddin’s old field was a part, and the land in dispute another part. The plaintiff contended, that a grant should not be presumed on a possession so short as 30 years; nor without sufficient evidence that a grant did exist, nor especially where the evidence, as in this case, repelled the presumption. The presiding Judge charged the Jury that the plaintiff had made out a case which entitled him to a verdict, unless the defendant had made out a better title; that in his opinion the grant to Turner did not include any, or but a small part, of the land in dispute; that the grant to himself must stop at the actual boundary which was marked at the time the survey was made, and that therefore the land in dispute was covered by neither, except perhaps a very small part of it: that the statute of limitations did not run against the state, and that where land was ungranted possession gave no title: that, therefore, notwithstanding the defendant’s possession, the plaintiff was entitled to recover according to his title, unless a grant could be presumed; but that, in his opinion, after a possession of 30 years, and under all the. circumstances of this case, they were authorized to presume a grant .of the land in question: that it was not necessary the evidence should be so full and satisfactory as to establish a belief of the existence of a grant in their minds: that it was true a presumption of the kind would not be authorized where the evidence was repulsive of the idea of a grant, but that in his opinion, no such repulsive testimony existed in this case. The Jury found a verdict for the defendant. 'A new trial is now moved for on several grounds, but the only one which it is necessary to notice is, that the presiding Judge misdirected the Jury, in charging them that, under the circumstances of the case, after a possession of 30 years, they were at liberty to presume a grant.
   The opinion of the Court was delivered by

Mr. Justice Cheves.

As between individuals a possession of five years gives a title, under our act of limitations, to land; in England a possession of 20 years gives a like title. There, borrowing the period probably by analogy from the statute where the possession is not of such a nature as to come within the provisions of the statute, the law presumes an interest in lands to have been held under a grant, where the enjoyment has been of 20 years duration. Grants have also been presumed against the crown within the time of memory ; but the cases are few where the crown has been concerned, and no genéral period has yet been established. So, in this state, a grant has been presumed against the state after a possession of 47 years, but no period has been fixed. The English law may be considered as óur law on the subject where the state is not a party, and I know no good reason, excépt the principle óf nullum tempús, which distinguishes a case between individuals from a case between a citizen and the state. That principle has ceased to be a Barrier, except as to the direct opération of the act of limitations, and I therefore think that a grant from the state ought to be presumed after a possession or enjoyment for 20 years. I know no other period more proper iri point of duration, nor any other which can be deduced by analogy, which will not either be longer than the period within which grants have been presumed, or too short, as would be the period established by our statute of limitations. This rule of presumption is a safe one, as it is only appliéd where the possession is rightful, to invest that possession with a legal title; nor is it necessary that there should be evidence to impress belief on the mind to authorize this presumption. (Phillips on Evid. 119, 120, 121.) “It has been said,” says Lord Chancellor Erskine, with great felicity of expression, “you cannot presume unless you believe. It is because there are no means of creating belief or disbelief, that such general presumptions are raised upon subjects of which there is no record or written muniment. Therefore, upon the weakness and infirmity of all human tribunals, judging of matters of antiquity instead of belief (which must be the foundation of the judgment on a recent transaction,) where the circumstances are incapable of forming any thing like belief, the legal presumption holds the place of particular and individual belief, which can hold only as to matters within our own time, upon which a conclusion can be formed from particular and individual knowledge.” (12 Ves. 266, 267.) These presumptions are not to be capriciously established without any evidence, but a long rightful possession is alone sufficient to authorize the presumption that such a possession was founded on a legal right. In this case there are very strong circumstances besides that possession, to authorize the presumption the Jury have drawn. The grant to Turner was obtained as soon as the land office was opened after the war of the revolution. Near this land there had been an old settlement, which probably preceded the revolution. The line, which could not have been that of Turner’s grant, must, if not Turner’s southern line, have been a boundary of some other legal survey, connected probably with the grant of Buddings old field. This line is south of Buddin’s old field, and, supposing it to have been the southern line of that grant, which may have included Buddirís old field, a parallel northern line must have existed beyond the land in question, whose northern limit is south of the northern limit of Buddies old field. Thus, then, were it necessary to support the long possession of the defendant by additional evidence, it is found, and of a very satisfactory nature, in the case. It has been argued, however, on the part of the plaintiff that the facts of this case repel the presumption of a grant. The only fact relied upon is, that neither of the grants under which the defendant claims includes the land in controversy. Granted. But does it follow that another grant may not have existed ? If the presumption contended for were, that the disputed land was granted by either of those grants, there would have been some foundation for this argument,; but the presumption on which the Jury went is, that another grant covered the land in question. There is, then, no repugnancy between the presumption and the evidence; but laying all general reasoning out of the question, the point on which I rest my opinion in this case is, that the possession of the defendant, and those under whom he claimed for 30 years, under all the circumstances, authorized the Jury to presume a grant. I am therefore of opinion, a new trial ought not to be granted.

Colcock, Grimhé, JVott, Johnson, and Gantt, J. concurred.  