
    Charles Cantey, el. al. vs. David Platt.
    When a writing is offered in evidence, so antiquated as to render It difficult if not impossible to produce a witness who had ever seen the person write, whose signature is in question, a comparison of hand-writing is allowable: So the signature of a receipt by the Surveyor-general, given 40 years back, may be proved by a comparison with his signature to the plats and grants from his office.
    To make out a color of title, to show the extent of a party’s possession, it is not sufficient to show a receipt from the Surveyor-General to the party for the fees of the grant, which was taken out in tile name of another person, as the receipt night Isave been to him as agent for the grantee.
    To enable a party to succeed in liis statutory claim to land, he must prove that he lias had possession of the land the full time required by the Statute; lie must show the extent of Ids possession, and that it was adverse.
    Tried at Sumter, October Term, 1822.
    THIS was an action of trespass to try titles to a tract of land in Sumter district.
    The plaintiffs were the legal representatives of Cantey, who was in possession of the land in question before 1785, and continued in possession for 5 or 6 years after. Crawford obtained a grant for the land in May, 1735, and lived In the neighborhood of it until 1786, when he left the state, and nothing had been heard of him since.
    The land in question was uniformly called Cantey’s, and was at one period planted in part by him; he however abandoned it about 4 or 5 years after Crawford left the state, but continued to live immediately in the neighborhood. After the land was abandoned by Cantey, for about 20 years, Humphreys planted it; he left it, and then one Andrews cultivated it for two years. Ultimately the defendant got into possession, and had resided thereon for 4 or 5 years.
    The plaintiffs, to connect the possession of Cantey with the grant of Crawford, produced a receipt from the Surveyor-general, acknowledging that he had received the fees of office for Crawford’s grant from Cantey.
    
    The receipt, dated in ’85, was proved by a witness* who admitted that he had never seen the Surveyor-General (Ephraim 'Mitchell) write, but that he had seen a great number of grants and plats, to which the name of Ephraim Mitchell was subscribed ; and that the hand writing was the same. To this evidence, the defendant objected, but his objection was overruled, and the case was submitted to the jury, with a charge from the presiding judge, that the grant to Crawford, with the Survey- or-general’s receipt, might be regarded as a color of title.
    The jury found a verdict for the plaintiff, giving him all the land covered by Crawford’s plat, from which the defendant now appealed, and moved for a new trial.
   Mr. Justice Huger

delivered the opinion of the court:

Two questions have been made for the consideration of {¿he court)

1st. As to the admissibility of Ephraim Mitchell’s receipt — and,

2dly. As to the possession of Cantey.

When a writing is offered in evidence, so antiquated as to render it difficult, if not impossible to produce a witness who had ever seen the person write, whose signature is attached to the writing, justice would be defeated, if a comparison of hand-writing were not permitted. In the ease of Jillcsbrook fy Roach, (l Esp. Rep. 351,) the jury were allowed to examine papers admitted to be the parties hand-writing, to compare them with the writing in question, and to draw their own conclusions. And in the case of Brumand Rawlins, (1 East, 232,) the signature.in an entry, made by a person long since dead, was-allowed to be compared with another signature of the sam© person, in a deed of settlement. So also, where a parson’s books were produced to prove a ■ modus, the parson having been long dead, a witness who had examined the-Parish books, in which the same parson’s name was written, was permitted to swear to the similitude of the handwriting. (Bull, N. P. 236.)

In such cases, such evidence is the best that can be procured.

The signature of Ephraim Mitchell, a surveyoi’-gcneral, forty years ago, could not be better proved than by comparing it with his signature attached to the plats and grants which were issued during the period he was in office. This objection cannot prevail.

A statutory claim to land, by possession, must depend upon the length, the extent, and the character of the possession, At best, land is held in this state by a too uncertain tenure. I have never xxxet with an intelligent holiest man, who did not regret that a trespass .could be converted into a right in So short a period as five yeai's. This evil can be remedied only by Legislative intei'fei’ence.

It is however the duty of this court to guard with vigilance such rules as have been established for the protection of the freehold, and not to permit so important a right to depend upon the whim and caprice, or the loose impressions of a jury. They arc the judges of facts, not the manufactui’ers of facts. Their verdict to be good must be according to the evidence submitted, and not in opposition to the evidence, or without evidence.

To enable a plaintiff to succeed in his statutory claim io land, he must prove that he has had possession of the land the full time required by the Statute Law.

He must shew the extent of his possession, to enable the jury to fix his metes and bounds, and his possession must moreover appear to have been adverse. v

By the act of 1712, five years possession of land, if adverse, with certain exceptions not now necessary to be noticed, confers title. As Cantey could not hold adverse possession prior to the granting cf the land, his possession, must be regarded as having commenced at the date of the grant, viz. on the — May, 1785. One of the witnesses stated that Cantey was in possession 5 or 6 years after 1785. On this loose expression, referring to a possession which had ceased 30 years ago, depends the fact of Cantey’s having been in possession five years subsequent to the date of the grant. Had no evidence of possession pri- or to the grant, and no neighborhood rumors as to Cantey’s right to the land been submitted to the jury, or had the attention of the jury been directed to this loose expression, involving a fact so all important to the case, I should have been better satisfied with the verdict. As it is, I am unwilling to admit that a right so important, can depend upon a foundation so precarious. Did this case therefore present no other ground for a-new trial, I should have been unwilling to refuse one.

On the second ground, however, the court arc all of opinion the defendant must have a new trial.

Admitting that Cantey had possession of a part of this land for more than five years, subsequent to May, 1785, it was only apossessio jjedis — it was not connected with ■Craiuford’s grant and plat.

There was no evidence to shew that he even possessed it at the time, and if he had the possession of a deed, proving beyond a doubt, that he was not the owner of the land, Can afford no foundation for presuming th,at he claimed the land; the receipt of the Surveyor-general shews that Cantey paid the fees for Crawford — -it does not shew that he got possession of the grant and plat, they may Lave continued in the office for thirty years after. Thdplaintiffs not having shewn to what limits Caniey had claimed, was not entitled to a verdict for more (if to any) than he actuallj’ possessed.

8. D. Miller, for the motion.

Be Saussure $ J. B. Miller, contra.

On the third ground, it is only necessary to remark that the possession of Caniey, was at most, equivocal. The receipt of the Surve3Tor~general, if it prove any thing, shews that Caniey paid the fees of office, as the agent of Crawford. Any act done by Caniey, as the agent of Crawford, for the land, must negative the presumption, that he held adversely to him.

A new trial is ordered.

Justices Johnson, Noli and Richardson, concurred.  