
    Richard Roe, casual ejector, and Benj. L. Cook, tenant in possession, plaintiffs in error, vs. John Doe, ex dem., Thomas Long and John Malcolm, defendants in error.
    [1.] One going into possession of land, under a parol purchase, cari only hold to the extent of his actual possession.
    [2,] Notwithstanding the tenant may have had possession for seven years, yet if he disclaims having title, and declares he is only waiting to purchase of the true owner, when he can find hi m, the statute w ill not protect hi m against the rightful owner of the fee.
    
      Ejectment, from Randolph county. Tried before Judge ICiddoo, at June adjourned Term, 185S.
    Plaintiff introduced in evidence a grant from the State to Thomas Long, for the lot of land in dispute, and a deed from Long to himself. He also read the depositions of two witnesses, taken by commission, which it is not necessary to set out He proved that defendant, Cook, was in possession at the commencement of the action, and closed.
    Defendant, amongst other things, proved that he went into possession of the land in 1S42, and had remained in possession ever since; had Jived on it, cleared a portion of it, cultivated it, cut timber; that he had about fifteen acres enclosed and under fence; been under fence since the first of 1S48.
    After the close of the testimony, defendant’s counsel requested the Court to charge the jury, that if they believed from the evidence that defendant purchased the land by parol contract, in 1842,and went into possession under said contract, and had remained in quiet and peaceable possession for more than seven years, using and claiming the land as his own, then they should find for the defendant. Which charge the Court refused to give, and defendant excepted.
    The Court then, amongst other things, charged the jury, that defendant, to protect his title under the statute of limitations, must either have a paper title, or have the land enclosed, or the boundaries distinctly marked out; that a parol contract of purchase of the whole lot would not be sufficient
    The Court further charged, that even if the defendant had been living on the land, using and claiming it as his own, since the year 1842, yet if, at anytime during the seven years-upon which he relied for statutory title, he disclaimed title, or said he would buy the laud wheu the true owner came, he could not be protected by the statute of limitations, even for that portion which he had enclosed and in cultivation. To which charges defendant excepted.
    
      That portion of the above charge relating to a parol contract of purchase, and disclaimers and admissions of defendant, has reference to the testimony of certain witnesses examined by commission.
    Douglass & Douglass; and E. H. Beall, for plaintiff in error.
    Perkins, contra.
    
   By the Court.

Lumpkin, J.

delivering the opinion.

The Court was right in refusing to give the first charge as requested. For conceding that possession, under a parol purchase, may ripen into a statutory title, still the evidence in this case would restrict it to the actual possession. And having no paper title, the defendant could not be protected beyond his possessio pedis.

The Court, we hold, laid down the rule of law correctly, in the first charge as given, and as applicable to the facts of this case, namely: that the defendant, to protect his title under the statute, must either have a paper title, or have the land enclosed, or the boundaries distinctly marked out. And mot a parol contract of the purchase of the whole lot.

It is true, the evidence showed that the disclaimer in this case of having title, was made after the seven years had run. But what of that? We think it just as good to deprive the defendant of his statutory defence, as if made within the seven years. And the defendant was not hurt by the assumption on the part of the Court, that the disclaimer may have been made within the seven years. On the contrary, the jury examining the testimony and finding it was made after-wards, may have thought that it was not sufficient to oust the defendant of the benefit of his possession. And so may his Honor have supposed. But we think differently. Suppose the maker of a note promise to pay after the six years have run, will not this take it out of the statute ? Surely. Why not a disclaimer of title to land, even after seven years possession ?

Judgment affirmed.

McDonald J. absent.  