
    Jacob Young vs. Wm. F. De Bruhl and others.
    
      Grants bearing same Date — Tenants in Common.
    
    Where there are separate grants 'of the same land, bearing the same date, and founded upon surveys certified and recorded on the same day, and ’■ purporting to have been made upon warrants issued on the same day, the grantees take as tenants in common.
    BEFORE WHITNER, J., AT KERSHAW, FALL TERM, 185V.
    The report of bis Honor, the presiding Judge, is as follows:
    
      “ This was an action of trespass to try titles. The land in dispute was included in two grants, to different persons, of equal date, founded on surveys which had .been recorded on same day, were certified on-same day, and purported to have been in virtue of warrants issued on the same day. There was no parol evidence of priority, and no fact appeared at the trial bearing on that question, unless the mere circumstance that the survey under which the plaintiff claimed was recorded on the page preceding that on which the other survey was found. The plaintiff produced the grant to Sarah Kerr for six hundred .and forty acres north side of Beaver-dam Branch, dated 6th December, 1813, surveyed 10th November, 1813, and recorded in office of Commissioner of Locations, 11th November, 1813; and a deed from Henry Kerr, the" only child of grantee, to same land, dated 1st October, 1838. There was an ancient possession within this grant, but outside, of the disputed territory; nevertheless, it was often called the Kerr lands. The grantee had removed with her son to Louisiana forty years ago. Her brothers acted as her agents, and placed a Mrs. Stokes in possession, whose daughter the plaintiff married, after which he occupied the same place, and subsequently obtained the deed from the son, making plaintiff’s possession in tbe one right or the other embrace a period of near thirty years, certainly over twenty years. The house was situated near the head of Snead’s Branch. One of the witnesses, about fourteen years ago, made some boards for defendant, of timber trees growing on this Branch, and testified that defendant advised him to get permission of plaintiff' but did not say that defendant referred to trees on the disputed lands. Another witness got some shingles on the lands in dispute, and got permission of both parties. A Baptist church had been built many years ago, said by many to be on Young’s lands, and Young’s permission was had, and perhaps a deed made by him. This was on one corner of the land in dispute, but the other grantee then claimed the land, gave permission likewise, and each party assisted in cutting the logs and building the church. The defendant relied on a grant to Patience Be Bruhl for six hundred and six acres, dated 6th December, 1813, surveyed 10th November, 1813, and survey recorded 11th November, 1813. The devise of Patience De Bruhl, September 4, 1838. — Proceedings in Court of Ordinary for partition and sale, October 6, 1853, and deed from Ordinary, 7th February, 1854.
    “The defendant also alleged that plaintiff had divested himself of any title he might have had by deed executed in trust, for the benefit of his children.
    “ The plaintiff had in his possession the original, and produced it on the requisition of defendant, with a protestation that it had never been delivered, and was therefore incomplete.
    “It purported to be a deed from plaintiff to James Baskin, trustee of lands in dispute, in consideration of love and affection for Susan and Nancy Young, etc., bearing date 1st January, 1839, executed in presence of two witnesses, one of whom made the usual probate before a neighboring magistrate, whereupon the same was duly recorded in' Register's office same year. One of the subscribing witnesses was examined, recognized Ms signature, and bad no doubt but tbat he had witnessed the due execution by all the parties, but had no recollection of the transaction.
    “A surveyor proved that he had' run off these lands for plaintiff, who then expressed his purpose to give it to his children; and James W. Baskins testified, on the part of plaintiff, that January twelvemonth was the first time he had seen the deed. That it had never been delivered to him, neither had he ever accepted the trusts. ® On his cross-examination, said he had no recollection of ever having consented to serve as trustee, though he may have done so. A certified copy of this paper should be present for reference at the Court of Appeals.
    “ Mrs. De Brukl’s possession, and those claiming under her, was likewise shown, and as on the part of the plaintiff) though title was set up, there had been no actual possession on the disputed lands, and the alleged trespass was an attempted clearing of a few acres of land, designated in the plat, in the opening of which, and removal of the timber, rails, etc., both plaintiff and defendant had in turn borne a part.
    “The case was submitted to the jury, with such instructions touching the questions involved, as were necessary and conformable to principles well settled in the opinion, I presume, of the counsel on each side. These instructions need not be set forth, as they are not called for by the grounds of appeal.
    “ The inclination of my mind was unfavorable to the recovery by plaintiff', and was made known to the jury — alone from the fact, however, that being the actor, upon him devolved the burden of .showing title in himself, and a better title than that relied on by the defendants.
    “ The verdict was for the plaintiff'.”
    The defendants appealed, and moved this Court for a new trial, on the grounds:
    
      1. Because the deed to James W. Baskin was duly established by the evidence, and the plaintiff was estopped from denying its effect.
    2. Because the title being equal, and the possession equal, the jury should have been instructed that the verdict should be for the defendants.
    3. Because the verdict is against the law and the evidence, and contrary to the charge of his BLonor, the presiding Judge.
    Kershaw, Taylor, for appellants.
    Gaston, contra.
   The opinion of the Court was delivered by

WITHERS, J.

The case is unique in this: that the grants under which the opposing parties claim bear the same date, the surveys were recorded and certified the same day, and purport to have been made upon warrants issued the same day. So far, therefore, as time is concerned, as to every step pursued by the grantees, they seem to be in equali jure. Neither grant is for the parcel of land in dispute exclusively, each covers it, but each embraces other land outside its limits. Neither grantee lived on, or used or occupied the locus in quo, but each resided on a portion of land within the grant. So we have not here the priority of survey which enabled the Court to distinguish between, two grants of the same date, in the case of Guignard vs. Felder, 2 Hill, 401.

We cannot regard either of the grants as void, nor give one priority over the other. If qne instrument had issued, granting the land to both, they would have been joint tenants, as at common law, without dispute. But are there not all the unities which make .that estate, in the sense of the common law, in tbis instance? There is unity of time, of •interest, of title, (though by two several instruments from the same grantor, issuing uno flatu, so far as we know,) and of possession. "We can make nothing else out of this state of affairs but a tenancy in common between these parties, regarding them respectively as alienees, by mesne conveyances, from the grantees. The consequence is, that without proof of ouster neither can maintain this action against the other.

Whether Young has not conveyed his interest by deed in favor of his children becomes an unnecessary question to be decided now. It appears to some of the Court, if not to all, that the proof of delivery of the deed was sufficient; but if not, still that the statute of uses operated to vest the whole estate in the donees, and superseded delivery.

A new trial is ordered.

O’Neall, Wakdlaw, WhitNEk, G-loveb and MuNko, JJ., concurred.

Motion granted.  