
    Baker Wilkins vs. Enos Tart.
    By the act of 1787* persons who claim land? by grant, previous tb the 4th July, J776, or by five years possession previous to that tune, are exempt from the operation of the escheat law?.
    If the statute of limitations has run against an individual before his death, the escheat laws, after his death, cannot operate against the individual who has acquired a title by possession.
    When escheated lands, by act of assembly, are vested in the trustees ofa public Academy, they may be barred by the statute of limitations.
    Tried before Gaillard J. at Marion district, Spring Term, 1826. Trespass to try title.
    The plaintiff claimed under a grant to Jordan Gibson,, dated 23rd June 1772, and produced a regular chain of title, through several persons to himself. The grantor and those who claimed under him had been in possession of the-land at different periods, from the time of the grant to the time oí the conveyance to the plaintiff. And although it did riot appear that they had actually occupied the land during the whole of that time there was no evidence of any adverse possession.
    The defendant claimed under a grant to one J. Walker dated the 13th September, 1730. The record of an escheat commenced in March 1815, and decided in the year 1817, and a title from the escheator, 23rd February 1823, for 650 acres, which covered the land in dispute. The plaintiff also proved that he had been in actual possession for twelve or fifteen years previous to the commencement of this action. Some short time before this action was commenced the defendant had dispossessed the plaintiff, and this action was brought to regain the possession.
    
      The act of 1787, (1 Brev. 303) provides a method by which inquests shall be made r< speeding lands which have or shall escheat for want of heirs, and requires an escbeator to carry the act into effect. By one of its provisions it is declared, that no lands claimed under a grant or under an actual possession for five years, prior to the fourth of July 1776 shall be affected by this act. , sec. 9, 1 Brev. 306.)
    The presiding judge instructed the jury that by this section, the plaintiff’s land was exempt from the operation of the act.
    And also that he was entitled to hold the land under the statute of limitations.
    The jury found a verdict for the plaintiff, and this was a motion for a new trial on the following grounds:
    1. Because before the plaintiff could make out a title under the statute of limitations he ought to have shewn that there was some person alive during the possession which he relied on to complete his title, against whom the statute could run.
    
      2. Because in this case the statute of limitations could not apply, the right of the land being in the State, from the death of the person last seized without heirs, there being no evidence to shew that the statute had run before the death of such person.
    3.Because his honour charged, that the possession of the plaintiff was continued &c.
    4 Because his honour in charging, that the rights of the plaintiff were protected by a priviso in the escheat law, when the section of the law referred to, only relates to laud which had become escheated and held under grant or possession five years before the year 1776, and there being no evidence to shew when the lands became escheated.
    5. Because his honour erred in charging, that the 14th section of the escheat law related only to the mode and manner of making inquest and not to the principles of the act before laid down.
    
      5. Because bis honour erred in charging - that the rights of the State did not attach until office found.
    Wm. Mayrant, for the motion.
    No evidence when John Walker died and the plaintiff could take no benefit under the escheat law, or of the statute of limitations, unless that (1 Brer. 305. sec. 9. Escheat,) fact be first fixed. The rule of nullum, temp us applies here.
    
      Evans, contra.
    This was a very plain case of title made out by the statute ofiirnitations. Gibson had acquired a title by possession before the escheat law. He had had fourteen years previous possession. Until office found land is not vested in the State, but is regarded as still the property of that person, and his heirs, who formerly held it.
   Nott, J.

The two' grounds on which the defendant relies for a new trial are distiuct and independent of each other. If therefore, the presiding judge was correct on either, the motion must fail. And my opinion is that he was correct on both. The revolution in property, as well as the revolution in government, which was produced by the separation of the United States from the mother country, introduced a state of things for which in many respects no other country can furnish a precedent. Many persons never took possession of lands to which they were entitled, or abandoned their possessions and have never preferred their claims since. Others lost the evidence of theirs, and therefore were deprived of the means of prosecuting their rights, where they were so disposed. To remedy the evils which might result from such a state of things, two acts were passed in the sanie year. One providing that an actual purchase and quiet possession of land, five years previous to the fourth clay of July 1776, shall he deemed a good and sufficient title, arid any grant obtained since that time or which may be obtained for said land is declared null and void. (2 Brevard 7.) The other the act already noticed exempting from escheat lands claimed under grant or under an actual possession for five years prior to the 4th July 1776.

ít is now contended that this act exempts only such lands as were granted five years prior to that time. But, taking the two acts together, it will be seen that they lead to a different conclusion. The object of the escheat law was to leave undisturbed all titles acquired prior to the revolution. Therefore whether a person claimed title by grant obtained ■prior to the four h of July, 1776, or by five years possession previous to that time, which was.tantamount to a grant, in either event, he was not to be affected by the act.

The plaintiff therefore holding under a grant prior to 1776, v/as entitled to the benefit which the act was intended io confer,

But even if be was not protected under that act, the statute of limitations afforded him a shield. The grantee and those claiming under him had been in the enjoymeut of the laud from the time of the grant to the time the plaintiff was ejected by the defendant. And though there were occasional intervals in which it was not in the actual occupation of any one, yet it was not occupied by any other person nor does there appear to have been any adverse claim.

if,. therefore, Walker was alive, and there was nc> evidence of his death until the year 1815, when the inquest was commenced, his right of action was barred before that time. If he was dead then the land w as vested in the trustees of the Marion Academy, by the act of 18 J-f, which transferred to them all the escheated land in me district. And the defendant was protected by his r>tvn possession against their claim, before the commencement of this action.

I concur, therefore, w>m the presiding judge on both grounds, and the motion must be refused,

Evans, So^ for the motion.

Mayrant contra.  