
    
      President and Directors of the Bank of the State v. J. R. Smyers.
    
    He who goes into possession of land under a contract to purchase, holds the land adversely to the claims of all other persons, except him from whom he bought; and his possessions, both before and after he receives titles, may be coupled together, to make up a statutoiy title.
    The possession of a part of a tract of Hnd, with color of title to the whole, will give title to the whole, if the possession be continued for ten years.
    
      Before Mr. Justice Richardson, at Greenville, Fall Term, 1847.
    This was an action to try title to land. The plaintiffs adduced regular title, in the following way :
    1st. A grant to Thomas Lehre, 27th Feb. 1787, for three hundred and four acres.
    2dly. Release from T. Lehre to Abram Markley, 28th Feb. 1787. This release covers many other tracts.
    3dly. Judgment of plaintiffs vs. A. Markley, 22d June, ' 1822.
    4thly. Revival of that judgment, 29th November, 1845, vs1 Charles Furman, administrator of A. Markley.
    5thly. Sheriff’s release, &c., 7th Sept. 1846, to the plaintiffs. The plaintiffs next located the land and proved the trespass.
    It appeared, from plaintiff’s evidence, that defendant had been in possession three, four, or five years; that he got the land of Reuben Ayers; ,and Ayers of the heirs of Abram Markley. Ayers had held it to 1843, and then followed the possession of the defendant.
    6thly. The plaintiffs adduced a judgment and recovery of the land by the heirs of Abram Markley vs. R. Ayers, Spring' of 1832. Further to show that the possession of Ayers was not adverse,
    
      Mr. Choice was sworn, and testified — W. Choice was the attorney of the heirs — does not recollect a writ of possession. It was understood that Ayers was to buy the land if recovered. So he remained on the land when witness made the titles, 31st Jan. 1835, for the heirs of Mr. Markley. Ayers remained undisturbed to the titles. Ayers talked of keeping the land; he said he had a title before, as an argument to get it low. Ayers spoke of buying the land.
    The defence was then gone into. It consisted chiefly in the possession of the heirs of Markley; the possession of Ayers, both before and after his title in 1835, from the heirs of Abram Markley, and of the defendant’s possession and titles’ from Ayers, beginning in 1843. The defence also supposed it a fraud upon the defendant in reviving the plaintiff’s judgment against the administrator of Markley — more than twenty years after it had been obtained. The defendant first adduced a grant to R. Ayers for same land, 21st May, 1822 ;■ and the following evidence:
    
      Mr. Edwards — Knows the land Ayers cleared about seventeen years ago, and before that he had a clearing; he kept possession till he sold to defendant, in 1843; he cropped there.-Smyers then took possession and remains there now.
    
      T. Rober — Ayers cultivated the land twenty years, and up to the sale to defendant — i. e. the cleared land ; he kept clearing, &c.
    
      W. Crowder — Knows the land; the first clearing of Ayers-was twenty years ago; he kept possession to his sale to defendant, who then took possession.
    
      Dr. W. Lee — Knows Abram Markley; he died June, 1824,-in Ratliffborough; B. A. Markley was his son — he died 1841-2 or 3. Furman is Cashier of Bank of State of South Carolina.-
    
      W. Choice — Ayers spoke of buying the land if recovered.A paper delivered by Mr. Choice to Mr. Thompson.
    Richardson, J. I charged the jury,
    1st. That the plaintiff’s paper title, i. e. by deeds of conveyance, was plain and.paramount to that of the defendant’s-paper title.
    2dly. That the revival of the plaintiff’s judgment against the administrator of Markley, after the lapse of more than twenty years, was regular, without fraud, moral or legal, and the sale of. the land by the sheriff, in virtue of such revived judgment, good, binding on and effectual against the defendant, under the lien of the first judgment of 1822. Each judg-mént was res judicata, and we could not set them aside in favor of the defendant; as they appeared regular. They bound Markley’s land which defendant had purchased; but
    3dly. That still the defendant might hold the land, or any part of it, provided he had held possession- for ten years or more. Such a possession would be paramount to the best paper title.
    Under the head of possession, I charged that the only proper legal strength of the defendant’s claim to the land, lay in’ his possession.
    The jury were first to decide what was the character of Ayers’ possession from 1832, when Markley recovered the land, to 1835, when he purchased the land ; was such possession in his own right and adverse to Markley, or in right of Markley? If the former, the statutory possession began in 1832, immediately after the recovery. If not adverse, such possession could only have commenced after Markley’s release of 1835.
    This first question of the proper legal defence by possession was one of fact, for the jury to decide, and depended chiefly upon the evidence of Mr. Choice. But if these three years’ possession were in defendant’s own right, the defendant under it could hold no more of the land than he actually occupied. But as the location and extent- had not been defined, I could perceive no way of getting rid of this difficulty, nor how that partial and naked possession could be connected and continued with defendant’s general possession of the whole land under Markley’s conveyance of 1835, and continued to 1843, which would have amounted to full ten year’s possession by Ayers.
    The next question was also for the jury, to wit: •
    What was the legal effect of Ayers’ possession, after he took a title of Markley in 1835, and held all the land to 1843, when he conveyed to the defendant, who has held possession ever since. These two possessions — that is, of Ayers for more than eighc years, and of Smyers for more than two years, if coupled together would give the defendant a paramount statutory title.
    On such coupling the two possessions of Ayers and Smy-ers, I charged the jury as a doctrine of the law, on the authority of Brevard, that it could not be done, and as either possession was of itself short of ten years, the statutory title of defendant had failed. But the jury found for the defendant by metes and bounds all the land he had purchased of Ayers. And the plaintiffs appeal, on grounds of fact. But I have reported the case generally, in order to enable the defendant to take in support of the verdict the grounds taken 'at the trial on the circuit.
    The plaintiffs moved for a new trial, on the following grounds:
    1. Because the only title set up by defendant was under the statute of limitations, and there was no proof of ten years’ adverse possession by Reuben Ayers, the grantor of defendant — but on the contrary, that the said Reuben Ayers held possession by permission of the agent of the executor of A. Markley.
    2. That the said Reuben Ayers had no color of title nor any thing else to designate the extent of his claim, and that if he had acquired a title by possession it was only to the land -in actual occupation, which was not laid down in the plat.
    
      3. Because the verdict was wholly unsupported by the evidence and the law applicable thereto.
    Waddy Thompson-, for the motion.
    If the possession of Ayers from 1832 to 1835 and to the time when he sold it, was adverse' was it good as a statutory title ? Could it have been adverse after the verdict in 1832 ? Surely not. If, at a trial, one does not set up his best title, he is concluded from after-wards doing so, by the verdict. From the result of the suit Ayers held over and was our tenant. An action would have lain against him for rent, without a contract. A lease would have been presumed. (It happened that no writ of habere facias possessionem had been issued.) There was no appeal in the case, which showed that Ayers submitted to the verdict. He remained, in fact, on the land, by permission, under an agreement to buy when he could. A title by sufferance cannot be set up as adverse, and entitle one to hold, but he must adhere to the terms of his original possession. — • Wha-ley v. Whaley, 1 Spears’ Rep. 232. Nor can one entering by permission, set up a statutory title. — Calhoun v. Perrin, 2 Brev. 248. Nor can one entering under an agreement to purchase set up a statutory title. The very agreement recognizes title in another. In 2 McC. 289, where it was doubtful whether another had a better title, a conditional agreement to buy, if it proved so, prevented the statutory title. Offers to buy show that the person offering enters by permission. — Í2 Johns. 367 and 12 Johns. 429. Manuscript cases of 1822, (Walter v. McBinney) Rice’s Digest. This, then, is a question of law. There was a failure of evidence to prove the possession to be adverse. Ayers had no title. He had failed at the trial. The extent of his claim cannot be determined by the'vacated title.— Williams v. McGee, 1 Mills’ Con. Rep. 85. His possession was without paper to show its extent, and, if entitled to a verdict, it should have been only for that in his actual occupancy.— Gantey v. Platt, 2 McC. 260. The possession of Ayers and Smyers cannot be united to make up a statutory title.
    Perry, contra.
    
    This is really a question of fact, and has been passed on by the jury. Ayers did have a grant to show his possession, although it had been nullified by the jury. His possession was adverse. If they neglected to issue their writ,.he continued the same possession under which he entered, which was adverse — shown so by the trial, and continued so after it. After the purchase from the heirs of Mark-ley he had a title, and could no longer be regarded as a trespasser. This title was subject only to the judgment creditors. Ayers conveyed to Smyers, and their two possessions can be joined to make a good statutory title. A judgment .against the executor or administrator cannot be levied on land in possession of the heir. — Jones v. Wightman, 2 Hill, 579, 581 and 582. Nor can a sale of land by the executor, after it has been aliened by the heir, affect the title of the alienee (the judgment being subsequently recovered). If an ancestor has possession nine years and his heir holds one year after, it is one possession, and gives a good statutory title.
    Bobo, same side.
    So far as the plaintiffs are concerned, Ayers did go into possession under his grant, and retained it. Markley’s heirs assented to the continuation of the title in him, and it was under their rights that he held. He does not profess, nor does his alienee, to hold adversely to Mark-ley’s heirs, but under them, and adversely to the plaintiffs. The judgment, in 1842, had been in existence twenty years, and was extinct. The presumption is, that it was paid in 1832; and the rights of third parties have accrued since, who are not parties to the revival.
    Waddy ThompsoN, in reply. The judgment has been revived. If it is a judgment, it is effectual against them, as Avell as any other persons — good for all purposes. In all the .cases referred to, 'to show that the lands could not be sold, the lands had been distributed — whereas, here, the heirs never had possession, or distribution. The executor held them as trustee of the creditors. Where no partition is necessary, the judgment can sell the property.
   EvaNs, J.

delivered the opinion of the Court.

It appears, from the evidence of William Choice, who was the attorney and agent of Markley, the executor, that it was understood that Ayers was to buy the land, if it'was recovered : so he remained on the land when the title was made to him, in January, 1835. That is, and so I shall presume the jury have found, his possession was under this contract made in 1832, and consummated by making him titles in 1835, making in all more than ten years before he sold to the defendant. “He who goes into possession under a contract to purchase, holds the land adversely to the claim of all .other persons, except him fi om whom he bought; but as to him, the tenant cannot plead the statute of limitations, because he entered on the condition that the land was not to be his, unless he paid the money — and the possession, as between them, was not adverse, or in hostility to the seller’s title.” Suppose the tenant had entered and paid for the land, but had never taken any written title — would not his possession be adverse, against all the world 1 I do not therefore ^perceive any error in the verdict which finds that Ayers’ possession was adverse to the claim of the plaintiff. But it is supposed that the defendant’s title by possession must be restricted to his pedis possessio or actual occupancy. I do not see any reason for this inference. A possession of a part, with color of title, which means any thing which clearly defines the extent of his claim, will give title to the whole, if continued for ten years. The extent of the defendant’s claim under which he held possession was what he had purchased from Markley, and this was clearly defined by the plat accompanying Markley’s verdict against him, as well as by his former grant for the same land. On this ground the motion for a new trial is refused. No opinion is given on the other points argued in this case.

O’Neall, J. Wardlaw, J. and Withers, J. concurred.

Motion dismissed.  