
    Lovick Rochell ads. James Holmes.
    
      Columbia,
    
    1803.
    A copy of a the”1 record:? u^'fecretari sls^„^ evidence to shew that the , original grant_once existed ; and length of time and the ravages of the -war, are stron" grounds to raise a presumption of its loss or destruction. °
    
    
      A possessory right under the statute, so as to defeat a prior title, is never to be presumed, but must be clearly proved and shewn.
    A person who was a minor at the time of the death of his ancestor, lias five years after he comes of age to bring his action for recovery of his lands.
    TRESPASS to try title to lands in Kershaw District. Verdict for plaintiff. Motion for new trial.
    In this case the plaintiff claimed tinder an old grant to his grandfather for the land in dispute ; but as he had not the origin^ grant to produce, he offered a copy of it from the records, as presumptive evidence that the original once existed; and as to the loss of it, he submitted the great length of time which had elapsed since the date of the grant in the year 1763, and the ravages of the war as circumstances presumptive of its loss or destruction, which presumptions were permitted by the presiding Judge to go to the jury as evidence of the existence and loss of the original grant.
    The plaintiff then proved, that his father was the reputed heir at law of his grandfather, and that he had been in possession of the land five years before the 1st of January, 1775, so that, he contended, he had proved a double right in his father, to wit, that of descent as heir at law of the grantee, and a possessory right under the statute of limitations ; and it was not denied but that he was the heir at law of his father. He next proved, that the defendant had entered the land without any title, and that he had commenced his action before he was twenty-six years of age.
    Upon this testimony the jury found a verdict for the plaintiff. This was a motion for a new trial on several grounds taken by defendant’s counsel.
    1st. That the presiding Judge was mistaken in the law, by permitting defective evidence to go to the jury, to prove the existence and loss of the original grant.
    2dly. That it did not appear, but that the defendant might have gained a possessory right to the land in the lifetime of the plaintiff’s father ; and if so, then his right of taking by descent from his father, was cut off by the statute of limitations; and
    3dly. That even admitting that his right of descent was not cut off, he had not brought his action within two years after he came of age, agreeable to the terms of the limitation act.
    To these objections it was answered, on behalf of the plaintiff, on the first ground, that the existence and loss of the original grant was not well susceptible of higher proof than had been offered on the present occasion, that the grandfather and father, of the plaintiff were both dead, as well as most, if not all their contemporaries ; so that it was not possible to produce the testimony of living witnesses to the existence and loss of the original grant; and to supply these defects, there could not be higher evidence than had been offered. The copy of the grant from the Old original records was surely the next best evidence which Could be offered of the existence of the original; as no instance ever was known of any grant having been recorded or entered on the record books, which had not passed under the great seal; and it was well known that it was anciently one of the conditions in every grant, that they should be recorded, in order that the old quit-rents might be the more easily recovered from every grantee or holder of lands: besides, the secretary of state was a sworn officer of high trust, and it was not to be presumed at this distant day, that he could be guilty of a fraud in recording a fictitious grant which had never been in existence; and as a corroborating proof of the fact, the boundaries, lines, and corners, upon resurvey, all correspond with the copy of the plat and grant now produced; and as to the loss of it, it was difficult for the plaintiff to do more than to say he had it not to produce ; and it was not to be supposed in the nature and reason of things, that he would, or could be instrumental, in destroying or concealing so important a document in favour of his own claim, and upon which his right was founded. The plain inference therefore is, that in the long course' of years, and during the ravages of a destructive war, in which so many of the citizens of this country lost their deeds and valuable papers, it must have been lost or destroyed, by time or accident; for all which reasons, it was argued, that the presiding Judge decided legally and properly, in permitting this kind of strong presumptive evidence, both as to the existence and loss of the original grant, to go to the Jury.
    
      
      Pub. Xj&WSy 4 55* •
    With respect to the second objection, it was contended that the plaintiff might make his election either by claiming by descent from his grandfather down through his father by the rules of the common law, or he might rely upon the possessory right of his father, under, the act of assembly, which declares that five years’ possession of lands before the 1st January, 1775, shall be a good and valid title against all the world. Either was sufficient to give his father a right and title to the land. Admitting, then, that the title of the land was legally vested in his father on the 1st day of January, 1775, the statute of limitations was suspended from time to time from that day, and did not run out or go into , full operation, till November, 1791. It was incumbent, therefore, for defendant to shew that he had entered on the land after the 1st January, 1175, and possessed it till November, 1791, or that he had possessed it after the latter period for five years before he could gain a title by possessión, which he has not done. He has failed, therefore, in shewing that he had defeated the right of the plaintiff’s father in his life-time, by an adverse possession, so as to cut off or destroy the right of the present plaintiff, by descent from his father.
    As to the third and last ground of the objection taken by defendant, it was urged that it must fail as well as the two-preceding ones, for this action was commenced by the plaintiff before he was twenty-six years of age, and although^ the act of limitations passed in 1712, allowed persons under twenty-one years, only two years after they came of age, to commence their suits for recovering of lands; yet the act of February, 1788, enlarged the time, and allows minors five years after they come of age to commence actions for recovery of lands, so that the plaintiff is clearly within the act in bringing his action.
   The Judges were all clearly of opinion, after hearing the arguments, that the right was with the plaintiff on all the grounds, and that the defendant was not entitled to a new trial.

On the first ground, they said, the presiding Judge was perfectly correct in suffering the copy of the grant from the records in the secretary’s office, to go to the Jury as presumptive evidence that it once existed, under the circumstances, and for the strong reasons urged by plaintiff’s counsel, in the course of the argument, especially as it was strongly confirmed and corroborated by the plat and resurvey lately made, which ascertained the old boundaries j and that length of time, and the ravages of the war, were circumstances sufficiently strong, to raise a presumption of its loss or destruction.

That as the plaintiff’s father had clearly made out a good title in himself down to the first day of January, 1775, it was incumbent on the defendant to shew, that that title had been defeated by an adverse possession, agreeable to the statute of limitations, during the father’s life-time. This title by possession so as to .defeat a grant, or other legal -conveyance, is never to be presumed ; but must be actually proved and shewn, in order to rebut a prior title, in the same manner, and with the same degree of precision, as plaintiff must shew a clear title in him, before he can recover.

On the third and last ground, it was evident that the time allowed to minors to bring actions for recovery of lands, had been enlarged from two to five years after they came of age, by the act of February., 178S ; and as this suit was brought by the plaintiff before he was twenty-six years of age, it was well brought.

Rule for new trial discharged.

All the Judges present.  