
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Strange v. Durham.
    .Where the possession is, in fact, adverse, the party is entitled to the pro- , tection of the statute of limitations, although he, may have practised deceit, to lull the proprietor of the land into the belief, that he did not intend to claim adversely, [vide 2 Bay, 429, S. C.]
    This was an action of trespass to try title, tried in Fairfield dis. trict, before Trezevant, J., at the last circuit. The plaintiff claimed under a grant to his father, of whom he was the heir at law: the defendant relied upon adverse possession, and the statute of limitations. It appeared in evidence, that the defendant obtained possession of the land, in the first instance, by means of a pur. chase from a relative of the plaintiff; but who was not authorized by the plaintiff to sell. Of this want of authority the defendant was aware at the time, but accepted a conveyance, upon being assured, that he might buy out the right-of the plaintiff, who resided in the State of Tennessee, upon very reasonable terms. The de» fendant afterwards obtained another conveyance of the land,from one Kidd, who claimed it; and he held possession under this conveyanee from August, 1791, to September, 1796, when the plaintiff brought an action against him for the recovery of the land. In. that action the plaintiff suffered a nonsuit, but brought the present action within the time allowed by law for a second action.
    The judge, in his charge, directed the jury to find for the plaintiff, if they should be of opinion, that the defendant had not had actual possession of the land under the deed of conveyance from Kidd, five years previous to the first writ of the plaintiff’s being sued out; or if they believed that the defendant, when he purchased the land from Kidd, was cognizant of the plaintiff’s better right to the land; or obtained the deed from Kidd, and kept possession of the land, with a fraudulent intent to obtain a right by possession under the act of limitations.
    The jury found for the defendant: and the plaintiff now moved in this court for a new trial, on the ground, that although five years possession, without interruption by suit at law, of lands held under an adverse title', is sufficient against every other title, yet it must be a bona fide possession, as well as adverse ; a fair, open declared possession, with an honest and avowed intention to dispute- the right of every ether claimant; not a fraudulent possession, under a concea^ed title, holding out an idea to the real owner, that he holds possession under him, when, at the same timo, he has a conveyance from another, under which he secretly intends to hold the land, by an adverse title and possession. The counsel for the plain, tiff cited 2 Esp. Dig. 434, 5.
    Stark, for plaintiff. Smith, for defendant.
   Per curiam.

The only question here, is, whether the defendant held five years possession under an adverse title. There can be no doubt but that he had possession a sufficient length oftime, under the limitation act of 1712, P. L. 101, to give him a title against all the world, unless it should appear that his possession was concurrent, and consistent with, and not adverse to, the title of the plaintiff. But the plaintiff concedes the point, by contending that such possession ■was deceptive and fraudulent, which it could not have been, if it had been agreeably to the plaintiff’s title, and not in opposition to it. It is very probable, that the plaintiff was put off his guard by the conduct of the defendant; that the defendant knew the plaintiff’s title was better than Kidd’s ; and, finally, that the defendant intended to take advantage of the plaintiff’s being at a distance, and his supineness, to acquire a title by possession, which should defeat his title. But if all this is admitted, it will not vitiate the title so acquired. There are many ways by which a legal right may be acquired, which in foro conscientice could not be supported. There are many ways of overreaching, and taking advantage of another, that the law has not provided against- The advantage taken of the plaintiff in the present case, may furnish an instance. The law favors the vigilant and careful, and not the supine and negligent. If the plaintiff has lain dormant, and suffered another to amuse and de. ceive him, without taking due care, and using common industry to avoid the snare laid for him, he must suffer the consequence. Ths l.aw will not now relieve him.

Motion refused.  