
    Stephen Gibson, ads. Laban Chappell.
    
      Grant ta A. of two hundred acres; not including an adjoining portion of land, which was in dispute in this case. Convey* once to defendant, of one hundred and sixty acres, part of A’e-grant, in 1800/ huí-so describing its boundaries as to include, the disputed land. Defendant had been in possession, within, the lines of Ah grant, ttoenty five years, and the person under whom he claimed, since 1794. Land in dispute granted to plaintiff in 1819. Held that defendants possession could not be extended,, by construction, to the land in dispute/ the conveyance to him, restricting Ms claim to Ah grant, though erroneously describing its boundaries; and consequently, that no presumption could arise of a grant of the disputed land, to Mm, from the state.
    
    This was an action of trespass; to try title., A tract of land, adjoining the land in dispute in this case, had been in the possession of the defendant and the person under whom ho claimed, from the year 1794; by virtue of a grant of two hundred acres to W. Ackery. Defendant had been in the uninterrupted possession of it, for about twenty five years, under a Jacob Curry, and by virtue of conveyance from the said Jacob Curry, from the 21st January, 1800. This deed of conveyance, from Curry, to defendant, described the land as consisting of one hundred and sixty acres, being apart of a tract of land origi-‘ttfily granted to Wm. Ackery^ for two hundred acres; lying on the south side of Little river. The grant called for Little river, as one of its boundaries, except a short distance from its N. W. line to the river, leaving a few acres between this line and the river. But the conveyance from Curry, to defendant, included this land, which was the part in dispute, as did also the younger grant to the plaintiff, dated 1819; so that the only dispute between the parties, was about the land lying between this short line of the Ackery grant and the river. The plaintiff contended, that it was vacant at the time of his grant; and the defen- ■ dant. that if it was not included in the Ackery grant, yet the jury-ought, from the length of time which defendant, and the person Under whom he claimed, had been in the possession of the land, Under legal conveyances, to presume a grant for it from the state,, The court charged the jury to find for the plaintiff; and stated to them that the line contended for by the plaintiff, was the correct location of the Ackery grant, and as the defendant had never been in the possession over this line, they could not presume a grant in his favor, from the state. The jury found a verdict for the plaintiff. The defendant moves the Constitutional Court for a new trial, upon the ground:
    That the court mistook the law, in charging jury that they could not, presume a grant to the defendant, in as much as the defendant had never beep in possession-of the land, over the disputed line.
   The opinion of the Court was delivered by

Mr. Justice Richardson.

In this case; the plaintiff located the land in question, within his grant of 1S19; and it was evident that the land was not. covered by the grant to Ackery, under which the defendant claimed.

The motion, therefore, was resolved into the single enquir ry, whether there was reason to presume another grant than the one to Ackery, in order to take the land opt of the state, prior to 1819. For, although the defendant had been long in possession of the land contained within the grant to Ackery; yet, he had never taken, actual possession of the land ip dispute, until within a few years. When he was sued by the plaintiff, he had only possession of the land contained within the grant to Ackery, which cannot.-be .extended, by construction, to land-without tb.e-grant, and which had never been occupied by the defendant. This is clear, otherwise there could be no limits to constructive possession.

But it was urged, that, in as much as the mesne conveyance from Curry, to the defendant, sets forth the land in dispute, a-s coming within the limits of the tract conveyed; therefore, the actual possession of a part of the tract might be extended by construction, to the limits to set forth in the mesne conveyance; and thence, another grant from the state be presumed, for so much of the land as lay within the grant to Ackery; and assuredly, if this were all, such a presumption might arise: but it is always to be borne in mind, that the conveyance from Curry to the defendant, although it extends the tract by a mistaken description, yet describes the hundred and sixty acres conveyed, as a piece and part of the two hundred acres granted to Ackery; and thereby excludes the presumption, that this mesne conveyance could have been deduced from, or the possession under it, authorized by any other grant than that of two hundred acres to Ackery.

As the moment you fix the boundaries of the' grant to Ackery, no intermediate conveyance under it could give title to lands beyond such boundaries, so the moment it appeared that this conveyance professed upon its face to release a part of the two hundred acres granted to Ackery, it as plainly excluded the presumption of any other grant, from which its descent could be traced, or the. constructive possession enure to make a good title*

In a word, the actual possession of a part, required to he extended over the land in dispute, by means of tbe conveyance, in order to raise the presumption of another grant. But, that very conveyance, which is the sine qua non of the constructive possession, excludes the idea of such other grant, by referring the land conveyed to the individual grant of two hundred acres •to Ackery.

And the defendant, being bound by the deed under which lie held, and without which his possession could not be extended, :by the very same deed, rebutted the presumption his counsel would enforce.

It is, in my judgment, as if a defendant were to set up a. title by possession, and in order to define die limits of his possession,, were to-esbibit & lease for yearsj which, while it would*. on the one hand, extend the constructive possession to the desired limits, would, on the other hand, exclude the presumption ' that the possession was adverse, and so defeat the ultimate ob« ,ject for which it was introduced.

From, all therefore, that appears, the land in dispute was vacant in 1819, when the plaintiff’s grant was obtained.

The motion is refused.

Huger, Johnson, Colcock, Justices, concurred-  