
    [Lancaster, (adjourned sittings,)
    
    November, 14, 1826.]
    M'ELEAR against ELLIOT and others.
    IN ERROR.
    Whether a right to an island in the Susquehanna, could be acquired by settlement and improvement in the year 1749, quxre ? If it could, quxre whether such a title, without-warrant or survey, is embraced by the 5th section of the act of the 26th of March, 1785, where the settler was in possession at the date of the act ?
    A deposition, proving a settlement and improvement on an island in the Susquehanna, by the persons under whom the plaintiff claims, in the year 1749, and a possession continued upwards of fifty years, accompanied by a warrant issued in the year 1760, and a survey returned in the year 1763 for the use of the late pro» prietaries, is admissible in evidence, against a defendant who shows no title ; without having previously given evidence-connecting the plaintiff with those by whom the settlement was made.
    The plaintiff in error, Peter M‘Elcar, brought this ejectment in the District Court of Dauphin county, against the defendants in error, William Elliot, John Cowper, John Holland, Robert Boner, and Thomas Duncan, Esq., to recover possession of an island, containing about six hundred and seventy-seven acres, with the usual allowance, situate in the river Susquehanna, near the. mouth of the Juniata.
    
    On the trial, the plaintiff offered in evidence the deposition of Robert Armstrong, for the purpose of showing, that the plaintiff, or those under whom he claimed, settled on and improved the island named in the writ, in the fall of 1749 or the spring of 1750, and constantly resided thereon from that time till the year 1802, except when driven off by the savages in Braddock’s war; that they built houses on the island, cleared farms, and made it the constant place of residence of themselves and their families; this evidence to be followed by showing a warrant from the proprietary land office of the 13th of October, 1760, and a survey thereon in the name of the proprietaries of Pennsylvania, on the 13th of November, 1760, of this island, returned into the land office July 12th, 1763, and there accepted.
    
      The defendants objected to the evidence offered by the plaintiff, and, in support of their objection, read in evidence to the court, a number of papers, for the purpose of showing that by the usage of the land office, both in the time of the proprietaries and since their estates became vested in the commonwealth, islands in the rivers Susquehanna, Schuylkill, and Delaware, were never granted on the common office terms, and were never subject to any right of pre-emption derived from improvement or settlement.
    The court was of opinion, that a right to an island in the Susquehanna might be acquired by settlement and improvement in the year 1749; but that the evidence offered, being of an improvement right in 1749 and continued to 1802, since which, the plaintiff, and those under whom he claimed, had been out of possession, the right was lost by th,e negligence of the plaintiff to institute his action for more than seven years, and was therefore barred by the 5th section of the act of the 26th of March, 1785; and that the evidence offered, being of facts, which, if received, would not constitute a title in the plaintiff, or give him a right of entry, ought to be rejected.
    To this opinion, the counsel for the plaintiff tendered a bill of exceptions.
    The deposition rejected by the court, was, in substance, as follows:—
    The deponent first saw the island in dispute, in the year 1750, when Francis Baskin, Joseph Thornton, and John Clark were living, and had improvements on it. These persons lived on their improvements until after Braddock’s defeat, in 1755, when they were driven off by the Indians. In the autumn of the year 1760, Francis Baskin, his son-in-law, Alexander Stein, and George Clark, lived on the mainland in the neighbourhood of the island, and worked on it; and in the spring of 1761 they moved their families, and resided on it. In the spring of 1766, the deponent saw Patrick Malear, deceased, living on Joseph Thornton’s improvement, where he continued to reside until the lime of his death. In April, 1766, Michael Hawen, son-in-law of Patrick M‘Elear, lived on the island, between Clark’s and Stein’s places. Patrick MiElear purchased Thornton’s improvement, and also the claim of James Baskin, (brother of Francis,') who had a bare claim without having made any improvement. Francis Baskin and George Clark both lived on the island to the time of their death. Francis Baskin had two sons, William and George, to whom he left his improvement, they paying their sisters their portions. William had the -upper part, and George the lower. William paid his sisters their portions. After the revolution, George Baskin went to the western country, and Cornelius Atkinson moved into his house, (the house in which George Baskin had lived after his father’s death.) William Baskin lived in his father’s old house on the island until Mr. Duncan, one of the defendants, bought. The deponent did not mention of whom Mr. Duncan bought, nor what he bought. Neither did he know in what year William Baskin left the island; but he knew that it was after the year 1800, when he moved off, and gave possession to Mr. Duncan, who put a tenant there. The deponent said, that two of the M‘Elears (of whom, he thinks, Thomas was one, but does not know which of them was the other,) moved away with Baskin; but being asked whether they delivered possession to Mr. Duncan, he answered, that “he could not tell, — he was not present, — they all moved off together.
    
    The cause was twice argued in this court, first, on the 16th of May, 1825, and again on the 7th of November,,1826.
    
      
      J. Fisher and Douglass, for the plaintiff in error, made three . points:—
    1. That the deposition of Bobert Armstrong ought to have been received in evidence.
    2. That the plaintiff was not barred by the 5th section of the act of the 26th of March, 1785.
    3. That the plaintiff ought to have been permitted to prove his possession of fifty-three years.
    1. The opinion of the court below was, that in the year 1749, islands might, be acquired by improvement. To this the plaintiff assented, and, no exception having been taken, the point is not before this court. It is not, however, difficult to show, that this opinion was correct. The custom of the land office, which the defendants endeavoured to prove, did not, according to the evidence produced, go further back than the year 1760, at which period the proprietaries issued their warrant for the survey of all unappropriated islands for their use. But the title under which the plaintiff claims, commenced as early as the year 1749, before this description of property had been separated from the general mass of the proprietary estate, and was therefore founded in as strong an equity as any other title originating in settlement and improvement. Evidence has been received of an improvement even within the reputed bounds of the manor of Springettsbury. Lessee of Bonnet v. Devebaugh, 3 Binn. 188. If the cause should go back to another jury, it will be easy to show, that islands were, daring the period alluded to, taken up by common warrants. There never has been a direct decision of this court upon the point, though there are dicta of the judges, that islands are not the subjects of settlement rights. , .
    But although the court was right in this opinion, it erred in the rejection of the deposition of Bobert Armstrong, under the idea that the plaintiff’s title was barred by the 5th section of the act of the 26th of March, 1785, 2 Sm. L. 299. It was not offered merely to prove a title by improvement. The plaintiff' was not called upon to state with what view he offered it, nor was it offered for any particular purpose, or to establish any particular point, If, therefore, it was evidence for any purpose, it ought to have been received. It contained a great variety of matters, the decision of which, and the inferences to be drawn from them, exclusively belonged to the jury; and the court, by deciding upon the facts to which they related, and giving their opinion upon their own decision of what they ought not to have interfered with, withdrew the case from the jury altogether. .Whether the plaintiff, or those under whom he claimed, was in possession at any time within seven years, prior to the institution of the suit, was a fact, which the jury, and not the court, ought to have decided. If the evidence offered and rejected, was not alone sufficient to entitle the plaintiff to recover, it was his first step towards showing title, which he was prepared to follow up with other evidence. The evidence offered, was the deposition oí Armstrong and the proprietary warrant and survey; but the offer of these, did not preclude the plaintiff from offering other evidence. He might have shown a title derived from the proprietaries after the return of .their survey; or, if there was no direct proof of a conveyance, the jury, after so long a possession, both before and after the survey, might have inferred a grant. How far the evidence conduces to the proof of a fact, the jury exclusively are to decide, and the only mode of withdrawing the decision from them, is by a demurrer tó the evidence. The operation of the act of limitations must always arise upon facts, which must be found by the jury or agreed upon by the parties, and no court in Pennsylvania ever, .undertook to decide whether a party was barred, without submitting the facts to the jury; nor is there any precedent'of the court stopping the course of the plaintiff’s evidence, in order to let in evidence on the part of the defendant, for the purpose of showing that the evidence the plaintiff was about to offer, was improper. Whether, therefore, the deposition be viewed by itself, or in connexion with other evidence which the plaintiff might have given, the conclusion cannot be avoided', that the court usurped the province of the jury in refusing to permit it to be given, in evidence- Vaughan v. Blanchard, 4 Dali. 125. Morris v. Duane, 1 Binn. 92, (note.) Richardson v. Stewart’s Lessee, 4 Binn. 202. Howard’s Lessee v. Pollock, 1 Yeates, 512. Bond’s Lessee v. Fitz Randolph, 2 Yeates, 228. Mobley’s Lessee v. Oeker, 3 Yeates., 200. Holmes v. Keitlinger, 4 Yeates, 533. 4 Yeates, 541, ('notes.) Jones v. Wildes, 8 Serg. & Rawle, 150. Brown v. Campbell, 1 Serg. & Rawle, 178. Ilib. Turnpike Co. v. Henderson, 8 Serg. Sr Rawle, 228. Stable v. Spohn, 8 Serg. & Rawle, 323. Richter v. Selin, 8 Serg. & Rawle, 437, 438. Gordon v. Little, 8 Serg. Sr Rawle, 554, 566. Irish v. Smith, 8 Serg. Sr Rawle, 581. 2 Tidd, 785. Crotzer v. Russell, 9 Serg. & Rawle, 81. Zerger v. Sailer, 6 Binn. 27. Gemberling v. Meyer, 2 Yeates, 341. Mugen’s Lessee v. Smith, 4 Binn. 75. Garwood v. Dennis, 4 Binn. 336. Biddle's Lessee v. Dougal, 5 Binn. 150. Penrose v. Griffith, 4 Binn. 239. Sigfried v. Levan, 6 Serg. & Rawle, 312. Hers hey v. Hershey, 8 Serg. & Rawle, 334.
    2. But, supposing that the court had a right to determine th.e facts, they erred in their construction of the 5th section of the act of the 26th.of March, 1785, which does not apply to persons having imperfect rights, who were in possession at'the time of its enactment. That section declares, that no person or persons who now hath or have any claim to the possession pf any land, &e., founded upon any prior warrant, whereon no survey hath been made, or in consequence of any prior settlement, improvement, or occupation, without any other title, shall hereafter'enter or bring any action for the recovery thereof, unless he, she, or they, or his, her, or their ancestors- or predecessors, have had the quiet and peaceable possession of the same within seven years next before such entry, or bringing such action. Claims existing at the time of the passage of the act, are alone embraced by it's provisions, and the true legal definition of a claim .excludes the case of the plaintiff from the operation of this statute. A claim is defined, in I Jacobs’ Law Dictionary, 470, to be a challenge of any thing out of a man’s possession. But'the plaintiff derives his title under persons who were in possession when the act was passed, and therefore cannot, with any propriety, be said to have had a claim to the possession of land, which they were then actually enjoying, in all the cases decided under this act of assembly, the party was out of possession at its date. Besides, the plaintiff did not found his right to recover, upon settlement and improvement only. He claimed also under the warrant and survey made for the proprietaries, which he contended enured to his own use, having been in possession long before the date of the warrant; and the 5th section of the act in question, does not apply to cases in which the party has any other title, than those therein specified. Gilday v. Watson, 5 Serg. & Rawle, 274. Brice v. Curran, 3 Yeates, 403. Sturgeon’s Lessee v. Waugh, 2 Yeates, 476. Bell’s Lessee v. Levers, 3 Yeates, 26, Elliot v. Bonnet, 3 Yeates, 287. Burd v. Dans-dale’s Lessee, 2 Binn. 89. Hunter v. Meason, 4 Yeates, 107. Mickle v. Lucas, 10 Serg. & Rawle, 293. Gonzalus v. Hoover, 6 Serg'. & Rawle, 124. Deal v. MWormick, 3 Serg. & Rawle, 345. Penn v. Klyne, 4 Dali. 402.
    3. The plaintiffs ought to have been permitted to prove a possession of fifty-three years, which was sufficient to warrant a presumption of title. Such presumptions have often been made after much shorter periods. Galloway’s Lessee v. Ogle, 2 Binn. 471. Stoolfoos v. Jenkins, 8 Serg. & Rawle, 176. Cherry v. Robinson, 1 Yeates, 522. Lowrey v. Gibson, 2 Yeates, 81. Crunkel-ton’s Lessee v. Evert, 3 Yeates, 570. M‘Cullough v. Wallace, 8 Serg. & Rawle, 181. Jackson v. Vosburg, 7 Johns. 188. Jackson v. M‘Call, 10 Johns. 380. 1 Dali. 68. Jackson v. Hogeboom, II Johns. 164. Platt v. Root, 15 Johns. 219. Jackson v. Lunn, 3 Johns. Cas. 114. Woods v. Lane, 2 Serg. & Rawle, 53. Pede-rick v. Searle, 5 Serg. & Rawle, 240. Cowp. 215. Kelly y. Southern, 2 Harr. & M‘Hen. 138. Duer v. Boyd, 1 Serg. & Raivle, 203. Mathers v. Trinity Church, 3 Serg; & Rawle, 509. Kingston v. Lesley, 10 Serg. & Rawle, 383.
    
      G. Fisher and Elder, for the defendants in error.
    The plaintiff was called upon to disclose his title, and he did so. He offered nothing but the deposition of Armstrong, and the warrant and survey for the use of-the late proprietaries. The deposition was offered to prove a right by settlement and improvement; and where a party offers evidence for a particular purpose, he shall be held to that purpose in a court of error. Wolverton v. Hart, 
      7 Serg. & Rawle, 276. Gordon v. Maoris Lessee, 5 Binn. 138. Richardson v. Stewart, 4 Binn. 198. Porter’s Executors v. Neff, 11 Serg. & Rawle, 219. The title set up by the plaintiff was found to be defective upon his own evidence, and therefore objected to, as irrelevant. It is for the court to decide on the competency of evidence, and if no good title was shown, admitting every thing stated in the deposition to be true, the court was right to reject it. Even supposing, therefore, that the judge was wrong in his opinion upon the act of limitations, yet if the deposition was inadmissible upon other grounds, the judgment cannot be reversed; for however bad the reasons for a decision may be, yet if the decision itself be right, the judgment must stand. Deal.v. M‘Corkle, 3 Serg. & Rawle, 347. The question, then, before this court' is, whether an improvement gives title to an island .in the Susquehanna? The law is perfectly clear, that it does not. No instance .can be found of an island sold either by the proprietaries or by the commonwealth, except by special contract, and always at a higher price than the common office terms. The usage of pre-emption .rights never extended to this description of property. Claiming, therefore, under those who entered as trespassers, the plaintiff can , never, acquire an equity. That islands were not open to acquisition in the ordinary way, like other lands, is not only proved by the usage of the land office, proved by the papers read in evidence, but by a long course of legislation and judicial opinion. On the 13th of October, 1760, a warrant issued to survey the' unappropriated islands in the Susquehanna, Delaware, &c., and'to make returns of them for the proprietaries. In pursuance of this warrant, a survey was made of the island in dispute on the 13th of November following, which was returned and accepted on the 12th of July, 1763. It became part of the private estate of the late proprietaries, and was secured to them by the act of the 27th of November, 1779, 1 Sm. L. 479, which vested in the common- ’ wealth the estates of the proprietaries, saving to them their tenths or manors, duly surveyed and returned into the land office on or before the 4th of July, 1776. After the revolution, the same policy which the late proprietaries had adopted in relation to islands, was continued by the commonwealth. They were never granted on the common terms. In the.act for establishing a land office, of the 9th of April, 1781, Purd. Dig. .470, and its supplement of the 25th of June, the same year, {Purd. Dig. 472,) islands are not mentioned. The 13th section of the act of April, 1785, 2 Sm. L. 317, expressly excepts islands from the ordinary terms of grant, and directs that they shall be sold by the special order of the president and council, by public auction. The act of the 6th of March, 1793, 3 Sm. L. 93, “directing the sale of certain islands in the Susquehanna,” points out the mode of sale, and gives two years •to settlers to purchase, if they desire to do so. The act of the 27th of January, 1806, 4 Sm. L. 268, likewise makes special provision for the sale of certain unappropriated islands in the Delaware, Ohio, and Allegheny. The opinions of the judges of this court fully support the argument deduced from legislative acts, and general opinion. In Hunter v. Howard, 10 Serg. & Rawle, 243, an ejectment for an island in the river Allegheny, DuNcan, J., in delivering the opinion of the court, says, that islands were never subject to the common office terms. And, in a more recent case, Shrunk v. The Schuylkill Ñávigation Company,
      
       in which .the opinion of the court was delivered by Tilghman, C. J., it is declared, that islands have never been open to.applicants on the usual terms of office. The foundation of title by settlement is, that the proprietaries held out such titles to the people, but the offer never extended to islands. Admitting, therefore, that the plaintiff was the son of Patrick M'-Eiear, the former settler, as to which however the deposition is silent, he can derive no equity from the settlement, because he claims under a mere trespasser.
    Another bar to the plaintiff’s recovery is, that he claims under a violation of the law, which forbids a settlement on lands not purchased of the Indians. His evidence goes to show, that there was an improvement on the'island, which must have been made prior to the date of the Indian purchase, in which it was included. It appeared, that in 1150 ther,e were peach trees in bloom on this improvement, which must have been planted prior to the 22d of August, 1749, the date of the purchase. It has been repeatedly decided, that no evidence can be received of a settlement on land not purchased from the Indians. Sherer v. Mi Far land, 2 Yeates, 224. Drinker v. Hunter, 2 Yeates, 129. Kyle v. White, 1 Binn. 248. White v. Kyle, 1 Serg. & Rawle, 515. Brice v. Curran, 3 Yeates, 403. Plumsted v. Rudebagh, 1 Yeates, 502. An act of assembly was necessary to confirm the title of certain persons holding Biles’s island,’ situate in the river Delaware, about a mile below the falls, purchased by the Biles family of the Indians, in the year 1680. Act of the \st of February, 1803.
    
    The possession relied upon by the plaintiff, was not of a character from which a presumption of title could arise. No period short of that prescribed.by the act of limitations, will raise the presumption of a grant, founded upon the lapse of time only. Reikhart v. Williams, 7 Wheat. 109. 2 Conn. Rep. 207. 2 Hen. & Munf. 376, 379, 380. Bridges v. Duke of Chundos, 2 Burr. 1073. In the.present instance, the act of limitations would not attach before the 26th of March, 1803; but Mr. Duncan-came into possession in the year 1802.
    As his first step, the plaintiff ought to have shown that the title was out of the commonwealth. Having done this, proof of seisin in those under whom he claimed would have been sufficient against a party who showed no title. A naked possession is a good title, until some one shows a better right. But if it be voluntarily abandoned, it cannot be recovered in ejectment. This is precisely the present ease. The deposition states, that Mr. Duncan purchased the island ; that Baskins moved away, and gave Mr. Duncan possession, and that the M'-Elears moved away at the same time; from which it is clear, that the M'-Elears also gave up the possession to Mr. Duncan. The authorities are conclusive, that, under such circumstances, the possession’cannot be recovered from him. Jackson v. Hazen, 2 Johns. 22. Jackson v. Harder, 4 Johns. 210. Smith v. Lorillard, 10 Johns. S56. Espy’s Executors v. Lane, 2 Serg. & Rawle, 53. Jackson v. Rightmire, 16 Johns. 324. 2 Conn. Rep. 207. Penn v. Klyne, 4 Dali. 409. Healy v. Mouel, 5 Serg.'fy Ruwle, 185. Morris v. Thomas, 5 Binn. 78. Hawk v. Troup, Lancaster, May, 1826. Hassinger v. Spayd, Sunhu-ry, July, 1826.
    The plaintiff, far from deriving an advantage from the warrant and survey for the use of the proprietaries, presents, by his own evidence, an additional obstacle to his recovery. He claims adversely to this title, and shows a title in a third person, under which the defendants may protect themselves, diet of the 21s/ of March, 1S06. Act of the 13th of April, 1807, Purd. Dig. 145. Besides, the defendants asserted title under the late proprietaries, which was not denied. '
    But if the plaintiff had a title by improvement, and moved off,- and remained out of possession more than seven years, he is barred by the 5th section of the act of the 26th of March, 1785, which we contend extends, as well to those who were then in possession, as to others. The spirit of all the decisions on this point is, that where a man had a claim by warrant only, or by settlement only, prior to the passage of that act, he could not recover in ejectment, unless he had been in possession within seven years before the commencement of the suit. Whether he was in possession at the date of the act or not, is immaterial, provided he was not in possession within the period prescribed. The evidence shows no other than a title by settlement, originating before the passage of the act of 1785, and the court can presume no other; and this title was abandoned to the defendants in the year 1802. Burd's Lessee v, Dansdale, 2 Binn. 80. Smith v. Brown, 1 Yeates, 517. 3 Yeates, 269. Wallace v. Dickey, 3 Yeates, 283. Ewing v. Barton, 2 Sm. L. 186,187. 5 Serg. & Rawle, 184, 186. Jackson v. Hobby, 20 Johns. 362.
    
      
      
        Ante, page 71.
    
   The opinion of the court was delivered by

Tilghman, C. J.

This was an ejectment for an island in the river Susquehanna, containing about six hundred and seventy-seven acres, with the usual allowance, situate near the mouth of the Juniata. The cause came to trial in the District Court for the county of Dauphin, when certain evidence being offered by the plaintiff, it was objected to by the defendants, and rejected by the court; whereupon the counsel for the plaintiff took an exception, which is now the subject of consideration.

The evidence offered by the plaintiff, was the deposition of Robert Armstrong, taken under a rule of court, and to the following effect. [His Honour here stated the substance of the deposition.] This is the substance of Armstrong’s deposition, from which it remains doubtful, of whom, and how much Mr. Duncan purchased, and whether he received possession from the Malear family. Peter MtElear (the plaintiff,) is not mentioned in the deposition, so that it could not appear, without further evidence, how he stood related to Patrick MElear, deceased. The plaintiff also offered in evidence a warrant, dated the ISth of October^ 1760, to survey this, and other islands in the Susquehanna, for the use of the late proprietaries of Pennsylvania, and a survey in pursuance thereof, the 13th of November, 1760, which was returned, and accepted, in the office of the surveyor general, the 12th of July, 1763. When the counsel for the defendants objected to the plaintiff’s evidence, they produced and read to the court a number of papers, tending to show the custom of the land office, both in the time of the proprietaries, and since their estates became vested in the commonwealth;' from which they inferred, that islands were never granted on the common office terms, and were never subject to any right of pre-emption, to be acquired by improvement or settlement. The District Court was of opinion, that a right to an island in the Susquehanna, might be acquired by settlement and improvement in the year 1749. Nevertheless, they rejected the plaintiff’s evidence, on the ground of his being barred of his action by the act of limitation, (26th of March, 1785, sect. 5.) In this opinion, it was assumed, that the evidence of the-plaintiff showed no title except by improvement and settlement, without warrant or survey, for, if he had any other title, it is evident, that he was not barred by the 5th section of the act of limitation. The plaintiff took no exception to the opinion, that the right to an island might be acquired by improvement and settlement in the year 1749, because it was in his favour. It might be thought, that, under these circumstances, this court would be going out of their way., should they now express an opinion on that point. They therefore abstain from it, and desire it to be understood, that no inference, one way or the other, is to be drawn from their silence. Neither shall we give an opinion what the law would be, under . the act of limitation, (section 5,) if the evidence offered by the plaintiff disclosed no other title than by improvement and settlement, without warrant or survey; because that is not the case. It is to be remarked, that when the plaintiff offered his evidence, he did not say, either that it was for no other purpose than to prove a title by improvement and settlement, or that he intended to offer no other evidence. The defendants might have called on him to declare the purpose for which the evidence was offered; but they did not. The question is, therefore, whether the evidence was not at least one step towards a title other than by improvement and settlement. We will suppose, merely for the sake of the argument, that Patrick Malear could legally acquire no title against the proprietaries by settlement, (which is stating the case as strongly as possible against the plaintiff,) it does not follow, that a possession of upwards of fifty.years, continued from father to son, was not evidence of title sufficient to recover against one who showed no title. Suppose the evidence had been given, with additional evidence connecting the plaintiff’s possession with that of Patrick M‘Elear, and the defendants had demurred to it; or suppose the defendants, without giving any evidence of their own, had gone before the jury on the evidence of the plaintiff, how would they have stood ? By the warrant and survey, this island had been separated from the general mass of property held by the proprietaries, and appropriated to their particular use. And being thus appropriated, it was excepted from the general proprietary estate, which was vested in the commonwealth by virtue of the act of the 27th of November, 1779, and remained the property of the proprietaries. There was, then, a period of thirty-nine years, between the return of the survey in 1763, and the entry of Mr. Duncan, when he received possession from Baskin in 1802, during the whole of which, possession had been held by Patrick M‘Elear, deceased, or those from whom he received possession, or those claiming under him. Although the deposition of Armstrong did not state that the plaintiff was of the family of Patrick M‘Elear, yet the plaintiff might have proved that fact by other evidence, especially as it appears by the bill of exceptions, that he claimed under'an uninterrupted possession from the first settler to himself. I have said, that Mr. Duncan received possession from Baskin, because it is expressly said so in Armstrong’s deposition. He may, perhaps, have received possession from some, or all, of the M‘Elear family also, but the deposition does not say so, and the court cannot infer it. It is a very material fact, which none but the jury could decide. Now, in a contest between the plaintiff and strangers, without title, (for so the defendants must be considered, having shown no tide except the possession received from William Baskin, which could not affect the plaintiff,) could the jury do otherwise than presume, that the plaintiff’s possession was by permission of the late proprietaries and their heirs; and, consequently, his title good against all b.ut them, or those who claimed lawfully under them? In Woods, &c. v. Lane, 2 Serg. & Rawle, 53, it was the opinion of this court, that a bare possession was good title against one who showed no title. The case would have been very different, if it had appeared, either that .the M'Elears had abandoned their possession, or given it up to Mr. Duncan, or that Mr. Duncan had acquired title from the late proprietaries. A title thus acquired would have taken away all presumption of title in the plaintiff, by virtue of a license from the owners of the soil; and, as to a presumption of a grant in fee simple (as contended by the counsel for the plaintiff,) there was no ground for it, because such a presumption, when resting on time only, can never be raised, on less time than that prescribed by the act of limitation. But whatever the probability may be, of a conveyance from the proprietaries to Mr. Duncan, we see nothing of it on the record, and therefore cannot suppose that it exists. Our present duty' is confined to a determination, not whether the evidence offered proved a complete title, but whether it ought not to have been admitted. I am of opinion that it ought, and therefore the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  