
    
      Benjamin Haile vs. John Cantey.
    
    1. Trespass to try titles. The parcel of land in dispute was an old field consisting of two or three acres; defendant in 1839 entered as the tenant of the plaintiff of a house and some lands around it, the house standing a few yards north of the disputed land, which was situated between a cross fence built by defendant in 1842, and a piece of new cleared land which the defendant had in possession there before and since. At the southern extremity of the disputed parcel was a pond immediately north of the new cleared land. The plaintiff contended that the land in dispute was a part of the tract on which the house stood, and of which he had title, whereas the defendant, admitting that he did become the tenant of the plaintiff of the house and some lands around it, contended that it was part of another tract of which he was in possession under an agreement to purchase. The plaintiff failed to make out either a paper or a statutory title against the title under which defendant claimed. It was in evidence that at a period prior to 1810 a person had lived on the grant under which plaintiff claimed, and had cultivated below the cross fence put up by defendant, to within ten or fifteen steps of the pond. In 1811 one Carwell went into possession as a tenant to this ex* tent, and enlarged it. It was afterwards called Carwell’s old field, and the proof was that it extended below the pond. The plaintiff purchased at sheriff’s sale, one of the descriptions given being the Carwell old place. It was proved that defendant had said he was tenant of plaintiff and had spoken of renting the Carwell old place from him. It was held that this was sufficient to authorize the jury in concluding, that all the land cleared by Car-well and passing under the name of his old place, was rented by defendant.
    
      Before Wardlaw, J. Kershaw, March Term> 1843.
    This was an action of trespass to try titles. The land really in dispute was a four sided old field, containing two or three acres, which lies between a cross fence built by the defendant in 1842, and a piece of new cleared land which the defendant had in possession there, before and since. The plaintiff contended that the parcel in dispute was part of “the Carwell old place” to which he has title, and which the defendant entered as his tenant. The defendant contended that the plaintiff had no title to the parcel in dispute — that it does not belong to the same tract which the Carwell old house, that stands 10 or 15 yards north of it, belongs to; that it is part of the “Kershaw” tract; and that altho’ the defendant did become the plaintiff’s tenant of the house and some lands around it, he was never tenant of any land south of the plaintiff’s tract, but held the house for the convenient cultivation of the part in dispute, as of the new cleared land south of it*
    The plaintiff produced a grant of 50 acres, east of the Wateree river, in Fredericksburg township, bounded on all sides by vacant land, to Hugh Brennan, dated 9th Nov. 1762. The plat annexed to the grant represented the tract as a square, with a road running through the land and forking near the northern line.
    The two surveyors appointed in this case, Stephen Boyken and L. Secrest, Esqrs. concurred in locating the grant so as to run the southern line just north of the cross fence aforesaid, and north of a grave yard, east of the road* They found no marks of this grant of which they could be sure, although the blaze of one tree, blazed fore and aft, seemed to correspond in age ; but they knew the lines of the Toombs tract north of this, of the Kershaw tract south and west, and of some other adjoining tracts, all of which call for this as a boundary, and they located this by the lines of those. — Running the tract on the south-east, they shortened the prescribed distance of its line so as to make-the southern line of this tract pass the blazed tree aforementioned, and this shortening was necessary to include the Carwell house in the Brennan grant. In consequence, the eastern and Western lines of this tract were lengthened over the prescribed distance to meet the Toombs grant, and such lengthening was necessary to make the situation of the roads correspond with the representation in the plat annexed to the grant as aforesaid. Both surveyors expressed a confident opinion as to their having given the true location, and besides their’s, no other location of the Brennan grant was suggested, although objection was made to thé propriety of the inferences which they had drawn.
    The plaintiff farther shewed that around the site of the Carwell old house, on both sides of the road, clearings were made more than 60 years ago, and various persons, among whom were Shandy and Spradley, lived there before Philo Smith, who was in possession of the house and cleared patches some years prior to 1810. A judgment, West vs. Philo Smith, was signed Nov. 1809, and in lieu of the execution, which could not be found, and of the sheriff’s deed, of which there was no evidence, the sales-book of Turner Starke, former sheriff of Kershaw, showed that 5th March, 1810, under an execution founded upon this judgment, the sheriff sold for $266, to Wiley Vaughan, of the property of Philo Smith, 27 1-2 acres of land, “more or less, 3 miles above Camden, on tiie main road to Lancaster, with the improvements.” In January, 1811, David Carwell went into the house as the tenant of Vaughan, and continued there until 1818, when he left the house, but still for the year 1818 cultivated the cleared lands near it. After he quit, Trapp kept a grog-shop there for a short time, and Champion, holding under some trust for the creditors of Vaughan, kepi a few negroes in the house, and did much ditching in the ground around, for 2.or 3 years. In Feb. 1823, Shiver entered under Champion, and remained in the house till Jan. 1824. In April 1823, under various executions against Sarah Vaughan, executrix of Wiley Vaughan, the sheriff of Kershaw sold a tract of land as the property of Wiley Vaughan deceased, to Wm. McWillie and Ben. Haile for $305. The executions were lost — annexed to the sheriff’s deed is a paper dated 6th Jan. 1828, by which McWillie’s interest is transferred to Haile, and the sheriff directed to make titles to Haile. The sheriff’s deed to the plaintiff, dated 23d Dec. 1829, after reciting the executions, levy and sale, conveys to the plaintiff “62 1-2 acres, part of the Toombs tract of 125 acres, adjoining lands of William, John and Alexander Adamson, known as Carwell’s old place.” It appeared that McWillie and Haile from the time of their purchase at sheriff’s sale, and Haile also since his purchase from McWillie, had exercised acts of ownership, such as cutting, cording and hauling wood, making rails, &c. over all the land considered to be Vaughan’s, especially the wooded part north of the parcel now in dispute; and that for the greater part of the time since the sheriff’s sale, but not without some interruptions, there had been tenants holding, under the title derived from that sale, in the old Car-well house. Shiver remained till 1st January 1824. Whit-more went in Jan. 1824, and remained 3, 4 or 5 years. Clybane stayed one year or less ; Clements part of a year; and Mrs. Shiver entered in Jan. 1832, and remained till Feb. 1835. The house was then vacant until the defendant, in the beginning of 1839, took possession of it as tenant of the plaintiff, under some loose agreement, the exact terms of which, if ever stipulated, did not appear.
    Farther to understand the controversy it will be necessary to look into the defendant’s claim under the Kershaw grant, and the nature of the occupation which Carwell and others had of the disputed parcel, and to inquire whether the disputed parcel passed to the plaintiff under the sheriff’s deed, whether it had been acquired by him under the statute of limitations, or had been taken possession of by the defendant as tenant of the plaintiff.
    The Kershaw tract, calling for the Brennan land on the north, was granted for 150 acres, 19th June, 1772, to James Kershaw. No conveyance from the grantee appeared, but there was a plat of re-survey, 18th Dec. 1824, made by McCaskill, surveyor, at the request of Col. John Kershaw. There was a deed of 21st December 1824, by John Kershaw, trustee of the estate of Col. Joseph Kershaw (a son of the grantee,) to George S. Champion, agent of Neufville and Rawlerson, (a mercantile house in England,) conveying the land granted to Joseph Kershaw; and on 12th March 1838, articles of agreement were made between John Cantey, the defendant, and James Cantey, of the one part, and Michell King, attorney in fact of Moultrie, surviving assignee of Neufville and Rawlerson, (the said King acting by his agent, J. M. DeSaussure,) by which it was agreed that the said J. & J. Cantey should immediately take possession of the Kershaw land, and that titles should be made to them on certain terms.
    On a remote part of the Kershaw grant, one Warren entered as tenant of Champion in 1818 or 1820, and remained till 1833.
    At the southern extremity of the disputed parcel, and immediately north of the defendant’s new cleared land, is a small piece of marsh land, or a pond as it was called. How far the clearing towards the pond extended from the house, when Carwell entered, was left by the testimony very uncertain — but from other testimony as well as Car-well’s, it seemed certain that the clearing was enlarged by Carwell, and that he first enclosed the pond for a butcher pen. After Carwell’s time, the fences were often changed. Mrs. Shiver said that in 1823, only the garden north of the house was cultivated — that the land between the house and pond was said to belong to people in England; and that in 1832, when she returned to the place, the fence was drawn in, and the cultivated land was a patch north of the house — none or very little being on the southern side. Whitmore in 1824, or whilst he remained, first made com on the pond; after his time the fences were again drawn in; and the place was contracted in extent and much out of repair when the defendant took possession in 1839.
    Carwell was examined by commission, and several witnesses were called as to his character, the result of whose testimony (whilst there was a contrariety of opinion as to whether he was entitled to belief on his oath) seems to be, that his good name had suffered greatly by his open abandonment of his family, and intercourse with a low strumpet before his wife’s death. Carwell swore that he leased land from Vaughan, and that the lines as shown by V. were said to contain 50 acres, and to run in certain directions described by him, so as to correspond with the surveyor’s delineation of the Brennan grant, except that he says the grave yard is on the land; that the southern line runs near the corner of the house, and to a corner 40 yards west of it; the western line is between the spring and house; that he obtained permission from John Kershaw to cowpen and clear on the Kershaw tract, and in 1812 commenced to do so, and extended his clearings to south and west, so as to have in all 10 or 15 acres of the Kershaw land enclosed, when he quit in 1818; that he held all outside of the lines shewn by Vaughan, as tenant at will of John Kershaw, without payment of rent, on condition of preventing trespasses; and that the house was on the Vaughan tract, and the clearing on both tracts continuously, so that no fence marked the line.
    Hugh M. Lester said that Blanchard, a deceased surveyor, had told him in 1802 that the line ran near the corner of the piazza to the house; that after Carwell went, all the cleared land was called Carwell’s old place, but at the same time the land between the pond and house was called Kershaw’s.
    John Love swore that Carwell, whilst in possession, told him that the land between the house and pond was Kershaw’s — that he had offered to buy it, but the price was too high.
    The defendant, in 1839, ’40 and ’41, planted all the cleared land, old and new — he sowed rye in part of the old in the fall of’41. In Feb. 1842, a disagreement rose between him and the plaintiff as to the disputed parcel, the plaintiff insisting that the defendant was his tenant, and the defendant acknowledging tenancy as to the land which was the plaintiff’s, but insisting that he was in possession of the Kershaw land under his agreement to purchase, and not under the plaintiff’s title. Shortly after-wards, the defendant and his brother, Gen. Cantey, removed the fence, and built the cross fence, first above mentioned, as near as they could fix where the fence stood when the defendant entered in 1839, the rails being taken wholly from the south, as one witness said, or partly from the north or upper side, as another stated; and the action was brought.
    The presiding Judge thought the plaintiff had no good title by the statute of limitations or otherwise, but instructed the jury that the facts were for them, especially the questions whether the defendant entered the disputed parcel as tenant of the plaintiff; and whether a trespass had been committed north of the cross fence. The jury found for the plaintiff the land in dispute, and $200 damages. If nothing had transpired to shew the grounds of the verdict, the court would have supposed that it might be well justified by the evidence as to the tenancy. But when the jury came into court to obtain instructions ás to the form of the verdict, the foreman stated that their verdict was founded upon their belief that the true location of the Brennan or Vaughan land had not been obtained by the surveyors — and the court was well satisfied that in rejecting the conclusion of the surveyors, the jury proceeded upon erroneous views of the law, and that from rejection of the location proved, the plaintiff should take no advantage.
    The defendant moved for a new trial, upon the grounds,
    1. That the plaintiff proved no title to the locus in quo.
    
    2. That plaintiff’s possession was not defined, nor the same in different years.
    3. That plaintiff’s possession was interrupted and not continuous.
    4. That the defendant committed no trespass, and was not plaintiff’s tenant.
    DeSaussure, for the motion. Withers, contra.
   Curia, per

O’Neall, J.

I agree with the defendant that the plaintiff could not recover either upon his paper or statutory title against the Kershaw title; but when to the plaintiff’s imperfect title is superadded the fact, that the defendant entered as the plaintiff’s tenant, I think the recovery is right; and that the defendant must go out. For on looking into the very full notes of this case taken by my brother Wardlaw7, I find that Jesse Nettles stated that as far back as he can remember, Spradly lived on the Brennan grant, and cultivated outside of it “to a locust, a little below the cross fence put up by Cantey, to within 10 or 15 steps of the pond.” This shews the claim which was afterwards occupied and extended by Carwell. . It was afterwards called Carwell’s old field, and of it Nettles said he understood it to include all in the field. The field and clearing thus spoken of extended below the pond. The plaintiff bought it at sheriff’s sale, and one of the descriptions given was the Carwell old place. Nettles said he heard defendant say he was tenant of Haile ; and heard him speak of renting the Carwell place from Haile. This was surely enough to authorize the jury in concluding that all the land cleared by Carwell, and passing under the name of his old, place, was rented by the defendant. They have so found. But it is said the jury assigned another reason for their verdict, viz: that the surveyor’s location w7as wrong. This appears from the Judge’s report. But it would be a sufficient answer to this, the defendant takes no such ground of apppeal. If he had, still it could not avail him. For we do not look to the reasons of the jury; we look to their conclusion. If that be right, or be consistent with the law and the facts, in any point of view in which the case presents them, it is enough. The motion is dismissed.

Richardson, Butler, Wardlaw and Frost, JJ. concurred.  