
    
      J. L. Golson & C. W. Golson v. Jacob Hook and Wife.
    
    By adverse possession for the statutory term, the occupant may establish a right' to the land within his enclosure, or actual occupation. But if he claims possession beyond tire land thus occupied, the extent and limits of that possession must be defined by reference to some'colorable title, as a deed or plat, or by visible marked lines, reputed boundaries, or other equivalent evidence.
    Two or more trespassers on a tract of land, cannot unite then several adverse possessions, and claim the whole tract as tenants in common.
    
      Before Frost, J. at Orangeburgh, Spring Term, 1848.
    This was an action of trespass to try title. The plaintiffs claimed the land in dispute, containing 1450 acres, under a parol gift from their father; and by adverse possession.
    . John Golson, the father of the plaintiffs, lived on the tract for many years, and when his eldest son, John L., married, he settled him on a part of the tract; and in like manner settled his other son, Charles W. The father and his sons thus continued to occupy and plant the tract, in common, for more than fifteen years before his death. The sons occupied the portion of the land on which they severally settled, clearing and cultivating without any restriction, and enjoying the use of it as absolutely as if it had been their own property. Not long after John L. was settled, his father mentioned to a witness, that he had cleared a piece (about 10 acres) on John’s land, and after planting it two years, gave it up. Dr. Elliott testified, that when John L. once talked of buying a piece of land, his father said it was needless, because John had land enough; and his land would belong to his sons at his death. The evening before his death, the old man asked Dr. Elliot to get a paper for him to sign, giving a negro to his daughter, and mentioned as a reason for doing so, that he had given his lands to his sons. At this time old John Golson had a will executed, by which his land was devised to his sons, the plaintiffs. The death of one of his daughters induced ’him, the day before his death, to execute another will, by which he devised his lands to his sons, the plaintiffs, their heirs and assigns, and the residue of his property to his widow during her life, and at her death, to be equally divided among all his children, and the children of Rachael Hook, who were to take, collectively, a child’s share. He also gave to his widow, “ the privilege of the plantation, houses and lands during her lifetime.” This will was attested by three witnesses, of whom the plaintiff, John L. Golson, was one. Old John Golson died the first of January, 1833, and his will was admitted to probate soon after; and John L. Golson, who was appointed an executor, qualified. The will was acquiesced in by all the parties, and the estate administered strictly in accordance with its provisions. The widow and her two sons continued to occupy the land, as the testator and'the two latter had done during his lifetime, until 1846, when the widow died. All the negroes and other personal property remained in her possession, and she and her son, Charles W. lived together, he managing her affairs. Tile land was, during the life of the widow, returned as the property of the estate of John Golson, and the taxes paid, generally, by Charles W., but sometimes by John L. After her death, John L. sold all the personal estate and made a return of the sale into the Ordinary’s office. John Golson, besides his widow and two sons, the plaintiffs, left surviving him several daughters; Polly, the wife of the defendant, Sally, who married one Inabnet, and an unmarried daughter, Rachael, who married Peter Hook, died in the life time of her father, leaving one son, John G. Hook, and a daughter, who married Robinson, and died in October 1841, leaving four infant children.
    The case was submitted to the jury on the evidence of the parol gift, and of an adverse possession by the plaintiffs, d u-ring the life time of their father, and after his death. No exception was taken to the instructions respecting the law on these points. The several claims of the plaintiffs were separately presented to the jury. The jury were advised that the evidence did not establish an adverse possession in the plaintiffs, during the life of their father, nor after his death, since many circumstances tended to show that they held under the will; and even if they did not so hold, the jury were instructed that the minority of Mrs. Robinson’s children would protect the title of the other heirs of John Golson against the plaintiffs’s claim of a title by possession after their father’s death.
    The jury found a verdict for the plaintiffs ; and the defendants appealed and moved for a' new trial, on the grounds,
    
      1. Because the plaintiffs did not establish a title to the land, either by adverse possession under the statute, before, or after the death of John Golson, or under a last will and testament.
    2. Because the verdict of the jury is not only against law, but without evidence to support’it.
    
      Glover, for the motion
    said adverse possession was a question for the Court, upon the facts found by the jury, and that the verdict in this case was given without any evidence to support a title under the statute. Cited Lavender v. Lavender, 2 Hill, 524; Smith v. Hill’s exr’s. Mans. Columbia, Deck. 1829 ; State v. Sims, 2 Bail. 29 ; 1 Bail. 479 ;■ Marhley v. Amos, 2 Bail. 603 ; State v. Anderson, 2 Bail. 565 ; English v. Clerry, 3 Hill, 279 ; and claimed a new trial. '
    
      W. L\ Hutson, contra
    insisted that the parol gift was established by the testimony, and that the possession was sufficiently adverse ; that it need not be hostile nor exclusive; a permissive possession was sufficient; Sumner v. Murphy, 2 Hill, 491; that if the party claimed for himself, it was sufficient that the jury had found the possession adverse; Roberts v. Roberts, 2 McC. 269 ; that the character of the possession was a question for the jury; and that the disposal of the land by the will, could not dispossess the plaintiffs; nor the fact of their having qualified on the will — Act of 1839, 11 Stat. 41. That the will was unimpeached — admitted to probate and good prima facie evidence. That Kinard v. Riddlehoover, 3 Rich. 258, showed that the law was the same previous to that time. Said that the office copy of the will was sufficient evidence under the Act of 1823, 6 Stat. 209 — and admissible whether as to title to real or personal property; stat. 25 George 2d.; Taylor v. Taylor, 1 Rich. 531; Henderson v. Renner, 1 Rich. 476; showed that the will was still good, although the plaintiff was both devisee and executor.
    
      Bellinger, same side
    said, that if under the will the title did not vest in both plaintiffs, it certainly vested in one ; that if John took nothing, the devise did not lapse but vested in Charles, and that showed that the title was out of the defendant. That the Act of 1839 was no more than a reiteration of the Act of 1823, and that they were barred from again attacking this will by the lapse of four years since it had been proved in common form.
   Curia, per Frost, J.

It is clear, that by the alleged parol gift of their father, no title was vested in the plaintiffs. — • Having entered into possession under the gift, they might hold adversely to the donor, and thus acquire a title by the statute of limitations. By adverse possession for the statutory term, the occupant may establish a right to the land within his enclosure or actual occupation. But if he claims possession beyond the land thus occupied, the extent and limits of that possession must be defined by reference to some colora-ble title, as a deed or platt, or by visible marked lines, reputed boundaries, or other equivalent evidence. No right can be founded on an undefined possession ; for the jury cannot a verdict for the claimant without evidence, which may them to locate the land by metes and bounds.

The claim of the plaintiffs must be considered with reference to their possession, before the death of John Golson, their father, and afterwards. John Golson lived on the tract, cultivating part of it, which extended his possession over the whole. Each of the plaintiffs had a settlement on the tract. No deed nor platt, nor visible, reputed or recog-nised line, separated their several possessions from that of John Golson. Nothing was shown which abridged John Golson’s legal possession of the entire tract, except the fields and inclosures of the plaintiffs ; nor any thing from which it might be inferred that either of the plaintiffs claimed any part of the tract beyond that in their actual occupation.— Their claims under the statute, must then be restricted to their actual possession.

This objection to the plaintiffs’s recovery; beyond their actual possession, cannot be obviated by their joining in the action. They cannot claim, as tenants in common, the entire tract. Even if it were possible to disregard the title of John Golson, by his possession he would be their co-tenant. In this view he would be entitled to share the land equally with them; and they could not claim against him adversely. But it is conclusive against the pretension of the plaintiffs to recover, on a joint possession, the whole tract, that they claim by several and distinct trespasses, on the admitted title of John Golson. Two or more trespassers, on a tract of land, cannot unite their several adverse possessions, and claim the whole of it as tenants in common. The minority of the children of Mrs. Robinson precludes any claim by possession, after the death of John Golson.

Questions, not made at the trial, nor in the grounds of appeal, have been argued, but are not noticed, because not necessary to the decision of the motion.

The jury having found for the plaintiffs the entire tract, the verdict cannot be supported by the evidence. If the plaintiffs can possibly make a case, an opportunity is given by ordering a new trial.

The whole Court concurred.

Motion granted.  