
    Robert Thompson vs. Alexander Caldwell.
    Irregularities in legal proceeding's cannot be taken advantage of by-third persons.
    An executor in his representative capacity, cannot hold lands adversely from the title of his testator.
    But under certain bona fide circumstances, an executor’s possession may be adverse from the title of his testator.
    The executor has not the legal right of entry on the land ofhis testator, unless they be charged with the payment of rent, which rents may be assets in his hands.
    Fairfield district, Spring Term, 1822.
    Tried before Mr. Justice Johnson.
    
    TRESPASS to try titles to land.
    The plaintiff traced his title from the original grantee through a deed from James Barkley, sheriff, to James Douglass, down to himself. Barkley sold under an execution, Alex. McCluken ads. surviving executor of Alexander Miller. In looking into the pro-r .eeedings, the defendant made the following objections, ¿rising out of the proceeding itself, which was a sr,i. fa, to revive a former judgment.
    1st. That the sci.fa. was not personally served.
    2d. That no declaration had been filed, nolwhhstanding thd demand was above the summary jurisdiction, (£20.)
    
    3d. That more than a year and a day had elapsed between the return of the sci. fa. and the judgment, and there was no. intermediate proceedings.
    4th. That the judgment was not rendered or signed before the fi. fa. was lodged in the sheriff's office.
    The fi. fia. wras entered 2d March,- lSi'7, and judgment signed 10th May following. A levy was made 3d June, and a sale 7th July, 1817.
    These objections were over-ruled.
    The defendant claimed under a }'OUnger grant to his father, who was one of the executors of Miller, the grantee, under whom the plaintiff claimed. This grant was all the written evidence he produced, and he proved that by the permission of his father he went on the land, and held the possession under which he claimed.
    The presiding judge held, that the defendant’s possession. must enure to the benefit of his father, and that his-possession could not affect the rights of the plaintiff, because as*executor he had the right to' the possession, and was bound to defend the possession of his testator.
    Motion for a new trial.
   Mr. Justice Colcock

delivered the opinion of the court:

There can be no doubt that the verdict in this case wuis predicated on the opinion of the presiding judge, as to the legal character of the defendant’s possession. Where an executor enters in his representative capacity, he certainly cannot be considered as holding adversely. But whether he so entered, is a question of fact for the jury.

Besides, he has not the legal right of entry on the lands of the testator, unless they be charged with the payment bf rent, which rents may be assets in his hands. But, generally speaking, the lands descend to the heir; and from the testimony in this case, it certainly did so. It was not charged with the payment of rent. It had been lying out'waste and uncultivated for nearly 30 years, and there is no reason to believe that the executor did know that it was the land of his testator at the time he obtained the grant. Indeed, it is not clear that the grant was obtained after his death ; for the time of his death is not fixed positively. It depends on the recollection of an old man, -engrossed with the ordinary concerns of life ; and it is well known how difficult it is to fix on the precise time when such a circumstance has happened again. The grant of Samuel Caldwell, (the executor,) whenever obtained, does not cover the whole of Miller’s grant. It only takes a part of it, which gives the transaction the character of a mere mistake in regard to the rights of Miller, or of any other with whose right his grant may conflict. From the testimony of Mr. Cork, it appears that the grantee of the plaintiff,- (Miller,) died about 33 years ago; according to this, (if his heir was only one year old when he died,) the heir would have been now 34, and would have been barred by any adverse possession at least nine years ago, about the time the defendant took possession — so that it is impossible to suppose that any fraud was practised or ever contemplated by the» defendant or his father. Upon the whole, all these circumstances should have been submitted to the consideration of the jury, and they should have been left to decide whether the possession was adverse.

As to the grounds of non-suit, it is only necessary to referió the cases of Turner & McCrea, (1 Nott & McCord, 11,) and Barkley & Scriven, (Ib. 408,) in which (as well as in many other cases,) it has been decided that these Irregularities cannot be taken advantage of by third per-" sons. The motion for a non-suit is of course dismissed, but the motion for a new trial granted.

Peareson, for the motion.

Williams, contra.

Justices Richardson and Noll, concurred.

Mr. Justice Gantt dissented.  