
    NAPIER’S LESSEE vs. SIMPSON.
    Construction of entries. What possession is sufficient to enable a party in ejectment to avail himself of the statute of limitations.
    The plaintiff claimed under a military grant for 274 acres, No. 2085, dated May the 20th, 1793.—The entry was made in the name of George Hooks, December the 20th, 1785, on Barton’s creek, about one mile below the lower meat house made by Deason and Williams, to include a spring and beach marked W. B. I. R. and also under a sheriff's deed for taxes. The defendant claimed by deed from William Cockran, dated August the 15th, 1799 ; two grants issued to Cockran of 640 acres each, dated on the 12th of November, 1791, bottomed on entries made on the 30th of November, 1799. There was a spring which was left out of Hooks’s tract about thirteen poles, where trees were found marked thus, W. B. R. Whether the last was intended for the letters I. R. joined together, the surveyor, colonel Humphreyes could not tell, but looked as if intended, for the letter R. It was proved that the plaintiff claimed the spring where the defendant lived, on the west side of the creek. On the part of the plaintiff it was proved, that the defendant lived within the lines of Hooks as surveyed, and as the grant to Hooks was the youngest, it was necessary to identify the location. The plaintiff produced two witnesses, the one his brother, and the other a relation, who lately came to this country from the state of Georgia. By the first it was proved, that he saw such marks as are described in Hooks entry, at a spring within the tract, on the east side of the creek, and not far from it. He first saw those marks about two years ago.
    The other witness proved, that he was first at this spring a few days ago, when he saw such marks, and by both witnesses, the marks appeared to be old.
    The defendant identified his claim, and proved by persons living in the neighborhood, that they never heard of the plaintiff claiming the spring now proved. It was also proved that there were three springs below Deason’s meat house spring, viz : the one now claimed by the plaintiff, which was about half a mile below. The spring where colonel Napier lived, is a boat one mile and a quarter below, and the spring where the defendant lives, which is between a half and three quarters of a mile below Deason’s meat house spring, called for in the entry. It was also proved, that he settled on the land purchased of Cockran in March, 1799—the witness being present when he built his house. Cockran was then present, and he then understood from both Cockran and the defendant, that the purchase was made, though no deed was executed. It was also said by one of the witnesses, that he believed part of the land which the defendant claimed, was within the bounds claimed by the plaintiff. The writ issued in this case on the second of April, 1806, and the defendant relied on seven years possession as a bar.
    Dickinson for the plaintiff,
    argued on the ground.locality, that the spring proved on the east side of the creek, was the one called for in the entry. The statute of limitations does not apply under the act of 1797, c. 43, s. 4. The defendant settled on this land as a purchaser, not as a tenant. A parol lease may be good, as affording a possession under the statute, but as a purchaser, a person can only claim from the date of his deed; there can be no purchase, of land except by deed, and the possession of the defendant, until he procured a deed, cannot avail him. There was not seven years between the date of the deed, and the commencement of this action, though there was from the time the defendant took possession. If the defendant took possession as a purchaser, his claim was void, as such purchase until the deed, was without any specific limit or boundary. It cannot he pretended, that the defendant took possession as a lessee; it is, otherwise proved, and there cannot be a parol sale of land, though there may be a parol lease, which creates a legal right. The situation of the plaintiff and defendant should be reciprocal. To enable the defendant to avail himself of seven years possession, he should have a legal title, as the plaintiff could not bring an action to save the bar, until he had a legal title. Thus in the case of entries, possession does not avail any thing, unless accompanied by a grant or legal title. The plaintiff cannot be barred on another ground; by law, the owner of land sold for taxes, is allowed twelve months after sale to redeem. Here, during the twelve months in which no suit could be brought, this land was in abeyance. It was uncertain who would own it, the original owner or purchaser. In such a state of things, it would be unreasonable that the statute should run. The defendant has not shewn when that part of his clearing or cultivation, which interferes with us, took place. Taking possession of land not within the limits of Hooks grant, could have no effect.
    Stewart and Grundy, e contra.
    
    The entry of the plaintiff on the face of it is well enough, but when taken in connection with the situation of the country in which it was made, is void for uncertainty. Three springs have been proved, any one of which might as well answer the description as another. The survey of Hooks, under which the plaintiff claims, ought not to have extended higher up than one mile from the meat house spring. Supposing the spring claimed to be the one, had Hooks’s land been surveyed in that manner, it could not have interfered; nor could it have interfered, had it been surveyed in a square, putting the spring in the centre, which seems agreeable to modern decisions. But a spring is an obscure call, therefore, the survey ought to have adhered to the distance of one mile, otherwise it would be, if the spring were a call highly notorious; then the distance could not mislead. The spring in this case is the locative call. The entry, though not vague on the face of it, is bad in faet; three springs have been proved as lying below the meat house spring, from the distance of a half, to that of one and a quarter miles. The plaintiff claims the spring at the distance of half a mile below the meat house spring. He has just as much right to claim either of the other two. If the spring where colonel Napier lives, was the spring, they ought to have surveyed there; it is not enough to say, that they might have included the spring where colonel Napier lives, add the land in dispute too, had they ran differently. Let the entry be as it may, our case, under the statute of limitations, is incontrovertible. Possession of any part of Cockran’s tract, is possession of the whole; and consequently that part which interferes with Hooks. The defendant had possession under Cockran, or he had not; if the first, his possession avails; if the latter, it will not.
    
    Cambsell for the plaintiff,
    in conclusion. The acts of 1786, c. 20, and 1787, c. 23, were not introductive of a new law; they were only declaratory of the old. In relation to possession, agreeably to the explanatory act of 1797, c. 43, s. 4, a person to avail himself of it, should have a grant or deed, which the defendant had not in this case. From March, when he took possession, until the 15th of August, he had no color of title, and this puts the statute out of the question. The case of Hampton vs. M'Ginnis,(a) will shew, that nothing but a conveyance to the tenant in possession, could enable him to repel the plaintiff, on the ground of prescriptive possession. Until the time of redemption was out, we could not get a deed for this land, and consequently could not bring suit. It seems therefore to be a fair construction of the act to say, that it should not commence running until the sheriff's deed was obtained; and on this ground the statute cannot apply.
    Ante pa.288
    
      
       Tayl. Rep. 103, 112.
    
   Overton, j.

sitting alone, (Humphreys, j. having been employed, and Campbell, j. absent the whole of this term from indisposition.)

The defendant has the oldest grant, and in order to do away the effect of it, the plaintiff shews an older entry. This entry is good oh the face of it, and whether its calls have been complied with in the survey, is for the jury to determine. Calls in an entry are either directory or locative; the first are assistant, the latter bring the mind to the particular spot. If locative calls are not consistent with directory, they should greatly preponderate as to notoriety, so that subsequent locators could be in no danger of being misled. In this case the call of about one mile, is directory, and so are the creek and spring too, if several springs; which would make the marks at the spring the locative call. If the jury should be of opinion, that the spring where colonel Napier lives, was the spring intended by the location, and it appears to them, that, that spring could have been included by running in a square or oblong, not more in length, than twice its breadth; and that the land in dispute might also have been included by such survey, the plaintiff ought to recover on this ground; for it does not lie with the defendant to object, if by such running, which is an act of the surveyor, the effect would have been the same as to him. In the course of argument, it has been asserted, that conformably to late decisions, Hooks claim ought to have been surveyed in a square, including the spring in the centre. If any such decision has ever taken place in this country, it is unknown, nor is it believed any case was ever finally decided on this ground. In the course of yearly twenty years experience, I have known many cases decided differently; and that in surveying such an entry as this, it was sufficient if the survey was made in a square or oblong, not more in length, than twice its breadth; and the spot called for, included in any part of the tract.—This is believed to be the law, in cases where there are no elder claims to interfere; in that case, the surveyor is allowed to depart from a square or oblong, by making his boundaries on such older claims.

The defendant has opposed the plaintiffs claim, on the ground of seven years possession. On the part of the plaintiff it is insisted, that the defendant must have a deed himself, co-extensive with that possession. This is believed not to be the law. Suppose A. owns a tract of land, and has held possession thereof for two years; he sells to B. putting him in possession, who continues it five years more; in a suit brought against B. he surely may unite the possession of the person from whom he bought, to his own, and it will be a good bar. At present but three ways of possessing land can be conceived; as a trespasser—for himself—or under some other person. The defendant certainly was not a trespasser from March till August, nor could he be said in legal language to be holding for himself, until he had obtained a dead. During this time he must have held under Cockran, whose possession it was, until the deed was made. These two possessions being consistent, may he united, and thus afford a good bar. The act of 1797, c. 43, s. 4, is couched in doubtful language. It is an explanatory act and therefore cannot extended by equity beyond its literal meaning, where that meaning is plain. But being ambiguous in the enacting claute, must be construed by the same rules, as all other statutes. The preamble shews, that it was intended to remove a doubt, which had arisen in the construction of a former act. What was that doubt? those who were acquainted with the cause of making the statute, know it was, whether a seven years naked possession, without a title, would bar a claim. Persons holding lands by entries, without grant, or perhaps neither entry, grant nor deed, had opposed their possessions as a bar. The act was only intended to be declaratory of the meaning of the former statute of 1715, c. 27. Though the meaning of this act was much contested, when the last act was passed, its construction has since been solemnly fixed both in North-Carolina and here; and to those, adjudications, it seems proper we should adhere. The act of 1797, was not designed to be introductive of a new law; and as its words will bear a construction conformable to the adjudged cases, there it ought to rest, and not be carried any further.

Possession of land, so as to produce a bar, must be an actual possession of some part in dispute. Cultivation of part of the defendant’s claim, not within the bounds of the disputed part, is not sufficient to authorize the bar of the statute.

Verdict for defendant. 
      
       Tayl. 117, 163, 365. 1 Hay. 359. 3 Binney, 30, 32 28. 1 John. 495. Maryl. R. 139. 4 Dall 210, 218. Taylor and Quarles vs. Brown, S. C. U. S. 1812. Msc.
     
      
       See 19 Vin. Ab.517 C. 6 Guil. Ed. Bao.Ab. 380, 384, 388 390. 3 Caine’s R. 68. 1 Dall. 434, 463. 2 Binn. 119, 120. 3 Binn. 348, 357.
     