
    Henry Middleton v. Mary Dupuis.
    Pive years actual adverse possession of a tract of land under a junior grant, will • give the tenant a title to so much as he has in actual possession, even against a person who has a paramount title, and is in the constructive possession of the part in dispute, 
    
    This was an action of trespass to try title. Tried before Mr. Justice Richardson, at Ooosawhatchie.
    The plaintiff claimed under an old grant for 5635 acres ; he established the identity of the land, and deduced a regular title from the grantee. He also proved a continued possession in part, of the premises, from the year 1783, down to the commencement of this action, which was brought in the year 1811.
    The defendant claimed under a grant for 120 acres, dated in 1799. She established the lines of this tract, deduced a regular title from the grantee, and proved the exclusive actual possession of the whole, from the date of the grant.
    The judge charged the jury, that though the possession of a part by the plaintiff was constructive possession of the whole; yet, that the exclusive actual possession of a different part by the defendant, would rebut the plaintiff’s constructive possession of so much as the defendant had had an exclusive, actual possession of.
    The jury found for the defendant.
    The plaintiff moved for a new trial, on the ground of misdirection of the judge, in stating that the continual possession of the plaintiff from the year 1783, did not entitle him to recover against the defendant, the parcel of the same lands of which the defendant had *had actual possession for twelve r.x.q., years, prior to plaintiff’s action. L'
    
      
      
         See Grimke v. Brandon, 1 Nott & McCord, 356-368. R.
      3 Strob. 480.
    
   The opinion of the Court was delivered by

RiohaRDSON, J.

The question is, whether a party having paramount title to a tract of land, and being in actual possession of a part, and, of course, in constructive possession of the whole, can be deprived of any part of the land by reason of the adverse and exclusive actual possession of that part, by a mere occupant under a younger title.

The general rule is, that where two persons, one the freeholder, and the other a mere occupant, are in possession, that of the owner shall prevail, in exclusion of the other; Salk. 246 ; Lilly, 336 ; or rather the joint possession enures to the sole benefit of the freeholder. But this is not the case when the owner is ousted, and exclusive possession in the occupant of a part, is proof of a disseisin of the freeholder; Plowden, 235 ; and such possession being long continued, is strong proof that it was adverse, and will operate to give a perfect title to the occupant. But though the question is important, I need not investigate the distinction farther, because it has been fully sanctioned. In the case of John Singleton v. Thomas Broadway, 1810, at Columbia, it was taken and recognized by the Constitutional Court. Broadway had taken possession of a small part of Singleton’s plantation, upon which he was living. Singleton was ignorant of the trespass, from not knowing the boundaries of his land ; Broadway, accordingly, remained quiet some ten or twelve years, when Singleton, who was all the time living upon the plantation, sued him. But the jury found for the defendant to the extent of his actual possession of Singleton’s plantation, and the verdict was supported by a full bench of judges. The distinction is therefore established, and the new trial, of course, refused, upon authority. In that case my professional opinion was overruled. But I now fully concur in the decision. I deem it not only concurrent *with the later adjudications under the statute of limitations, but in its true spirit. Whatever L other objects may have been in view, I cannot, from the situation of South Carolina, in 1712, for a moment-,, doubt this intention; that the great Landgrave, who, for a series of years, would not seek the boundaries of his territory, should, through the actual occupancy of another, lose his superfluous terra incognita. And the long and open possession of tlie defendant, under an honest title, makes the application to this case of the popular mode of statutory conveyancing, by possession, a happy and satisfactory one. The motion is refused.

Petigru, for the motion. Martin, contra.

Bay, Colcock, NoTTand Johnson, JJ., concurred. 
      
       MS.
     