
    
      Jacob B. Smith v. Lewis Asbell.
    
    Where a deed is proved by evidence of the signature of a subscribing witness, who is beyond the State, it is competent for the opposite party to introduce evidence of statements made by the same witness, as to circumstances of its execution, differing from those which he had made when examined by commission.
    In trespass to try title, the declarations of a deceased person, not a part of the res gestes, are not competent evidence that he was the agent, in possession, of the party from whom plaintiff derived title to the land in dispute.
    A party whose father had accepted a deed, for a part of a tract of land, from A, containing a recital that B, the grantee, had conveyed to A, is not thereby es-topped from afterwards denying that B was the real grantee of the whole tract. The facts necessary to authorize the presumption of a grant of land, are, that the possession was adverse, and that it was continuous for twenty years.
    
      Before Mr. Justice Butler, at Edgefield, Fall Term, 1846.
    TRESPASS TO TRY TITLE.
    The Presiding Judge. As this case has been twice to the Court of Appeals, I shall not deem it necessary to report more of the facts than will present the questions involved in the grounds of appeal.
    The plaintiff claimed through mesne conveyance from one Thos. Adams, the name of the grantee. If Red Bank Thomas Adams was the grantee — as I think the evidence well warranted the fact to be — he was dead before the deed to Rowland Williams was executed. The grant bears date in ’95, and the deed in ’99, and it was proved that Red Bank Thomas Adams died in 1796. During the time that Williams claimed the land, under his deed, in 1800, he conveyed to different persons small parcels of the land, lying on the northern boundary of the tract — which run out, on resurvey, about 1600 acres. Among others, he sold to Aaron Asbell, the father of the defendant, 40 acres. In the deed it is recited that the land had been granted to Thomas Adams, and from Adams to Williams. It appeared, to my satisfaction, that the defendant claimed this parcel of land either by purchase or descent from his father, and was therefore a privy in law.
    ■ In 1802, Williams conveyed to A. B. Stark. The witnesses to the deed from Adams to Williams were Richard Jones and Randal Adams, and the witnesses to the deed from Williams to Stark were William French and Joseph Williams.
    In proving the first of these deeds, the plaintiff proved that Randal Adams was dead-, and that Richard Jones lived out of the State. His hand-writing being proved, the deed was in evidence. The defendanl^exammecL Jones by commission, as to the circumstances under which the deed was executed; in his answers, Jones said he never witnessed but one deed respecting the land, and that was a deed from Adams to Stark, and that French was the other witness with him. On that occasion he said Stark was present, and said that Edgefield .Tom Adams, the grantee, was dead, but that another Tom Adams, known as Sand-hill Tom Adams, would do — and that the deed was executed by him.
    To show that the witness was mistaken in saying, as he did more than once in his evidence, that he had witnessed no other than a deed from Sand-hill Tom Adams to Stark, Elias McCarty was called as a witness by the defendant, tie said that he was living with Richard Jones when he returned home after witnessing a deed, and that Jones then said he had witnessed a deed from Sand-hill Tom Adams to Rowland Williams, and that Randal Adams was the other witness. The evidence of this witness was objected to, as is stated in one of the grounds of appeal. I overruled the objection, holding that plaintiff ought to derive no advantage from the fact that Jones was absent, and that he had proved ' his signature as evidence of the execution of his deed. If Jones had been present there could have been no question but defendant could have cross-examined him as to the circumstances attending the execution of his deed, and could have introduced other evidence to contradict or correct him.
    Shortly after Stark got his deed, he commenced an action against one Cato, for trespassing on the land. As appears by the docket of 1804, he was nonsuited, and Richard Jones said he was nonsuited on the ground that the conveyance from Thomas Adams had not been made by the right Thos. Adams.
    From that time till A. B. Stark’s death, which was in 1820 or ’21, no one had possession of the land beyond, the parcels that had been sold by R. Williams.
    
      In 1822 or 1823 — I think ’23 — Daniel Hartiy, an old man about 100 years old at the time of trial, lived on the Watson grant, adjacent to this land. He cleared for a cow-pen about one-fourth of an aeré of the land in dispute. As his possession is important to the plaintiff, I will detail the evidence in relation to it. Daniel Loveless said that when he was quite a boy — 10 years old — he saw hrs grandfather, Daniel Hartiy, clearing a cow-pen on this land, and heard him say that he had got leave from Stark to clear laird for a cow-pen, and also had leave to cut board timber, but that he was not to clear a field.
    This witness was ásked what he had heard John Loveless say in relation to his cautioning Daniel Hartiy against clearing on the land. An objection being made, I ruled as follows : that any declaration made by John Loveless in the presence of Daniel Hartiy was competent, or any declaration made by John Loveless while he was on the land, or in relation to his own possession, was competent. The witness said that all he had ever heard his father say about the land was in his own family, and not in the presence of Daniel Hartiy, who was then on it. This must have been after Stark’s death. On that occasion his father remarked that Stark had given him authority to take charge of the land. I ruled the evidence out, so far as it went to give character to Hartly’s possession. I said, however, that all Daniel Hartly’s declarations might be given in evidence, and that if he had referred to John Loveless’s authority or agency over the land, it was competent to bring it out in that way. But Daniel Hartiy, who moved to Alabama in 1832, having used the cow-pen for 9 or 10 years, was examined, and he said that he had never got permission from Stark or any one else to clear the cow-pen, and that if he had cleared on this land it was an accidental trespass, or one which he had committed without thinking much about it. It appeared that he owned the Watson grant, adjacent to the cow-pen. After he left, John Loveless, his son-in law, went on the Watson grant, and kept up cow-pens till he moved away in ’34.
    This was all the possession that was proved. The land was called the Stark land for many years, but no one used it for Stark during that time. If he exercised any actual dominion over it himself, it did not appear from any other facts than such as have been stated.
    The defendant claimed under a grant of recent date, and a deed from Charles Adams, the son of a woman by the name of Molly Rowe, with whom Red Bank Thomas Adams lived as a wife or concubine. The weight of the evidence was, that she was the mistress of the Adams alluded to, although there was evidence to the contrary. I thought the merits of the case depended on the plaintiff’s title. And if the Thomas Adams who conveyed to Williams was not the true Thomas Adams, then the plaintiff’s right would depend on possession. My opinion was, that his claim depended mainly on that, with a conviction on my mind that Stark and Williams had acted originally with some understanding as to each other’s title, whether Tom Adams of Edgefield, or Sand-hill Tom, was the grantee. I thought it probable that the survey and grant had been made and taken out for Williams and Stark, or one of them. Perhaps (if Thomas Adams of Red Bank was the grantee,) there may have been some contribution by him, from which he had a right to claim some interest in the land. If, however, he were dead when the deed was made to Williams, then it was apparent to me that Sand-hill Tom was used merely to carry out what Williams and Stark regarded as the original purpose.
    The title would not be, however, good under such an arrangement of conveyances, without there was possession under it, and such a possession as would give title of itself, under color of title. Such being my opinion, I submitted the question of possession to the jury, under unexceptionable instructions. The gro.uMs of appeal seem to take exceptions to the defendant’s title. /
    I did not think, that.defendant was estopped from taking title to the land in question, from the fact that he had accepted a deed for a part of same grant, in which it was recited that .Williams, h'ad taken a deed from Thos. Adams, who was not the true Thomas Adams.
    I could not ujrdérstand the claim of plaintiff, so far as it depended on an assertion of title in Stark, without enjoyment of some right or some possession. The most that could be said was, that the land was called Stark’s, and he had a deed for it for more than 20 years. The deed under which he claimed was not, in my opinion, connected with the true grantee, and therefore was mere color of title.
    Could that color of title, without enjoyment or possession, raise a presumption of right ? I thought not.
    Upon the facts, as they have been explained, the case was submitted to the jury, and they found a verdict for the defendant.
    The plaintiff moved the Court of Appeals for a new trial, on the grounds—
    1. That his Honor, the presiding Judge, permitted the defendant to offer evidence of material statements made by Richard Jones, defendant’s witness, differing from his state- ' ments on oath.
    2. That the presiding Judge excluded the declarations of John Loveless, deceased, as competent, evidence that he was the agent or steward of one from whom plaintiff deduced title, concerning the laud in dispute.
    3. That the presiding Judge erred in instructing the jury that the defendant was not concluded as to Roland Williams’ title to the whole Adams tract, by proof that defendant’s privy in blood had accepted an estate in fee Irom said Williams for a portion of said laud, conveyed by deed, which described the premises as portion of the Adams grant, and under which there had been actual and continuous possession since 1800, and in defendant himself for more than 20 years.
    4. That the presiding Judge erred in instructing the jury that a grant or mesne conveyance to Williams or Stark, in perfection of plaintiff’s title, could not be presumed from the circumstances of the case ; especially from the survey for Williams in 1793, and for Stark in 1803; from the conveyances by Williams to Asbell, Jones and Sawyer, and the possessions under them; from the possessions under Stark by Cato and Hartley; and from recogjaÉ*i«íi^!fe§í(#ilPs title for 40 years.
    5. That the presiding Judge errei of land from which a presumption must be continuous and systematic for a mill, or ore from a mine. ; use could be rafised, * /lilt!if , ' \nber
    6. That the plaintiff proved a tit' the Statute of Limitations. ■nde? A?
    
    7. That from the proof, Thomas could not have been the grantee of the Adams? grant. : Bank,
    Wardlaw & Carroll, for the motion.
    Bauskett & Griffin, contra.
    
   Evans, J.

delivered the opiniop of the Court.

The first ground of appeal is, “that the Circuit Judge permitted the defendant to offer evidence of material statements made by Richard Jones, his own witness, different from his statement on oath.” We concur with the presiding Judge. The mistake consists in this — that because the defendant had examined Jones, he was therefore 'his witness. The fact is not so. lie was out of the State, and of course the plaintiff had a right to give his deed in evidence, by proving Jones’s hand-writing. When he had done so, the defendant might rebut the legal presumption that every thing was right in the execution, by giving in evidence what the witness had said on the subject. This was decided in the case of McElwee v. Sutton, 2 Bail. 128. In that case the witness was dead, and the deed was admitted, on proof of his signature; the other side was allowed to show that the witness had said and made an affidavit that the deed was antedated. It cp.n make no difference that the witness m that case was dead. Proof of hand-writing, where the witness is out of the State, is admitted on the same principle as where the witness is dead. The law presumes that if the witness were present he would prove every thing necessary to the validity of the deed; and of course the other side may contradict him in all the ordinary ways by which the evidence of a witness may be destroyed. It may be done by cross-examination or by proving contradictory statements. The examination by commission in this case was in effect a cross-examination of the witness, and the case must be regarded as if the plaintiff had produced Jones in open Court, and by him had proved the due execution of his deed. The defendant might then have cross-examined him, and afterwards called McCarty to prove his declarations as to what had occurred at the execution of the deed, This decision does not in any way infringe on the rule that a party shall not discredit his own witness by showing former and inconsistent declarations, or in any other way destroy the credit of his own witness. There are cases, according to the authorities, where this may be done, but it is unnecessary to notice them here, as the case does not require it. On the second ground the Circuit Court was clearly right, and the fifth and sixth are settled by the verdict of the jury. Upon these, therefore, no observations will be made.

It appears, from the report of the case, that Williams conveyed forty acres of the land to the defendant’s father, from whom, by descent or purchase, it had come to the present defendant, thus making him a party to the deed. In this deed it is recited that the land was granted to Thos. Adams, and by him conveyed to Howland Williams, and from this it is argued that the defendant is estopped from disputing the truth of that fact. In Greenleaf’s Ev. sec. 225, it is said 4< that estoppels may be ranked in the class of presumptions. A man is said to be estopped when he has done some act which the policy of the law will not permit him to gainsay or deny. If there be a recital in a deed of certain facts, there is implied a solemn engagement that- the facts are true as re? cited. But they must be certain to every intent, for no one shall be denied setting up the truth, unless it is in plain contradiction to his former allegations and acts.” In this case the defendant’s father made no allegations; he only accepted a deed from Williams, containing a recital that the grantee ’Bhomas Adams had conveyed to him. This, to the extent of his purchase, might amount to an estoppel, but bis acts go no further, and I apprehend the admission can go no further than his acts. There is a legal principle that where both parties derive title from the same source, the plaintiff, m tracing his title, need not go beyond the common origin of both his and the defendant’s title, on the ground that, by accepting a title, he admits a right to convey in his grantor. But iri the case of Robertson ads. Hill, decided in December last, and not yet reported, where the principle above stated was applied, it was not supposed the doctrine of estoppel had any application. I should suppose that the most that can be said in this case is, that the recital on the deed might amount to á prima facie admission that Rowland Williams’ title was good — but this would leave the question open for discussion whether the Thomas Adams who conveyed to him was the man of that name to whom the land was granted, and that question has been decided in the negative by the jury. The only remaining question is that made in the fourth ground, which alleges that the presiding Judge should have instructed the jury that a grant or mesne conveyance from Adams, the grantee, to Williams, could be presumed in order to perfect the plaintiff’s title. In the elementary books (See Starkie’s Bv. part 4,1240,) presumptions are said to be of three kinds. 1st, Presumptions of law, which correspond with the pre-sumptio juris et de jure of the civilians. These are conclusive and cannot be- rebutted. 2d, Presumptions of law and fact. These are like the presumptio juris of the civil law. Of these the presumption of payment of a bond or. of a grant after 20 years, is an illustration. The 3d kind are presumptions of fact, and are mere inferences calculated to produce belief, and have no legal efficacy beyond their tendency to satisfy the mind of the truth of the alleged fact. Of this the case of Quash v. Pinckney is an instance, where it was held the fourteen years non-payment of interest or other recognition of the debt, with other circumstances, would authorize the presumption, as a matter of belief, that the debt was paid. But presumptions of law are like the statutes of limitations. They are artificial rules which have a legal effect independent of any belief, and stand in the place of proof until the contrary be shown, The presumption in the case undef consideration, if it exists, belongs to this class, and the question we are to decide is, whether there was any thing in the case which required of the Circuit Court the instruction to the jury that they might presume the existence of the deed in question. The rule laid down in McClure v. Hill, 2 Con. Rep. 420, is, that a continuous adverse possession of twenty years raises the presumption of a grant, in the absence of any of those facts which go to rebut the presumption. This rule has been followed in all the subsequent cases: in Noland v. Hutchinson, 2 Bailey; McLeod v. Rogers & Gardner, 2 Rich. 22. The’facts necessary to authoiize the presumption are, that the possession was adverse, and that it was continuous for 20 years. Without these requisites, I do not. remember any case where a title has been presumed. Jn this case there was something like a possession, but it was of doubtful character, and was for a period of less than ten years. 1 sardless than ten years, for if a clear possession for that period had been established, the jury would have supported the plaintiff's title, under the statute of limitations. The case of Smith v. Griffin, (3 vol. Man. decisions) was supposed in the argument to countenance the opinion that a period less than 20 }rears would authorize the presumption of a deed. In that case Moore and those under whom he claimed had been in possession from 1774 to 1794-5 or 6. There was an interval of two years during which Moore did not reside on the land, but some of the witnesses said that during the two years’ absence he left an overseer and cultivated the land. The presiding Judge1 thinking that this did not supply the place of a deed from Moore, nonsuited the plaintiff. The Appeal Court set it aside, on the ground that it should have been left to the jury. But it was argued that as Williams, whilst he claimed to be the owner of the land, had sold portions of it to several persons, who have been holding under his title for forty years, their possession shall enure to the benefit, of the plaintiff, and authorize a presumption that Williams had a good and valid title. If the question was whe-. ther the title of these purchasers should be sustained by the presumption, there could be no doubt. The law should presume a deed or grant or any thing else which might be necessary to support such a possession, but it does not go beyond this. Williams might very well have had a conveyance from the real grantee for the land which he conveyed, whilst his title to the residue of the tract might be under his deed from Sand-hill Tom Adams, who the jury have decided was •not the real grantee.. The law does not go beyond the presumption of what, is necessary to support the possession»

I think, therefore, there was no error in the Circuit Court on any of the grounds stated in the brief, and the motion for a new trial is dismissed.

Richardson, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion dismissed.-  