
    Smith vs. McCall’s Heirs.
    1. A grant for land gives the grantee a constructive possession, which continues until an actual adverse possession commences, and such adverse possession must be continued seven years before the grantee loses his right of possession.
    2. Where two grantscoveredinpartthesamelandand actual adverse possession had been held under the younger grant more than seven years, but such possession was of a portion of the younger grant not included in the bounds of the elder grant: Held, that the statute of limitations did not protect the defendant in the possession of land included in the elder grant, which had not been actually adversely held for seven years.
    - McCall’s heirs instituted this action of ejectment iu the circuit court of Maury county, against Smith on the first day of August, 1838. The case was submitted to a jury at the January term, 1840, on the plea of not guilty, Judge Dillahunty presiding. It appeared by the documentary evidence introduced, that A. McCall deceased, the father of the plaintiffs, made two entries in the county of Maury, in the year 1811, by virtue of North Carolina military land-warrants, that these entries were surveyed in 1812, and grants were issued for the said tracts of land to the McCalls’ by the State of Tennessee in 1814. Neither McCall nor any person for him, nor his representatives ever had actual possession of any part of the land above mentioned. Defendant, Smith, made propositions of purchase to McCall, but failing to purchase entered 200 acres in 1828. This entry included a considerable portion of -the land embraced within the limits of McCalls’ grant.' Smith settled on his entry shortly after he made the same, but did not take actual possession of any part of the land embraced within the limits of McCalls’ grant at that time. After having remained more than seven years on the place at which he settled, he took actual possession of that portion of his grant which covered a part of McCalls’ grant about two years before the commencement of this suit.
    The court charged the jury, that if the land in dispute was covered by the grant to the McCalls and also by the grant to Smith, and Smith had been more than seven years in actual possession of a part of the land embraced in his grant and also embraced in McCall’s grant, such actual adverse possession of seven years would by virtue of the statute of limitations protect him to the extent of the boundaries of his grant; but if he had not been in the actual possession of any part of the land embraced in the Mc-Calls’ grant and held the same adversely for seven years, that Smith could not protect himself by virtue of the statute, though the McCalls never had been in the actual possession of any part of the land embraced in his grants, because there would be constructive possession against constructive possession under the respective grant and the elder would prevail; and that to enable the younger grantee to avail himself of the statute of limitations, he must have had seven years actual adverse possession of a portion of the land embraced in the elder grants; that in that event possession of part so embraced in the elder grant would protect him to the extent of his boundaries. The jury rendered a verdict in favor of the plaintiffs. The defendant moved the court for a new trial which was overruled and judgment rendered. The defendant appealed in error.
    
      Cahal, for plaintiff in error,
    controverted the correctness of the determination of the majority of the court in the case of Talbot vs. McGavock, 1 Yerg. 262.
    
      Dew, for defendant in error, cited,
    
      Slade vs, Smith, 1 Hay. 248: Talbot vs. McGavock, 1 Yer.262: Napier vs. Simpson, 1 Ten. 453: Trimble vs. Smith, 4 Bibb, 257: Smith vs. Mitchell, 1 Marsh. 207: Ross vs. Cobb, 9 Yer. 463; McClung vs. Ross, 5 Wheaton, 116: Elliot vs. Peale, 10 Peter’s, 444: 10 Yer. 518.
   Reese, J.

delivered the opinion of the court.

In the trial of this cause in the circuit court, it appeared in proof, that Harman P. Smith, had for more than seven years been in actual possession of a portion of the land covered by his grant, but that he had not been for the period of seven years in actual possession of any part of the land which is covered by his grant, and, also, by the grant of plaintiff’s lessors. The grant of McCall is older than that of Smith, but the grantee and those claiming under him, had at no time, been in actual possession of any part of it. Upon this state of the facts, the circuit court charged the jury, “that if Smith had not been in actual possession of any part of the land included in McCall’s grant for seven years, though McCall had never been in actual possession of any part of his land, that Smith could not defend himself, under the statute of limitations.”

The legal correctness of this charge, is here called in question, by the plaintiff in error. The precise point was presented for consideration in the case of Talbot vs. McGavock, 1 Yer. Rep., and upon very full and elaborate discussion, was decided againt the bar of the statute under such circumstances. The late Nicholas P, Smith, Esq., an able lawyer, sat as special judge in the case, and he and Judge Catron concurred in the decision. Judge White, indeed dissented, and the very favorable estimate, which has always been justly placed upon his legal abilities, has probably induced the plaintiff to bring the question again under consideration. The principle decided in the case of Talbot vs. McGavock, has been adhered to ever since, a period of eleven years. But the case itself was not an innovation. Twenty years before that time, it had been determined, “that 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 authorise the bar of the statute.” 1 Ten. Rep. 153. Judge Catron referring to the decision in 1 Ten. Rep., says, in the case of Talbot vs. McGavock, that he understood the bench and the bar, the legislature and the community, to have acquiesced, during the intermediate period of twenty years,, in that decision, as being the law, and a correct construction of the act of 1797, and he intimates that it ought not to be disturbed, even if doubts of its correctness had been entertained. It is not necessary after a discussion of the question so full and elaborate, as is to be found in the- case of Talbot vs. McGavock, to do more than refer to that case. With the grounds upon which it is there placed, we are entirely satisfied; it may safely rest upon them and they need Hot fee justified, if, indeed they; could be, by any additional reasoning •of óurs. And further, if we- doubted, as we do not, the correctness of the judgment in that case, we should still yield to its authority. A greater evil can scarcely be. imagined, than a habitual fluctuation in judicial opinion, as to questions affecting the rights, and regulating the conduct of a whole community in relation to real property.' If the judicial history of Tennessee shall show, that our State, has not been at all times exempt from this evil, we may be pardoned, perhaps, for indulging the belief, that the last five years cannot be pointed to as the period of its .greatest prevalence-Let the judgment be affirmed.  