
    The Trustees of the Wadsworthville Poor School vs. Stephen McCully. The Same vs. Joel Towers.
    
      Presumptions — Convey anee — Limitations, Statute of.
    
    To rebut- tbe presumption of a title derived from trustees, arising from twenty years’ possession, it is not sufficient to show that the trustees were denied power to sell by the will creating the trust if the will gives them the power to exchange.
    An Act suspending the statute of limitations as to certain lands, does not affect the presumption of a conveyance from the owner, arising from twenty years’ possession.
    BEFORE WARDLAW, J„ AT ANDERSON, SPRING TERM, 1858.
    Tbe report of his Honor, the presiding Judge, is as follows:
    
      “ These were two actions of trespass to try titles, brought to recover two lots of land in the Village of Anderson.
    “ The plaintiff showed, 1. A grant to William Turpin, dated February 6, 1786, for four hundred and eighty acres on branches of-the Grenerostee; 2. A conveyance of the land, thus granted, from William Turpin to Thomas Wadsworth, May 2, 1797; 3. The will of Thomas Wadsworth, dated September 17, 1799, devising his lands to certain persons in trust for the establishment and maintenance of a Poor School; 4. An Act of the Legislature (1810, 5 Stat. 622,) incorporating the trustees of the Wadsworthville Poor School; 5. An Act (1805, 5 Stat. 496,) suspending the operation of the Statute of limitations as to the lands devised by Thomas Wadsworth; 6. Evidence concerning the location and the trespasses.
    
      “ Joseph Cos, Esq., surveyor, bad so located the grant, as to include the lots in dispute, and the greater part of the village. It was denied that any part of the land within his survey, was within this grant; and upon this subject there was left ground for the very decided opinions contrary to Mr. Cox’s, which were expressed on the part of the defendants’. My own opinion was that Mr. Cox had probably found a place which suited the description in the grant, and that by further surveys its lines might be fixed — that according to any scheme, likely to be approved, the lot of the defendant McCully, would be found within the lines; but that the lot of the defendant Towers, being just within the lines laid down by Mr. Cox, might, upon an amended survey be excluded, although I was inclined to think that a true delineation would include it and something more outside of it.
    “ The defendants showed, 1. A grant to Adam Crain Jones for two hundred and fifty-one acres, January 20,1787, which included McCully’s lot,- but not Towers’; 2. A conveyance from A. C. Jones to Bartholomew White, of the land thus granted, January 18, 1790; 3. Possession by Bartholomew White from some period at least as early as 1792, till some period at least as late as 1804; 4. An Act of 1826, appointing Commissioners to purchase land, lay out a village and sell lots — a resolution of 1827, appointing M. Gambrell receiver of moneys — and an Act of 1829, authorizing the receiver to make titles; 5. A plat made by M. G-ambrell of the land purchased by the Commissioners, May 19, 1827; 6. Conveyances from M. Gambrell, receiver; 7. Possession of the lots under these conveyances since 1830, the defendants respectively being themselves the occupants for more than twenty-five years.
    “In my instructions to the Jury, I favored the plaintiff’s general views as to the location. I considered that McCully had, under the Statute of Limitations, shown a title out of the plaintiff, by White’s, possession prior to 1805; and I held ibat both, defendants were entitled to the benefit of presumptions arising from lapse of time during their occupancy. The presumption of whatever is necessary to make rightful an enjoyment which has continued without interruption for more than twenty years, I held to be a presumption of fact, rebuttable, but still having an artificial force more than the natural efficiency of the circumstances, on which it is founded, to produce belief; that it does not arise in opposition to right shown to be in persons under a disability to sue; but that, independent of belief, a jury should make such presumption, because it is wise and expedient; and that the Act suspending the Statute of Limitations did not affect the presumption in these cases.
    “ The verdicts were for the defendants.”
    The plaintiffs appealed, and now moved this Court for a new trial, on the grounds:
    1. Because, it is respectfully submitted, that his Honor erred in instructing the jury that twenty-five years’ possession of the lands in dispute, raised the presumption of a grant, deed, or any thing that was necessary to perfect the title of defendants, and that .it could not be rebutted but by the disability of a party to sue: and that the Act of 1805, suspending the Statute of Limitations as to these lands, could not affect such presumption.
    2. Because his Honor instructed the jury,that if they agreed with him that the defendants had been in possession for twenty-five years, it was their duty to find for them, without regard to the truth of the presumption arising from such possession.
    Sullivan, for Appellants.
    The presumption of title aris ing from twenty years’ possession, is not a conclusive presumption, but may be rebutted or explained. Law Library, 37 vol., p. 76, and note, (3d series.) In tbe case of Darwin vs. Upton, 2 Wms. Saunders, 175, c., Lord Mansfield says, “The enjoyment of lights with the defendant’s acquiescence for twenty years, is such decisive presumption of a right by grant, or otherwise, that unless contradicted or explained, the jury ought to believe it. But it is impossible that length of time can be said to be an absolute bar, like a statute of limitations; it is certainly a presumptive bar, which ought to go to the jury.” And Buller, J., there says, “If the judge in this case meant that twenty years’ uninterrupted possession of windows was an absolute bar, he was certainly wrong. If only a presumptive bar, he was right.” See, also, observation of Lord Mansfield in The Mayor of Hull vs. Horner, Cowp. 103. Again, in many modern works, the presumption of right from twenty years’ enjoyment of incorporeal hereditaments, is spoken of as a conclusive presumption, (Green. L. E. 20, art. 17.) Per Lord Ellenborough in Balston vs. Bensied, 1 Camp. 465. An expression almost as inaccurate as calling the evidence a bar. If the presumption be conclusive, it is a prcesumptio juris et de jure, and not to be rebutted by evidence; whereas, the clear meaning of the cases is, that the jury ought to make the presumption, and act definitively upon it, unless it is encountered by adverse proof. “ The presumption of right in such cases,” says Mr. Starkie, “is not conclusive; in other words, it is not an inference of mere law, to be made by the Courts, yet it is an inference which the Courts advise juries to make wherever the presumption stands unrebutted by contrary evidence.” 3 Starkie Ev. 911, 3 ed.
    Law Library, 37 vol., pp. 76-7. “The period of twenty years seems to have been adopted by analogy to the statute of limitations, 21 Jac. 1, c. 16, which makes an adverse enjoyment for twenty years a bar to an action of ejectment for, as an adverse possession, of that duration gave a posses-sory title to the land itself, it 'seemed reasonable that it should afford a presumption of right to a minor interest arising out of the land.” (But quere, how can the presumption arise in this case, when the statute of limitations is perpetually suspended and inoperative ? Trustees of the Wadsworth-ville Poor School vs. Metis, 4 Rich. 50.) Allston vs. McDowal 1 McM. 444; Rodgers, et al., vs. Male, 4 Devereaux Law Bep., 180; Collander vs. Sherman, 5 Ired. Law Rep., 716. “ The presumption of payment from the lapse of twenty years is a presumption of fact, not of law, but one which has acquired an artificial force, and admissions to rebut it, are governed by the principles regulating admissions to take a case out of the statute of limitations.” Stover <& Barnes vs. Duren, 3 Strob. 450 ; Habersham, vs. Hopldns, 4 Strob. 240.
    
      Reed, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

It will be seen from the report that the instructions which were given to the jury, are misstated in the grounds of appeal. The presumption of title, arising from long continued possession, unquestioned and unexplained, was not held to be a presumption juris et de jure, irrebuttable, such as the Court might make; nor even one which the jury were bound to make without regard to the circumstances which contradicted it; but it was considered a presumption of fact to which an artificial force is ascribed by the law, and which the jury were recommended to make, not because they believed the fact, but because it is wise and expedient to respect what is consecrated by time, and to give the same measure to all in the same condition, by giving effect to the fixed period of twenty years as a rule, instead of producing the uncertainty and inequality wbicb must result from tbe various impressions wbicb circumstantial evidence makes upon various minds, (See McClure vs. Hill, 2 Mills, 425; 12 Ves. 266.) This presumption is like tbe presumption of tbe payment of a bond after twenty years unexplained, and like tbe presumption of. right tbat arises from tbe enjoyment of an easement for twenty years. Prescription, used in its strict sense, does not give title to lands, but only to things tbat lie in grant; but tbe ancient prescription is different from tbe modern presumption of a non-existing instrument; and many of our cases show tbat tbe presumption from long continued enjoyment is not less applicable to tbe land itself, than to any incorporeal incident appertaining to it. (McLeod vs. Rogers & Gardner, 2 Rich. 22; Gray vs. Bates, 3 Strob. 500.) Tbe presumption is founded upon tbe supposed acquiescence of tbe person shown to have been tbe former owner, and infers such transfer of bis right as legalized tbe enjoyment. Upon him is thrown tbe burden of rebutting tbe inference, and this be may do by showing tbat be endured the invasion of bis right not because he acquiesced in it, but because be was under disability to resist it. Infancy has been regarded as such disability, for although an infant may sue, be is presumed to be without tbe discretion necessary for determining when and bow to prosecute an action. Tbe incapacity of the'former owner to convey without direct violation of a trust has also been held to rebut tbe presumption of bis conveyance. (Habersham vs. Hopkins, 4 Strob. 240.) Upon tbat bolding, tbe plaintiff rests tbe only' fact urged by him to rebut tbe presumption in this case. It is this: Tbe will of Thomas Wadswortb denies to the trustees appointed in it for carrying out bis intentions concerning a school, tbe power to sell any of bis lands in fee, but it authorizes them to exchange them, acre for acre, for lands in tbe lower battalion of Laurens District. Conveyance from tbe trustees cannot then, it is said, be presumed, for it would have been in violation of their trust. Non constat however, for they may have exchanged. — and beyond tbat, if neessary, a conveyance from Tbomas Wadswortb during bis life, or from William Turpin, Wadsworth’s vendor, might be presumed, for no exercise of ownership under the grant to Turpin, at any time has been shown.

The plaintiff then falls back upon the Act of 1805, which suspended the Statute of Limitations as to the lands devised by Thomas Wadsworth, and upon the case of the Trustees of the Wadsworthville Poor School vs. Metz, 4 Rich. 50, which held that suspension to be perpetual. An examination of that case will show that the presumption which we are considering, would have availed for the defendant there, if his vendor had not acknowledged himself to be in under a lease; and further that presumptions from time and circumstances are necessary to the plaintiff’s title, which is deficient in the want of a conveyance from Wadsworth’s devisees to the plaintiff, an artificial person created by Act of incorporation in 1810. But we cannot perceive the influence which the suspending Act of 1805 has upon the presumption. No disability of the trustees, or of the incorporated body to sue was produced by it. Their acquiescence in trespasses upon their right derives no explanation from it. The presumption is independent of the Statute of Limitations; it applies to subjects not within the Statute, and it depends on principles which would operate if there was no such Statute. (See 2 Rich. 22; 3 Strob. 500; 1 McMul. 447.) The period of twenty years was originall adopted in analogy to the English Statute of Limitations; but it has no connexion with our Statute. It would be a great stretch of the special indulgence given by the suspending Act, to say that thereby the plaintiff was not only shielded against the effect of ten years’ possession, (five in 1805), but was indemnified against all the effect of time and acquiescence.

This Court is satisfied with the instructions which were given, and with the verdict.

The motion is dismissed.

Whitner, G-lover and Munro, JJ., concurred.

O’Neall, J.,

dissenting, said: I agree to the case against McCully. I dissent in the other case, on tbe ground that the suspension of the Statute negatived the presumption.

Motion dismissed.  