
    WEATHERHEAD & DOUGLAS vs. THE LESSEE OF BLEDSOES HEIRS.
    Carthage,
    
      June 1815
    Ejectment, in Error.
    Construction of the statute of limitations of seven years possession, passed in 1715 & 1797.
    
      
      (18) A similar question occurred in the supreme court of the United States at February term 1816, in the case of Patton’s Lessee vs. Eastin. The following is the opinion of the court.
      “This was an ejectment instituted in the circuit court for the western district of Tennessee, for one moiety of a lot of ground lying in the town of Nashville.
      The Legislature of North Carolina, while Tennessee was a part of that state, passed an act establishing the town of Nashville, and investing 200 acres of land in trust to be laid off in lots, and sold and conveyed in the manner prescribed In the act.
      On the 1st of July 1784, subsequently to the passage of the act establishing the town, the trustees executed a deed regularly conveying the lot, for a moiety of which, this suit is brought to Obednigo Llewellin. On the first of April 1810 Shadrack Llewellin, heir at law of Obednigo, who had then attained his full age of twenty one years, for seven years and upwards, executed a deed conveying the land in controversy of Francis May after which, and previous to the institution of this suit, Francks May conveyed the same land to the lessor of the plaintiff
      The defendant produced a deed dated the 2d day of Febuary in the year 1793, executed by a certain Josiah Love, and purporting to convey the land m controversy to William T. Lewis.
      It appeared in evidence, that Lewis had purchased the ground fairly, had paid a valuable consideration for it, and that at the time, no person was in possession of it. Immediately after the conveyance, Lewis entered into, and took full possession of the premises, made valuable improvements thereon, and continued so possessed until the 14th of February 1810, when he sold and conveyed the same to William Eastin the defendant, who entered into, and took possession, and continued peaceably possessed thereof, until the 12th day of November 1810 when this suit was instituted.
      Upon this testimony, the counsel for the defendant moved the court to instruct the jury that the defendant was protected in his possession of the premises, by the laws of the land, and that by virtue of the said laws, the plaintiff was barred from recovering the said parcel of ground and premises.
      On this question, the judges were divided, which question and division have been certified to this court as prescribed by law.
      The evidence is not so stated on the record, as to present any point for the consideration of this court, other than the question, whether the possession of seven years is in this case a bar to the plaintiff’s action.
      This question depends on the construction of an act of the legislature passed in the year 1797, to explain an act of the legislature of North Carolina passed in the year 1715.
      The act of 1715 affirming in the 1st and 2d Sections certain irregular deeds previously made, under which possesesion had been held for seven years, enacts in the 3d section “that no person or persons, nor their heirs, which hereafter shall have any right or title to any lands, tenements, or hereditaments, shall thereunto enter or make claim, but within seven years, next after his, her, or their, right or title, which decend or accrue: and in default thereof, such person or persons, so not entering or making default, shall be utterly excluded and disabled from any entry or claim thereafter to be made.”
      The 4th contains the usual saying in favour of infants &c. who are authorised within three years after their disabilities shall cease, to commence his or her suit, or make his or her entry.
      Persons beyond sea allowed eight years after their return; "but that all possessions held without seeing such claim as aforesaid shall be a perpetual bar against all and all manner of persons whatsoever, that the expectation of heirs may not, in a short time, leave much lands unpossessed and titles so perplexed that no man will know from whom to take or buy land,”
      The judges and lawyers of the state of North Carolina, had been much divided on the construction of this act. Some maintaining that like other acts of limitation, it protects a mere naked possession; others that the first and second sections which are retrospective, have such an influence on the third and fourth, which are prospective, as to limit their operation to a possession acquired and held by color of title.
      This court is relieved from an investigation of these doubts by s case decided in the supreme court of North Carolina, in which it was finally determined that the act of 1715 afforded protection to those only who held by color of title.
      This contest was maintained as strenuously in Tennessee after its separation from North Carolina, as in the parent state.
      Anterior to the decision of the superior court in North Carolina, which has been mentioned, the legislature passed an act to settle the true construction of the existing laws, respecting seven years peaceable possession, in which it is enacted, "that in ail cases where any person or persons shall have had seven years peaceable possession of any land by virtue of a grant or deed of conveyance founded upon a grant and no legal claim by suit in law by such set up to said land within the above said term, that then and in that case, the person or persons so holding possession as aforesaid shall be ehtitled to hold possession in preference to all other claimants, such quantity of land as shall be specified in his. her, or their said grant, deed of conveyance, founded on a grant as atoresaid.”
      The act then proceeds to bar the claim of those who shall neglect for the term of seven years to avail themselves of any title they may have.
      As it not unfrequently happens, this explanatory law, generated as many doubts as the law it was intended to explain.
      On the one part it was contended that being designed for the sole purpose of removing all uncertainty respecting the construction of the act of 1715, its provisions ought to be limited to its avowed object, and as a doubt had never exiswhether it was necessary for a person in possession to show more than a color of title, a deed acquired in good faith, in order to protect himself under that act; so nothing further ought to be required in order to enable him to avail himself
      
        of the act of 1797. That if it should be necessary to have a title up to a grant, the act of 1797, instead of quieting possessions, would in process of time strip a very long possession of that protecting quality which the policy of all other countries bestowed upon it. That the act of 1797 was obviously drawn with so much carelessness as in some of its parts to exclude the possibility of a literal construction; and for this reason a more liberal construction would be admissible in order to effect its intent. It was therefore insisted not to be necessary for the defendant holding possession under a bona fide conveyance of lands which had been actually granted, to deduce his title from the grant, but that it was sufficient to show that the land had been granted and that he had held a peaceable possession of seven years under a deed.
      On the other part it was contended that on this point there is no ambiguity in the words of the act. The seven years possession, to be available, must be "by virtue of a grant or of a deed founded on a grant.” It is as essential that the deed should be founded on a grant, as that a deed should exist. A possession of seven years does no more in the one case than in the other, bar a legal title. The words of the act being perfectly clear, they must be understood in their natural sense. When confined to different deeds founded on the same patent, or to deeds founded on different patents for the same land, although some cases of fair possessions may be excluded from their operation, yet they will apply to the great mass of cases arising in the country.
      This question too has at length been settled in the supreme court of the state, subsequent to the division of opinion on this question in the circuit court.
      Two cases have been decided in the supreme court for the state of Tennessee, which have settled the constructional of the act of 1797. It has been decided that a possession of seven years is a bar only when held “ under a grant or deed founded on a grant;” the deed must be connected with the grant.
      This court concurs in this opinion. A deed cannot be founded on a grant which gives a title, not derived in law or equity from the grant, and the words “founded on a grant” are too important to be discarded.
    
   Overton J

delivered the following opinion.

The land in dispute was granted to the ancestor of the defendants. Douglas obtained a judgment against Bowman ; execution issued ; a part of the land thus granted, was sold as the property of Bowman. Douglas became the purchaser, and obtained a sheriff's deed. Douglas sold and conveyed to Lyons, who sold and conveyed to Weatherhead, the tenant in possession. Under the general issue, Weatherhead relies on seven years possession as a bar.

On the part of the defendants, it is insisted that the limitation of seven years, will not be available, unless the plaintiffs can show a regular chain of paper title from the grantee to Weatherhead. This question having been frequently argued in several cases, both in the federal and state courts, and having long had it under advisement, an opinion is formed, from which it is not probable any further argument will induce a departure. In legal Phraseology, the point involved in this contest, may truly be termed vexata questio. It will be considered, first, in relation to the true construction of the act of limitations, 1715, c. 27, s. 1, 2, 3, and 4, independently of the decisions on that statute.

Secondly, with a view to those decisions; and

Thirdly, an exposition of the explanatory act of Tennessee, 1797, c. 43, s. 4. The first and second sections of the act 1715 are entirely retrospective. The first section is the preamble, & contains a recital of the mischiefs. It speaks of patents from the governor of Virginia, the quit rents of which had never been paid, or the lands deserted by the first patentees; or former entries, or patents granted in the government of N. Carolina.

The second section proceeds to the confirmation of claims by possession. The language employed, is, "that all possessions of, or titles to any lands, tenements or hereditaments whatever, derived from any sales made, either by creditors, executors, administrators of any person deceased, or by husbands and their wives, or husbands in right of their wives, or by endorsement of patents, or otherwise, of which the purchaser or possessor, or any claiming under them, have continued, or shall continue in possession of the same, for the space of seven years, without any suit at law, be and are hereby ratified, confirmed, and declared good and legal to all intents and purposes whatever, against all and all manner of persons.”

In the case of Armour vs. White, 2, Hayw. 69, it is said by Haywood J.“ that this section of the act of limitations,relates only to the cases of irregular conveyances made before the act passed, and confirms them, when accompanied with a seven years possession before the act,or where the possession was then continuing, and should complete seven years after the act; but it extends to no case arising since the act.” Thus it appears, not only from this opinion, but in a note annexed to the same, which afterwards occurred in page 91, that these sections are entirely retrospective; but it will be attempted to be shown, in the examination of the second proposition before mentioned, that to confine the confirmation, intended by the legislature, to irregular conveyances, is too narrow for the plain words of this section, as well as the whole scope of that act. In this place, however, it is not improper to remark, that the possessions confirmed, go far beyond the first section or preamble, nor can the plain words of this section be restrained by the mischiefs recited in the preamble, 1 P. W. 320. Bac. Ab. tit, statute I, 2, unless the not restraing the enacting clause by the preamble, be attended with absurdity or inconvenience, 1, Atk. 174. The enacting words of this section are not doubtful, and the not restraining of them to the mischiefs referred to in the preamble would be so far from being attended with absurdity, or inconvenience, that the giving the words employed their usual acceptation, would be most conformable to the reason of the common law—Bac. Ab. tit. statute I, 4, Com. dig. tit. parliament—R. 12.

Sect. 3d. of the act of 1715, is in these words : "that no person or persons, or their heirs, which hereafter shall have any right or title to any lands, tenements or hereditaments, shall thereunto enter or make claim, but within seven years after his, her, or their right, or title, which descend or accrue ; and in default thereof, such person or persons, so not entering, or making default, shall be utterly excluded, and disabled from any entry or claim, thereafter to be made.” The 4th section contains the usual saving in favor of infants &c. who are authorised within three years after disabilities shall cease, to "commence his or her suit, or make his or her entry” as might have been done before the passage of the act. Persons beyond sea allowed eight years after returning ; “ but that all possessions, held without suing such claim as aforesaid, shall be a perpetual bar, against all, and all manner of persons whatever, that the expectation of heirs may not, in a short time, leave much land unpossessed, and titles so perplexed that no man will know from whom to take or buy land.” ()

It is conceded by Haywood J. in 2 Hayw. 90, that these two clauses (viz. 3d. and 4th.) are prospective.

Is the plain and evident meaning of the words used in the 3d. and 4th. sections, to be restrained by the preamble? To which it is answered, that it is not, unless a most palpable absurdity or inconvenience is involved, which is not the case in the present instance—see 5. Cranch. 9. Nor by parity of reasoning, can the prospective clauses be restrained, in their interpretation, by the retrospective second section. 5. Cranch. 55.

If the legislature was competent to take broader ground, in confirmation of titles in the retrospective second section, than the mischiefs recited in the preamble or first section, for the same reasons it had the power to take broader ground in the prospective enactments of the 3d. and 4th. sections, than either the preamble or retrospective second clause afforded.

In some cases there might be reason for this discrimination, but it will be seen in the developement of this question, that the basis on which the second section rests, is more extensive, than that of the third and fourth, in the single case of disabilities contemplated in the 4th section.

In the confirmatory clause, there is no saving in favor of infants &c. The circumstances of these cases were under the eye of the legislature, and it was thought reasonable to make an absolute confirmation, without any saving; but this information could not exist, respecting cases that had not occurred, which were contemplated in the 3d and 4th sections and consequently a saving is provided for them. This accounts for the manner, in which the lawgivers legislated, by dividing their enactments into retrospective and prospective clauses ; and it is believed this is the only difference, which by any reasonable construction can be made to arise, in the view of the legislature, between its “retrospective” and “prospective,” enactments.

Taking the whole of the second retrospective section together, it covers all kinds of bona fide possessions of granted lands. The expressions, “or otherwise” put this point beyond a doubt. From these expressions, it is evident that the legislature meant to exclude a mere trespasser or squatter, claiming no title, which is frequent in new countries, All the instances previously put in the act-as “derived from sales made &c.” show that the legislature meant to protect only such as should appear to be bona fide holders ; either by legal presumption arising from seven years possession with claim of title, agreeably to the 3d. and 4th. sections ; or by positive proof of fairness in the acquisition of the land, as payment of consideration, showing a deed &c. It is believed that a mere trespasser, or person claiming no title, cannot make his possession available in communicating right, agreeably to the limitation acts of any country.

Why then it may be asked, did the legislature undertake, in many instances, in the second section, to specify the particular kinds of possession, it meant to ratify and confirm ? It was useless, it is alledged, if all kinds of possessions were intended. The answer is obvious, in conveying ideas either verbally or in writing ; by assemblies or individuals, different modes of expression are adopted.

As it respects statutes, there is no set form. In some of the oldest statutes of England, we find no recital, or relation of the mischiefs which induced the legislature to act.-When the influence of the people, was more felt in the legislature, preambles were adopted, in order that they might be informed of the grounds, on which the legislature acted. The dependence of the legislator on his constituents, in more modern times, produced another method of giving this information, and a minute specification of cases, and grievances, in the form of preambles, and other parts of statutes, has nearly fallen into disuse.

In the confirmatory second section, the legislature expresses all the particular kinds of cases that then occurred, and which it meant to confirm, for the satisfaction of individuals, thus circumstanced, but as it was designed to confirm all bona fide possessions of granted lands, which had been held adversely for seven years, the expressions, “or otherwise,” were employed, so that there might be no case without remedy. But it will be asked, why is the section confined to granted lands, as the words are not restrictive ? The state is never included in any statute of limitations, unless expressly named, on the principle of the well known maxim nullum tempus occurrit regi. Bac. Ab. tit. prerogative, E. 5, p. 561. Gwil. Ed.

The lords proprietors of North Carolina, partaking of the Kings prerogative () in this respect were not bound by the limitation as it respected ungranted lands, 1 Hayw. 314, 468. But if this were doubtful by the principles of the common law, a statute passed during the same session, 1715, c. 33, s. 6 and 7, puts it out of dispute.

Returning, then, to the prospective 3d and 4th sections.

As it respects claimants, all statutes of limitation, are founded, either in the presumption of the abandonment of right, or conviction that the right is with the defendant, in which the claimant has acquiesced.

The words of these sections are plain, simple, and unambiguous. The 3d section, adopts precisely the language used in the 21, J. 1, c. 16, upon which it has been decided, that the expressions, “enter or make claim” imply an adverse possession—15 Vin. Ab 102 in N. Conformably to this idea is the opinion of Hayw. J. 2 Hayw. 93

Taking the third section alone, a writ of right agreeably to the English law, is not taken away ; but taken in connexion with what follows in the 4th section, it is manifest the legislature designed to take away the writ of right, and make the seven years peaceable possession a perpetual bar, against all kinds of actions. Its words are “ that all possessions held without suing such claim as aforesaid, shall be a perpetual bar against all and all manner of persons, whatsoever, that the expectation of heirs may not, in a short time, leave much land unpossessed and titles so perplexed, that no man will know from whom to take or buy lands.”

Considering the two prospective sections together the following provisions are evident;

1st. As against adverse bona fide possessions for seven years, every claimant is perpetually barred from recovery ; and consequently the possessor will have a complete right.

2d. That an entry, or continual claim, agreeably to the principles of the common law will not save the bar.

3d. That no color, or appearance of paper title on the part of the possessor, is necessary to make the bar of the statute available ; bare possession of granted lands with claim of title is sufficient.

The first proposition has long since been at rest; in fact it was never doubted until the opinion of Judge Moore in Armour vs. White, 2 Hayw. 88.

Obviously, as the 2d and 3d propositions seem deducible from the plain words of the 3d and 4th sections, it has been held otherwise by weighty authorities. As the difficulties in which we are now involved, and the mists of doubt enveloping the subject, seem to have been produced by an improper construction of this statute, by men eminently distinguished for legal science, it occurs, as being important to trace these errors to their source. The reasoning adopted to prove these propositions unsound, are to be found in a note to the case of Armour vs. White, 2 Hayw. 88, Tayl. Rep. 321.

In the whole course of judicial proceedings in every country, nothing seems to have excited more sensation than the limitation of actions. The cause of this excitement so unfavorable to a correct exposition of such statutes, is easily discernible. The peace, good order, and happiness of mankind, render it indispensibly necessary that those who wish to seek redress for injuries, should do it within some reasonable time. The legislature is obliged to prescribe some uniform rule, as a limitation of time. Owing to the negligence of some, and the indulgent disposition of others, the statute very often intervenes against just demands ; so felt by those who are seeking redress, and often perceived by the courts. Thus courts are frequently led imperceptibly into a train of reasoning for the attainment of justice, without sufficiently regarding the policy of the law. Hence arise constructions, which will not bear the examination of cool and absract reasoning. The reasoning employed in the note to the case of Armour vs. White will be minutely examined, by dividing it into ten distinct propositions.

First prop. "There could not have been, then ("prior to 1715") any certain known mode of conveyance, by which one individual could convey lands to another.” 2 Hayw. 89.

It will not be denied, that the common law mode of conveyance by feoffment, was in force. Though actual delivery of the land was the usual mode, vet any act on the land, by which it could be understood that the owner meant to dispose of it, was sufficient, where possession followed such alienation—Com. Dig. tit. feoffment. It is admitted, there was no uniform mode of conveyance, as the second section evidently demonstrates. But it was not necessary there should have been any evidence on record of alienations by feoffment as the argument supposes. In the illiterate state of the country, when North Carolina was first peopled, feoffments by simple livery of seizin, must necessarily have been in use. The lords proprietors could not have been divested of their title, without grant—1715, c. 33, s. 6. Hence, mere possession of ungranted land gave no title. After grant, individuals stood in the same relation to each other, respecting such lands, that they would have been in England ; and there it is well understood, that naked possession with claim of title was evidence of right, and after the statutory prescription had attached, that evidence was conclusive against every claimant. At the time of the passage of the act, though the statute of limitatians, 21 J. 1, c. 16, was not in force in North Carolina, the 32, H. 8, C. 2, was, which required sixty years possession to bar adverse claims.

Second prop.—“ Under such circumstances the country must necessarily have been in a state of great inquietude. There existed two great evils demanding the interposition of the legislature, first, the want of a certain established mode of conveyance, and secondly, a confirmation of the titles thus irregularly obtained.” Ib.

A third, and far more important reason than either of those mentioned, is omitted, to wit. that the existing limitation of sixty years was much too long for the acquirement of that peace, happiness and strength, so desirable, in every country, but particularly in a new one, which was continually exposed to the incursions of the savages. It was, however, desirable that a uniform mode of conveyance should be established, and that too, by deed in writing, in exclusion of all others. Feoffment, being frequently a transaction in pais, was not calculated to afford information of the real owners of land, in a new and unsettled country, as N. Carolina,at that day was. A knowledge of the alienatitions of unoccupied lands, could be acquired in no other way than by deed registered. Hence the 5th section of chap. 38, of the same session, by which it is provided, that there shall be no conveyance of real property except by deed registered.

In relation to those who had obtained claims under the circumstances disclosed in the second section, it will be recollected the country had not been settled long enough to give a complete right by possession under the statute of H. 8, No doubt can exist that the persons for whose benefit the second section was passed, or those under whom they claimed, were not settled in N. Carolina as early as the year 1655 ; if not, the statute of H. 8. could not protect their possessions.

The first charter to the colony of N. Carolina was not granted until the year 1675. There was inquietude no doubt, and the situation of the country loudly called for legislative interposition, in favor of a hardy, meritorious, and continually exposed race of first setlers. The inherent difficulties attendant on the settlement of a new and wilderness country, were sufficiently distressing, without adding to the burthen, an almost indefinite exposure to law suits for the recovery of lands, which they had improved at great risque and hazard.

In this respect precisely the same reasons, must have operated with the legislature, as to the prospective provisions contained in the 3d. and 4th. sections.

Third prop.—“ The legislature could not mean to ratify and confirm, in future such illegal conveyances, as were contemplated in the second section.” p. 90.

One of the reasons adduced, and apparently that which has the greatest force, is contained in this observation.__ " For in order to prevent the like inconveniences, and inquietudes for the future, they, at this session declared how lands shall be conveyed; and moreover that no conveyance shall be good, unless acknowledged, or proved and registered.”

It is asked," did they suppose, notwithstanding the act, pointing out, and ascertaining the legal method of conveyance, that the irregular ones mentioned in the second clause, would still be used ?”

Conformably to the habits and practice of mankind, the legislature might well suppose, when passing the third and fourth section of the act of limitations, that many cases of this kind would occur after the passage of the law, requiring conveyances to be by deed. () It certainly knew, that though a deed was necessary to constitute a conveyance, that, that deed might be lost by accident or neglect, during the lapse of years. Different objects were in view, and there is no inconsistency, in supposing. the legislature meant to provide by the statute of limitations, for cases which might happen, consistent with the habits of mankind, after, as well as before the act.

Nothing is, or ever has been more frequent than for those who purchase, to do it without counsel learned in the law. The idea of tracing a title to its origin, or the grant, is almost peculiar to professional men.

Most frequently laymen purchased on the responsibility of the seller ; and notwithstanding the act requiring a deed of conveyance. their incompetency to know, who is possessed of clear right to sell, or of the requisites to constitute a valid conveyance, must always remain in a considerable degree.

Would there be any thing unreasonable in a disposition in the legislature, to protect the honest and ignorant improver, who might be uninformed respecting the validity of a conveyance ? Such a supposition would be inconsistent with the opinion delivered by Haywood and Stone judges, in the case of Grant vs. Winborne, 2 Hayw. 57, where it is said, that “ it was the intent of the act, that where a man settled upon and improved lands, upon supposition that they were his own, and continued in the occupation for seven years, he should not be subject to be turned out of possession.” Surely,

it will not be contended that many honest farmers ignorant of the formalities of law, might still acquire lands, in some of the irregular ways contemplated in the second section, "and settle upon and improve them upon supposition that they were their own.” The same principle is admitted in the case under review, p. 96. If so, according to this opinion, the third and fourth sections would protect them ; the words of the act are broad enough to cover all sorts of possessions with claim of title of granted lands. This point however having been much doubted, was at length settled otherwise 2 Hayw. 336. Some further observations will occur in their proper place.

Fourth prop.—“The second bars with colour of title, when it is insisted by those who oppose the argument, that the 3d and 4th bar without such colour, which would be inconsistent and absurd”-p. 91.

As before observed, it is manifest from the expressions “ or otherwise," in the second section, that the legislature meant to protect all adverse bona fide possessions of granted lands, with claim of title, whether there were colour of paper title or not; but if it did not, it is repeated, that it would be an incorrect construction of the 3d and 4th sections to restrain the plain import of the words, without some cogent reasons for it. None such is believed to have existed. A construction which does not require color of paper title in either case, approaches nearest to the reason of the common law, and therefore should be adopted, if there were doubt from the words of the statute.

Fifth prop.—In relation to the second section, it is admitted to be retrospective ; “and with regard it, as relating to cases, after the act, it is erroneous to say colour of title with seven years possession will give a right in fee to the possessor ; for though a colour of title does, as I contend, really have that operation, it is not by reason of any thing contained in the second clause, but arises from the true construction of the 3d and 4th clauses."-p.92,

Upon inspection of the third and fourth sections, no expressions can be found which warrant the idea that the legislature intended to require color of paper title in the possessor. It is admitted it cannot be found in the second section, and consequently it is to be found no where, But,

Sixth prop.— To establish the proposition that the possession, when the statute applies, operated as a perpetual bar, it is said, “ every instance either in the preamble or body of the act, evinces an intention to settle disputes between claimants under opposite deeds or grants for the same land, and proves that the person to be protected by the provision of the act, was one who had an appearance or color of title by a subsequent deed or grant, as well as the person to be barred." p. 92.

Here recourse is had to the preamble and second section, for instances or description of cases particularly circumstanced, which the legislature meant to protect, when it seems to be admitted in the fifth proposition. that color of title arises not from those sections, but the third and fourth. It is presumable what is meant by the body of the act, is the prospective third and fourth clauses. In them no idea can be collected that color of title is necessary; and to restrain their meaning by the particular instances given in the preamble and second section, would in this case evidently oppose the known and well established rules of construction.

Seventh prop.-"The remarks already made upon the causes of passing the act, show it was made to settle disputes between claimants under different grants for the same land, and this is the reason why it never extended to the lords proprietors as it would have done, (they being equally subjects with the settlers of the country) had it reached the case of disputes arising upon possessions unaccompanied with deeds or grants, or naked possession”—p, 95.

The only prominent point in this proposition, is, that if we suppose the act did not design color of paper title, on the part of the possessors in all cases, the lords proprietors, who were the representatives of the crown, would be barred or ousted of their rights, by naked possession without grant. The observations previously made are a sufficient answer to this part of the case, and show clearly, that it was not by force of any words in this statute, their rights were saved, but a general principle of law, as well as by the express provision contained in the 6th section of the act of 1715, c, 33. This is further demonstrated by an adjudged case in North Carolina, 1 Hayw. 468, where it is said after reciting verbatim, the act under consideration, “ that the right or title to be barred by a neglect to enter within seven years, is a right or title which by thee common law may be preserved by entry—a jus possessionis derived under some grant of appropriation—a right totally different from the jus preemptionis created by the entry laws.”

Eighth prop.—"In the times preceding the act, none pretended to hold lands by possession against a deed or grant, nor was it conceived that possession could either make, or bar a title. How could it, when no law existed for that purpose? The 21st J. L. C. 16 was not in force, nor indeed any statute made after the fourth year of his reign in the year 1607 that being the era of the settlement of the country legally authorised and continued For want if such a property inherent in possession naturally, the act was passed to give it that property; in certain instances, and under certain restrictions”-p. 95 6.

No account of the judicial proceedings of North Carolina previous to 1715, has reached the present generation; though the country had not been so long settled, as to enable possessors to avail themselves of the provisions of the statute of H. 8, for the limitation of actions, yet it surely must then have been conceived, if people would think at all, that after a sufficient lapse of time, agreeably to that statute, possession alone, of granted lands, without color of title, would both make and bar a title. Adjudged cases unquestionably ascertain this point.

It is true, as before remarked, that the statute of 21 J 1. C. 16, as not in force, but the 31 H. 8, C 2, was.

The last part of the proposition, that the want of a natural, inherent property in possession to confer right, was the reason the statute required color of title, seems difficult to analyse. If, for the idea of what is naturally inherent, we recur to the writers on the law of nature, and to Blackstone, we shall learn that the occupier and improver of the soil, independently of municipal regulations, is entitled to hold possession to the exclusion of others. The statute of H. 8. agrees with this principle.

By that statute, as well as the 21 J. 1, C. 16, color, or appearance of paper title, is not required to give a right to the possessor. So that by any known law in existence at the time of the act of 1715, this color of title was not required ( )

Ninth prop.—“ The claiming of lands by a naked possession, against a title by a deed or grant, which claim, whenever made, is grounded on the act; and this mistaken idea has encouraged those having no title, colorable or otherwise, to settle upon the lands of others, and commit trespasses, with a view of acquiring a title, by a continuation of such trespass for seven years together.”—p. 96.

This is the argument, ab inconvenienti, and agreeably to the maxims of our fathers, is fortissima in lege. That part of the proposition, which supposes a naked possession of ungranted lands, is not a bar, is admitted.

Our first inquiry will be, whether there was such a peculiarity, in the state of society in North Carolina, at the time of the passage of the act of 1715, as called for the adoption of a new principle in relation to limitation, as that in relation to mere trespassers, claiming no title, whose possessions would not be covered by limitation or otherwise.

In the English law, which was in force, no such idea as color of paper title, can be found.

The country was a wilderness, and as usual in such a state, in different parts of the colonies, the first and most important object, was to encourage emigration and settlement. The first settlers were, generally, illiterate; many of whom settled on, and occupied lands, without purchase, but in expectation of obtaining a preemption right in consequence of occupancy; and afterwards complete their titles by purchase. from the crown, or lords proprietors. It is difficult to conceive, that many individuals, after the passage of the act, settled upon patented lands, with a view of obtaining a title by seven years adverse possession, or claiming as their own. There were wandering families, who settled at any spring they could find, but seldom with a view to permanent settlement, claiming the lands by metes and bounds, unless they had previously purchased from some person.

It is understood that the first appropriations of lands in North Carolina, after the passage of the act, were generally for settlement ; consequently, it is presumable, that the owners or their agents, were generally citizens of the country. Can it be thought, that there were many persons, who were so wild in their notions of property, as to settle upon, mark out boundaries, and make improvements on lands with the remote probability, that the owners would acquiesce in the continuance of these trespasses, for seven years, and thereby lose their lands ? Rare, indeed, so long as man retains his nature, must be such instances.

Laws which have an extensive operation, are bottomed on the idea, of what is most frequent among men. () In the infant state of a country, when the people were much exposed to savages, it is hardly possible to suppose that the legislature was governed by a fear of such trespasses. As it was the policy of the government to encourage population, it is more than probable that it meant to establish such a rule, as would be most extensively beneficial by freeing adventurers who had settled the country from the embarrassment of law suits. This disposition is shown by fixing the short time of seven years possession, and making it a perpetual bar.

At once, we perceive, as between claimants and possessors, who were the greatest favorites with the legislature. In plain language claimants are told, it is indispensible we should get our country settled, population must be encouraged; our disposition is to sell to those only who will settle, clear, and cultivate the lands, so as to give the country strength and safety, and as for as we can, consistently with sound policy, to protect such persons, in the fruit of their toils difficulties and dangers. Though there may be a few individuals, who have, or may hereafter, settle on granted lands, without having purchased of any person, and have or may continue there for seven years, yet as we know from the nature of things, that these cases must be rare, it is not important to legislate on so narrow a principle. Especially as such persons will have incurred expence, and for a considerable time will be exposed to hardships and dangers; the owners or claimants being negligent during the whole time, in not asserting their claims, and in most cases not living among as to give that aid and comfort to society, which its situation requires. If persons have good and valid piper titles, they do not stand in need of our protection. It is the numerous body of illiterate men, who have honestly paid for their lands, but who through ignorance of forms have not legal paper titles, or when taken, have or may through time and accident, have lost them. We know, that negligent claimants will be gready more numerous man dishonest possessors; we will make a plain and simple rule, capable of being understood by every person knowing that simplicity and inflexibly of rule, in limitation, is an important to its preservation. To those who assisted in the first settlement of the country, we give an absolute due, free from the possibility of any future embarrassment; and therefore in relation to them, there shall be no saving as to infants. &c.

Those who shall hereafter acquire possessions, claiming the property as their own, and partaking of the security already acquired by the first settlers, shall be protected after seven years peaceable possession, but subject to the demands of those who may be under disabilities to sue. This is the only exception made against them, for we are sensible of the sensation that will be excited in opposing a demand by the statute of limitations; that every possible construction will be sought after, by claimants to come at defendants, and thus doubts and difficulties are apt to arise, let the rule be ever so plain and simple. To make an exception in favor of negligent claimants against a few trespassers, would be adding to the difficulties naturally growing out of such a case; but considering the negligence of claimants, or their acquiescence when improvements were making, as more reprehensible than settlements on lands by indigent individuals, who are not able to procure them, the exception could only be claimed as a matter of indulgence and we are not disposed to give it. See the arguments of Davie in the case of Strudwick vs. Shaw, 1. Hayw. 5-2. Hayw. 12, Young vs. Irwin.

During the same session, C. 33, S. 1. the legislature uses this language; "Whereas of late years great inconveniences have arisen by means of the irregular proceedings and method observed in taking up lands; & by some persons holding or pretending right to large tracts of land to the great discouragement of strangers coming in to inhabit among us, and to the great weakening of places already settled & inhabited, as well as to the great loss and prejudice of the lords proprietors; for prevention,&c." S. 4th provides, “that no person shall take up more than 640 acres in one tract, nor two several tracts nearer than two miles of each other."

Tenth prop-"From the foregoing remarks, admitting them to be just, it is to be collected, that the second section of the act of limitations, regards irregular, invalid, and informal conveyances, made before the act passed; that the third and fourth sections relate to cases where several person have deeds, or grants, perfect enough in form, for the same tract of land ; and some of those persons, under deeds or grants of a posterior date, take and continue the possession for a considerable length of time ; and that the true meaning of the latter clauses, are to confirm forever the title of all such persons having a color of title, who may continue in possession under such title, for seven years, without entry or suit in law.”—p. 97,

This is the conclusion of the argument which is controverted. As the second section has had its effect, nothing farther will be said on that ground

In relation to the 3d and 4th sections, the subject seems susceptible of other illustrations, in confirmation of the principle assumed, that by those sections color of title () was not required of the possessors of lands. The first occurrence of the idea of color of title, is in the argument of Davie in the case of Baker vs. Webb. 1. Hayw. 60, in the year 1794, which is grounded on the idea that the second section had a prospective operation, a position now admitted to be untenable. The decision of the court however turned on other points, and nothing was said on this. In the case of Studwick vs. Shaw, 1. Hayw. 5, 1791, the statute of limitations came directly before the court, & color of title not insisted on, though Mr. Moore, a man of abilities, and who was afterwards one of the rudges of the supreme court of the United States, was of counsel for the plaintiff. Judgment was given for the defendant by Williams and Macay.

The first judicial opinion in North Carolina, requiring color of title on the part of the defendant in ejectment, was given by the author of the argument under consideration, and will be found in the case of Young vs Erwin, 2 Hayw. 9, 1797. In that case Mr. Haywood sat alone. The questions again occurred in the case of Grant vs. Winborne, 2 Hayw. 56, when Stone judge concurred in the opinion. In Armour vs. White, 2 Hayw. 87 1799, Moore was on the bench with Haywood, and dissented, which produced the note annexed to that opinion now under review, and which also has been published in Taylor’s Rep. 321.

Williams and Macay were men of age and experience, and were the first judges after the revolution ; consequently it is believed, they well understood the construction put on this statute whilst North Carolina was a colony. It is known to almost every person that judge Williams was long a practitioner of the law, under the colonial government. So was judge Johnson, who was eminent in his profession. In the great case of Wells and Newbold. Tay, Rep. 166, argued before him in 1802, by Gaston for the defendant and Haywood for the plaintiff, it is decided, “ that as neither entry not claim has been made within seven years, and as the person then entitled to make such entry or bring such suit, did not come within any of the exceptions of the statute of limitations, the lessor of the plaintiff could not disturb the possession of the defendant.”

The long possession of Lee, and those claiming under him, is in the words of the statute “ a perpetual bar against all, and all manner of persons whatsoever”—All these judges have concurred in opinion, that color of title by the act of 1715 was not required, Such is believed to be the uniform current of opinion, under the colonial government; nor was there ever a doubt on the subject, until about the year 1795. In the same year (1802) Judge Johnson, in Bloss’s case, 2 Hayw. 356, says, “ seven years possession without color of title will bar the plaintiff’s right.”

To this case there is a query, stating it had since been decided in the court of conference in North Carolina, that the opinion was not law, meaning the case of Stanly vs. Turner, 2 Hayw. 336, decided in the year 1804.

It is not denied, that this question was ultimately decided in North Carolina in Stanly’s case, but as it is conceived incorrectly. Cotemporaneous construction is certainly opposed to this decision. In this view of the subject, it is not improper to take into consideration an act of the legislature of North Carolina, 1748, C. 4, S. 5, Ird. 122. Its expressions are, "whereas several persons have been many years in quiet possession, and have by fire or otherwise loss their parents grants, or mesne conveyances, of their lands." It is provided "that all persons who had been in quiet possession for the space of twenty years next before the ratification of the act and shall make proof thereof before the governor and council general court, or court of the county where the land lies, and shall enter such proof in the auditor’s office, or the office of Earl Granville, in case the land shall be within his territory or district, that then and from thenceforth, such persons, their heirs and assigns, shall quietly hold and enjoy such tract or tracts of land, against his majesty, his heirs and successors; he or they paying quit rents,” &c.

Here we find the legislature had under its eye the loss of title papers, both grants and mesne conveyances. Provision is made for the one, but not the other, Now, if the legislature believed the loss of mesne conveyances, was wot already provided for by the statute of limitations, would it not have provided for such cases also? It is impossible to think otherwise; as such cases must necessarily have been vastly more numerous, and equally requiring redress.

It is said in this proposition, “that the third and fourth sections relate to cases where several persons have deeds or grants perfect enough in form for the same tract of land." From these expressions an present embarrassed situation of the principal question arises; for it seems to be pretty clearly implied in them, that a regular chain of title from the grant down to the possessor was thought necessary; yet it can scarcely be believed that if was the understanding of the author of the note or argument under consideration. For we find in the same case of Armour vs. White, when it first occurred, 2 Hayw. 69, and when Haywood sat alone- he uses, this language: "the act gives that effect to possessions which are taken and kept, with a reasonable ground of belief that the lands so possessed do belong to the possessors, as from some deed or the like, from some person having a pretended title.” Again, in the argument of Wells and Newbold, he puts this case: "A having no right might convey to B, and give him a color of title.” Tayl. Rep. 195—6.

Thus we are able to conceive what would constitute color of title in the opinion of the author, and that the expressions employed in the conclusion of the note in the case of Armour vs. White, are not to be understood as requiring a connected chain of title.

From the most perfect view I am able to take of the third and fourth sections of the act, the followings inferences seem evidently deducible.

1st. That the statute cannot operate, unless the lands have been granted.

2d. That color of paper title was not required by that statute

3d. That the possession contemolated, operated a perpetual bar.

The first and third seem to have created no difficulty in North Carolina; it was the second which seems to have been much agitated, and attended with great doubt and embarrassment, both on the bench and at the bar in that state, from the year 1797 until 1804 when it was finally settled there in Stanly’s case, 2. Hayw. 336.

In the case of Kerr and Porter at Nashville, November 1796 Ten Rep. 15, 353 the provisions of this act were discussed at great leng a, for the first time in this county. I was of counsel in that case, and well recollect the public excitement occasioned by it. In that case Porter had been in possesion seven years, claiming under an entry or location a part of the time before he procured his grant.

On the part of the defendant, it was insisted that by the act of 1715, naked possession was sufficient. At this time, it was known that in North Carolina doubts had been raised respecting that statute, but what they were, was not ascertained. The court in Kerr and Porter, did not give any decisive opinion on any part of the statute. Much public discussion took place, when every thing was involved in doubt.

In this state of things, the legislature of Tennessee at its first session in the year 1797, up the subject; and it is worthy of remark, that a member of me legislature that year, from the neighborhood of the sitting of the superior court, where the case of Kerr and Porter was discussed was the principal mover of the hill which finally passed into a law. What seemed to excite the attention of the public, at that time, was, that agreeably to the doctrine contended for in the case of Kerr and Porter, the possession of any trespasser on the lands of the state, or an individual, might acquire a title by seven years continuance. A doctrine which was thought to be iniquitous and unjust. It was to remedy this evil, the legislature was moved to pass the act of 1797. There were other doubts growing out of the act of 1715 at that time, but not considered of much importance. When passing the act, however, the legislature undertook to remove them.

The act of 1797, is in these word: “ And whereas doubts have arisen with respect to the true construction of the present existing laws, respecting seven years peaceable possession-Be it enacted, that in all cases where any person, or persons, shall have had seven years peaceable possession of any land, by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law, by such, set up to said land, within the above said term, that then, and in that case, the person or persons, so holding possession as aforesaid, shall be entitled to hold possession in preference to all other claimants such quantity of land as shall be specified in his, her, or their said grant, deed of conveyance, founded on a grant as aforesaid: And any person or persons, who shall neglect for the said term of seven years, from the time of such peaceable possession having been obtained, to avail themselves of any title, or legal claim, which he, she, or they have to any lands within this state, shall, and is hereby declared to be forever barred,” with a proviso in favor of minors, &c.

To obtain a correct view of this statute, the antecedent circumstances have been detailed; and though the doubts which existed at the time of the passage of this act, in relation to the act of 1715, have since been removed by the decisions of of the courts of North Carolina, the Legislature of Tennessee had no other guide than the statute itself, and the doubts which had been raised in this country.

A statute which is plain and unambiguous, leaves no room for construction or variety of opinion, but the statute of 1797 is admitted by all, not to be such. The rules of interpretation must, therefore, be applied.

Four distinct objects seem to have been in view by the legislature.

1st To give a description of all such possessions as the statute of limitations intended to cover.

2d To declare what kind of claim was intended to be set up, to save the bar of the statute.

3d. To designate the quantity of land the statute of 1715 intended to protect by the possession. And

4th. To declare the effect of that possession.

The preamble to the act, shows, that the legislature intended the statute to be entirely declaratory. There are established rules, by which we are to operate, in finding out the intention of the legislature.

We should adhere to the words and grammatical propriety of sentences, unless an obvious and general inconvenience is the consequence. The principal difficulty arises from the obscurity of the language used in relation to the first point. On the part of the plaintiffs, it is urged, that the expressions, ‘‘deed of conveyance founded on a grant,” necessarily convey the idea, that there must be a connection between the deed and the grant, by a regular chain of paper title. This is surely a construction which the words will bear; but it does not seem to be necessarily exclusive of all others. Construe the act as it may, it is manifest it was drawn very inaccurately, and with but little regard to grammatical propriety in the structure and sentences. Mala grammatica non vitiat, is a maxim of the law. To be confined to mere grammatical propriety of words and syllables, in opposition to the obvious intention of the legislature, collected from the words of the same act, or different acts on the same subject, would subvert the first principles of legal science.

Lawyers look, in all doubtful cases, for the intention of the legislature, in the circumstances in which it was placed, and reason of the case. The intention, say the authorities, is to be collected from a consideration of the old law, the mischief, and the remedy, and not from the conjugation of verbs, or declension of nouns. In this way we should soon be nonplussed in the act before us; for the relative pronoun such has no antecedent, unless it be the word persons in the fourth line before it, and that is impossible, as it would make the tenant, in possession the plaintiff in ejectment, which would be absurd. It would be found equally inconvenient to make the participle founded refer to the substantive conveyance. But is this is the hinge upon which the whole difficulty hangs, we must recur to the ordinary rules of construction, which are—

To at statutes passed on the same subject shall be viewed in pari materia.

That we must know the mischief intended to be remedied.

Give such a construction, as will advance the remedy, and suppress the mischief.

That a construction shall be avoided, which will produce manifest absurdity or inconvenience; and in order to attain this end, general words may be restrained or enlarged, in their meaning, transposed, or supplied.

The books are replete with authorities in support of these positions, but particularly 19 Vin. Ab. 520 ol 6. 7. 8-2. Day, 97-1 Dall. 434—2. Binn. 119-3 Binn. 348. 357-1. Mumf. 201 to 210—N. C. L. R. 86-Hughes, 150—2. Call 466, 467.-1 Dall. 463, Penn 216, Hughes 158, 3 Cranch 67.

It has been insisted that statutes of explanation, must be construed strictly, without any departure from the letter.

Roane Judge, in 2. Call. 459. says,“ that the ancient doctrine was, that the court, on such a statute, was tied down to the letter. But the better opinion seems to be, that such statutes may now receive even an equitable construction, arising therefrom, oh a general view of the whole statute.” Agreeably to the first rule of construction, the statute of 1715, must be taken into consideration in fixing the meaning of this. The direct and primary object in both acts, was to designate such possessions as should be a bar, and not the manner in which paper titles should be deraigned; in the latter, the intention evidently was,to exclude such possesions, as were founded in the idea of disseisin or intentional wrong.

The idea of intermediate titles, between the grant and the deed of the possessor, is not necessarily inferrible from the design, or scope of either statute, nor from the words. Supposing the first act to possess the meaning settled in Stanly’s case, 2 Hayw. 336 which is the utmost that ever was contended for, such intermediate connection between the deed of the possessor and the original grant, never entered the head of any judge or lawyer in North Carolina. Nor is there any reason to believe that it was in contemplation of the legislature, when passing the act of 1797.

In the act of 1715 the legislature speaks of possessions derived from, &c. The legislature certainly must have meant, the some thing, in the use of the expression founded in the act of 1797. All the doubt that existed as to this part of the case, when the act of 1797 passed, was, whether some evidence should not be required or the possessor, to show that he was not a wrong doer, or mere trespasser. It was this evidence which the legislature meant to require, and not that he should deraign a regular paper title; otherwise the legislature would have exceeded the limits of mere explanation, and have made a provision new in its nature and principle: of which, neither her the circumstances which produced the act, nor a fair construction of its words, afford a reasonable presumption.

These acts were intended to fit the circumstances of the great body of laymen, of whom the country is composed, and not with a view, that its principles would be applied principally to conveyancers, or persons learned in the law. Common men, rely on the land having been granted, of which perhaps long possession is sufficient evidence with them; and upon the warranty or responsibility of the seller. The idea that it is necessary to trace up the title, link by link, for fifty or a hundred years back, scarcely ever enters their heads. Not would it in process of time be reasonable to require such labor and expense; as it would in most cases be fruitless. All that is required in England, or that reasonably can be required any where for safety to purchasers, is, to see there is such a possession as the statute of limitations requires, Sudg. 205, 239.

According to the doctrine contended for by the defendants, if a single link of the chain of paper title (though a century or more elapsed) be lost, the improver and possessor must lose his land too, should there be an adverse claim; and it is well known there is enough of them, and ever will be, whilst any person may procure a grant by paying a small consideration to the state, as ever has, and probably ever will be the case. As the statute of 1715, was understood by most of the best informed men in this country, at the time of the passage of the act of 1797, no paper title whatever was required of the possessor; it is true, many doubted, as in North Carolina, whether the act did not require him to show a deed, so as to exclude the idea of trespass, but no one thought of this regular chain of paper title, until of late years, and long since the passage of the act of 1797. Can it be possible, the legislature, instead of explaining the act of 1715, as it professed to do, should have covertly designed to repeal it? Or in other words, to make such an amendment, as nearly to do so, by reducing the extensive compass of its operation, to a single dot or case, out of perhaps a thousand or more covered by it.

We should, in a little time, nearly relapse into the state in which the act of 1715 found the country, “that no own could know of whom to take or buy lands;" and so far from quieting men’s estates, and avoiding suits in law, it would furnish aliment for a new race of land jobbers; one that would be essentially opposed to the policy and reason of the common law. Explorers of other men’s titles for years, perhaps ages back, for the purpose of discovering some flaw or chasm in the chain of paper title; so as to take advantage of it, by entering the land and getting a grant for it; bring an ejectment, compel the possessor to exhibit his paper title, and if a single link should be wanting, he must fall to the wall, and the land hunter take it.

Such a construction as this, put on such a statute, which has been expounded liberally, and considered as the harbinger of peace and quiet, and not as the demon of discord, is too big with mischief and inconvenience to be adopted. () It would be foreign to the subject matter; so far from advancing the remedy and suppressing the mischief the legislature had in view, it would be in opposition to the one, and a fruitful mother of the other.

It is the first principle in the construction of statutes, that an adherence to the letter must be abandoned, if by such adherence the leading or primaly objects of the legislature are to be defeated. Unquestionably the object of the act of 1797, was to strengthen and not to weaken the security arising from seven years possession, by an honest and bona fide holder. This is clearly evinced, by the act requiring suit instead of entry, which by some was supposed sufficient to save the bar by the act of 1715; by declaring that the possession should operate to give a title all the lands within the lines of the tract, instead of such land only as should have been actually enclosed, as had been contended for; and finally, by declaring that such possession should be a perpetual bar, instead of its being a bar to an ejectment and not to a writ of right.

All these points were involved in doubt when the act of 1797 was passed; leading characters were divided on them, as well as on the point whether color of title were requisite by the act of 1715. There is no doubt in my mind, that the legislature of 1797 correctly understood the genuine meaning of the act of 1715, in relation to the three first points; but if the question were res integra, I should not think a like construction had been put on tile act by the legislature, on the last point.

Why require a chain of title, regularly deduced from a younger grantee? It would be as much a defective title, as if a link in the chain were broken; it is no better, or more meritorious, than if such a link were wanting. In common sense, where is the difference between a link of the defective title being lost, and being there, but operating nothing; the chain being too weak to bear the tug of judicial conflict? Suppose a case. The grant from the state is the foundation or commencement of the chain ; the first and last deeds or mesne conveyances, the first and last links in the chain. Can it possibly make any difference, whether this first link were produced or not, provided the land was granted to some person. The position that a chain of title is necessary, defeats itself, when traced to its source. Thus the state grants a tract of land to A. who conveys to B, who conveys to C. afterwards A. conveys to D. who takes possession and holds for seven years. It is impossible in this case, that D. can deraign a regular chain of title, because at the time A. conveyed to him he had no title to convey.

We cannot suppose the legislature did not intend to protect a person in this situation. In fine, the argument of the defendants on this ground, amounts to this, that out of the vast number of cases of seven years possession of granted lands, variously situated, and which equally require the protecting aid of the statute, but one single case is selected as being worthy of the fostering care of the legislature of 1797, to wit, where there are two grants for the same piece of land, an older and a younger one, under which the plaintiff and defendant respectively claim, by a regular and connected chain of title. A construction utterly repugnant to, and nearly subversive of the main object of the legislature, which was to secure peace and quiet, to the bona fide seven years possessor of granted land.

In the construction contended for on the part of the defendants, the good sense and policy of the common law in favoring possessions (1. New, Rep. 64, 233) would be lost, sight of; the settlement and improvement of a wilderness country, discouraged; almost all security in land titles, after the lapse of a few years, would vanish; and agriculture, the foundation of all society, droop and decay.

These are inconveniences which any construction should avoid if possible. In 6. Bac. Ab. 382. two rules are given, first,"if any thing contained in a subsequent statute, be " within the reason of a former statute, it shall be taken to be “ within the meaning of that statute. And a statute con‘‘taining another, with some additional clause, must be con-"sidered as if the former had been recited therein.” This rule equally applies in the construction of explanatory statutes. pari materia, and if so, the relative pronoun such in the act of 1797, may find its antecedent in the third and fourth clauses of that act of 1715, and no where else; it will then read thus, such persons, as shall have any right, title or claim, set up, &c. As the act explained, was before the eye of the legislature, when the explanatory act was drawn, we must supply these expressions from the former act, having been in presumption of law, casually omitted. To give the sentence a sensible meaning, it must be done, and the rules of construction warrant it. The’ the balance of the section may read intelligibly and grammatically without supplying other words from the original act; yet consitent with the evident meaning of the legislature, to be collected from both acts, as well as the doubts to be removed, we are constrained to introduce the great and leading object of the legislature, possession, between the substantive conveyance and participle founded. Its not having been done, was manifestly an inadvertent omission, or it is probable, in a supposition of the drawer, that the idea of possession, would be understood eliptically, or repeated from the use of the conjunction or.

If we give the literal construction to this part of the act, which is contended for by the defendants' counsel, the statute of limitations will be so restrained in its operation, as to be inconsistent with any rational rule of construction; and open a flood of inconveniences; the consequences of which, cannot be easily foreseen.

As, in the act 1715, S. 2, it was the intention of the legislature in its description of such possessions as should afford a bar, to advert so the derivation or foundation of such possessions, so, it was in the act of 1797, and not to paper titles, as the argument on the part of the defendants supposes.

There remains a test, if further argument were wanting, by which the meaning of the legislature of 1797, can clearly be ascertained. The legislature uses this language, “ that in all cases where any person or persons, shall have had seven years peaceable possession of any land, by virtue of a grant or deed of conveyance, () founded upon a grant.”

This sentence supposes two distinct classes, of claims. First, by virtue of the original grant and possession. Second, where the claim is by virtue of a grant, deed, and possession. The word founded was only designed by the legislature to show that there must be a foundation for the bar of the statute in the second class of cases, as well as in the first ().

Having had frequent occasion to examine, consider, and attentively weigh every word in the act of 1715, my own opinion'of its meaning in relation to color of title, remains the same chat it did twenty years ago; but as men eminent in their profession in North Carolina have thought otherwise, and particularly the legislature of this state, in its explanatory act thought so too; the subject is no longer res integra; and as a rule of judicial conduct, I am bound to consider the act of 1715 as requiring that color; the legislature of my country says such was its meaning, and officially I cannot depart from such interpretation, in all cases arising since the act of 1797.

It will bear that interpretion, when taken in connection with the 5th section of chapter 38 of the same session, as stated in the case of Hampton vs. M’Ginnis 1. Ten. Rep 286; but, taking; it in connection with any law, before or after, common or statute, it never can be construed to require that the possessor should exhibit a regular chain of paper title, from the state to himself, before his possession can be available under the statute. ( ) To require it, would subvert all grounds of analogy to the principle of the common law, and clearly contravence the express object, of the legislature, which was " to quiet men’s estate, so that they might know of whom to take or buy lands”; and approach very near an entire repeal of a statute, which has been of the first importance to the peace and happiness of the people or country; And that too, without the least previous intimation of such design. Such a supposition is derogatory to the character of any legislature or principle of construction

Should it ever in any case appear, that the deed under which the possessor may claim, be covenous, or executed and received with an intention of affording nothing more than a color of title, a question, different from any growing out of this record will be presented; and upon which, no opinion is given.

The opinion offered, will be received with due deference to the opinions of others, from which it may happen to differ, but it is the only satisfactory one that can be formed.

Judgment must be entered for the plaintiffs in error.

COOKE, J.

at a subsequent term, delivered the following opinion:

This was an ejectment commenced in the Sumner circuit court, in which a verdict and judgment was rendered in favor of the appellee, to reverse which the present appeal is prosecuted.

A bill of exceptions taken upon the trial, shows, that a grant issued to Anthony Bledsoe, in his life time, tor upwards of 6000 acres, dated in the year 1786—and that the lessors of the appellee, are his heirs at law. Some time afterwards, but when does not precisely appear, a judgment was recovered in the county court of Sumner county,in the name of Douglass, one of the appellants, against one Bowman, upon which an execution issued, and was levied up in 640 acres of this land, which, at the sheriff’s sale, was purchased by Douglass. He sold and conveyed to Henry Lyon, who took possession of the 640 acres, and in 1800 conveyed to Weatherhead, and, at the same time, delivered possession to him, which he retained undisturbed until this suit commenced, which was in 1811; so that more than seven years had elapsed after he took possession under the deed from Lyon before any suit was brought.

The 640 acres, as described in the deed by Lyon, are included in the grant to Bledsoe. What title Bowman had is not shown. No testimony shows that he ever had any claim to the land, or possession of any part of it.

- The circuit coutt was called upon to! instruct the juryy that from this evidence the defendants in the inferior court had acquired a good tide by- virtue of the possession under the d.-ed from Lyon ; but that court was of opinion that the right of the plaintiffs was not barred. The correctness of this opinion is the only point now to be inquired into.

Having, in the case of Lillard vs. Elliott and others given my opinion at great length upon the subject of the statute of seven years possession, I should deem it my duty in this case to simply affirm the judgment of the circuit court; but as that opinion, from the arguments which I have now heard, is greatly misunderstood, it may not be improper to say a few words, in order that my views may be understood by every person who chooses to consult them

It is argued that the statute of 1715, only required the defendant to have seven years naked possession in order to bar the right of the plaintiff, in the event that during that time no entry or claim had been made; and that the statute of 1797 produced no other alteration than to require the plaintiff, in those cases alone where the defendant was in possession by virtue of a grant or deed of conveyance founded upon a grant, to bring a suit in order to prevent the bar. Consequently, according to this argument, even at this day, a naked possession for seven years, without suit, entry or claim, will bar the right of the claimant, and if the defendant has possession for the stipulated lime by virtue of a grant or deed, nothing will prevent the bar but a “suit in law." And it is said that the legislature of 1797 made this alteration, because they thought it just that persons holding by virtue of some title, ought to stand in a better situation, than mere naked possessors.

I have given already what I have considered ought to have been the true construction of the act of 1715; and if that construction be correct, this argument must, instantly vanish. It is not necessary to inquire whether, taking both the statutes together, any thing short of a suit will prevent the operation of a bar; it is only necessary to ascertain, whether, since the act of 1797, the bar can be created in any possible case,unless the defendant has been in possession seven years “by virtue of a grant, or deed of conveyance founded upon a grant?” and I am clearly of opinion that it cannot.

The question at last will be, what was meant by the words in the act of 1797, “ deed of conveyance founded upon a grant?"

It is now insisted that, according to the opinion before alluded to, no possession can create a bar unless the defendant or possessor has a regular title, clothed in all the forms, with respect to probate and registration, required by law to pass real estate. The slightest attention to the scope and meaning of that opinion, will abundantly demonstrate that it does not authorise the inference now drawn by counsel. The words, “ a regular title in form,” are frequently employed, but they were principally used in relation to the third and fourth sections of the act of 1715, the true and genuine construction of watch, I repeat again, is not essential to a correct exposition of the act of 1797. They never were used, in relation to other matter, except by way of contradistinction to a title having no connection with a great, eitheir in law or equity.

Possession taken “ by virtue of a deed founded upon a grant,’’ and continued for seven years, will create a bar. To found a deed upon a grant, does not necessarily imply that the chain of title must be regular in every little minutia of probate and registration—In the contrary, a deed may be properly said to be “founded upon a grant,” if, in equity, it can be traced to the grant in such a manner as to authorise a title to be decreed to the person to whom the deed was executed. Therefore, the want of a regular probate and registration of an intermediate deed or deeds, would not prevent the bar. A deed which can, in equity, be traced to a grant, is one thing, and a deed which can show no derivation from a grant, either in law or equity, is another—in the one case, the deed may be said to be founded upon a grant;" but in the other, it cannot be so said, without a manifest subversion of the common use and meaning of words.

Whether, it there is but one grant, the claimant under a second deed from the same grantee, who has been in possession for seven years, can avail himself of the statute. I will not take upon me now to decide, as no such case is before the court.

Another part of the argument in favor of the operation of the statute, suggests that the meaning of the act of 1797 is, that the deed must purport to be, or be supposed to it, "founded upon a grat.” I always did believe that no man could undertake an expsition of that act, and of the meaning of the words it employs,without being compelled to use terms, or modes of expression, totally inconsistent with the idea that a deed which exhibits no connectson with any grant, is sufficient to cover the possession. Take, for example, the terms employed in this argument. What reason have we to suppose that the deed from Lyon to Weatherhead is " founded upon a grant;” Does any such intimation appear upon the face of the deed ? Does any proof in the cause, or other circumstances, warrant a belief of that kind? Nothing exists, in any part of the case, to create the supposition, that the deed is “ founded upon a grant.” The same may be said as to the term purport.

I shall close my observations upon this case, by remarking, that it is difficult to conceive the legislature intended by the third and fourth sections of the act of 1715, and by the act of 1797, to place future possessions upon a better footing than those which were provided for by the retrospective part of the former act. Upon a former occasion, I animadverted upon this part of the question more at large—I shall now observe, that by the retrospective sections in the act of 1715, no possession were intended to be protected, except such as had been taken and continued under a title derived, though irregularly from the grantee. In this case, the possessor has no title derived from the grantee, either irregularly or otherwise; and if such a possession is permitted to create a bar, it will be deciding that at a time when there was no certain mode of conveyance fixed by law, possessions, to be protected, were, by the legislature, required to be more regular than at future periods, after a certain mode of transferring lands were adopted. I cannot concur in such a proposition.

No opinion of Judge Roane having been filed, the following is believed to contain the substance of it.

ROANE, J.

Ever since the passing of the act of 1797, he had been under an impression, that there must be some kind of connection shown between the claim of the person wishing to avail himself of the statute of limitations, and the grant from the state.

This impression remained the same; but he should not be understood as saying, that this connection must be by a regular chain of valid deeds of conveyance. There should be such evidence as would satisfy a jury, that each individual, through whose hands the lands had passed,acquired it lawfully, by fight, and not by wrong. In the case before the court, there was no evidence whatever, showing how Bowman had acquired this land. The expressions in the act of 1797, "deed of conveyance founded on a grant” seem to import, that some rightful connection should be made appear, between the grantee from the state,& the tenant in possession.

OVERTON, J.

The opinion formerly delivered in this cause, remains the same. It will therefore be useless to reiterate the reasons for this opinion. It may be seen and examined by any person desirous of looking into it, being now on file in court. That there,may be no misunderstanding, its result will be stated.

Having been in the practice of the law here since the spring 1789. he was enabled to acquire a knowledge of the opinions of the bar and bench, respecting the construction put of the statute of 1715. In the fall and winter of 1789 being then a member of the convention which sat at Fayettville in that year, no pains was spared to acquire a knowledge of the decisions of the courts, and habits of legal thinking, in relation to this statute, as well as of the land laws of N. Carolina generally. At that time, among the best informed lawyers, as well as with the judges, Williams and Ashe, with whom he conversed, there seemed to be but one opinion, viz. that when a man had been seven years in peaceable possession, claiming the land as his own during the whole of the time, it was a complete bar, against all the world; and he was not obliged on his part to introduce any other evidence than his possession, accompanied with the reputation of claiming as above. Since his first settlement in this country, business had at several different times made it necessary not only to go to the seat of government of N. Carolina, but a continued intercourse had been kept up with several lawyers of reputation residing there, & who have had practice in the investigation of land titles. Under these circumstances, it will not appear surprising, that the rise, progress and termination of the dispute respecting color of paper title, (which began in North Carolina in 1795 or 1796, and ended in 1804) should have been carefully observed.

The opinions and arguments of Mr. Haywood, however, highly reputable as a lawyer and as a judge, never were satisfactory on that ground,so far as they tended to remove the legal presumption of right attached to seven years possession, and requiring color of title to be shewn by the defendant, which seemed to be their main object.

The passage of our act of 1797, introduced an important principle into the doctrine of limitation. Previously to the year 1795, presumption of right always accompanied the seven years peaceable possession, by a person claiming property. Under such circumstances, the presumption was conclusive. The act of 1797 makes it necessary, that the possessor, before he can avail himself of the limitation act, should show some color of paper title, by some valid, legal paper writing. Such as a grant, deed, will, &c. either, to himself, or some person, under whose title he claims the possession.

The legislature, thereby intended to establish a criterion by which to ascertain, that the possessor claimed originally rightfully, and not by wrong, or as a trespasser. It is conceived that it was not the intention of the legislature, in the passage of the act of 1797, to require a regular or irregular deraignment of title from the grantee of the state, and therefore as expressed in the opinion on file, that this jugment ought to be reversed, But as a majority of the court, seem to be of opinion that the defendants have not shown sufficient evidence of title, the judgment, will probably stand affirmed.

The judgment was affirmed.

Cooke J. & Roane J. tacite. ()

The act of assembly vesting lands in the trustees of the town of Nashville, is a grant of those lands, and as the defendant shows no title under them, nor under any other grant, his possession of seven years cannot protect his title, nor bar that of the plaintiff.”

This case was argued before the supreme court of the United States at February term 1815, and continued on advisement as it has been understood. In the latter end of the subsequent term the above opinion was delivered. Front the time employed in argument, and on adversement, it is not improbable some difficulties were experienced in the examination; and that these difficulties were removed by the decisions which had taken place in North Carolina and this state, which are referred to in the opinion. Judge Washington in the case of Golden vs Prince in the circuit court of Pennsylvania N. C. Law Rep. 431 observes “ that the injustice, as well as the absurdity of the Federal court deciding by one rule, and the state court by another, would be too monstrous to find a place in any system of government” and again in the case of Martin vs. Fairfax, February term of the S. C. U. S. 1816, Judge Johnson remarks " that there is one claim which we can with confidence assert in our own name, upon the state tribunals—the profounds uniform and unaffected respect, which this court has always exhibited for state decisions, give us” (S. C. U. S.) " strong pretensions to judicial comity.”

It cannot be considered indecorous to examine the extent and force of these decisions, on which the S. C. U. S. seem to rest its opinion. It may be, that the argument before the supreme court, did not disclose the whole ground on which these decisions rested; certain it is, that the arguments and decisions in the supreme court, in this state did not; and it is the more necessary, to shed any additional light on the subject; as in a matter of such extensive consequence to society, it is not improbable that the legislature may think proper to act in the affair, and thus by a plain, sad unambigious act, put an end to all doubts and difficulties. To use the language of the S. C. U. S. "this explanatory act, generated as many doubts as the law, it was intended to explain.” In a matter of so much consequence to the people, it may perhaps be found necessary to make another attempt at explanation, or in the form of amendment, or repeal, to place the law on a lasting foundation.

The supreme court of the United States considers the construction of the act of 1715 as settled by a decision of the supreme court of North Carolina, This may be correct in relation to the course pursued by that court, whilst it must be admitted on all lands that the judges of me supreme court of the State of Tennessee could not have justified themselves to their country or to their own consciences, when examining the explanatory act of 1797, in taking as data, the correctness of decisions, of any other state. Whilst this country was a part of North Carolina, its inferior tribunals would be bound by the decisions of the supreme court of that state. The decision in North Carolina referred to by the supreme court of the United States, did not take place until the year 1804, more than fourteen years after the separation of this country from North Carolina. Hence the necessity for an examination into the correctness of that decision, by the supreme court of this state.

The circumstances attending the two decisions of the supreme court of this state, spoken of by the S. C. U. S. as settling the construction of the act of 1797, deserve particular consideration.

- In the year 1808 the case of Hampton vs. M’Ginnis took place, and though but one judge out of three, intimated an opinion, it produced public discussion. In November of the same year, the case-of Cradocks Lessee vs. Stalcup occurred, when the sense of the whole court, sanctioned the idea that a connected chain of title was not requisite. The case of Napier’s Lessee vs. Simpson in June 180,9 is to the same effect.

In the two first cases, the question did not directly arise, as the main ground of decision, but it was pressed in argument, which called forth the observations made by the court.

It may safely be assumed as a fact evidenced by the case of Cradocks Lessee vs. Stalcup, that previously to die question being raised in the two cases of Weatherhead and Dotuglas vs. Bledsoes heirs, and Elliots heirs vs. Lillard, that the opinion of the old District Court before its abolition being then the court of ultimate resort, was opposed to the idea of a connected chain of title, See Ten. Rep. 286 351 448.

It is these two. cases of Elliott’s heirs vs. Lillard, and Weatherhead and Douglass vs. Bledsoes heirs, to which the S. C. U. S. refer as settling the construction of the act of 1797. The first took place in August 1815, and in this case the two judges composing the court, were divided; beside, it was they clearly understood to be the opinion of Cooke J. that the possession must be connected by a chain of legal title and not one that would be good in equity, as the opinion lately printed in a pamphlet form, imports. The idea of a connection founded in law is necessarily implied, provided the legislature intended a connection at all, but not so of a connection in equity. The nature of limitation is purely legal and the legislature cannot be presumed to have designed an equitable connection; it must be supplied by an equitable construction, or intendment, in the same manner as the idea of possession, according to the opinion on the other side. The only question is, which intendment is nearest to the reason of the common law. See Bac. Ab. tit. statute I. 4, & I. 6. In reality there was but one opinion instead of two, upon which the question of connection of title, either in law or equity should rest. This was the case of Weatherhead and Douglass vs. Bledsoes heirs at Carthage, finally decided at December term 1815. That decision has been published; the court consisting of three judges was full, and the opinions of the judges believed to be correctly stated. The result of the reasoning of each of the judges, will appear by reference to the case. Overton J. conceived that no connection, either in law or equity was necessary. Roane J. thought that such a connection as would satisfy a jury, ought to be shewn. Cooke J. that a connection, good, either in law or equity must be proved, or the defendant could not avail himself of his possession. It is with this opinion of Judge Cooke, that the supreme court of the United States concurs, and not with the opinions of either of the other judges.

So far as relates to a legal or equitable connection being requisite, the opinions of a majority of the court, stand opposed by what has been related to have taken place in the old district courts. Under these circumstances, it is manifest, that the supreme court of the United States acted under a misapprehension, when it considered the point as settled in the state of Tennessee.

It is an universally received rule of construction, that statutes in pari materia, or on the same subject, are to be taken and considered together.

The several acts affording compensation for improvements, after eviction in due course of law, rest on the same ground as the 4th section of the act of 1797, constituting the aforesaid explanatory act. The 3d section of this act, nor any of the acts respecting improvements, have been noticed, in the two cases alluded to either in argument, or from the bench.

The 3d section of the explanatory act (1797 c 43) is employed in providing compensation for the improvements of possessors, who should be dispossessed in due course of law. The language used to designate such possessors as should be aboard to compensation for the value of their improvements, is the same with that employed in the 4th S. respecting the possesions held for seven years, being that part of the act under examination; and intended to bar all adverse claimants. The language used in the 3d section being the same as in the fourth, we are constrained to believe that the predicament of possessors should be the same in both cases, except merely length of time contemplated in the 4th section.

Dispossessed improvers are known to be the peculiar favorites of the legislature, as well as courts of equity. See various acts of Tennessee on the subject, and the case of Bristoe vs. M’Campbell and Evens ante. There is difficulty in believing that the legislature designed by the 3d section of the act,to provide for such improvers only, as should be able to show a regular connection of paper title with the grant, at any distance of time.

That there may be no doubt respecting the 3d section which is explanatory of the 4th,its words are inserted and are as follow “that any grantee, or other person claiming by deed of conveyance founded on a grant, hath by virtue thereof obtained peaceable possession of any tract of land, and shall at any time thereafter be dispossessed by due course of law, or otherwise put out of possession, without his, her, or their consent first had and obtained, then and in that case the person so dispossessed, shall be entitled to recover at common law, from the person to whose use the dispossession was so made, the value of the improvements which he, she, or they, may have made on the said land. Provided he, she, or they do pay a reasonable rent for the said improvements, to be deducted out of the same.”

The 4th section of the same act has been recited. Let them be compared, and then this question asked. Is it not probable that the legislature meant that the possession of a person entitled to compensation for improvements after eviction before the expiration of seven years, should be precisely of the same nature, that would give a person a complete right, or entitle him to bar all adverse claims, after seven years? And that a bona fide possessor should not be barred from compensation for improvements, though he might not show a regular and connected chain of title, either in law or equity. Certain it is, that if the 4th section will not afford a bar, without connection of paper title, so, the improver will not be entitled to compensation, without showing a similar connection.

The act of 1813. c. 22. respecting improvements, uses the same language with the 3d & 4th sections of the act 1797, and therefore tends to show the sense of the legislature of 1813 in relation to the color of title contemplated by the 4th section of the act of 1797. The words of the act of 1813, are “ that hereafter, when an action of ejectment shall be brought, in any of the courts of this state, when the tenant or defendant in possession shall have color of title to the premises in dispute, or any part thereof, either by grant, deed of conveyance founded upon a grant, or entry for the same, lying in any part of this state, or claim by occupancy and preemption in the county south of French Broad and Holston rivers," then to be allowed for improvements &c.

At the time of the passage of the act, the cases referred to, had taken place in the old district courts, which at one period at least, ascertained the sense of that court, that a connection of title was not necessary. The legislature is presumed to have known of these cases and to have acquiesced in the interpretation given to the act by the courts, otherwise it would have expressed itself differently in the act of 1813. 
      
      (1) The act of limitations of the state of South Carolina in its prospective clause, passed in the year 1712, is in these words : “ That any person, or persons to whom any title to lands small descend or come, who do not prosecute such right to the same within five years after such right or title accrued, all such persons, and all persons claiming under them, shall be forever barred from recovering the same,” with the usual saving. It has a retrospective, confirmatory clause, of the same import with the first and second sections of our act. See Bay’s Rep. 1st and 2d Vol. The statute of limitations of the state of Georgia, passed in the year 1767, is in these words: “ That all writs of formedon in descender, remainder and reverter, of any lands, &c. or any other writ, suit or action whatsoever, hereafter to be sued or brought by occasion or means of any title heretofore accrued, happened or fallen, or which may hereafter descend, happen or fall, shall be sued or taken within seven years next after the passing of this act, or after the title or cause of action, shall or may descend or accrue to the same, and at no time after the said seven years. And that no person or persons that now hath, or have any right or title of entry, unto any lands, &c. shall at any time hereafter, make any entry but within seven years, next after the passing of this act, or after his or their right or title, shall or may descend or accrue to the same; and in default thereof, such persons, so no entering, and their heirs, shall be utterly excluded from such entry after to be made,” &c.
      In the construction of both these acts, possession required by them without color of paper title, is a perpetual bar.
     
      
       Vide 1. Co. 24 acc. 5 Cranch. 55, Pr Johnson, J.
     
      
      
         The words of the second retrospective section, are possessions of, or titles The whole of the reasoning of Hayw. in the note to Armour vs. White, goes on the idea of titles alone, excluding the idea of possession.
      
     
      
      (3) Vide contra, 1 Har & M’Henry 151, which seems to be the better opinion, though different from that to be found in 2 Har. and M’Henry 138.
     
      
       Such was the law in Pennsylvania, previously to 1785, when twenty years possession was made a perpetual bar. See Dall. and Binn. R. So in Maryland, 3 Har. and M’H. Seven years possession is a perpetual bar in Georgia, and fifteen years like possession a similiar bar in Connecticut.
     
      
       2 Bay. Rep. 160, acc.
     
      
      (6) In most of the states in the union, it is believed conveyances of real property are required to be by deed ; and yet, adverse possession, without color of paper title, is a bar.
     
      
       As well as the admission contained in the 5th prop; It is_ this error in taking the main ground of argument, from the words of the retrospective second section, which diffuses its influence over the entire scope of the note under review.—Besides, in the whole of the argument the expressions possession of its which or otherwise, in the same sentence relates seem to be entirely overlooked.
     
      
      (8) No such principle is believed to have been required by the civil law, common law, or municipal regulations of any country, or state in the union, except in the single instance of the statute of 1797 passed by Tennessee.
     
      
      
         Claiming as their own, by metes and bounds of lands, &c. to be understood as synonymous, with adverse possession. 9 Johns 58. 59, 179. 180 acc.
     
      
      (9) Quae frequentius accidunt.
      
     
      
      
        2. Bay. Rep. 160 acc.
     
      
      
        Vigilantibus non dormientibus servit lex.
      
     
      
       South Carolina did the same, thing, by the passage of their act of limitations in the year 1712, and in that act, there are retrospective and prospective clauses, precise similar to the statute of 1715, passed by North Carolina, an adjoining state, under the same circumstances, only three years after that passed by South Carolina. In South Carolina, adverse possession alone for five years, is a perpetual bar. No possible reason can be seen why the construction of these two statutes should be different. See 1. Bay, 376-2. Bay, 343, 329 160. Requiring title, or color of title is incompatible with the only principles on which all limitation rests, namely, to furnish of itself evidence of title from adverse posession, and claim of property.
     
      
      (13) Color of title. By these expressions the author of this opinion is to be understood as meaning, that in all cases under the act of 1715, naked peaceable possession, with a claim of property for seven years, carries with it a presumption that the possessor came in rightfully, and not by wrong. The possession for seven years, accompanied with claim of title, in the estimation of the author, agreeably to the act of 1715, was not only a color of title, but a complete one; and consequently the defendant could not be required to show color, when he had a valid and complete title. No other alteration seems to have been pronounced by the act of Tennessee, 1797, C 43, S. 4. than to remove the presumption of right from the possessor, and throw the onus probandi on him, requiring the production of a deed of conveyance, will&c, or some legal paper writing, thereby showing that he was not a tort feasor.
     
      
       This argument was written in the heat of controversy no doubt, and it would seem to be fair to understand the whole scope of it in reference to its main object, viz. that a mere trespasser or squater, claiming no right, should not be permitted to protect himself by seven years possession—a position, which is,in itself, correct. It is not the mere possession that gives right m limitation, but in relation to lands, must be accompanied by claim of property in fee simple to the extent of certain metes and bounds, thereby affording notice in pais. This claim of property is believed to be necessary, agreeably to the laws of every country, so as to enable the possessor to avail himself limitation, as respects land.
     
      
      (c) 4 Day. 309. 4 Mass. 188. 2 Bay. 160. 1 Binn. 212. 2 Inst 112. 25 Plou.Com. 3 b Co. Lit 381. b. 360. a. 3. Co. 7. b, 2 Inst. 518, 8 Mod. 7 Dyer 131. pl. 70. Hob. 346. Carter 136.
     
      
      It is worthy of remark, that the legislature employs the expression possession, as it respects the defendant, and not title or titles, as in the act of 1715, from which last expressions so much difficulty has arisen; and which must have been inserted in the 2d section of the act of 715, either from abundant caution, or for the satisfaction of the people and not from any necessity, which is frequently done in legislative, acts.
     
      
       Even the retrospective second section, uses the expressions pos
        sessions of, or titles, to which, or otherwise, in the same sentence relates, thus making the whole weight of the argument bear on possessions of; for, if possessions will do as well as titles, there is no necessity to rely on any but possession with claim of title under the act of 1715.
     
      
      (15) Deed of conveyance. This must be considered as an instance, put by the legislature, expressive of its sense, that it should be shown, that the possessor was in possession, if not by deed, yet rightfully, and not as a trespasser or intruder. See 19 Vin. Ab. 515 to 520, particularly, in page 518 pl, 69, 70. where it is said, particular statutes, shall not go beyond the words, but general statutes which are for the benefit of the commonwealth, shall be construed largely and by equity. It is not unusual for acts of parliament, especially in the more ancient ones, to comprehend by construction, a generality where express mention is made of a particular, this particular being taken as instances of all that want redress in the kind, whereof the provision is made,” for which a great number of authorities are cited; quando sunt verba specialia, ratio autum generalis, statutem generalis, statutem generaliter est intelligendum, Vin Ab. limitation, 105 in point.
     
      
      (16) In 1. Cranch 102 the Supreme court of the U. S. in construing a statute, uses this language “ Some latitude of construction then must he used, some words additional to those used by the legislature must be understood, and this being apparent, the court perceive no sufficient motive for extending the remedy to rights existing when the survey shall be made, and denying it to those which are equally valid, and which exist when the caveat may be entered” See also 3 Cranch 66. 67. &c.
      • Washington J. in the case of Fisher vs. Blight 2 Cranch 399, gives the true rule of construction in these words, “ When a law is plain aad unambiguous, whether it he expressed in general or li mited terms the legislature should be intended to mean what they have plainly expressed, and consequently, no. room is left for construction. But if from a view of the whole law, or from other laws in pari materia the evident intention is different from the literal import of the terms, employed to express it in a particular part of the law,' that intention shouldprevail, for that in fact is the will of the legislature ” See Wils. Ed. Bac. Ab. tit,statute 1 n, Brackearidges law miscellanies 326.
     
      
      
        (17) This is entirely a different question from privity of lawful possession for seven years, being shown. That would seem to be requisite. See 10 Johns 477 acc. Day 258. Contra.
     
      
      
        Limitation is founded principally in the idea, that after a lapse of years, men ought not to be required to produce any paper evidence of title, on the supposition, that in time, such evidence may be lost, destroyed, or beyond the reach of the most diligent research. We know instances have occurred of the loss of register’s books; deeds of conveyance, of course, will disappear. 2 Haywood 78. 79. Time or the lapse of years, agreeably to the construction contended for, so far from bringing with it security operates directly the reverse; & the longer a person and his forfathers have been in possession, the more insecure the claim, or right to his land.
      Statutes of limitation are those of repose and quiet in which the delights and which are always liberally constructed, to attain the ends proposed. Mass Rep 188, 2 Bay 160, 1 Binn 212.
     
      
      
        Quere Should not this case have been remanded or remained suspended, in statu quo, as no two of the judges agreed on the main ground. Overton and Cooke J. agreed that i was matter of law for the court to judge of, whether the bar of the statute was sufficient; one believing that the bar was sufficient, the other that it was not.
      According to judge Roane’s opinion, being matter of fact to be left to a jury, it might seem from thence, that the judgment of the circuit court ought, according to that opinion, to have been reversed, and the cause remanded for another trial. It is however probable, that neither Cooke nor Overton, J. would have accorded in remanding the cause.
     
      
      CookeRep 34 acc.
     