
    Andrew Smoke vs. James D. Smoke.
    Where in trespass to try title the defence is, that S., an entire stranger, had acquired title by adverse possession, the fact that S. had, many years before the trial, abandoned the possession, and that neither he nor any one claiming under him, had since ever claimed the land, is entitled to consideration upon the question as to the character of S.’s possession, whether it was adverse or not.
    Where such a defence is set up, the extent of the claim and the limits of the possession must be shown.
    BEFORE MUNRO, J., AT BARNWELL, SPRING TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows :
    “ This was an action of trespass to try titles. Tbe plaintiff proved title in himself to one-sixth of tbe land in dispute, wbicb was a tract of one hundred and fifty-tbree acres, part of a large tract of ten thousand acres granted to John But-ledge, (Dec. 5th, 1785,) from wbicb plaintiff showed mesne conveyances to bimself.
    “ Tbe defendant relied upon a possessory title, alleged to have been acquired by one David Steedly, adverse to tbe title of Butledge and bis grantees. On this point, one James Tucker, a witness, seventy-seven years old, testified, that above fifty or sixty years ago, tbe said Steedly took possession of a portion of tbe Butledge tract, and enclosed it by lines of marked trees. Tbe surveyor, under tbe direction of this witness, attempted to locate tbe land, thus said to have been marked out, and tbe plat produced shows that tbe lines designated by tbe surveyor, included all tbe land claimed by tbe plaintiff, except a few acres at one corner. This witness also stated, that David Steedly remained in possession for twenty or thirty years, and then left it. It did not appear that since Steedly went away, either he or any one claiming under him, ever claimed the land by virtue of his title. The main question involved in the case, was the identity of the land marked out by Steedly, with the land designated as such by the surveyor. By reference to the plat, it appeared that the surveyor could find no corner except such as belonged to the Rutledge tract, a part of one line of which was adopted as the base line of the Steedly tract. No interior corners were found or designated, and no station or marked trees were represented, (except one pine on the extreme upper portion,) save certain stations at 'points of intersection with the lines of the Rutledge tract, and of the plaintiff’s tract.
    
      “ The witness, Tucker, did speak of one of the interior corners as having once existed, and afterwards disappeared, as a stake in a stump, but upon the cross-examination, it appeared to be a corner on a base line of the Rutledge tract, and was so represented by the surveyor on his plat.
    “ It did not appear that Steedly had ever had a plat or conveyance of the land. The question as to the identity of the land claimed by Steedly, was submitted to the jury, and they were told that unless satisfied as to its identity, they should resolve that question in favor of the plaintiff The plaintiff’s counsel urged to the jury, that the long absence of Steedly, and the omission of all subsequent claim under his title, were circumstances raising a presumption against the original integrity of his title; and on this point I stated to the jury, that it would have been more satisfactory if some account had been given of Steedly.
    “As to the trespass, David Maxcy stated that he had been placed upon the land by the defendant, on a contract to plant on shares, and while he was there in possession, some of the negroes under his charge, by mistake, cut down about seven trees, on the portion of the plaintiff’s claim, outside of the Steedly lines, as represented on the plat. The jury were told, tbat for tbis tbe defendant was liable. But it was also proved by Maxcy, and admitted by tbe defendant, tbat tbe defendant bad cleared land wbicb was common to tbe Steedly claim, and tbe plaintiff’s tract.
    “ Tbe rent of tbe land during tbe five years tbe defendant was in possession, was proved to be about thirty dollars per annum. Tbe jury found for tbe plaintiff one-sixtb of tbe land in dispute, and five dollars damages.”
    Tbe defendant appealed, and now moved tbis Court for a new trial, on tbe grounds:
    1. Because bis Honor charged tbe jury tbat tbe defendant was responsible for trespasses committed by slaves, (not tbe defendant’s) outside of defendant’s claim, when it was established by tbe only testimony on tbat point, tbat tbe trespasses were committed by said slaves contrary to tbe express order of one Maxcy, to whom tbe defendant bad sold trees within bis (defendant’s) claim.
    2. Because tbe verdict was contrary to tbe evidence in tbis; tbat it was clearly and abundantly proved, by tbe un-contradicted testimony of James Tucker, tbat fifty-five'or sixty years ago, David Steedly bad possession of tbe tract of land in dispute, and from thence continually for twenty-five or thirty years. Tbat be bad cleared and fenced from thirty* to forty acres, and under color of title, to wit, by plain and notorious marked trees and corners bad .claimed tbe land as bis own, for tbe period of bis occupancy.
    3. Because bis Honor should have charged tbe jury tbat if tbe title to tbe land bad ever passed from tbe grantee to Steedly, by tbe adverse possession of tbe latter, Steedly’s subsequent removal from tbe State could make no difference, and tbe verdict should have been for tbe defendant.
    
      4. Because Ms Honor said to tbe jury, that the fact that no one claimed as Steedly’s heirs or distributees, was a matter of importance to look to. Whereas, it is submitted, that it had nothing to do with the case, and was prejudicial to the defendant’s case, who had in Court a deed from Steedly’s distri-butees, but did not introduce it, because he did not consider he had any claim if Steedly had none.
    Owens, for appellant.
    Hutson, contra.
   The opinion of the Court was delivered by

G-lover, J.

The plaintiff’s title from the grantee through several lessors, was clearly established to one-sixth of the land in dispute. The defendant, showing no title in himself, relied upon the possession of David Steedly, who had remained on the land for twenty years or more, and who had abandoned his possession for thirty years, and neither he or any one under or through him having since ever claimed this land by virtue of his title. Referring to this possession and its abandonment, the presiding Judge remarked to the jury, "that it would have been more' satisfactory if some account had been given of Steedly,” and this is made one of the grounds on which the motion for a new trial is submitted. The defence relied upon was a possessory title in a stranger, and the defendant assumed to show, that the possession on which such a title rests, was not only adverse, but was held in reference to well defined boundaries. The abandonment of a possession for more than thirty years, was a circumstance entitled to consideration in ascertaining if Steedly held adversely or not. (M’Beth vs. Donnelly, Dud. 177.) But the defendant failed to prove the extent of Steedly’s claim, or to define tbe limits witbin wbicb bis possession, if adverse, would confer a title under tbe statute.

A trespass by tbe defendant'was proved, not only by tbe acts of bis slaves, under tbe control of Maxcy; but be cleared a part of tbe land, tbe rent of wbicb, per annum, for tbe five years be was in possession, was estimated at thirty dollars.

Tbe appellant bas, therefore, failed to establish either ground taken in support of bis motion, wbicb is dismissed.

O’Neall, Whitstek, and Muirao, JJ.,', concurred.

Motion dismissed.  