
    Lessee of Gordon against The Executors of Parsons.
    are two conveyances of the same land, and the Inst deed is first recorded in the register’s office, the party claiming under the first deed* not recorded,may relinquish where there f.'11 l'oht UPOT1 lus statutory right of pos-is good,
    eiMy1 turning possession1 of limds> ?haU title thereby, the claim of the party dis-possc-sui.
    THIS was an action of ejectment, brought to recover 350 acres of land on Pedee river. The land was originally grauted to one Greenwood, who conveyed to one Rogers, who conveyed to Gordon, the father of the plaintiff’s lessor; under whom the lessee of the plaintiff now claims.
    The deed to Gordon is dated in 1766, when he took possession of the land. He kept possession until 1776 or 1777, when he was forcibly turned off by a person claiming under the defendant’s testator, Parsons. It appeared, from the 7 1 rr 7 deeds produced at the trial, that Rogers, several years after he had conveyed to Gordon, made another conveyance of the same land to Parsons, in Charleston, which was duly recorded in the secretary’s office. It also appeared, that Gordon, who was an illiterate man, never recorded his deed of conveyance, but locked it up in his desk, and kept it securely by him till he died ; when his son, to whom the land came by descent, found it amongst his papers, at the time of taking an inventory of his effects.
    The defendant relied on the act of assembly, passed in 1698, to prevent deceits by double mortgages and conveyances of land, See. which declares, “ that the sale, con- “ veyance, or mortgage of lands and tenements, (except “ original grants,) which shall be first registered in the regis- “ ter’s office in, Charleston, shall be taken, deemed, adjudg- “ ed and allowed of, and held to be the first sale, convey-a ance anc[ mortgage, and to be good, firm, substantial, and “ lawful, in all courts of judicature within Soutli-Carolina, “any former or. other conveyance, sale, or mortgage for “ the same land, notwithstanding.” This clause of the act was conclusive in favour of the plaintiff’s testator, and gave him an indisputable title against all the world, as his conveyance was first upon record.
    On the other hand, it was urged for the plaintiff, that although old Gordon (who was certainly ignorant of the operation of the act quoted) had incautiously kept this deed of conveyance, without having had it first recorded ; yet he could relinquish his claim to the land under the deed from Rogers, and rely upon his statutory right of possession ; which gave him a right paramount to that of Parsons, although his deed was frst recorded ; and offered to produce evidence of an uninterrupted possession in old Gordon, for more than 10 years after the date of the conveyance from Rogers, until he was forcibly turned off by Parsons’s agent. But to this evidence
    The defendant’s counsel objected, because the lessor of the plaintiff was out of possession. And they insisted, that this kind of evidence could only be given in favour of persons in actual possession of the premises in question.
    
      In reply to this objection, it was said, that whatever weight it might have on ordinary occasions, where a possession was voluntarily relinquished by a party, who had gained a right by it; still, in a case like this, the defendant ought not to be suffered to take advantage of it; because, here was a forcible dispossession and intrusion, unwarranted and unsupported by law, against old Gordon’s will and consent. It would, therefore, be extremely improper, to-suffer a man to cut and carve out his own mode or remedy of gaining possession of land as he pleased, and then to permit him to take advantage of his own wrong, by justifying 
      it. That if Parsons, in his life-time, had the title in him, he 7 ... I ought to have commenced his action; in which case, he would have found old Gordon in possession, or some person claiming under him ; and then, there could be no doubt, but that he might have given evidence of his statutory right by possession. That, therefore, under these circumstances, his heirs at law ought to be considered as in the place of his father, who should be considered as in possession, and to enjoy every light under, and by virtue of it.
   The Court

overruled the objection ; because, if sustained, it would have a tendency to permit a man to take advantage of his own wrong, (which the law abhors,) and suffered the plaintiff to go into evidence of his possession.

Several witnesses were then called, who proved an uninterrupted possession in old Gordon, of ten years afcer the purchase from Rogers.

Af'er this testimony was given, the counsel for the plaintiff relied also on the limitation act of 1712, second clause, which declares, “ that all claims to lands shall be proseen-a ted within five years after such claim accrues ; otherwise, u the party claiming, and all persons under him, shall be for ever barred from receiving the same.” The third clause of the same act, further declares, “ that all claims “ shall be by suit at law, and that no other claim whatever, “ should be allowed in any court of record.” Here, then, it was contended, that Parsons had not prosecuted his claim within five years after it accrued ; and further, that when he thought proper to make a claim, it was not a legal one, such as the law required, but a tortious one, which, instead of giving him a right, made him a trespasser.

The Court were clearly of opinion, that notwithstanding the deed to old Gordon had not been first recorded, according to the directions of the act, so as to give him a title thereby ; yet the plaintiff might relinquish his claim under it, and go into his statutory title of possession; which being clearly Provec4 they thought entitled the plaintiff to a recovery.

Bay, for plaintiff.

Waties and Parker, for defendants.

Verdict for plaintiff.

A motion for a new trial was afterwards made at the adjourned court in Charleston, but the rule was discharged.  