
    
      Trustees of the Wadsworthville Poor School vs. John Meetze.
    
    Where the title to land was vested in a corporation, and certain persons sued for the land in their individual names, styling themselves trustees of the corporation, and discontinued or let fall their action ; and, more than two years after such discontinuance or letting fall the action, the corporation sued for the land in its corporate name. Held,, that the first action was no bar to the second.
    By the Act of 1744, (3 Stat. G12,) plaintiff, in trespass to try titles, is barred of his second action, if he does not commence it within two years after his first is determined against him, by verdict and judgment, nonsuit, discontinuance, or other letting fall the action. Held, that a plea of such verdict and judgment, nonsuit, discontinuance, or other letting fall the action, should conclude prout patet per recbrdwm, and must be verified by the production of a judgment.
    Lapse of time and other circumstances held sufficient to raise the presumption of a conveyance to a party who was not in possession of the land.
    The Act of 1805, (5 Stat. 496,) suspending the statute of limitations, so far as it may relate to certain lands therein mentioned, exempts the lands from the operation of the statute, for all time to come, and in whomsoever the title might be vested.
    The Act of 1712, limiting the right of action for land to five years, is not repealed, but only changed by the Act of 1824, which extends the time to ten years.
    The possession, which authorises the presumption of a conveyance, must be adverse and not permissive.
    ■Where possession is permissive, the tenant’s declaration to a third person that he will claim the land under the statute of limitations, will not, without notice to the landlord, convert his permissive into an adverse possession.
    
      If a tenant convey tlie land in fee simple, it is a disclaimer of the tenancy, and the landlord may sue for the land without giving notice to quit and before the termination of the lease.
    
      Before Evans, J., at Lexington, Fall Term, 1850.
    In this case — trespass to try titles — the report of his Honor, the presiding Judge, is as follows:
    The plaintiffs’s title was made out thus: The land was granted, in 1786, to Wadsworth & Turpin. Turpin conveyed his inter' est to Wadsworth in 1797. In 1799 Wadsworth devised all his lands, in certain districts, to H. W. DeSaussure, and other gentlemen, in trust, to establish a Poor School in Laurens District. In 1805 the Legislature passed an Act suspending the statute of limitations as to the lands thus devised by Wadsworth. In 1810 an Act was passed incorporting the trustees of the Wads-worthville Poor School, for the purpose of carrying into effect the trusts declared by the will: (5 Stat. 622.)
    The defendant claimed under one Christian Rail, to whom a tract of land, including the land claimed by the plaintiffs, had been granted, in 1824. Rail conveyed, to Meetze, this, with other lands, in 1834. From the date of Rail’s grant, and probably a year or so before, Rail was in possession of a part of the land, until he sold to Meetze, who has been in possession ever since, thus establishing a continuous possession of more than twenty years before the commencement of this action. In 1841 a writ was sued out against Meetze, to recover the same land, in the name of John Godfrey, John Odell, and others, styling themselves the trustees of the Wadsworthville Poor. School. No further proceedings were had in the case, except that a notice was served, signed by Caldwell & Addison, plaintiffs’s attorneys, that, on the trial, a copy of Wadsworth’s will would be given in evidence.
    It was proved by one Jonathan Taylor that, when Rail was about to settle on the land, he told him of the old grant, and showed him the lines; advised him not to put his house on the land. In consequence of this, Rail put his dwelling-house outside of the line. He said, if he put his barn there, and there came no legal owner, he would hold it by possession. He to Id Rail about a surveyor coming from Laurens to run the land, to whom he had showed the lines. After this, Rail said he had been to Laurens, and had got a lease from an agent for thirty years.
    On the legal principles involved, and which are excepted to in the grounds of appeal, I charged the jury as follows:
    1. That the former suit was no bar. The legal estate was in the corporation, who could sue only by its corporate name. The former suit was in the name of certain individuals, styling themselves the trustees of the Wads worth ville Poor School.
    2. That the connected possessions of Rail and Meetze was long enough to authorize the presumption of a deed from the rightful owner, but for the declaration of Rail that he had a lease from an agent of the owners of the land for thirty years. The possession, which authorizes the presumption of a deed, must be adverse, and not permissive; and, if Rail’s possession was under such permission, no adverse title could be presumed. It was not stated whether the lease was written or parol, but I thought it immaterial. The object was, to show a permissive possession, and this might be proved by Rail’s declarations, without the production of the lease.
    3. That, if Rail’s possession was permissive, his declaration to Taylor (even if made after the supposed lease), that he would claim under the statute of limitations, could not convert his permissive possession into an adverse possession, without notice to the plaintiffs of such adverse holding.
    4. That Meetze’s possession, although adverse, was not sufficient to airthorize the presumption of a deed; nor could the statute of limitations avail him, as, in relation to this land, it was suspended perpetually by the Act of 1805; and the Act of 1824 was no repeal of the Act of 1805.
    5. That the lease for thirty years did not prevent the plaintiffs from suing the defendant, whose possession, under a conveyance in fee.simple from Rail, was clearly adverse. The conveyance in fee simple was a disclaimer of Rail’s tenancy, and the plaintiffs might sue without notice to quit, and before the termination of the lease.
    The objection contained in the second ground (that there was no transfer from the trustees named in the will to the corporation) was not made at the trial. There, was no evidence on this point, except the Act of incorporation. But the length of'time that had elapsed, the Act itself, and the recognition of their title by Rail, I would have held sufficient evidence that the trustees had refused to take the devise, or had surrendered it to the corporation.
    The jury found for the plaintiffs.
    The defendant appealed, and now moved this Court for a new trial, upon the following grounds, to wit:
    1. Because his Honor, the presiding Judge, erred in holding that the former action, brought by the plaintiffs for the recovery of the land in dispute, and discontinued more than two years before the commencement of this suit, was not a bar to this action.
    
      2. Because there was no conveyance or legal transfer of title to the land in dispute, from the devisees of Thomas Wadsworth to the plaintiffs, and, therefore, they failed to make out such a title as to entitle them to recover in this action.
    3. Because the plaintiffs, having no legal existence till 1810, when they were incorporated, the Act of 1805 cannot inure to their benefit, nor apply to' the lands claimed by them as a corporation.
    4. Because his Honor, the presiding Judge, erred in charging the jury that the Act of 1805 prevented the operation of the statute of limitations, in favor of the possession of John Meetze, the defendant, who held the land in adverse possession for upwards of twelve years.
    5. Because the Act of 1805 does not suspend indefinitely the statute of limitations, but only for five years next after its passage.
    6. Because the Act of 1805 applies to the statute of limitations then enforced, and not to that passed in 1824; and, therefore, the adverse possession of John Meetze, for upwards of twelve years, constituted a good title by the statute of limitations.
    7. Because his Honor, the presiding Judge, erred in charging the jury that the possession of Christian Rail, being by permission, cannot inure to the benefit of the defendant, even though the possession of the latter was adverse.
    8. Because the continued possession of Christian Rail and the defendant, for upwards of twenty-five years, constituted a good title in the defendant.
    9. Because his Honor, the presiding Judge, erred in admitting parol testimony of the existence and contents of the pretended lease for thirty years from the plaintiffs to Christian Rail.
    10. Because the evidence of the existence and contents of said lease was uncertain, vague, and altogether insufficient to rebut the presumption arising from the great length of possession by the said Christian Rail and the defendant, and his Honor should have so charged the jury.
    11. Because his Honor erred in not charging the jury that the declarations of Rail that he would hold the land by possession, his taking out a grant for the same, and having it resurveyed by Sightler in 1828, were sufficient to show that his possession was adverse and not by permission.
    12. Because, if the proof of the alleged lease for thirty years was sufficient to establish it, then the plaintiffs had no right to bring their action to recover the demised premises before the expiration of the lease.
    Boozer, for the motion.
    Pope, contra.
   Curia, per

Evans, J.

By the common law, plaintiff in ejectment might bring as many actions as he pleased. This was restricted by the fourth section of the limitation Act of 1712, (2 Stat. 584,) to a single action; and, in case the verdict and judgment were against the plaintiff, or he discontinued his action, or suffered a nonsuit, or any other way let fall his action, then such trial and judgment thereupon, or discontinuance, or non-suit, or other letting fall the action or suit, shall be conclusive and definitive, on the plaintiff’s part, forever. This was altered by the Act of 1744, (3 Stat. 612,) whereby it was provided that such “verdict and judgment, discontinuance, nonsuit, or other letting fall the action or suit,” shall not be conclusive and definitive on such plaintiff, but, at any time within two years, the said plaintiff, or those claiming under him, shall have a right to commence an action de novo. From this Act it would seem that the plaintiff, whose second action is to be barred, must be the same plaintiff against whom verdict had passed on the former trial, or who had discontinued his suit, been nonsuited, or let fall his action. Now, in law, there is no identity between a corporation and the persons who compose it. A conveyance to a corporation vests the estate in the corporation, and not in the persons who compose it; and actions for wrongs to the estate of the corporation cannot be redressed by an action in the name of the individuals of whom it is composed. It follows from this, that, of necessity, Godfrey and the other plaintiffs in the first action would have been nonsuited, if the case had ever come to trial, because they had no estate in the premises, and could maintain no action to recover the land or damages. There cannot be said to be any identity in the actions. They were both for the same land, but they were not by the same plaintiffs or those claiming under them. There is nothing in the case of Lynch v. Withers, (2 Bay, 115,) which maintains the contrary. In that case, there,had been three actions. The first was in the name of Thomas Smith, the testator, who was dead when the action was brought. This, the Court said, was a nullity, although it had been tried, and, I believe, a verdict found for the defendant. The second was in the name of Robert Smith, the heir at law, in whom the fee vested until the sale by the executors ; and the third in the name of the purchaser from the executors. It was properly held, that the second was a bar to the third, because the plaintiff, in the third action, derived his title through Robert Smith, the plaintiff in the second action, who was, at the time the action was brought, the person seized of the land and entitled to the possession.

But we have not the pleadings before us, and, as it may be possible, by proper statements and averments, to identify the plaintiffs in the first with the plaintiffs in the second action, it is not intended to put the decision of the case on that ground alone.

I suppose that, to make the first action a bar to the second, there must be some legal evidence of the termination of the first suit. No action has any legal end, until there is some judgment of the Court upon it. When a defendant is brought into Court by a writ ad respondendum, he is to remain until discharged from the action by some judicial determination of it. The rules of practice require the plaintiff to file his declaration within a given time; but, if he does not do so, further time may be granted from term to term, and I have known this leave renewed for two or three }rears in succession, and I have no doubt it may be prolonged to a still greater period. The only legal evidence of the termination of an action is a judgment, either that the plaintiff recover, or that the defendant go without day. We think, therefore, the evidence offered at the Circuit Court was no evidence that the plaintiffs had discontinued or let fall their action, or of verdict or nonsuit. This has, I know, been understood to be the law generally by the profession, and I have known more than one case where leave had been applied for to enter up a judgment nunc pro tunc where the plaintiff had failed to prosecute his first action, for the express purpose of pleading it in bar of the second action. The first case of which we have any record is that of Sims vs. De Graffenreid, decided in the Court of Appeals in 1829. The case is not reported, but will be found among the manuscript decisions. In that case, there had been three actions, all of which had been disposed of by nonsuit or discontinuance, or in some other way had been let fall. These were pleaded in bar, and, in a brief of the case, made by the defendant’s counsel, it is said, there was a formal judgment of nonsuit entered up in one of the cases; but, in the report of the case by Judge Nott, who tried it on the circuit, it is said there was no evidence that any nonsuit had been granted. It appeared that an action had been commenced, but how it was disposed of did not appear; and, in the opinion afterwards delivered by him in the Appeal Court,'he says — “ When the plea of former recovery is pleaded in bar, the plea should conclude prout patet per recordum, and the plea must be verified by the production of the record itself. No such record was produced in this case, and therefore the plea was not supported. It is true that a discontinuance, or letting fall the action, is, in the language of the Act, as good a bar as a nonsuit, but then the plea must correspond with the fact” In that case, as in this, it appeared that an action had been commenced, but it did not appear in what way it was ended; and it is clear, from the remarks of the judge, that the opinion of the Court was, that the evidence of the termination of the first suit, two years before the bringing of the second action, should be proved by the production of the record, and that the plea should conclude, as is said, prout patet per recordum. There can be no end of a suit for which the law does not provide an appropriate judgment, whether there be a verdict, a nonsuit, a discontinuance, or a failure to proceed according to the rules of the Court, which, I suppose, is what is meant by “ letting fall the action.” I remember a case, in the Appeal Court in Charleston, some years ago, brought by Benjamin Allston vs. Sing, (Riley’s Cases, 199,) which was abandoned, or struck from the docket for failure to prosecute it: the defendant having promised to give up the land, as was said. On his refusal to do so, a second action was brought, but not until after the expiration of two years. The defendant moved for leave to enter up judgment of non pros., nunc pro tunc, but it was refused, and the plaintiff recovered.

It has been argued that an abatement by the death of one of the parties, is a letting fall of the action, and, as no judgment is entered up in such case, the law does not require it in others. I will not indicate what should be done in such case, but it is very clear that cases of abatement by death do not come within the Act of 1744. That Act only provides for cases which are ended by verdict, nonsuit, or the voluntary abandonment of the suit, as a discontinuance or failure to prosecute. The opinion of this Court is, therefore, that the defendant can take nothing by his first ground.

The second ground is, that there was no title in the plaintiffs. It is true there was no conveyance fiom the devisees of Wads-worth produced on the trial; but the Act of 1810 recites that Burnsides and others had been elected trustees of the school, and that the land had been conveyed according to the direction of the will of Wadsworth. In 1823 the trustees, by their corporate name, filed a bill in the Court of Equity, against John Black, to set aside certain leases, made by their predecessors. In the decrees pronounced in that case, they are treated as the owners of the lands devised by Wadsworth, and the late Chancellor BeSaus-sure signed the decrees, and he was one of the devisees under the will, to whom this land was devised. After such a lapse of time, with these facts, if the question had been made on the circuit, the jury should and would have been directed to presume a conveyance.

On the third ground, I deem it necessary to say no more than this, that the Act of 1805, (5 Stat. 496,) exempts the lands from the operation of the statute of limitations, without reference to those in whom the title was vested. The lands, therefore, in the hands of the plaintiffs, are as much exempt as in the hands of the first devisees.

The fourth ground is, that the Circuit Court erred in charging the jury that the Act of 1805 exempts the lands devised by Wadsworth from the operation of the statute of limitations; and the fifth asserts that the true construction of the Act is only an exemption for five years next after its passage. There can be no' doubt, from the words of the Act, that the exemption was intended to be perpetual. The testator’s design was to found a school to exist for all time to come; and the Act, in the preamble, assigns as a reason for the enactment, the probability that the object of the testator might be defeated by the operation of the statute. The words of the Act are “ that the operation of the Act of limitation shall he and the same is hereby suspended, so far as it may relate to the lands,” &c.

The Act of limitations referred to was, no doubt, the Act of 1712, which was then, and is now, the statute of limitations. It is not repealed, hut only changed, by the Act of 1824, which extends the time from five to ten years, and this is all that is necessary to he said on the sixth ground.

None of the other exceptions to the charge of the Circuit Court have been argued in this Court, and the correctness of the charge is so obvious, that it is not thought necessary to discuss them in this opinion.

The motion for a new trial is therefore dismissed.

O’Neall, Wardlaw, Feost, and Withers, JJ., concurred.

Motion refused.  