
    
      Daniel C. McLeod vs. J. Rogers. The same vs. A. Gardner.
    
    Under the 30th section of the Act of 1731, 3 Stat. 303, the copy in the register’s office of a deed of land, is good evidence, on proof of the loss of the original, and the subscribing witnesses need not be examined. 
    
    A continuous adverse possession of land for twenty years by different persons and at different times, is sufficient to raise the presumption of a grant.
    The mere fact that a grant was taken out within the twenty years by a party not in possession of the land, is not per se sufficient to rebut the presumption of a prior grant, arising from a continuous possession for twenty years.
    
      Before Evans, J. at Darlington, July, extra Term, 1845.
    The report of his Honor the presiding Judge is as follows.
    “These cases were tried together; both depended on the same title. The plaintiff claimed under a recent grant to him, dated 7th January, 1842, for 39 1-2 acres.
    “The defendants were the tenants of Ervin & Crawford, ' who were the real defendants. There was some dispute about the location, but that is unnecessary to be noticed. The land in dispute had been a long time in occupancy, by various persons, but no grant older than the plaintiff’s was produced. In 1816, one Bosman, who owned the adjoining tract, sold this land, and conveyed it by deed, to one Cook, as 16 acres. Cook took possession the same year, and remained in possession until 1821, when he sold it to one Copeland Pierce, as the witnesses said, but no deed was produced. On the 23d March, 1822, Pierce conveyed the land to one Thomas Price, who immediately took possession, and lived on it till he died in 1835. After his death, his children or their tenants had possession until the 3d of December, 4839, when Mary, Elizabeth and Charity Price, three out of four of Thomas Price’s heirs at law, conveyed the land to Robert J. Price, who conveyed It to Ervin and Crawford, on the 21st of October, 1841. in whose tenants the possession has remained ever since. These actions were brought 19th of October, 1842. It appeared that the land, after Thomas Price’s death, was, sold under fi. fa. at the suit of Moses Sanders, who bid it off, and subsequently gave it to Price’s daughters, to whom the sheriff conveyed it. At the time this conveyance was made, the present plaintiff, as a deputy surveyor, made a plat of the land for the Prices. It is probable that he then discovered that they had no grant, as no such idea seemed to have been entertained before. The original deed from Pierce to Price was not produced. It had been recorded, and the register’s book was received in evidence. Search had been made among the papers of Price, the grantee. One Cook proved that he was present and saw Pierce deliver the deed to Price. He read it. It was for 16 acres. The price was $200 ; one B. Rogers was one of the subscribing witnessesand that Price went into immediate possession under the deed. In all these particulars, the copy corresponded. Rogers was dead, but the other subscribing witness was living in the district, but was, at the trial of the case, absent from the State. I thought the evidence of loss of the deed, of its existence, and ils identity with the copy, sufficiently proved by Cook, and that McCall could have proved nothing more satisfactory. But in the view which I took of this case, it was wholly immaterial whether this deed was received or not. ’Independent of the deed, it was proved that Price went into possession in the spring of 1822, more than twenty years before the commencement of these suits. I considered, and so charged the jury, that this length of possession in Price, and those who claimed under him, was sufficient to authorize the presumption of a grant to Price, or some other legal title, at the time his possession commenced. I was of opinion, that in order to create this presumption, it was not necessary the possession for the whole time should remain in one person, as had been decided in King vs. Smith, 
      
       in relation to the statute of limitation. The statute acts as a forfeiture of the owner’s title for his laches 
      in not asserting it within the time of limitation. The trespass ripens into right, after ten years, but until it becomes a right, it is not transmissible. The idea of trespass is not embraced in that of presumption. The original possession is presumed to have been a rightful one, and not a trespass. After the lapse of twenty years, the law presumes that Price had a legal title when he entered, and this title he could convey to his grantee. Not so the trespasser. Cook’s possession was six years older that Price’s, but as there was not proof he had conveyed to Pierce, I did not feel at liberty to go beyond Price’s possession, in computing the twenty years.
    “The plaintiffs’s grant is dated two or three months before the completion of the twenty years, but he did not set up any claim by action until six months after the expiration of twenty years from the time Price took possession. This is the foundation of the third ground in-the notice. But I did not consider that fact as material. After twenty years the law presumes an older grant, and the plaintiff’s grant was a mere nullity. The jury, under my charge, found a verdict for the defendants.”
    The plaintiff appealed, on the following grounds.
    1. Because his Honor allowed a copy of the deed Trom C. Pierce to Thomas Price to be offered in evidence, which the plaintiff objected to as incompetent testimony.
    2. Because his Plonor charged the jury, that a continuous possession of land for twenty years, although by different persons at different periods, was sufficient to establish proof of a grant by presumption.
    3. Because his Honor instructed the jury, that the presumption of a grant had been éstablished, although twenty years had not elapsed before the date of the grant for the same land to the plaintiff.
    
      Moses and Dargan, for the motion.
    
      
      
         By an Act passed in 1843, 11 Stat. 255, a certified copy of a conveyance of real estate,- which has been recorded ten years, may, after thirty days notice, be given in evidence, on oath by the party that the original is lost, &c. Vide Linning vs. Crawford, 2 Bail. 296, 591. R.
    
    
      
      
         Rice R. 10.
    
   Curia, per Evans, J.

. By the 30th section of the Act passed in 1731, for “the remission of arrears of quit rents,” (fee. it is enacted, “that the record of .all grants and deeds duly proved before a justice of the p.eace according to the usual method, and recorded, or to be recorded, in the Regis» ter’s office of this Province, and also the attested copies thereof, shall be deemed to be as good evidence in the law, and of the same force and effect, as the original would have been if produced, in all the courts of law and equity.” 3 Stat. 303. These words taken per se would authorize the admission of copies in all cases instead of the originals; but in the case of Purvis vs. Robinson, 1 Bay, 493, it was decided, on the construction of the whole Act, that the copy was evidence only on proof of the loss of the original. This is the only restriction or limitation which has ever been put on the comprehensive words of the statute, and the propriety and correctness of this restriction is much questioned in the reporter’s note to tire case of Peay vs. Picket, 3 McC. 325. In this last case, in McMullen vs. Brown, Harp. 76, and many other cases, copies from the register’s office were admitted without any other proof than the loss of the original. But in the case of Dingle vs. Bowman, 1 McC. 177, the identical question made in this case was decided. There, on proof of loss of the original, a copy from the record was offered in evidence. If was insisted that the subscribing witnesses should be produced, and the circuit judge, without reference to the statute, rejected the copy as inadmissible without the examination of the subscribing witnesses, and nonsuited the plaintiff. But the Appeal Court set aside the nonsuit, on the ground that although such evidence might be necessary at common law, which always requires the best evidence, it was not necessary under the Act of 1731, before recited. The same question was again decided in the case of Turnipseed vs. Hawkins, 1 McC. 272. I have thought it proper to say thus much on this question, because it is gravely made by one of the grounds of appeal, and the case of Dingle vs. Bowman seems to have been lost sight of, although it is not necessary to the decision of the case under consideration, as in cases of presumptions arising from length of time, it is wholly immaterial whether the possession commenced with or without a deed. Ever since the case of McClure vs. Hill, 2 Mill. 420, it has been regarded as the settled law in this State, that twenty years continuous adverse possession is as good a title as a grant or a deed* where there is an absence of any of those facts which go to rebut the presumption. After a possession continued for so long a time, undisputed by any and acquiesed in by all, the law will presume that the possession in its incipi-ency was rightful, and that the tenant when he took possession did so under a grant or deed or whatever may be necessary to invest him with the legal title. He who claims under a presumption of a grant is entitled to stand on the same ground as if he produced the grant. The law sub-, stitutes the presumption in the place of the grant. The case is wholly unlike a title under the statute of limitations. One who claims under the statute was a trespasser throughout. His possession began in a trespass, and so continued until the statutory time had run out; and therefore it was properly held, in King vs. Smith, that until his title was perfected he could not convey, and consequently that possession, or in other words several distinct trespasses, could not be joined together so as to defeat the title of the true owner. The reasons for this do not apply to one claiming under a presumption arising from length of time. He is regarded as claiming under a grant or deed co-existent with his possession. This ground was not pressed in the argument, and was given up by one of the learned counsel who argued the case, but it was contended there was something in the third ground, viz. that the State had granted the land to McLeod before the twenty years had run out, and that this rebutted the presumption arising from the acquiescence of the State. It does not seem to me this circumstance can make any difference. The presumption does, as he supposes, depend, in part at least, on the acquiescence of the owner for so long a time. But the grant to McLeod cannot be considered as any assertion of title to the land. Every one knows that a grant may be obtained for any land, whether before granted or not, or occupied or unoccupied. It is the act of the grantee, from which no inference to rebut the presumption can arise. It can make no difference that during a part of the time the land was owned by successive owners. Such a circumstance would not prevent the statute of limitations from running where there was no disability to sue. It has never been considered as an' objection in the analagous case of a right of way, that the land over which the way passed had had successive owners within the period of prescription. I should consider the presumption as strengthened, rather than weakened, by the fact that successive owners had acquiesed in the possession as rightful during the whole period of twenty years.

This court is of opinion there was no error in the instructions of the circuit court on any of the points excepted to in the notice.of appeal, and the motion for a new trial is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  