
    Jesse Turnipseed vs. Lewis Busby.
    \Vhere the actual possession of one claiming- title under the statute was without .the bounds of the plaintiff’s grant, he could acquire no title by constructive possession to any part of the plaintiff’s tract over which his prior grant run.
    A title cannot be acquired under the statute of limitations, where the party to be affected by the possession had no right to sue.
    A. conveyed a tract of land to B. — B. some time after delivered up the title to A. to be destroyed, and it was destroyed; this does not revest the right in A.
    Aji interrupted possession will not give title.
    
      TRESPASS TO TRY TITLE.
    m. . JLHE plaintiff made out the same title in this case, as in the case against ffcnvkhis, to which the same exceptions were taken, and in like manner overruled.
    The defendant then produced a grant to Stephen Smithy dated 2d February, 1789, which included a part of CurrieV .grant, but the whole of it did not lie within Currie7e grant. lie then proved a conveyance to the defendant from Stephen Smithy dated IGtfc May, 1807.
    
      
    
    
      Andrew.> Smith proved that his brother Stephen, the grantee, cultivated a field at Z. from the date of his grant to the time of the action, but never lived on any part of hir. grant.
    Z. is not within Currie'’s grant, nor the disputed land. — >■ Andrew Smith lived'at T. 3 years under his brother; but T. is not within Currie's grant, nor the disputed land.— Then about. 1st January, 1799, he went to live at X. which is within Currie's grant, and within thé disputed lines.— He lived there under the grantee 4 or S years,-then moved oft and sold his crop to Summer line, who came and took it off, but did not live on the land. His brother Sleph'-r 
      then conveyed the land to Andrew, but tbe conveyance %vas left with Stephen. Andrew then moved on the land again, and lived there one year. Then being pressed by creditors, he delivered the title back to bis brother, in the presence of witnesses to be destroyed, and it was destroyed. Busby then went on the land under Stephen, who conveyed to him, and has lived there ever since.
    The plaintiff then proved the death of Hannahan in 1804, and relied upon the minority of his children as in the other case. The defendant insisted that he had proved an adverse possession prior to the death of Hannahan, and that the statute having once commenced its operation, .nq intervening disability could stop it. The. plaintiff replied that the possession at Z. could not avail, because it was not within Currie’s lines, and was no trespass, so he could not sue Smith. And that - the statute never can operate where the party to be affected by the possession' cannot sue. The same of the possession at T. .
    That the possession at X. within the disputed part began 1st January, 1799, by Stephen under Andrew Smith ; but Stephen did not prove that he lived there 5 years. — ■ He then moved and sold his crop to Summerline, who took off the crop, but did not take possession — so the possession was broken. Andrew then got a title from his brother and went on again ; but it is not certain that hé went on before Hannahan's death. Suppose however he did; he remained one year, his title then was destroyed, and he went, off, and Stephen conveyed to Busby; but Busby’s possession and Andrew’s cannot be connected, because Andrew Smith held for himself under title, and Bus-by held under Stephen Smith.
    
    The destruction of Stephen’s deed to Andrew could not change the prior rights of the parties. Stephen did not thereby again get title.
    It was contended by the defendant that there was no delivery of the deed to Andrew, his brother; that it was made at a time when Stephen was ill, and to be considered as a donatio causa mortis ; but Andrew himself said that his brother intended him to have the land any how. ■whether he lived or died. His brother kept the deed, because he, Andrew, was from home. Besides, when they were going to destroy it, Stephen thought it necessary to deliver it up to Andrew, who then delivered it to him t© be destroyed, which shewed that both regarded it as an absolute conveyance.
    There was not then 5 years continuous possession proved prior to Ilannahan's death, and the possession relied on since his death cannot be connecte'd with that before it.— The minority of Hannahan's children forms then a complete protection to the plaintiff’s title until 1817, when the executors sold to Robertson.
    
    The case was tried before Mr. Justice Gantt, Spring Term, 1821, for Richland district, who charged in favor of the plaintiff, and the jury so found.
    The defendant appealed on the same grounds, in relation to the admissibility of testimony thought to have been illegal, as in the former case against Hawkins ; with the additional grounds that Stephen Smith, as well by himself as his tenants, was in actual adverse possession of part of the lands granted to himself upwards of five years before the death of Ilannahan; and further that he was in like possession of a part of the land granted to himself, and also included in Currie's grant, upwards of five years before the death of Ilannahan.
    
   Mr. Justice Gantt

delivered the opinion of the court.

The opinion already delivered in the case of Turnipseed and Hawkins, is expressive of the Opinion of the court also in this /case, so far as respects the evidence which was permitted to go to the jury.

As regards possession, the occupancy of a part of the land by Stephen Smith, included in his grant, and not constituting any part of the land claimed by the plaintiff, is not such a possession as will divest the right of the legal owner. The owner of land is only injured when a trespass is actually committed thereon. Stephen Smith's possession therefore of a part of his own land would never, by any just construction of the statute of limitations, give him a title to another’s land over which he had never exercised any act of ownership. As regards his possession of a part of the land included in Currie's grant, the evidence in relation to it, is not, in my opinion, sufficient to shew that a right could thereby have been acquired under any construction that could properly be given to the statute.

Gregg, for, the motion,

De Saussure, contra.

The possession first acquired was neutralized by the conveyance to Andrew, and there does not appear to have been any possession afterwards which could affect the claim of the plaintiff to the land which he has purchased.

It is the opinion of the court that the motion made in this case should fail, and that the verdict remain. ■

Justices Colcock, Johnson, Huger and Richardson, concurred.  