
    Darling Jones ads. Jos. Mickle et al.
    
    
      Tenant, accidently and without the consent of the landlord, extended her possession over the ideal line of the demised premises and ■ enclosed a very small portion of the land in dispute; of which the landlord held a junior grant: Meld th:it this possession of the tenant jor five years would not enure to the benefit of the landlord, so as to give him a title to the disputed land by the statute of limitations.
    
    Trespass to try title. The defendant derived his title from a grant to the Catawba Company, dated in 1789; and the plaintiff theirs from a grant to Robert Elkins, dated in 1805, for 183 acres. The defendant having derived his title from the older grant, the only question in the case was, whether the plaintiffs were entitled to hold under the statute of limitations. This question arose out of the following state of facts; Elkins bad an undisputed title tó a tract of land separated from this, o'nly by an ideal line, on -which he permitted his daughter, Mrs. Lowry, to. reside in the character of his tenant. About 14 or 1-fi years ago, and more than 5 years before the bringing of this. action, in extending the improvements on this place, and connected with it, Mrs. Lowry cleared and enclosed in-a fence, a small part of the disputed land (about the extent of which thcr witnesses differed from the one sixteenth to half an acrej being-ignorant that she had gone beyond-the line of the-i-ract on which she resided. When Elkins discovered this fact, he expressed, his disapprobation of it in strong terms, and gave as a reason,’ that it might involve him in a law suit, which lie- was disposed to avoid. In the year 1817, he stated to her that he had been advised that he could hold the laud, and he then directed her to hold on the possession^ but she abandoned it about thr.ee years afíer. The question was, whether this wás such a possession as vested the title in Elkins under the statute of limitations-. The presiding judge- charged the jury that it was not, and directed them to- find for the defendant, but they found & verdict for the plaintiff. Tins was a motion for a new trial, on the ground that the verdict was contrary to law;- inasmuch as there -was no proof of an adverse possession in Elkins, for five years before the commencement of the action.
   The opinion of the court ivas- delivered by

Mr. Justice,Johnson,

; - There is no pretence that Elkins ever was in the personal possession of any part of the disputed, land. The only possession relied on, was that of Mrs. Lowry. It will not he denied that the possession o-f a tenant will operate as the possession of the landlord, and enure to his benefit, as effect sally as if he had personally he-ld the possession-of the- premises;, but this can only hold good as to die' premises leased.- if the tenant ga beyond them, he alone is responsible for the trespass, and the possession, if available, must enure to his benefit. The premises leased to Mrs. Lowry, was the land to which Elkins had an undisputed title; and it was proved beyond doubt that her inva^ sion of the disputed land was unauthorised by him: he was dissatisfied with and-disclaimed it, and it wasnot until 1817, that ■she could be regarded-as holding in his right. Its continuance for three years only, is not a sufficient bar to -the defendants right. Confining the possession of Mrs. Lowry to herself and giving to it the greatest possible effect, it could only extend to the small spot actually inclosed; as she had no written instrument which could give it a greater extent; and the verdict is then wrong, as the plaintiffs do not derive their title from her and it -is for the whole tract of 163 acres.

Holmes, for motion.

Levy, contra.

There is another view equally inimical to the possession of Airs. Lowry. The line between the two tracts ivas not clearly defined, and it ivas obvious that the possession is accidental and unintentional. She was ignorant where the line ran, and the possession was so limited in its extent as to divest it of that notorious and adverse character necessary to give it effect; and thus considered she would not be entitled to bold even to that extent. Motion granted.

Colcoclc, Richardson, Gantt, and Huger. Justices, concurred.  