
    Kelly vs. Hare.
    If land secured by occupancy be entered by and granted to another person, without notice of a design to enter the land was given by the enterer to the occupant, the entry and grant aré void for so much as the occupant had in his possession at the date of the entry.
    Although the paper title of the defendant may cover land whieh belongs to the plaintiff, yet the plaintiff is entitled to a verdict and judgment for so much only as is in the actual possession and occupancy of the defendant belonging to plaintiff.
    On the 9th day of July, 1838, Achilles Hare instituted an action of ejectment in the circuit court of Jackson county against Ritta Kelly and John J. Kelly. The defendants pleaded not guilty, and issue was joined thereupon. On the 17th day of July, 1839, the cause was submitted to the jury.
    The plaintiff read to the jury an entry in the following words:
    “State of Tennessee, Jackson county. Orville P. Matthews enters one hundred acres in said county of Jackson, beginning at a beech, running east and south for complement, so as to include the house and improvement where the widow Plat now lives. 2d January, 1826.
    Orville P. Matthews, Loc’r.”
    The plaintiff also read a grant from the State of Tennessee to Achilles Hare, assignee of Orville P. Matthews, for one hundred acres of land, run out in conformity with the entry above set forth, and dated the 17th day of July, 1837. The plaintiff also proved that the calls of the plaintiff’s grant would include the place in controversy; that the widow Flat lived within the bounds of the calls of the grant at the date of the entry by Matthews; that the place where she lived was “known notoriously” in the neighborhood at that time as the place where the widow Plat lived; and that the defendants occupied at the time this suit was brought a small field of about half an acre at the same place.
    The defendants read an entry in the following words:
    “State of Tennessee, Jackson county. John Johnson Kelly enters one hundred and sixty acres of land in said county on the dividing ridge between Doe creek and Roaring river, beginning on a beech tree standing on the north side of Cave jg0n0w> thence running east, thence south, thence west, thence north to the beginning comer, including an improvement made by Abijah Kelly whereon the widow Flat once lived, the place called Gilbo. July, 1832.
    Jno. Johnson Kelly, Loc’r.”
    This land was surveyed on the 2d day of December, 1833, and granted by the State of Tennessee to John Johnson Kelly on the 27th day of August, 1835.
    The defendants proved that this grant covered all the land occupied by them at the commencement of this suit; that the place was the same where the widow Flat lived, and was ‘'‘notoriously known” by the name of the pla.ce where the widow Flat lived, and was also known by the name of Gil-bo. It also appeared in proof that Abijah Kelly, the father of John J. Kelly, erected a house and made some other improvements on the premises in dispute in the year 1824, and in the spring of 1825 put the widow Flat and her son in possession o,f them. They continued in possession under A. Kelly till February, 1826. A. Kelly always claimed a right pf occupancy, and the entry was made in the name of his son, John J. Kelly at the instance and request of his father, A. Kelly. At the time Matthews made his entry upon the place, the widow Fiat was in possession, holding under Kelly, and no notice was given by Matthews to the occupying claimant of his intention to enter the premises.
    The honorable Á. B. Caruthers, judge of the fourth circuit, charged the jury as follows:
    “1. The’ entry of Matthews is neither vague nor special; it is indifferent and may be made certain by proof that the object called for, to wit, “the place where the widow Flat lived,was sufficiently known to identify its locality, and thus enable subsequent enterers to avoid it; if it has not this sort of specialty the grant cannot be connected with it, and the plaintiff fails.
    “2. If, at the time Matthews’' entry was made, Mrs. Flat was in actual possession of any portion of the premises, the grant founded on it was void as to her unless he had given her thirty days notice of his intention to enter.
    
      “3. The extent to which it would be void seems to be de- , . , , ,, . • ,1 r n • terrmned.by the supreme court m the case or -. or to that determination the opinion had prevailed in the adjudications of this circuit that the act of 1S24 secured to the occupant of vacant lands a right to enter one hundred and sixty acres in preference to all others who did not give him thirty days notice. The act was supposed to intend a permanent provision for priority to settlers to the same extent that the act of 1823 secured a priority for a short time; but the decision of the supreme court is understood to limit the right of the occupant to the extent of his actual improvement, and under the authority of that decision Hare’s grant is valid except as to the improvement in the possession of ’Mrs. Flat at the date of the entry.
    “4. If she was in possession for Kelly, and when she left yielded the possession to him, then he had the occupant right, and if he made the entry for his son. it vested that right in his son, and his title would thus be superior to Hare’s to the extent of the occupancy; for independent of any right that might arise out of the relation of landlord and tenant, the occupant might waive his right to thirty days notice in behalf of any person, and thus make the title derived from that waiver good against one who had entered without giving the notice.
    “5. The defendants’ counsel contend that as the improvement has never been extended since the entry of Matthews was made, and as they show a paramount title to that by virtue of occupancy, they are entitled to a general verdict of not guilty, for the reason that the plaintiff fails to show any actual possession taken by defendants of any other land included in the plaintiff’s grant. If the defendants held under the grant of one hundred and sixty acres to John J. Kelly, their possession was an actual possession to the boundaries described in the grant; and if the improvement which they had enclosed and in cultivation was within the plaintiff’s grant of one hundred acres, and the whole of said one hundred acres was also covered by the one hundred and sixty acre grant under which the defendants were holding and claiming the land, it was an ouster of the plaintiff as to the whole of his one hundred acres, in other words, it Was an actual possession adverse to that of the plaintiff, and entitles the plaintiff to a verdict for all the residue of his grant not covered by the improvement; such a possession would have barred the plaintiff’s title if it had continued seven years. If the defendants were not claiming to hold the land by virtue of the grant, but were only claiming to the extent of the improvement, then it was only an ouster of the plaintiff, an actual adverse possession to that extent, and the defendants showing title to that would be entitled to a general verdict; in the absence, however, of proof to the contrary, a possessor of land holding a grant for it is presumed to hold under his own grant.
    The jury returned a verdict as follows: “The defendants are guilty of the trespass and ejectment in the plaintiff’s declaration mentioned,” “except that part of the premises contained in the improvement which was made prior to the entry under which the plaintiff claims, which improvement is the same that existed at the commencement of this action; and as to that part contained in the improvement as aforesaid the defendants are not guilty.” Judgment was entered in conformity with this verdict, from which the defendants obtained an appeal in the nature of a writ of error to the supreme court.
    
      Cullom, for plaintiffs in error.
    
      Hubbard, for defendant.
   Turley, J.

delivered the opinion of the court.

In this case the plaintiff in ejectment claims title to the premises in dispute by a grant from the State of Tennessee bearing date the 17th day of July, 1837, upon an entry made in 1826; the defendants by a grant to their father bearing date 27th August, 1835, upon an entry made in July, 1832. This would give the plaintiff the superior title, his entry being the oldest; but the father of the defendants was entitled as an occupant previous to the date of the plaintiff’s entry to a portion of the disputed premises, of which the defendants were in possession at the date of the suit. No notice a design to enter the land was given by the plaintiff to occupant, as is required by the act of 1823, and therefore the entry and grant thereon are void for so much as the occupant had in possession at the date of the entry. The proof shows that the defendants had not extended their possession beyond that of their ancestor.

And the question now arises upon that portion of the charge of the court below which says, “that if the defendants held under the grant of their ancestor, their possession was to the extent of the grant; and that inasmuch as the statute of limitations would have perfected their title in seven years, the plaintiff would have a l’ight to sue although they were only in the actual possession of the occupancy belonging to their ancestor.” This charge is erroneous; although the statute of limitations, by its express words, makes a possession co-extensive with the boundaries of the paper title under which it is taken, yet it does not authorize a suit unless the possession is in violation of the actual rights of another; therefore, if titles conflict and the person in possession has the legal right to that upon which he has his foot, no suit can be brought against him although his title may cover land which belongs to another; the only remedy in such a case is for the person who has the legal right to take the actual possession, which stops the operation of the statute. The judgment of the court below will therefore be reversed, and the case remanded for further trial, when the judge will instruct the jury that if the defendants were not in the actual possession of more of the land in dispute than the occupancy of their ancestors a verdict must be found in their favor.  