
    Hightower vs. Smith and Wife, Lessee.
    
    A and B owned adjoining tracts of land, A claimed under llie oldest grant; B’s grant called for the line of A’s tract. A had been in possession of the disputed part for more than seven years before suit brought: Held, that the possession of A, though beyond the line, was a good bar under thestatuie of limitations.
    This was an action of ejectment brought by Smith and wife against Hightower, to recover a small slip of land. The lessor of the plaintiff claimed under a grant to Lei-per’s heirs, dated in 1793, which called for the line of William Collinsworth’s grant. Mrs. Smith, the wife of Alexander Smith, the lessee of the plaintiff, was the only child of Leiper, to whose heirs the land had been granted. The only dispute was on the line of Collins-worth’s grant. The defendants were proved to be in possession of tlio land in dispute. The defendants claimed under Collinsworth’s grant, which was dated in 17S8, and called for trees. The defendants then proved that they, and those under whom they claimed, had been in possession of the land in dispute for more than seven years before suit was brought. There was much proof introduced on both sides to show when the real line of Collinsworth’s grant was originally surveyed, but a repetition of it is unnecessary, as the opinion of the court is not based upon the evidence of boundary and locality. The judge, among other tilings, charged the jury that the statute of limitations did not apply in this case, as it was a dispute about the locality of Collinsworlh’s line, and if they-believed the land in dispute was within the lines of plaintiff’s grant, they must find for the plaintiff. The jury found a verdict for the plaintiffs, and motion having been made on behalf of the defendants for a new trial, and overruled, they appealed, in the nature of a writ of error, to this court.
    Marshall, for plaintiff in error.
    
      W. J3. Anderson, for defendants in error.
   Peck, J.

delivered the opinion of the court.

Amongst other things, the court charged the jury that the statute of limitations had nothing to do with the question for them to try, that it was a question of boundary; and as the plaintiff claimed under the younger entry, calling for the defendant’s line, the defendants could not be in possession under their grant, if the jury believed the land in dispute was in the plaintiff’s grant.

The proof of possession by the defendants (below) of the land in dispute, for moro than seven years before bringing _the action of ejectment, is clear and unquestioned; nor is there any thing shown in this record winch makes a case, that, under the act of 1819, will save the bar. The consideration, therefore, of the statute of limitations should not have been taken from the jury.

On the evidence, in the case louching the question of boundary, we forbear to say any thing, leaving that subject open, to be considered of on another trial, uninfluenced by any opinions we may entertain on that point.

Judgment reversed.  