
    Mary Arthur v. Friday Arthur.
    A deed may be presumed from length, of time.
    Tried before Mr. Justice Johnson, at Granby, October Term, 1819.
    This was an action of trespass, to try the title to a tract of land, part of a tract originally granted to John Struck, in 1734, and was usually called the White House Tract. Struck conveyed to Henry Kartell, who died in 1768Í and, by will, devised the land to his widow, who, before the war of the revolution, intermarried with William Arthur, The defendant was one of the issue of this marriage. William Arthur conveyed the land to Joseph Kershaw, in 1777, by lease and release, in which his wife joined. But there was no written evidence that she ever renounced her estate or inheritance in the land, before a judge or any other person, authorized to take the same, in the manner prescribed by the Act of the Legislature ; and in 1810, she conveyed all her lands, without particularizing these, to the defendant, on the consideration of natural love and affection. So that the question was, whether, under the circumstances, the jury were ^authorized to presume that she had so renounced her p^q-r estate or inheritance, as to perfect the plaintiffs ? That being the only *■ objection to her title.
    The circumstances relied on to support this presumption were these : William Arthur, the husband, died in 1786, and his widow remained on the adjoining tract until within a very few years, and never pretended any claim to this; and it was universally recognized in the neighborhood as the land of Kershaw. Jesse Arthur, one of her sons, who lived in the family, negotiated a purchase of tlie land from John Kershaw, into whose hands it had fallen, and for his uncle, Hargrove Arthur, in 1800, as he believed, with the knowledge of his mother and the defendant; and no dispute about the title was then heard of. And Hargrove Arthur, from that time to his death, in 18U7, although he did not plant it, nged the timber on it, and it was known as his ; and Elisha Daniel was put into possession by him, about 1808, who cleared and planted a few acres, and remained there two years; at whose house both the defendant and his mother were accustomed to visit frequently, and were aware that he had contracted to purchase it. Vet, under all this evidence of a hostile claim, the right of the defendant or his mother was never asserted, until after the death of Hargrove Arthur. There were some circumstances which, when connected with the general deed of the defendant from his mother, who was very old and infirm, for all her lafids, without describing these lands, and considerable personal estate, in exclusion of her other children, and that founded,- too, on the consideration of love and affection, that she was not conscious of having conveyed them.
    The jury found a verdict for the plaintiff; and a motion, founded on the evidence, was made for a new trial.
   The opinion of the Court was delivered by

Johnson J.

The doctrine of presumption, arising from length of time, is one which ought to he cherished so long as it >;'is used for the - purposes pf justice ; and there is none in our whole system which is better calculated to answer that purpose. In this case, the plaintiff has derived a clear and distinct title from the original grantee, with the exception of the deficiency in the deed from the. William Arthur' to Joseph Kershaw, in which his wife, to whom the land belonged, acquiesced, by joining in the deed, but did not, so. far as is positively proved, renounce her estate and inheritance in the manner pointed out by "the Act of the Legislature; and the question is; whether the jury had the power, under all the circumstances, to presume that she did.

The doctrine of presumption is very ably considered in the opinion delivered by my Jate brother Cheves, in the case of M’Elwee v. Hill, decided in this Court, and reported in 2 M. Const. Rep. 424, under the name of M’Clure v. Hill, in which a grant was presumed under a possession not exceeding thirty years, under circumstances which I think raised a pretty strong presumption, that there never had been a grant. And in the case of the lessee of Alston v. Saunders, 1 Bay, 26, a grant was also presumed from length of possession. In the case of Tarrent v. Terry, 1 Bay, 239, when a party stood by and saw another ere.ct valuable improvements on his land, supposing it to be his own, the Court held he was not entitled to recover.

I am aware that the principle of this doctrine is founded on long possession generally ; but when the possession is not the most notorious, I think it ought to be supported, when sustained by circumstances as strong as are exhibited in this case.

They are these: The defendant’s .mother, under whom he claims, and himself, have acquiesced in the plaintiff’s title, by not pretending any claim to it for more than forty years. She had given a pledge to Joseph Kershaw, that she would do whatever was necessary to perfect the title' by joining in the deed with her husband — in the lease and release. And the country has, since that period, passed through an eventful revolution, and was for a long time in possession of *the enemy, who spared nothing that could be of service to the citizen. The possession of *- Hargrove Arthur by his tenant, and his continued claim and exercise of acts of ownership over it, for the last nineteen years, and above all, the uncertainty whether the defendant’s mother, by the general deed which she gave him, did intend to disturb, this claim, raise an almost irresistible presumption in favor of the plaintiff.

Egan and Gregg, for the motion. Starh and Blanding, contra.

I am, therefore, of opinion that the motion ought not to prevail.

Colcock, Nott, Gantt and RichaRdson JJ., concurred.

1 McM. 448; 11 Rich. 425, and cases cited there; 3 Strob. 451; 2 Strob. 552.  