
    
      William J. Whaley and B. S. Whaley, devisees of William Edings, vs. Joseph Whaley and Edward Whaley, administrators of B. Whaley.
    
    1. A tenant entering upon land by the bare permission of the landlord, and paying no rent, in order to claim by adverse possession, must disclaim the tenancy, and give notice of thatfact to'the landlord.
    3.The statute of limitations cannot run until a knowledge of the disclaimer is brought home to the landlord.
    3. When a party claims by the statute, he is required to shew at what time he took possession of the land, and how long he has held it; and when a tenant claims to hold adversely, he must shew when that intention was made known to his landlord..
    4. Where A entered permissively upon the land of B, and remainedin possession until his death, a period of thirteen years, the finding of the jury, that A had not acquired a title by the statute of limitations during the last ten years of his life, necessarily established that A’s possession, in its inception, was permissive and not adverse. Thepossession of his administrators, subsequent to his death, MU immaterial, the law presuming the termination to be like the beginning.
    5. After a great lapse of time, and an omission to pay rent, a dissolution of the relation of landlord and tenant might be presumed, but from the finding of the jury, such presumption could not arise in this ease.
    6. Where one enters and holds as a mere tenant at will, by the title of another, he is to be distinguished from a child claimingto hold under the statute of limitations by a parol gift from a parent, for in the latter case the relation of landlord and tenant is not acknowledged.
    
      Before Earle, J., Charleston, May Term, 1841.
    Report of the Presiding Judge.
    This was an action of trespass to try titles, instituted in pursuance of a decree in chancery, pronounced in a cause there, wherein the executors of William Edings were complainants, and the administrators of Benjamin Whaley, with others, were defendants. The proceedings there were in evidence, and will be resorted to again if necessary ; but it is not necessary further to set them out in this report. The land in dispute was claimed, by the executors of Edings, to have been part of the estate of their testator at his death, and to have been devised to the plaintiffs in this suit. The defendants here, who are the administrators of Benjamin Whaley, and were also defendants in chancery, claimed the land, of which they are in possession, to be a portion of the estate of their intestate, and to belong to his heirs at law.
    The seisin of William Edings was admitted, for the title of both parties was derived from him. There were certain other admissions, in writing, by both parties, of which I have no copy or note, if deemed material they will be appended to this report. Benjamin Whaley, the defendant’s intestate, on the 30th March, 1819, intermarried with Eliza Edings, the daughter of William Edings. The plaintiffs in this action, William J. Whaley and Benjamin S. Whaley, were the only issue of that marriage, and their mother died 26th June, 1823, leaving her husband and them surviving. Benjamin Whaley, the father, married a second time, in 1825, and on the 11th March, 1832, died, leaving his widow, and three other children of the second marriage surviving. The land in dispute, an estate on Sian’s Island, was, put in possession of Benjamin Whaley, on his marriage with Miss Edings, in 1819, and so remained until his death, in 1832, when the defendants, his administrators, entered, and were in possession at the trial. After his death, William Edings, who had never conveyed by deed to Benjamin Whaley, executed his last will and testament, dated. 20th May, 1834, with a codicil thereto, dated 27th March, 1836, by which he devised the estate in question to the plaintiffs, his grandsons, and died in April, i836. The question, therefore, was, whether the title of Benjamin Whaley, deceased, and his heirs at law, was perfected under the statute of limitations by the alleged gift and long possession.
    The following evidence was offered:
    
      -- Jenkins, was intimately acquainted with Benjamin Whaley, from his marriage in 1819, to his death in 1832; he was in possession of the estate on Sian’s Island, using it as his own ; spoke of it as his own, and it was so considered ; a man of fortune, lived on Edisto ; it was understood that he acquired this estate by marriage, as it had belonged to Mr. Edings ; the crops made there were sent to market in Whaley’s name; since his death the estate had been in possession of the defendant; an estate on John’s Island has been in the possession of Mr. Fripp, and another called Indian Fields, in the possession of Mr. Chisolm; the circumstances of their possession were the same as Mr. Whaley’s ; (they were other sons-in-law of Mr. Edings;) the possession understood to be in right of the wife; never heard any question made, whether or not a deed had been executed; it was considered as property that came by his wife; he did not live there, and. made no expensive improvements there ; none but such as were necessary to the enjoyment of the estate ; there were no unfriendly feelings between Whaley and Edings, both respectable, and Edings a very conscientious man.
    
      Edioard Matthews. — Whaley spoke of it as his place; the crops as coming from Ais Sian’s Island place; it was so considered and spoken of on the island, as a place that he was in possession of by marriage; never heard any question about it until some dissention took place; Mr. Fripp had the same sort of possession on John’s Island, and Mr. Chisolm of Indian Fields ; he supposed the place to be Mr. Whaley’s but had no knowledge of the terms; the fact of its remaining in the possession of Whaley after the death of his first wife, led to the belief that he had an interest in it; from his general character, would have supposed Mr. Edings would have secured the estate to his daughter and her children ; there were ill feelings before the death of Mrs. Whaley, which continued afterwards.
    
      Wm. Rice, Esq. — Was intimate with Whaley from 1825 ; he asserted his claim to the land ; spoke of his intention to claim it by possession, frequently, and in presence of other persons; he and Edings were unfriendly, and did not speak to each other.
    
      B, R- Carroll. — Was intimate with Mr. Edings for several years before his death ; described his temper and disposition ; he was always averse to dispose of his property so as to be irrevocable; would never make children independent ; he never had, and never would put it out of his power to dispose of his property as he pleased at his death.
    
      Mr. Matthews recalled. — Mr. Edings was much pleased with the marriage of his daughter to Mr. Whaley; as he was likewise satisfied with the marriage of his other daughters to Mr. Fripp and Mr. Chisolm. It was understood or admitted that these gentlemen did not claim to have acquired title to the estates put in their possession by Mr. Edings. ,
    I submitted the case to the jury, with such instructions as I thought it called for, and to which, generally, there seems to be no exception. The question turned on the nature of Whaley’s entry, and the ■ character of his possession after-wards ; whether merely permissive, or adverse, it was clear he did not enter as a trespasser; and there was no proof of his having become so afterwards. It was equally clear that there was no proof of an express gift; and it was for the jury to determine whether the circumstances were such as that they would infer it. If the possession under the proof could perfect the title, it was sufficient in 1824; doubly so in 1832, at the death of Whaley. If it was not so, then I did not perceive the importance of the subsequent possession of the defendants, except as a fact or circumstance going to strengthen the inference that there had been a gift of the land to Whaley. The force of it, in this point of view, was admitted and pointed out. But if the title of Whaley was imperfect at his death, the subsequent possession of the defendants could not be connected with it, so as to make it perfect.
    The jury found for the plaintiffs.
    The following were the admissions, in writing, on the trial of the cause, (referred to by the presiding Judge in his report,) under the signatures of the respective counsel.
    Defendants admit,—
    1. The seisin of William Edings, on 30th March, 1819.
    
      2. The marriage, on that day, of Benjamin Whaley and Eliza Edings, the daughter of the said William Edings.
    3. The death of said Eliza Whaley, (formerly Edings,) on 26th June, 1823, leaving issue two sons, William James and Benjamin Seabrook.
    4. The second marriage of Benjamin Whaley with Maria Fernalde, 5th April, 1825.
    5. The death of Benjamin Whaley, 11th March, 1832, leaving issue of the second marriage, three sons, Edward, Joseph and Francis, and leaving his widow, Maria Whaley.
    6. The will of William Edings, 23d May, 1834; codicil, 27th March, 1836.
    7. Death of William Edings, 4th April, 1836.
    
      Plaintiffs admit,—
    1. William Edings, shortly after the marriage of his daughter, Eliza, with Benjamin Whaley, put them into possession of the premises and certain slaves thereon, from which time until his death, Benjamin Whaley continued in possession, and that defendants, administrators of B. Whaley, have ever since continued in possession.
    2. That during all that time, until his death, the said Benjamin Whaley returned the plantation on Sian’s Island among his property, and paid taxes for the same, and that since his death his administrators, the defendants, have returned the same property as part of the estate of B. Whaley, and paid taxes therefor.
    3. That John Fraser & Co. were the factors of B. Whaley, from 1818 during his life-time, and until November, 1834; and that he received and sold the crop from Sian’s Island, marked B. Whaley, (S. I.) in his life-time; and after his death, estate of B. Whaley, (S. I.) That Brown, Tunis <& Co., and Browns and Welsman, after Brown, Tunis & Co., from November, 1834, up to this time, to have received as factors of the defendants, and sold the crop from Sian’s Island; cotton marked estate of B. Whaley, (S. I.)
    4. That defendants are the administrators of the estate oí the said B. Whaley.
    The defendants appealed in this case, and moved for a new trial, on the following grounds:
    1. That the verdict of the jury is directly contrary to law and tlie evidence in this case, inasmuch as the proof established a clear case of possession adverse to the title of the plaintiffs, and by which their claim was barred under the statute of limitations.
    2. That his Honor misdirected the jury, in charging them that the possession of the defendants of the premises in question, as the administrators of Benjamin Whaley, could not be connected with the possession of Benjamin Whaley, in his life-time.
    3. That the verdict of the jury is, in other respects, contrary to law, and without evidence, and against the law of the land.
    Rice, for the motion,
    contended that title was made out conclusively, and that the possession of the administrators ought to be connected with that of the deceased. 1 Tread-way, 135. Where the equities are equal, possession should prevail. 1 Mill C. Rep. 85; 2 McCord, 268, 273, 289. He also cited 3 McCord, 261; 2 Nott & McCord, 343 ; 2 Mill C. Rep. 80; Rice Rep. 10; 2 Rice Dig. 329.
    McCrady, contra.
    The beginning of Whaley’s possession was not adverse. Suppose the deceased went into possession under a parol gift, to whom was it made 1 Mr. McCrady cited 1 N. & McCord, 373; 2 Caines, 314; 2 Hill, 491. The wife’s right was not complete during her life. The administrators had no right to possession, even if Mrs. Whaley had the title. The husband might be considered as in by the curtesy.
    Petigru, same side,
    cited Coke Litt. 271; (a.) Ibid 371, (a.) In this case there was a mere entry by the permission of the owner ; no gift had been proved.
   Curia, per

Butler, J.

The questions belonging to and fairly submitted to the jury, must be regarded by this court as satisfactorily settled by their verdict. So far as it regards the character of the possession from 1819 to 1832, a period of 13 years, the jury were bound to pass upon it, to this extent, at least; that for the last ten years of his life, Benjamin Whaley had not acquired a good title under the statute of limitations, by virtue of any adverse possession during that time. The finding necessarily establishes that, in its inception, Benjamin Whaley’s possession was permissive and not adverse, and that for the three first years he held by privity of tenure with William Edings, under whom he had entered. It is the case of a tenant entering upon land, and holding by the sufferance of the landlord, without paying rent. Such a tenancy carries with it many incidents important in this case, and which will be hereafter noticed in their proper place. The tenant had not assumed such an adverse pbsition as to allow the statute to give him a good title at his death.. But it is said that at any time after the 30th of March, 1822, or within ten years before his death, Benjamin Whaley might have assumed such a position, and that his title would have been perfected by the operation of the statute, provided the possession of the administrators could be tacked to and regarded as a continuation of his possession. The circuit Judge held that the possession of the administrators could not be connected with that of their intestate, so as to make it perfect. If it could be shewn that this view of the Judge was material, a question of some apparent perplexity would be presented. But in the view which a majority of the court is disposed to take of the case, this point is wholly immaterial ; and should it be regarded as essentially involved in the judgment of the court, the circuit decision may well be sustained by a fair view of the evidence. After the 30th of March, 1822, or after the 20th of June, when Benjamin Whaley’s first wife died, there was no evidence to shew that the character of the possession had been changed from what it was in the beginning. The presumption of law is that it was the same, and that presumption must prevail in the absence of evidence. The morality of the law inculcates, and its provisions will enforce good faith in all the relations of life in which legal confidence has been reposed. One who enters upon land, acknowledging title in another, ought, in justice, to adhere to the original terms of his possession. It is an undoubted principle of the law, that a tenant cannot dispute the title of his landlord, either by setting up title in himself or another, during the existence of the lease or tenancy. The principle of estoppel applies to them, and operates in its full force to prevent the violation of the contract by which the tenant obtained and holds possession. 7 Whea. 535. See also the cases of Watkins vs. Willisson, Law Journal, No. 1, 125; Wilson vs. Weathersby, 1 N. &. McC. 370. In this last case it was said and decided, “ that the evidence offered by the defendant was of a title acquired by him after he went into possession under the plaintiff, and before he gaye up possession. If he was at any time the tenant of the plaintiff, he continues so all the time, unless he had given up the possession.” There was no evidence here that Whaley ever gave up possession, or that he claimed to hold it differently from what he did in its origin, or the three first years of its duration. There was great reason, therefore, in holding that the possession of the administrators could not be connected to change the character of the original possession of Whaley in his life-time; the law presuming them to be the same, that is, the termination to be like the beginning. This view of the case would be wholly immaterial, if Whaley nevei did as,sume such a position as to dissolve the relation between himself and his landlord, and thereby entitle himself to the operation of the statute of limitations. During the continuance of an acknowledged lease, the tenant cannot set up title in himself to question the title of the landlord. This must always be the case where the lease is for a definite term of years. In such case the tenant must go out and disclaim the title of his landlord, and come in as any other stranger, before he can set up his title. Having forfeited his lease, he terminates its existence by his own act, and thereby becomes a disseizer and trespasser. Under such circumstances, the possession of the tenant becomes a tortious one by the forfeiture of his right. “ The landlord’s right of entry is then complete, and he may sue at any time within the period of limitations; but he must lay his devise of a day subsequent to the termination of the tenancy.” See the judgment of Baldwin, J., in the case of Watkins vs. Willisson. When the time of the tenancy has expired by its own limitation, the tenant is then a tenant at sufferance from year to year; and after notice to quit would be a trespasser, who could be sued in an action to try title. If the tenant continues to hold, without notice to quit, or without a disclaimer of tenancy on his part, he will be regarded as holding by the title of his original landlord. And it is said by Chancellor Harper, in his argument of the case last referred to — and which, with little qualification, was adopted as the judgment of the court — that if a tenant, at the expiration of a term, sets up claim in himself, and even gives notice of it to his landlord, yet continues to pay rent, his recognition of the landlord’s title will prevent his possession being adverse; and further : “ if a party enter by bare permission, remain as a tenant at sufferance, paying no rent, the tenancy cannot .be determined by the tenant without notice to the landlord, ichatever claim the tenant may set up to himself or to others.” And this, for the obvious reason that the law will not permit one to lose his rights who has no means of knowing that they are usurped. It is always necessary that the rights of the party to be affected by the statute should be so far violated as to put it in his power to vindicate them by a proceeding at law. Before the tenant can occupy an adverse position, entitling him to. claim by adverse possession, he must disclaim his tenancy, and give notice of that fact to his landlord. He must become a trespasser, by doing something to shew that he holds the land against the consent of the owner or claimant. After that, there is nothing to prevent the owner from bringing his action to evict the wrong doer. A secret disclaimer, unknown to the landlord, will not do. The statute cannot run until the knowledge of the disclaimer is brought home to the landlord. In the case of Willisson and Watkins, such was the evidence: Willisson, the ancester of the defendant, who had'entered under Burdeaux, gave notice to his landlord that he claimed in his own right, and refused to pay rent; this was in 1792. In 1802 Willisson died, leaving his widow and children in possession. A year before that time, Ralph Spence Philips became interested in the land, in right of Burdeaux; and after the death of Willisson, demanded possession of the land from the widow; she refused positively to give it up, or to acknowledge Philips’s title, but held the land in the face of a litigation of ten years. In 1817 the land was sold at sheriff’s sale, as the property of Burdeaux, to foreclose a mortgage assigned to Philips; and Watkins, the purchaser, brought his suit, and was defeated in the Supreme Court of the United States, on the ground that Willisson and his representatives having disclaimed Burdeaux’s title, with express, repeated, and even hostile notice to Burdeaux and Philips, they were protected by their adverse possession under the statute. Baldwin, J., who delivered the judgment of the court, says, in so many terms, that the statute did not commence to run till the knowledge was brought home to Burdeaux that Willisson was claiming against his title, for from that time a cause of action had accrued, as in the case of discovery of fraud committed by a trustee ; and the Judge uses this language: “ Why, then, should not the statute protect him as well as any other fraudulent trustee, from the time the fraud is discovered, or known to the landlord?”

I will venture to say, that no case has gone so far as to give a tenant a title by the operation of the statute, who has not made some open disclaimer of his tenancy, and given notice to his landlord of his hostile position. After a great lapse of time, and an omission to pay rent, a dissolution of the relation of landlord and tenant might be presumed. Such a presumption cannot arise in the case under consideration; for, from the finding of the jury, the presumption is the other way. In no part of the evidence does it appear that Benjamin Whaley ever gave William Edings to understand, much less did he give direct notice to him, that he had thrown off his tenancy, and intended to claim in his own right. There was no notice of that kind which would have authorized the jury to cometo a conclusion that Edings had any reason to believe that Whaley was holding differently from his other sons-in-law, Fripp and Chisolm. So far as regards Edings, their relations were the same; and it is his knowledge, and not Whaley’s designs, thát the jury were bound to consider. Would it do to go so far as to say that the jury might have inferred, or presumed that Edings had notice of Whaley’s intention ? This would subject the legal rights of land proprietors to be disposed of by the uncertainty of conjecture, instead of having them secured by the settled rules or operation of law. When a party claims by the statute, he is required to shew at what time he took possession of the land, and how long he has held it: and when a tenant claims to hold adversely, he must shew when that intention was made known to his landlord; otherwise he might acquire title j by an evasive or secret abuse of a trust, instead of an open* claim as a trespasser. It is reasonable to suppose that every one will vindicate his rights when they are openly invaded ; but no one can take care of them when they are secretly undermined. It would be unsafe to suffer the possession to assume such a character as one party alone should give i.t, without the knowledge, control or consent of the other; and such would be the result, if Whaley’s design alone should prevail, secretly entertained and unknown to Edings.

There is nothing in this opinion which can conflict with those decisions in which it has been held that a child going into possession' of land under a parol gift of a parent, may hold by the statute .of limitations; for, in those cases, the relation of landlord and tenant never existed or was acknowledged. The son in those cases took possession of the land as his own, and held it without any acknowledgment of title in another, and between whom and his parent there was no privity of tenure at any period of the possession.

But in this case the jury have found that Whaley entered and held as a mere tenant at will, by Edings’s title. As well from the finding as the evidence itself, we are satisfied with the verdict, and refuse the motion for a new trial.

Evans, J., concurred.

O’Neall, J.

I agree to the result. There was no proof of a parol gift whatever. The character of the possession was to be judged of by the jury.'

Wardlaw, J.

I dissent. According to the principles of the case of Williams vs. McAliley, Cheves, 200, the possession of the administrators holding for all the heirs of Benjamin Whaley, might be connected with the possession of the ancestor, B. Whaley, so as together to make up the time required by the statute. On this point I think there was misdirection by the presiding Judge; and I cannot hold that to have been wholly immaterial. It should have been left to the jury to decide whether there was not, within ten years immediately preceding the death of Edings, in 1836, such act of disclaimer as constituted an adverse possession of Whaley and his heirs for that period.

Richardson, J.

I concur in the above reasoning, and that there should be a new trial on the merits, also.  