
    Edmund Strange against Nathaniel Durham.
    
      Columbia,
    
    1802.
    A person accepting a defective title to land, and going into possession under it, knowing the defect, may, after the expiration of 5 years, plead the statute of limitations in baragainslany actionbrought against him for recovery of the land.
    TRESPASS to try title to land in Fairfield district, Verdict for defendant. Motion for new trial.
    The land in dispute was granted to the plaintiff’s father more than 20 years ago, and it was proved that the father was dead, and that the plaintiff was his heir at law. The defendant offered in evidence a conveyance made by the plaintiff’s attorney, one Andrew Kidd, under which deed he claimed, but as the power was a joint one to the attorneys, four in number, and only one of them had made the deed, an exception was taken to it on the trial, as nugatory in itself, which was sustained by the presiding judge, TREze-vant. At the same time, when this defective conveyance was niade by Kidd, the defendant was apprized of the circumstance, but was told that he might purchase out,the right of the plaintiff (who had removed to the state of Tennessee) upon very reasonable terms. Under these circumstances the defendant accepted the conveyance, and entered into possession of the premises in 1793, which he held without interruption till 1796, when an action was brought against him in Pinckney district ; but as the plaintiff lived out of the state, security was demanded for payment of costs, which not being given agreeably to order of court, judgment of nonsuit was entered against him in April term, 1798. In the year 1800, one month before the expiration of the time for bringing a second action, the present suit was commenced. On the trial of this second issue, the defendant re* linquished all claim under his deed from Kidd, the attorney of plaintiff, and rested solely on his possessory right under the statute of limitations. Against this right of possession it was alleged, that as defendant went into possession of the land by virtue of this purchase and deed from Kidd, which he knew to be defective, he could not afterwards relinquish his claim to it, and set up title by possession only, though it was admitted that he might have done so, if he had not accepted this conveyance. And of this opinion was the presiding judge in his charge to the jury, but they found a verdict for the defendant.
    This was a motion for a new trial, on the ground of its being against law, and the charge of the judge who tried the cause.
   All the other Judges concurred in opinion, however, that there should not be a new trial, as it could not vary the plaintiff’s right of action whether the defendant knew that his title was good or bad. It did not depend on the defendant’s knowledge or ignorance of the plaintiff’s title, but on the statute, which had expressly taken away the plaintiff’s remedy, unless his action had been commenced within five years from the time of defendant’s entry upon the lanff. And that it had been determined over and over again, that a defendant may defend himself by as many titles as he pleases to rely on, and if any one avails him in law it is sufficient ; the others are nugatory, and go for nothing.

Starke, for the plaintiff.

Evans, for the defendant.

Rule for new trial discharged.

All the Judges present.  