
    
      Wm. S. Thomson vs. David D. Peake.
    
    The Law Court cannot notice a resulting trust.
    B. entered and held under W., and defendant entered under B. Plaintiff purchased *W7s interest at Sheriff’s sale: — Held, that defendant was estoppod from disputing plaintiff’s title.
    A possession by several consecutively for more than twenty years, though neither held for that period, raises the presumption of a grant.
    
      Before Whitner, J., at Union, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action of trespass to try titles. The land in dispute, a small tract of inconsiderable value, was sold by the sheriff, as the property of Henry White, and bought by plaintiff, 5th September, 1842, under a judgment and ft. fa., of January, 1842, these proceedings being regular.
    “ Plaintiff produced Sheriff’s deed, 7th September, 1842, and a deed from Winney Brown, 11th November, 1831, and recorded 3rd June, 1840. The land had been in possession of one person or another for the last forty or fifty, and in the opinion of one witness, sixty years, viz: Thomson Brown, Harbin, Thomas Smith, Winney Brown, and Henry White, consecutively, no one remaining twenty years, and their possessions not connected by any paper title, except as between Winney Brown and White, the former having possession four or five years, and the latter from November, 1831, to the sale by the sheriff. White, when the deed was made, was a minor, eight or. nine years of age, the child of Mrs. Blassingame. Her husband, Washington Blassingame, and herself, and the child, Henry White, entered the place when the purchase was made from Winney Brown. Blassingame acknowledged the title of Henry White. Whilst remaining in possession, which he did to the time of his death, he admitted to various witnesses that the land belonged to White. After his death, the widow still continued on the place, and yet remains. Blassingame was an insolvent man. The defendant has a judgment against him, and in February, 1842, purchased the land for $5, sold as the property of Blassingame. He had taken no deed from the sheriff, but was not known to have asserted any claim before his purchase at sheriff’s sale. Mrs. Blassingame had acknowledged herself as the tenant of defendant, who, in 1845, placed another tenant, one John Crocker, in possession, who still retains the possession. A suit was brought by this plaintiff, September, 1845, on which he was non-suited the Spring of 1850 or 1851, and this suit was brought 26th September, 1851.
    “ I refused defendant’s motion for a non-suit, urged on the ground, that no grant had been produced, or such possession as authorized the presumption of a grant, and that title had not been shown in Henry White, preferring to take the opinion of the jury, whether the defendant had not entered under plaintiff’s title, believing, as I did, that at least enough had been shown to submit the case to the jury. The defendant offered no testimony.
    “ The jury were informed of the general obligation on plaintiffs in such actions, to show title in themselves — that a tenant could not dispute the title of his landlord — that one entering into possession under a plaintiff, should not be permitted, whilst in possession, to dispute the plaintiff’s title — that though he might purchase any title he pleased, he was bound, donafide, to restore the possession thus acquired, and could not, at least, depend on possessiorl alone, unless after distinct notice of holding adversely acquiesced in subsequently, long enough to give title under the statute — that like principles held good as applicable to sub-tenants, and those acquiring possession under such tenants — that it was not necessary for plaintiff to trace a title beyond a source common to defendant and himself — that this purchaser at sheriff’s sale had acquired the title of White, with the rights incident.
    t£ The jury found for the plaintiff the land in dispute, and $>15 damages.”
    
      The defendant appealed, and now renewed his motion for a non-suit, on the grounds:
    1. Because there was no evidence that there had ever been a grant from the State for the land in dispute.
    2. Because the plaintiff showed no title in Henry White, under whom he claimed.
    And failing in that motion, then he moved for a new trial, Because his Honor, the presiding Judge, instructed the jury that the defendant’s possession was obtained by his purchase at sheriff’s sale, of Washington Blassingame’s interest in the land, and went on to make the issue before the jury, as between White aud Blassingame, when, in fact, the defendant respectfully insists, the evidence was not sufficient to warrant the charge.
    
      Goudelock, for appellant.
    
      Thomson, contra.
   Per curiam.

The instructions of the Judge below to the jury are such as meet with the approbation of this Court. The legal title to the land was in Henry White, under whom the plaintiff claims. The most the defendant claims is, that there was a resulting trust in Washington Blassingame, under whom he claims. There are two answers to this, either of which are fatal to him. 1st. A Law Court cannot notice a resulting trust; 2nd, Blassingame entered and held under White. This estopped him from denying that title, and of course, also, the defendant, who entered under him. The fact of possession for more than twenty years in the various persons successively occupying the land, though not for that time in any one, is enough to raise the presumption of a grant. (McLeod vs. Rogers, 2 Rich. 19.)

The motion is dismissed.

O’Neall, Wardlaw, Withers, Whitner and Muhro, JJ., concurring.

Glover J., absent at the argument.

Motion dismissed.  