
    
      The Heirs of Hood vs. Samuel J. Palmer.
    
    Plaintiffs, in trespass to try title, claimed under a junior grant, and by adverse possession of their tenant. The possession had not continued for the full statutory period when the writ was issued: — Held, that the possession after the issuing of the writ could not be united with that which existed before, so as to perfect plaintiffs’ title, and entitle them to recover.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiffs claim three tracts of land, under grants all junior to those under which the defendant claims; but as the grounds of appeal relate to one of these, it is only necessary to report as much of the case as will enable the Court to pass understandingly upon them.
    
      “ The Sineath grant is a long strip of land, terminated at one end by an obtuse angle: in that point, a man of the name of Yillepontoux built a summer house. Yillepontoux was the owner of a tract of swamp land called Betaw, which once belonged to one Thomas, who was also the owner of the older grant covering the Sineath tract. He had a summer house very near to the spot on which Yillepontoux built. Barnes proved that Yillepontoux asked leave of Hood to build the house there. That was the only proof of tenancy. Barnes thought it (the summer house) was built twelve or thirteen years ago. Mr. McCoy, a witness for the defendant, proved conclusively that it could not have been built sooner than ’42. The defendant, before suit brought, had boxed a part of the Sineath land for turpentine, and at the trial had, pretty much, thus occupied the whole. The plaintiffs’ writ was sued out in 1851. I was of opinion that the plaintiifs’ title was to be considered as it stood at the issuing of the writ. If they had no title then, I did not perceive how a subsequently accruing one could help them. But 1 was clearly of opinion, that an imperfect statutory title arising from adverse possession could not be perfected by a possession after the issuing of the writ, which admitted an entry under the rightful title. The possessory title under which the plaintiffs claimed was at best a very doubtful one, and such an one as I should have been unwilling to see defeat a clear legal title.
    “ The case was submitted to the jury, with the expression of my views of the law as above stated. They found for the defendant.”
    Plaintiffs appealed, and now moved for a new trial, on the grounds:
    1. That it having been proved by all the testimony, that plaintiffs held the Sineath tract through their tenant, Yillepon-toux, in absolute and undisturbed possession as to title, for more than ten years; his Honor erred in charging the jury that the issue of plaintiffs’ writ, in 1851, stopped the operation of the statute of limitations against defendant.
    
      2. That there were three different tracts of land in question, and inasmuch as Villepontoux, plaintiffs’ tenant, was never disturbed in his possession up to the time of his death, it being more than ten years, — the operation of the statute was complete as to the Sineath tract, plaintiffs holding under the legal title of a grant all that time against the world.
    3. That the writ being issued to try title and for damages on three separate tracts, and plaintiffs’ tenants having been ousted from the two tracts — granted in the name of Hood, but not on that in the name of Sineath, it is but consistent to refer the question of title to the two former, and the question of damages simply to the latter.
    Rhett, for appellants.
   Per Curiam.

This Court concurs in the views of the law taken by the Judge below. The motion is dismissed.

O’Neall, Wardlaw, Withers, Whitner, Glover and Munro, JJ., concurring.

Motion dismissed.  