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the requisite space of time, a period reckoned by years. It is something done by the defendant, not merely that which the plaintiff has left undone in his action, not merely the plaintiff's torpidity, that is to be considered. (Hill v. Sanders, 6 Rich. R. 62.) There can be no constructive adverse possession of land against the owner, when there has been no actual possession, which he could treat as a trespass and bring an action for. (Steedman v. Hilliard, 3 Rich. R. 101.)
Under the statute of limitations of 1712 and 1824 (P. L. 101, a, a, 1824, page 24), the settled construction is, that the right or title to lands, and the consequent remedy by action for an injury to the same, by withholding the possession, can only be barred by an actual pedis possessio for the time fixed by the acts. The reason of this seems to be, that, until there is an actual permanent possession by some claimant, the party to whom the right or title to the land accrued cannot prosecute it. In an early case Judge Smith, who was one of the oldest as well as the ablest of the land lawyers of South Carolina, delivered the opinion of the constitutional court, settling irreversibly the principle that an actual possession of a part of a tract of land by color of title, for more than five years, under the act of 1712, would bar the right of a claimant to prosecute the same. (Reid v. Eiforts, 1 Nott & McCord's R. 374, note. And vide Williams v. McGee, 1 Const. R. 85.) That decision seems to have been followed ever since. The intent of the statute being to quiet estates, by making a possession under an imperfect title equivalent to a legal one, it has hence very properly been held that a repetition of trespasses, by cutting down and using timber for the whole time fixed by the statute, would not bar a right or title to lands. The acts done were fugitive, and did not amount to any certain claim of estate, and hence were neither within the words or intent of the legislature. (Bailey v. Irley, 2 Nott & MCCord's R. 343. White ads. Reid, Ib. 534.)
The cases clearly show that the operation of the act of limitations depends upon an actual possession of the land in dispute, and not upon a mere non-claim by the plaintiff. They also show that the plaintiff's right of action for the locus in quo must have existed against some one for more than the time allowed by law, or he cannot be barred. If, therefore, any one, before the defendant, had an actual possession for more than five or ten years (as the case may be), it would bar the plaintiff as well as if it had been in the defendant. But, unconnected possession, each being for a shorter time than that limited by the statutes, but when joined together making five or ten years, cannot be united so as to bar the plaintiff. (King v. Smith, Rice's R. 10. And vide Turnipseed v. Busley, 1 McCord's R. 279.)
It has been held by the court of appeals of South Carolina, that where a judgment for the defendant in a former action between the same parties is relied upon, under the act of 1744 (3 Stat. 612), as a bar to a second action of trespass to try title to land, commenced more than two years after the first was dropped, it must appear with such certainty as the common law requires in cases of estoppel (that is, “ certainty to every intent”), that both actions were for the same land. Accordingly, where the plaintiffs sued out their writ in trespass to try title for “a certain plantation or tract of land of the plaintiffs, situate on the waters of Santee river,” and then, without proceeding further, let fall their action, and judgment was entered for the defendant, it was held that this judgment was no bar to a second action, brought more than two years afterward between the same parties and in the same district, for a "certain plantation and close of the plaintiffs," described generally as lying within the district, because it did not appear to the court that the two actions were for the same land. And it was held in the same case, that trespass to try title will lie against the landlord, though he never was in possession, the entry being by his tenant. (Binder v. Benhow, 12 Rich. R. 24. Vide Broughton v. Broughton, 4 ib. 492. Henderson v. Kenner, 1 ib. 474.) And where there is a recovery against the defendant in an action of trespass to try title, and he subsequently acquires title by taking out a grant and re-enters, the recovery in the first is no estoppel in a second action for the same land. (The State Bank v. Bridges, 11 Rich. R. 87. Vide Shettlesworth v. Hughey, 9 ib. 387.)
In an action of trespass to try title, where the verdict of the jury is against the evidence upon a question of location, a new trial will be granted; and the court will more readily grant a new trial upon a question of location than upon most other questions of fact. (The State Bank v. Balro, 11 Rich. R. 597. And vide Abel v. Hutto, 8 ib. 42. Felder v. Benett, 2 McMullen's Law R. 44-47.)
In trespass, to try title, a survey is not always necessary, in order to identify the land: other evidence may be resorted to for that purpose. And in such an action, a verdict for the land on which
the defendant lives, is held to be sufficiently definite. (Manning v. Dove, 10 Rich. R. 395. And vide Broughton v. Broughton, 4 ib. 492.) But it has been held that on a question of location, it is inadmissible to prove by the witness who drew the deed, that it was his understanding, from what passed between the grantor and the grantee at the time the deed was drawn, that a certain piece of land was not intended to be conveyed. (Senterfit v. Reynolds, 3 Rich. R. 128.)
Some forty years ago a very important case came into the supreme court of the United States, on error to the circuit court of the district of South Carolina, in which some interesting and familiar principles were asserted, not peculiar to South Carolina, but applicable to a certain class of cases in most of the states, and which may as well be stated in this place. An action of trespass to try titles was brought in the circuit court of South Carolina to recover six hundred acres of land situated on the Savannah river in that state; there was a judgment entered for the plaintiff, and the defendant took the case to the supreme court of the United States on writ of error. The latter court laid down, among others, the following propositions :
It is an undoubted principle of law, fully recognized by the court, that a tenant cannot dispute the title of his landlord, either by setting up a title in himself or a third person during the existence of the lease or tenancy. The principle of estoppel applies to the relation between them, and operates with full force to prevent the tenant from violating that contract by which he claimed and held possession. He cannot change the character of the tenure by his own act merely, so as to enable himself to hold against his landlord, who reposes under the security of the tenancy, believing the possession of the tenant to be his own, held under his title, and ready to be surrendered by its termination, by the lapse of time or demand of possession. The same principle applies to mortgagor and mortgagee, trustee and cestui que trust, and generally to all cases where one man obtains possession of real estate belonging to another by a recognition of his title.
In no instance has the principle of law which protects the relation between landlord and tenant been carried so far as in a case which presents a disclaimer by a tenant with the knowledge of his landlord, and an unbroken possession afterward for such a length of time that the act of limitations has run out four times before he has done any act to assert his right to the land. When a tenant disclaims to hold under his lease, he becomes a trespasser, and his possession is adverse, and as open to the action of his landlord as a possession acquired originally by wrong. The act is conclusive on the tenant. He cannot revoke his disclaimer and adverse claim so as to protect himself during the unexpired time of the lease. He is a trespasser on him who has the legal title. The relation of landlord and tenant is dissolved, and each party is to stand upon his right. If the tenant disclaims the tenure, claims the fee adversely in right of a third person or in his own right, or attorns to another, his possession then becomes a tortious one by the forfeiture of his right, and the landlord's right of entry is complete, and he may sue at any time within the period of limitation ; but he must lay his demise of a day subsequent to the termination of the tenancy, for before that he had no right of entry. By bringing his ejectment he disclaims the tenancy and goes for the forfeiture. It will not be permitted to the landlord to thus admit that there is no tenure subsisting between him and the tenant which can protect his possession from this adversary suit, and at the same time recover on the ground of there being a tenure so strong as that he cannot set up his adversary possession.
A mortgagee, or direct purchaser from a tenant, or one who buys his right at a sheriff's sale, assumes his relation to the landlord, with all its legal consequences, and is as such estopped from denying his tenancy.
If no length of time would protect a possession originally acquired under a lease, it would be productive of evils truly alarming, and the court must be convinced beyond a donbt that the law is so settled before they would give their sanction to such a doctrine; and this is held not to be the case upon the authorities.
The relation between tenants in common is in principle very similar to that between lessor and lessee. The possession of one is the possession of the other, while even the tenure is acknowledged. But if one onsts the other, or denies the tenure, and receives the rents and profits to his exclusive use, his possession becomes adverse, and the act of limitations begins to run; so of a trustee, so of a mortgagee.
In relation to the limitations of actions for the recovery of real property, the court thought proper to say, that the statute ought
to receive such a construction as will effectuate the beneficent objects which it intended to accomplish, the security of titles and the quieting of possessions; and the construction given to it in the case under review was thought to be conformable to its true spirit and intention, without impairing any principle theretofore established. The authorities upon the points discussed were examined at great length by Mr. Justice Baldwin, who delivered the opinion of the court; and the rules laid down were considered to be in accordance therewith; and especially that they were not adverse to the principles of any case adjudged by the supreme court of South Carolina. (Willison v. Watkins, 3 Peters' R. 43. And vide Bell v. Morrison, 1 ib. 360. Wilson v. Weatherby, 1 Nott & McCord's R. 373.)
THE ACTION FOR THE RECOVERY OF REAL PROPERTY IN THE SEVERAL
STATES THE PRACTICE IN GEORGIA, FLORIDA, ALABAMA, MISSISSIPPI, LOUISIANA, ARKANSAS AND TEXAS.
In the state of Georgia it is declared by statute that all distinctions of actions into real, personal and mixed are abolished, although the action for the recovery of real property is usually called the action of ejectment. And all suits respecting the title to lands must be tried in the superior court of the county wherein the land lies. (Rev. Code, 1866, SS 3187, 3326.)
In all cases where any person residing in one county, whose plantation or land extends over the line into an adjoining county, and there is no one upon whom service in an action of ejectment can be legally perfected in the county where such land may lie, it is made lawful for the clerk of the superior court of the county wherein such land may lie to issue process in behalf of the plaintiff against the defendant, which process must be directed to the sheriff of the county wherein such land may lie, and such sheriff must serve the same, and such service is made good and valid. It is further declared by statute, that the plaintiff in ejectment may add a count in his writ or declaration, and submit the evidence to the jury, and recover by way of damages all such