| Tenn. Sup. Ct. | Jun 6, 1809
The plaintiff claimed under a military grant for 274 acres, No. 2085, dated May the 20th, 1793. The entry was made in the name of George Hooks, December the 20th, 1785, on Barton's Creek, about one mile below the lower meat-house made by Deason and Williams, to include a spring and beach marked W B I R and also under a sheriff's deed for taxes. The defendant claimed by deed from William Cockran dated August the 15th, 1799; two grants issued to Cockran of 640 acres each, dated on the 12th of November, 1791, bottomed on entries made on the 30th of November 1790. There was a spring which was left out of Hooks's tract about thirteen poles, where trees were found marked thus: W B R. Whether the last was intended for the letters I R, joined together, the surveyor, Col. Humphreys, could not tell, but looked as if intended for the letter R. It was proved that the plaintiff claimed the spring where the defendant lived on the west side of the creek. On the part of the plaintiff it was proved that the defendant lived within the lines of Hooks as surveyed, and, as the grant to Hooks was the youngest, it was necessary to identify the location. The plaintiff produced two witnesses, the one his brother and the other a relation, who lately came to this country from the State of Georgia. By the first it was proved that he saw such marks as are described in Hooks's entry, at a spring within the tract on the east side of the creek, and not far from it. He first saw those marks about two years ago.
The other witness proved that he was first at this spring a few clays ago, when he saw such marks, and, by both witnesses, the marks appeared to be old.
The defendant identified his claim, and proved by persons living in the neighborhood that they never heard of the plaintiff claiming the spring now. proved. It was also proved that there were three springs *449 below Deason's meat-house spring; viz., the one now claimed by the plaintiff, which was about half a mile below. The spring where Col. Napier lived is about one mile and a quarter below, and the spring where the defendant lives, which is between a half and three-quarters of a mile below Deason's meat-house spring, called for in the entry. It was also proved that he settled on the land purchased of Cockran in March, 1799, — the witness being present when he built his house. Cockran was then present, and he then understood from both Cockran and the defendant that the purchase was made, though no deed was executed. It was also said by one of the witnesses that he believed part of the land which the defendant claimed was within the bounds claimed by the plaintiff. The writ issued in this case on the 2d of April, 1806, and the defendant relied on seven years' possession as a bar. The entry of the plaintiff on the face of it is well enough, but when taken in connection with the situation of the country in which it was made, is void for uncertainty. Three springs have been proved, any one of which might as well answer the description as another. The survey of Hooks, under which the plaintiff claims, ought not to have extended higher up than one mile from the meat-house spring. Supposing the spring claimed to be the one, had Hooks's land been surveyed in that manner, it could not have interfered; nor could it have interfered had it been surveyed in a square, putting the spring in the centre, which seems agreeable to modern decisions. But a spring is an obscure call, therefore the survey ought to have adhered to the distance of one mile, otherwise it would be, if the spring were a call highly notorious; then the distance could not mislead. The spring in this case is the locative call. The entry, though not vague on the face of it, is bad in fact; three springs have been proved as lying below the meat-house spring, from the distance of a half to that of one and a quarter miles. The plaintiff claims the spring at the distance of half a mile below the meat-house spring. He has just as much right to claim either of the other two. If the spring where Col. Napier lives was the spring, they ought to have surveyed there; it is not enough to say that they might have included the spring where Col. Napier lives, and the land in dispute too, had *451 they ran differently. Let the entry be as it may, our case, under the statute of limitations, is incontrovertible. Possession of any part of Cockran's tract is possession of the whole; and consequently that part which interferes with Hooks. The defendant had possession under Cockran, or he had not: if the first, his possession avails; if the hitter, it will not.1
CAMPBELL, for the plaintiff, in conclusion. — The Acts of 1786, c. 20, and 1787, c. 23, were not introductive of a new law: they were only declaratory of the old. In relation to possession, agreeably to the explanatory Act of 1797, c. 43, § 4, a person, to avail himself of it, should have a grant or deed which the defendant had not in this case. From March, when he took possession, until the 15th of August, he had no color of title, and this puts the statute out of the question. The case of Hampton v. M'Ginnis2 will show, that nothing but a conveyance to the tenant in possession could enable him to repel the plaintiff on the ground of prescriptive possession. Until the time of redemption was out, we could not get a deed for this land, and consequently could not bring suit. It seems therefore to be a fair construction of the act to say, that it should not commence running until the sheriff's deed was obtained; and on this ground the statute cannot apply.
The defendant has opposed the plaintiff's claim on the ground of seven years' possession. On the part of the plaintiff, it is insisted that the defendant must have a deed himself co-extensive with that possession. This is believed not to be the law. Suppose A. owns a tract of land, and has held possession thereof for two years; he sells to B., putting him in possession, who continues it five years more; in a suit brought against B. he surely may unite the possession of a person from whom he bought to his own, and it will be a good bar. At present but three ways of possessing land can be conceived: as a trespasser, for himself, or under some other person. The defendant certainly was not a trespasser from March till August, nor could he be said in legal language to be holding for himself until he had *453 obtained a deed. During this time he must have held under Cockran, whose possession it was until the deed was made. These two possessions, being consistent, may be united, and thus afford a good bar. The Act of 1797, c. 43, § 4 is couched in doubtful language. It is an explanatory act, and therefore cannot be extended by equity beyond its literal meaning, where that meaning is plain. But, being ambiguous in the enacting clause, must be construed by the same rules as all other statutes. The preamble shows that it was intended to remove a doubt which had arisen in the construction of a former act. What was that doubt? Those who were acquainted with the cause of making the statute know it was, whether a seven years' naked possession, without a title, would bar a claim. Persons holding lands by entries without grant, or perhaps neither entry, grant, nor deed, had opposed their possessions as a bar. The act was only intended to be declaratory of the meaning of the former Statute of 1715, c. 27, Though the meaning of this act was much contested when the last act was passed, its construction has since been solemnly fixed both in North Carolina and here; and to those adjudications it seems proper we should adhere. The Act of 1797 was not designed to be introductive of a new law; and, as its words will bear a construction conformable to the adjudged cases, there it ought to rest, and not be carried any further.1
Possession of land, so as to produce a bar, must be an actual possession of some part, in dispute. Cultivation of part of the defendant's claim, not within the bounds of the disputed parts, is not sufficient to authorize the bar of the statute.
Verdict for defendant.