#### DEN EX DEM. MATTHEW WALLACE *vs.*JOHN T. MAXWELL.

Where a person has been not only in the aetnal occupation of a part of a tract of land for 25 or 30 years, but has also claimed it and exercised acts of dominion and ownership over it, up to a well defined boundary, for that and a longer time, this is altogether evidence to be left to the jury, to presume a grant of the land to the person and of conveyances to those claiming under him, who so held the possession.

The cases of *Fitxrandolph*v. *Norman,*N. C. Term, Rep. 131, *Harris*v. *Maxwell,*4 Dev. & Bat. 241, *Carson*v. *Burnett,*1 Dev. & Bat. 546, *Tate*v. *Southard,*1 Hawks 45, and *Bynum*v. *Thompson,*3 Ired. 578, oited and approved.

Appeal from the Superior Court of Law of Mecklen-burg County, at the Spring Term, 1846, his Honor Judge Caldwell presiding.

The lessor of the plaintiff claimed title to the land in dispute, under a grant from the State, which issued on the 10th of May, 1842, for twenty-eight acres. The defendant showed no paper title, but claimed under one Black, as to whom none was offered in evidence, but it was alleged that he had had a long possession by actual cultivation, and that he claimed the land up to the boundaries by a hill, by which it was circumscribed ; that he lived on an adjoining tract and had cut and used timber off of it up to the said boundaries.

*136Two witnesses introduced by the defendant testified, that the said land was circumscribed by the boundaries of other tracts ; that they hadftknown them for the last thirty-five years; that the said Black had claimed and cut timber occasionally up to those boundaries, and that, between twenty-five and thirty years ago, he had cleared and enclosed a small portion of the land in dispute, and had afterwards added to it by a further clearing, and had kept the same in constant cultivation till within the last ten years ; that the said Black had cleared a field fifteen years ago on another part of it, which had been constantly occupied by cultivation, till the commencement of this suit.

The counsel for the defendant insisted, that, from the length of the possession, the jury ought to presume a grant. The Court was of opinion that Black and those claiming under him could'not, in the absence of a paper title, by these declarations, make up a title up to the boundaries of the land, and that the length of possession was not sufficient to justify the jury in presuming a grant even for the part in actual cultivation. The jury returned a verdict for the plaintiff, and, the rule for a new trial being discharged, the defendant prayed an appeal to the Supreme Court.

*Alexander*and *J. H. Bryan,*for the plaintiff

*Osborne,*for the defendant.

Daniel, J.

Where any person, or the person, under whom he claims, shall have been, or shall continue to be in possession of any lands whatever, under titles derived from sales made either by creditors, executors or administrators of any person deceased, or by husbands and their wives, or by endorsement of patents, or other colourable title, for the space of twenty one years, all such possessions of lands under such title, shall, and are declared *137good, and one a bar against the entry of any person under the right or claim of the State, provided, that the possession so set up shall have been ascertained and identified under known and visible lines or boundaries. *Rev. Stat.*372. If the defendant had rested his defence solely under this statute, then *colour*of ti tie would have been indispensable for him. But this statute, does not affect the common law principle of presuming a grant, *Fitzrandolph*v. *Norman,*N. C. Term, Rep. 131. *Harris*v. *Maxwell, 4*Dev. & Bat. 241. It is very true, that possession of a part is possession of the whole, claimed by a deed when there is no adverse possession or superior title. *Carson*v. *Burnett,*1 Dev. & Bat. 646. The lands in controversy were circumscribed by the well known lines and bourn daries of other co-terminous tracts, which well might, or might not be, the lines and boundaries of an old patent covering the land now in dispute. If they were, well known, as the lines and boundaries of this tract of land, as well as of the others (as the witnesses prove to have been the fact) they furnish by reputation the boundaries of the land of which Black and the defendant have held the possession. *Tate*v. Southard. 1 Iiawks 45. Black for 35 years exercised dominion over the whole tract, by claiming it and cutting timber occasionally up to those very lines and boundaries ; and he had, between 25 and 30 years ago, cleared, enclosed and cultivated a part of the land, and that field, and another field on the said land, had been in his and the defendant’s actual possession, and cultivation, from that time to the commencement of this action. All necessary assurances may and ought to be presumed, upon a long actual possession and enjoyment. But when one enters upon land without any conveyance, or other thing, to shew that he claims, his possession cannot by presumption or implication be extended beyond his occupation *de facto.*To allow him to *say,*that he claims to certain lines and boundaries beyond his *138occupation and not visible and known of itself, is not sufficient evidence of his possession to those lines or boundaries; one cannot thus make himself in possession* contrary to the fact. *Bynum*v. *Thompson, 3*Ired. 578. In that case, there was no possession of any part of the land, covered or supposed to be covered by both titles ; nor were there any visible boundaries, known ■ or generally reported to be those of the Braswell patent; but there was simply a declaration by Lane, who had no conveyance from Braswell, that he claimed under that patent,, and therefore claimed the land covered by it, wherever the boundaries might be, and although they were uncertain. That would not do ; for it would be working a. possession by a claim merely, without either title or actual occupation. But, when a person (as Black was) has not only been in the actual occupation of a part of a tract of land for 25 or 30 years, but has also> claimed it, and exercised acts of dominion and ownership over it, up to a. well defined boundary, for that and a longer time ; we must say, that we think, that it altogether, was evidence that should have been left to the jury, to presume a grant of the land from the State to Black or those under whom he claimed.

The judgment must be reversed, and a new trial granted.

Per Curiam. Judgment accordingly.