#### *J. L. Anderson*v. *Joel Hughes & T. Y. Neely.*

Sixteen years possession by a former .occupant, from whom plaintiff derived title to the land in dispute, unaccompanied by other circumstances, not being sufficient to authorize the presumption of a grant, and being the only evidence adduced, a nonsuit was properly ordered.

The Court refused to interfere, when, with a just perception oí his powers, the Circuit Judge thought proper to refuse a plaintiff’s motion for leave to offer further evidence, after an opinion in favor of a motion for nonsuit had been intimated.

A decree of the Court of Equity, confirming the return of commissioners under •proceedings had for partition, and assigning the portions of the distributees, amounts to no more than an ordinary conveyance.

*Before*Withers, J., *at*Laurens, *Spring*Term, 1850.

This was an action of trespass to try title. The grounds of appeal will be answered by the following statement:

It was in evidence for the plaintiff, that o,n the 28th Oct., 1826, one Molly Stevens conveyed the *locus in quo*to James Glover: that Molly Stevens had occupied the land so conveyed, from 14 to 16 years. No other actual possession, occupation or use of the land in dispute, was proved on the part of the plaintiff. Certain proceedings were had in Equity among certain parties as distributees of James Glover, in which partition of real estate was sought and decreed. The land in question (ninety-two acres,) was assigned by decree of the Court, confirming the return of commissioners under the said proceedings, to Stanford Glover. (This return of commissioners appointed to partition the land of James Glover was not under seal, and the defendants insisted, that it vitiated the link of plaintiff’s title founded upon it; since the Act of the Legislature expressly required, that such return should be under seal: and it was hence urged, that the Court of Equity had done an act nugatory and without its jurisdiction, in confirming the return. The Circuit Judge held otherwise and admitted the order or decree of that Court.) The plaintiff proved a conveyance from Stanford to Julius Glover, dated 9th Nov., 1884. From Julius Glover to George Anderson, *75dated Nov. 20th, 1835 — and from George Anderson to the plaintiff, dated March 1st, 1844.

A trespass against the true owner was proved by Hughes, under the authority of the other defendant Neely.

Upon the conclusion of the plaintiff’s testimony, defendants’ counsel desired to know distinctly whether the plaintiff had closed, and if any other testimony was to be offered for him, it should be done before he made a motion that he had in view — assigning as a reason, that he did not wish the discretion of the Court exercised in favor of the plaintiff after his motion might be granted, in opening the case to further testimony on the part of the plaintiff. Upon inquiry by the Court the plaintiff’s counsel announced that he had closed.

Thereupon a motion for non-suit was made, upon the grounds:

1st. That no grant had been offered, nor any evidence to authorize the presumption of one to Molly Stevens or other person, and therefore no adverse possession had been proved to make a title under the statute.

2d. Because the proceedings in the Court of Equity for partition, constituted no link in the plaintiff’s title, for the reasons before set forth.

His Honor sustained the motion for a non-suit, relying on the first ground assumed for defendants.

Thereupon the plaintiff’s counsel moved for leave to offer further testimony : saying, he had a grant, and might be able to give more evidence as to possession. This was strenuously resisted by defendants’ counsel, because of his previous distinct admonition, and also because if he had supposed such favor would have been accorded to the plaintiff, he would have pretermitted his motion for non-suit, offered no evidence, and have gone to the jury, relying on the want of title in the plaintiff.

His Honor thought the plaintiff not entitled, under the circumstances, to the favor asked, and adhered to the judgment of non-suit.

The case was warmly contested.

The plaintiff moved the Court of Appeals to set aside the non-suit, on the following grounds:

1st. Because having proved that Molly Stevens lived on the land fourteen or sixteen years, and conveyed to James Glover in 1826, and having proved a regular chain of title down to the present time from that conveyance, it was enough to presume a grant, — embracing a period of forty years.

2d. Because the possession and title to the land was shown to be in the heirs of James Glover, by the proceedings for partition in 1831, and the decree of the Court assigning the *76said land to Stanford Glover, one of the heirs of James Glover; which was twenty years after the commencement of the possession of Molly Stevens, and enough to presume a grant.

3rd. Because Molly Stevens having acquired a good title by her possession for sixteen years, against every body, but the State of South Carolina, had a right to convey the land to James Glover, and the law would presume a grant after four years possession longer in James Glover.

4th. Because having proved sixteen years possession in Molly Stevens by living on the land — the law presumes, under the circumstances, possession to accompany the various titles made afterwards.

5th. Because it is not necessary to presume a grant to prove that the parties actually lived on the land twenty years. If they exercised acts of ownership over the land, by having it partitioned in Equity, and making- conveyances, this was possession enough, connected with the 16 years residence on the land, to presume a grant in forty years.

6th. Because His Honor ought to have permitted the plaintiff to supply any deficiency, by offering the grant which was in his possession, after the motion for a non-suit was made by defendants’ counsel, and which he asked leave to do, and also proof of further possession.

7th. Because it should have been submitted to the Jury as a question of fact, whether possession did not accompany alt the titles offered in evidence — and also whether a grant might not he presumed, from the facts and circumstances of the case.

8th. Because the defendant, through his counsel, in opening his defence, stated that he claimed the land, as having been purchased by the plaintiff as his agent, and thereby conceded the validity of the title under which plaintiff claimed.

9th. Because the non-suit ordered was in other respects contrary to law.

*Sullivan*tj- Perry, for motion.

*Irby &f*Young, contra.

Curia, *per*Wardlaw, J.

No grant having been adduced, evidence sufficient to authorise the presumption of one was necessary. For this purpose, sixteen years possession by a former occupant, from whom the plaintiff derived title, was shown, and nothing else. The proceedings for partition amounted to no more than an ordinary conveyance; they showed a claim, but did not imply any possession under it. Sixteen years possession has no artificial favor to raise a presumption, as twenty years might have, and as circumstantial evidence to induce belief, is, when unaccompanied by other circumstances, so wholly insufficient, that a verdict founded upon it, as the only ground of presumption, must have been *77set aside. It was therefore unnecessary to submit to the jury the evidence that was adduced, and the order for non-suit-v was properly granted in the first instance.

If in his discretion the Circuit Judge had indulged the plaintiff in his desire to offer further evidence, after an opinion in favor of a motion for non-suit had been intimated, this Court would hardly have interfered ; but as little is this Court inclined to interfere, when, with a just perception of his powers, the Circuit Judge has thought proper to refuse the indulgence. The defendant, by going to the jury without offering testimony, might have compelled the plaintiff to submit to a non-suit, as the only means (without unusual Indulgence from the bench) of avoiding a verdict against him : and when the distinct admonition given by the defendant’s counsel, the experience of the counsel on both sides, and the spirit in which the case was managed, are considered, it may well be conceived that the circumstances justified the mode in which the discretion of the Judge was exercised, and that no one can now appreciate, as on the trial he did, the force of those circumstances.

The motion is dismissed.

Evans, Frost & Withers, JJ., concurred.

*motion refused.*