#### William Wagner et al. *v.*Robert Aiton.

Trespass to try title. The plaintiffs were three out of five of the children and heirs at law of the late William Wagner, who died in January or February, 1813. The plaintiffs claimed under a *grant*to Robert Brown, for one hundred acres, dated 9th November, 1774. The land in dispute had been surveyed under a rule of court, by a deputy surveyor, who stated in his certificate that he had seen the land, and found it to he the same re-sprveyed by Robert Bradford, 20th December, 1803 ; and that he believed it to be a part of the Brown grant. The next regular link in the plaintiffs’ chain of title, was a deed from Moses Westbury, dated 20th December, 1799, to one Carter. None of the witnesses knew Westbury ; some of them said, that the reputation in the neighborhood was, that he married the only daughter of the grantee, Robert Brown, and that he and his wife removed from the state upwards of *thirty*years ago; probably about the date of this deed to Carter. There was no proof that either had been heard from since. The handwriting of a deceased witness to Westbury’s deed was proved, and that the other witness to the same, who had made a mark, was also dead. The same witness proved that the body of the deed was in his (the witness’) father’s handwriting, who was dead : he also proved the probate to have been made before his father, who was a justice of the peace, and the certificate of registry, signed *by*Tutt, the clerk of Edgefield, who was dead. This deed conveys the land covered by the Brown grant. A deed ftom Carter to the late William Wagner, for the same land, dated 18th January, 1802, was proved, and given in evidence. The plaintiff gave in evidence a plat made by Robert Bradford, of the land in dispute, surveyed at the request of Carter, for William Wagner, dated 20th December, 1803. The plaintiffs proved that the Brown grant was regarded, by the neighborhood generally, as covering the land in dispute, and that the late William Wagner had more than five years actual possession prior to 1812, of afield of five, six, or seven acres, on the land in dispute. The defendant claimed under a junior grant to one Adams, dated June, 1786, covering the land in dispute, and deduced a regular paper title ; and proved that outside of the lines claimed by the plaintiffs, there had been a continual possession for more than forty years in the defendant, and those under whom he claimed. He proved too, that in the fall of 1811, Mr. Burnet, under whom he claims, dispossessed the tenant of William Wagner of the field of five or six acres, sowed, and reaped a crop of wheat from it. That Wagner was about ploughing up the wheat, in the spring of 1812, when he and Burnet met at the field: Burnet prevented him from doing so, and an arbitration (as it was called) took place, the whole matter about which, was ascertained from the recollection of *101two witnesses, who said that they were at the arbitration. That Lyon, Robertson and Bullock were the supposed arbitrators.' One of the witnesses said that they looked at the papers, and said that the Adams title (that under which the defendant claims) was to hold until a better one. The other witness said, the understanding at and of the arbitration was, that Wagner’s title would be good if he had Mrs. Westbury’s title, otherwise the junior grant (the state title, as he called it) would be good : this was in the summer of 1812, and from-that time to Wagner’s death, in January or February, 1813, he was generally sick, and, some of the witnesses said, bed-ridden. Burnet hauled away, in the summer of 1812, the rails from around the field, and there had been no possession by any one since, of the land in dispute. The defendant also proved that the plaintiffs, William Wagner and his sister,,Elizabeth Davis, asked leave, severally, to cut timber on the land in dispute, from the defendant; and' that he accordingly gave them leave. On this evidence, the jury were instructed by the circuit judge, as follows :

1. “ That the ordinary proof of location had not been resorted to, to locate the Brown grant, but still the evidence might satisfy them that it covered the *locus in quo.*That the survey by Bradford, made in 1803, under the title deduced from [the grantee, was evidence of the location of the Brown- grant; for there was no doubt that plat covered the *locus in quo.*So, if they should be satisfied that Wagner, under the Brown grant, had possession, claiming by the' boundaries of the Bradford survey, for more than five years, it would afford very satisfactory evidence of the location ; and that in a case of this kind, the circumstance proved by the defendant, in making out proof of the award (as it is called), that it was-the understanding among all concerned, that if Wagner had Mrs. Westbury’s title he would be entitled to the land, might turn the scale in favor of the location contended for by the plaintiffs.

2. That if the plaintiffs’ title could be connected with Brown’s grant, then he might be entitled to recover; otherwise not. That if the proof satisfied them that Mrs. Westbury was the daughter of Brown, and she and her husband were still alive, then her husband’s deed being good for his or her lifetime, would entitle the plaintiffs to recover. If she survived her husband, then it would be that the plaintiffs had not entitled themselves to recover by the paper title. That if Mrs. Westbury was the daughter of Brown, the proof would justify the conclusion that she and her husband had been dead for thirty-two years ; both having removed from the state, and not having been heard from since. The legal 'presumption of their death would be complete in 1806. If their death was thus to be presumed against their heirs, the statute would run out and be at an end in 1811, unless they were shown to be under disability, which was not done, and that the possession of Wagner, of 1806, 1807, 1808, 1809, 1810, 1811, would perfect his title against them. But the true view of the case was, to regard Wagner as having entered under Carter’s and Westbury’s conveyances,' who, for aught that certainly appeared, might be strangers to Brown; but who had undertaken to convey *102his title, and under a title so derived, if he had an actual adverse possession of a part of the grant for more than five years before 1812, that this was equivalent to the most perfect conveyance of the Brown grant to him against all persons not laboring under some disability. That thus having the elder and 'better legal title, it was not divested by the supposed arbitration, or the asking leave from the defendant to cut timber on the land, by, two of the plaintiffs. The fact of possession of more than five years before 1812, under Carter’s and Westbury’s deeds and Bradford’s plat, as connected with the title derived from Carter and the Brown grant, was distinctly submitted to the jury, and they were told that upon it would depend the case.”

The jury, under this charge, found a verdict for the plaintiffs for three-fifths of the land in dispute ; and on a motion for a new trial, this court concurred fully in the instructions given by the judge below, to the jury, and refused the motion

In relation to the ground, questioning the sufficiency of the proof of *West-bury's*deed, the court say, “ That it was all which could be given, and enough to establish the existence of the paper more than thirty years ago. But when it is remembered that, under the title derived from Westbury, there was a survey in 1803, and an actual *pedis possessio,*commencing in 1806, of more than five years, the proof was sufficient to admit Westbury’s deed, (which was ¡more than thirty years old,) as an ancient deed, without saying any thing about its execution.”

*Before O’NEALL,*/., *at*Edgefield, *Fall Term,*1838.

This case came up on a motion for a new trial. The report of his honor, the presiding judge, is as follows: “ This was an action of trespass, to try title. The plaintiffs were ■ three out of five of the children and heirs at law of the late William Wagner, deceased, who died in January or February, 1813. The plaintiffs claimed under a grant to Robert Brown, for 100 acres, dated 9th November, 1774. The land in dispute, had been surveyed under a rule of court, by Wade S. Cothran, deputy surveyor; he stated in his certificate that he had seen the land, and found it to be the same re-surveyed by Robert Bradford, 20th December, 1803 ; and that he, believed it to be a part of the Brown grant. The next regular link in the chain of title was, a deed from Moses Westbury, dated 20th December, 1799, to Carter: none of the witnesses knew Westbury; Mr. Harrison and others said that the reputation, in the neighborhood, was that he married the only *103daughter of the grantee, Robert Brown — and that he and his wife removed from the state, upwards of thirty years ago, probably about the date of this deed to Carter. There was no proof that either had been heard from since; one of the witnesses said, that in' 1812, at an arbitration hereafter to be spoken of, it was thought to be possible to find Mrs. Westbury. The witness, Mr. Harrison, proved the hand writing of a deceased witness, Mr. Edward Harrison, to Westbury’s deed, and that Couch, the other witness, who I think, made a mark, was also dead.' He proved, that the body of the deed was in his father’s hand writing, who is dead ; he proved the probate to be made before his father, who was a justice of peace, and the certificate of registry, signed by Tutt, the clerk of Edgefield, who is also dead. The deed was read, and conveys-.the land covered by the Brown grant. A deed from Carter to the late William Wagner for the 'same land, dated 18th January, 1802, was proved and given in evidence. The plaintiffs next produced and gave in evidence a plat, made by Robert Bradford of the land in dispute, surveyed at the request of Carter for William Wagner, dated 20th December, 18Q3. The plaintiffs proved that the Brown grant was regarded by the neighborhood generally, as covering the land in dispute : and at the arbitration in 1812, it was conceded, if the plaintiffs’ ancestor’s title was perfected by legal conveyance of Mrs. Westbury’s estate, that then his tille to,the land in dispute, would be indisputable. The plaintiff’s proved by Messrs Rhodes, Kemp, and Thornton, that the late William Wagner had more than fiye years actual possession prior to 1812, of a field of five, six or seven acres on the land in dispute. On the part of the defendant, it was proved by Mr. Rogers, Mr. Hamilton, and Isaac Burnet, that they did not think the plaintiff’s ancestor had possession as long as five years. The defendant claimed under a junior grant, to Adams, June, 1786, covering the land in dispute, and deduced a regular paper title — and proved, that outside of the lines claimed by the plaintiffs, there had been a continual possession for more than forty years, in the defendant, and those under whom he claims. He proved too, that in the fall of 1811, Mr. Burnet, under whom he claims, dispossessed the tenant, of William Wagner, of the field of *104five or six acres; saved, and reaped a crop of wheat from it. Wagner was about ploughing up the wheat, in the spring of 1812; he and Burnet met at the field; Burnet prevented him from doing so, and an arbitration (as it was called) took place. The whole matter about which was ascertained from the recollection of two witnesses who said that they were at the arbitration, Lyon, Robertson and Bullock, were the supposed arbitrators: one of the witnesses, Mr. Rogers, said, that they looked at the papers and said that, “ the Adams title (that under which the defendant claims,) was to hold until a better one.” Mr. Corley, the other witness, said the understanding was, at and of the arbitration, that Wagner’s title would be good if he had Mrs. Westbury’s title, otherwise the junior grant, (the state title, as he called it,) would be good. This was in the summer of 1812; and from that time to Wagner’s death, in January or February, 1813, he was generally sick, and some of the witnesses said, “ bed ridden.”- Burnet hawled away, in the summer of 1812, the rails from around the field, and there has been no possession by any one since, of the land in dispute. The defendant proved that the plaintiffs, William Wagner and his sister, Elizabeth Davis, asked leave severally to cut timber on the land in dispute, from the defendant, and that he accordingly gave them leave. The jury were instructed, 1. That the ordinary proof of location had not been resorted to, to locate the Brown grant. But still the evidence might satisfy them, that it covered the *locus in quo.*I thought, and so stated, that the survey by Bradford, made in 1803, under the title deduced from the grantee, was evidence of the location of the Brown grant: for there was no doubt that plat -covered the *locus in quo;*so if they should be satisfied that Wagner, under the Brown grant, had possession, claiming by the boundaries of the Bradford survey for more than five years, it would afford very satisfactory evidence of the location; and that in a case of this kind, the little circumstance proved by the defendant in making out proof of the award, (as it is called,) that it was the understanding among all concerned, that if Wagner had Mrs. Westbury’s title, he would be entitled to the land, might turn the scale in favor of the location contended for by the plaintiffs. 2. *105That if the plaintiffs’ title could be connected with Brown’s grant, then he might be entitled to recover, otherwise not. On this part of the case I said to them, if the proof satisfied them that Mrs. Westbury was the daughter of Brown, and she and her husband were still alive, then her husband’s deed being good for his or her lifetime would entitle the plaintiffs to recover. If she survived her husband, then it woSld be that the plaintiffs had not entitled themselves to recover by the paper title. I told them, that if Mrs. Westbury was the daughter of Brown, the proof would, I thought, justify the conclusion that she and her husband had been dead for thirty-two years. For it will be remembered, that in 1799, both removed from the state, and have not been heard from since. The legal presumption of their death would be complete in 1806. If their death was thus to be presumed against their heirs, the statute would run out and be at an end in 1811, unless they were shown to be under disability, which was not done: and that the possession of Wagner, of 1806, 1807, 1808, 1809, 1810, and 1811, would perfect his title against them. But, I thought the true view of the case was, to regard Wagner as having entered under Carter’s and Westbury’s conveyances, who, for aught that certainly appeared, might be strangers to Brown, but who had undertaken to convey his title, and under a title so derived, if he had an actual adverse possession of a part of the grant for more than five years before 1812, that this was equivalent to the most perfect • conveyance of the Brown grant to him, against all persons not laboring under some disability. That thus having the elder and better legal title, it was not divested by the supposed arbitration, or the asking leave from the defendant, to cut timber on the land, by two of the plaintiffs. The fact of possession, of more than five years before 1812, under Carter’s and Westbury’s deeds, and Bradford’s plat, as connected with the title derived from Carter and the Brown grant, was distinctly submitted to the jury, and they were told that upon it would depend the case. Upon this part of the case, the defendant had the full benefit of the supposed arbitration and the asking leave to cut timber, and of every thing like an abandonment of the possessory title, by Wagner, or his heirs. *106The jury found for the plaintiffs, three-fifths of the land m dispute, and #5 damages; and I think their verdict right.”

The defendant appeals and now moves the court for a new trial, on the following grounds: 1. That the Brown grant under which plaintiffs claimed, was not located, by sufficient proof, on the land in dispute. 2. That plaintiffs established no connection in title with the Brown grant, as there was no conveyance from Brown or his heirs; as Westbury, who conveyed to *Carter, was not proved to be the son-in-law of Brown,*or to have any interest in the land; as the deed from Westbury to Carter, was not sufficiently proved; as the said deed did not convey the right of Mrs. Westbury. 3. That the possession of plaintiffs could not avail them by way of title, inasmuch as Mrs. Westbury was then alive, and as the possession was abandoned, in pursuance of an award between the parties then claiming, more than ten years ago.

*Wardlaw*and *Wardlaw,*for the motion.

*Bausket,'*contra.

Cuma., per O’Neall, J.

This court concurs fully in the instructions given by the judge below to the jury. It is only necessary to remark on the ground taken, questioning the sufficiency of the proof of Westbury’s deed, that it was all w'hich could be given, and enough to establish the existence of the paper more than thirty years ago. But when it is remembered, that under the title derived from Westbury, there was a survey in 1803, and an actual *pedis possessio,*commencing in 1806, of more than five years, the proof was sufficient to admit Westbury’s deed (which was more than thirty years old) as an ancient deed, without saying any thing about its execution.

The motion for a new trial is dismissed.

Gantt, Richardson, Evans, Butler and Earle, Justices, concurred.