#### *The Camden Orphan Society vs. Joseph Lockhart et al.*

1. The statute of limitations, ■will run against the title to lands, claimed by a corporate body, such as the Camden Orphan Society.

2. Where a party enters upon land, as the tenant of another, he cannot dispute the title of the party, under whom he entered, by attorning secretly to a stranger.

*Before*Butler, J. *at*Kershaw, *Fall*Term, 1841, *who reports the following statement of facts.*

This was an action of trespass, to try titles to a tract of land, containing 500 acres, lying on Deep Fork of Black river.

It appeared from papers on record, in the office of the Secretary of State, copies of which were given in evidence, that the land in dispute had been in a grant of 48,000 acres, to Thomas Lowndes, made by the Lords proprietors, in 1721, and that the same lands had been receded by the grantee, Thomas Lowndes, to the crown, after it assumed the government of the Province of South Carolina. In 1775, Edward Lowndes, had the land in dispute, with several other tracts of 500 acres, surveyed for him. The survey was made by one John Belton, D. S. and was recorded in the proper office. A memorial was also recorded in the same office, purporting to have been made by Edward Lowndes, and certified by the same John Belton, in which it is recited, that these lands had been granted to *85Edward Lowndes, with a reservation of quit rent to the crown. No grant-could he found in the land offices, as appeared hy a certificate of the deputy Secretary of State, and the deputy Surveyor General. The plaintiffs made the usual affidavit, that no such grant was in their possession. They relied upon the above statement of facts, to raise the presumption of a grant, and that it had been destroyed or lost, <fcc. The next piece of evidence, introduced by the plaintiffs, was a record, in which Royal Bullard, as Escheator of Kershaw district, asserts and declares, that Edward Lowndes, died in 1790, in England, leaving no heirs in this country, who could hold the land — -and that the same, escheated to the State. Verdict of the Jury; “we find the within lands described, to be escheated.” The verdict was certified by the presiding Judge, David Johnson, Nov. 1816. Upon these proceedings, the clerk of the Court, as required by law, advertised in the public newspaper, that unless the heirs of Edward Lowndes, came forward within a year, to establish their right to said land, they would be declared duly escheated, *&c.*By an Act of the Legislature, the title to the escheated lands, of Kershaw district, was vested in the Orphan Society of Camden, to the value of $9,000 ; and under this act, as well as a title from Royal Bullard, escheator, dated the 28th of October, 1823, the plaintiffs claimed the lands in dispute. Trespass admitted.

Upon the above statements, the defendants moved for a non-suit, which I overruled, holding that there was sufficient evidence, to shew that the State had *granted*the lands to Thomas Lowndes ; that although no grant could be found in the land office, I thought the recorded memorial, certified by Belton, to have been made by Lowndes, was evidence, that the grantee was to pay quit rent to the crown, on the assumption of a grant; and I also thought that the presumption, that the grant, had beeii lost or destroyed, amid the confusion of a civil war, and the removal of the records, from one place to another, might well arise.

The defendants then went into their defence, which depended, somewhat, on the evidence, that came out from the plaintiff’s witnesses, (which will be noted hereafter,) and upon a grant to Isham Moore and David Reynolds. *86The grant was dated the 7th May, 1786, and covered the *locus.*

To establish possession under this grant, the defendants relied on the following evidence :

Daniel Scarborough said, that he married the daughter of Joseph Lockhart, in 1815; that Lockhart was then in the cultivation of the land; he spoke of it, as the Lowndes land, but always said he held it, as the tenant and agent' of Moore ; never heard him say, otherwise, in his life time; he died in 1829, and his son, Joseph Lockhart, one of the defendants, then took possession of the land, and held it as his father had done. The witness said, the first time he heard old Joseph Lockheart, speaking of his holding the land for Moore, was about a year or two after his marriage. He then spoke of himself, as Moore’s tenant generally.

Angus McCaskill, said he knew Joseph Lockhart, sen. in 1815; he was then living on this land, and died there. During Lockhart’s life time, from 1815, witness often heard him say, he held the land for Moore, and was put there to take care of the land, and to keep off trespassers. The witness says he knows of Lockhart, having bargained a part of the land for Moore, in 1826, to one Porter; and that Porter is now in the occupancy of the land, so bargained, and has been, ever since his purchase in 1826.

The defendants closed, by proving that the defendants, in the record, were the representatives of Moore; their names having been substituted or added by order of Court since the commencement of this suit.

By way of reply, the plaintiffs relied on the following evidence:

Obligation by Joseph Lockhart, dated April, 1821, to pay $10 rent, to the Camden Orphan Society. The following entry, appeared on the record of the Court of Common Pleas, for November, 1824; *Boyal Bullard, Escheator of Kershaw district, vs. Jos.*Lockhart; trespass to try titles. Nonsuit.”

Record of *Richard, Moore vs. the Escheator of Kershaw.*This was a suggestion on the part of Moore, setting forth, that the lands described, were not subject to escheat, as had been declared in previous proceedings, but they belonged to himself. This proceeding was let fall in some *87way. William McWillie, was sworn to make some explanations, relative to the above record. He stated, that he was counsel for Lockhart, in the suit of the Orphan Society, against Lockhart, and procured a non-suit on the production of the obligation, to pay rent before mentioned, and that the last case, went off the docket, because Moore supposed his title, no longer in danger, and that it was not therefore, necessary for him to go on with the suggestion.

The whole question in the case, as it went to the Jury, was, whether the defendants, had a good title to the land, by the statute of limitations ; which depended altogether, on the character of Lockhart’s possession. I said to the Jury, that if Lockhart had held for Moore, from 1815 to 1821, it gave Moore good title under the statute; and that in 1821, when it was said Lockhart acknowledged himself the tenant of plaintiffs, he could not attorn to a stranger, without divesting himself of the relation of tenant of Moore, and giving Moore notice of the new relation he had assumed to plaintiffs. That if Lockhart had done so, he might then be regarded as standing in an adverse position to Moore, and might, by his subsequent possession, enable the plaintiffs to acquire a title under the statute of limitations, cfec. The fact, that Lockhart bargained any part of the land for Moore, in 1826, would seem to show, that at that date, he regarded himself as the agent of Moore. The Jury, returned a verdict for defendant.

The plaintiffs appealed and moved, for a new.trial.

1. Because, by the written acknowledgment of Joseph Lockhart, sen. in 1821, as tenant of the plaintiffs, and his obtaining a non-suit against the plaintiffs, in their suit against him, in 1824, by setting up, and by virtue of the said instrument, the said Lockhart had openly thrown off his character as agent or tenant of Moore, if ever he was such tenant.

2. Because the suggestion filed by Richard Moore, on the 17th of April, 1824, was an admission that the said Lockhart was the tenant of plaintiffs. •

3. Because Richard Moore, having failed to file his traverse of said escheat, within five years after the verdict of *88escheat, he is barred from now claiming, and the land then vested in the plaintiffs.

4. Because Moore, having failed to traverse the es-cheat, within the time limited, the attornment of Lock-hart in 1821, made his possession, the possession of the plaintiffs.

5. Because from the legal proceedings had, the question of tenancy was one of law, not fact, and his Honor should have so charged the Jury, and not left it to them to decide.

*J. M.*DeSaussure, for motion.

Reads the acknowledgment of tenancy, 1821. Non-suit in 1824, by the production of the written memorandum of tenancy. This is inconsistent with this verdict.

His defence, on the ground of this tenancy, was a renunciation of his defence under Moore, 5 stat. at large, 48, escheats 3.

Within 5 years, party comes in and compensation.

*Wm. F. DeSaussure,*contra.

Was Moore a party to the inquis’n of escheat? It merefy applies *to the*heirs of the parties seized.

1 N. McC. 570, (note 373.) Title acquired by tenant, cannot be set up.

Harper 70, *Love vs. Dennis.*Law Journal, 114, 125.

Qwere. How can Lockhart’s possession be adverse after the recognition of the plaintiffs title, by becoming their tenant.

*Curia, per*

Butler, J.

I shall regard this case here, as it was regarded on the Circuit. As a contest between the plaintiff and the heirs of Moore. The grant under which the defendant’s claim, can avail them nothing, except as color of title, to indicate the extent of their possesion. For it could have availed them nothing, during the life time of Lowndes, as the land ivas at his death, in the actual possession of no one; and after his death, while the title was in the State by escheat, it was not the subject qf grant. At Lowndes’s death, the title being in the State, as was established by the proceedings in escheat; the statute of limitations could not run against the State, in favor of Moore or *89any one else. It may be assumed, as it is stated in the foregoing proceedings, that Edward Lowndes died in 1790. At that time, then, the right to the land, reverted to and was vested in the State, .and was subject to be sold under the Act of 1787, or to be disposed of, by any specific legislative enactment. By an Act of Assembly, passed in 1799, the escheated lands in Kershaw district, to the amount in value of $9000, were vested in the Camden Orphan Society, which, as a corporate body, had power to sue for these lands, as fully as any natural person would have had, under a general grant.. The plaintiffs having thus acquired this right, under a special Act of legislation, must be governed by the same legal principles, that would operate on other proprietors.

These general propositions are fully sustained by repeated decisions of our own State. The case of *Wilkins vs.*Tart, 2 McC. establishes the point, that the statute of limitations, will run against the trustees of an Academy, who had vested in them the title of escheated lands, by a special Act of the Legislature. Not from the time of inquisition and office found, but from the time the title was cast upon, or was acquired by the trustees.

Moore, by his tenant, Lockhart, *took*possession of the land, in controversy, in 1815, and held it adversely, till 1821, without question. This was a period of six years, and by the operation of the statute, he acquired a perfect title, to the exclusion, of all the world. The question then presents itself; has he been divested of that title, by the adverse possession of plaintiffs, after that time. From 1821, it is contended, that the plaintiffs were in, by the possession of Lockhart, as their tenant. Whether Lock-hart continued to be the tenant of Moore, or had become, and was the tenant of plaintiffs, after that period, was a* question of fact, that was submitted to the jury, on the evidence. It does appear, that in 1821, Lockhart entered into an obligation to pay rent to plaintiffs. Whether he ever paid the rent for that year, or acknowledged his liability to pay it afterwards, did not appear. I think, the evidence well warranted the conclusion, that after that year he continued to hold for Moore. For, in 1826, Lockhart actually bargained in the *90name of Moore, part of the land to Porter, who is now in possession, under Moore’s title. But I hold it out of the question, that the plaintiffs could have availed themselves of Lockhart’s possession, to defeat Moore’s title, unless it could have been shown, that Lockhart had assumed an open and hostile attitude to his original landlord. Having entered under Moore, he could not dispute his title, by at-torning, secretly, to a stranger. The law will not allow the rights of a landlord to be prejudiced by the treacherous conduct of his tenant. Before a tenant can claim against his landlord, he must give him open notice, directly, or by some decisive act, that the tenant is holding in his own right, or in that part of another. No such' notice was, given to Moore. On the contrary, he had every reason to believe, that Lockhart was always holding in his right. Moore was not even made a party to any of the proceedings against Lockhart, and there was not the least evidence, that he knew of Lockhart’s having entered into any obligation to pay rent to plaintiffs. Upon this point we are well satisfied with the finding of the jury. The ground was taken, though, I think, not seriously insisted on, th at after the land was sold, under the proceedings of escheat, the title of all parties, having any claim to the same, was, thereby, and then, extinguished and barred. Upon reading the Act of 1787, it will be found, that these proceedings were conclusive, alone, on the representatives of Lowndes, and could not affect strangers to them.

Motion refused.

We concur. J. S. Richardson, John Belton O’Neall, B, J. Earle, Josiah J. Evans.