#### *Zach. Allen vs. Noel Johnson.*

1. There is a material difference between proving a deed as a part of a chain of title, and introducing a paper as color of title to show the extent of a party’s possession. In the first case it must not only be proved to have been in existence before the party acquires rights under it, but when it purports to be less- than 30 years old, its execution must be strictly proved.

2. To admit a deed in evidence as an ancient deed, continuous possession under it for 30 years is not always necessary. A less period than this will suffice, if there has been no inconistent possession to conflict with it. A deed being found in an office, recorded, may be sufficient evidence sometimes; and at all times such testimony may be received to show the antiquity of such a paper.

3. When a party indicates the boundaries of his land by stakes, for more than ten years, by which he shows the extent of his possession, and the boundary thus indicated is made known to the adverse party, who is interested to deny it, and they acquiesce therein, it is a good title to the land by possession, with a color of title.

*Before*Evans, J. *at*Chesterfield, *Fall*Term, 1836.

The facts of this case appear from the circuit report, which is as follows:

This was an action of trespass to try title. The facts of the case, so far as is necessary to understand and decide the grounds made in the notice, were these. The plaintiff claimed the land under a grant to one Pittman, which, located according to its boundaries, cornered the *locus in quo.*Pittman conveyed to Harrell in 1819: Harrell to Mrs. Cook in the same year, from whom the plaintiff derives his title. The subject in controversy was in part a triangular piece of land containing 40 acres. The defendant claimed it under a deed from Jámes Killgore to himself, dated in 1808, in which it is described as a part of a tract of land granted to Francis Young for 200 acres, in 1749. Only one corner of this Young tract was found; in locating from which by course and distance, there being no other way of closing the lines, the land in dispute was not included. The deed from Killgore *496to defendant included the whole of the land in dispute; but as the Youug grant could not be located so as to cover the disputed land, the defendant could only avail himself of it to make out a title by possession. To enable him to do this it was necessary ' to prove the deed, and possession under it. The deed was dated in 1808. On the back was a probate by one of the witnesses before a-justice of the peace, in 181!; but the deed had not. been recorded. The grantor, Killgore, made the initials of his name for a mark, and a witness who had often seen him sign his name in this way, swore he believed it to be genuine. The witnesses wrote bad hands, indicating they were illiterate. One was dead, and the other had removed many years from the State. Full 20 years ago the defendant cleared a part of this land, and had been in possession ever -since. The held which he claimed contained 8 or 10 acres, but only a part of it (the witness says one third) was of the disputed land. Two witnesses proved that 17 years ago, which was soon after Mrs. Cook bought the Pittman land, Johnson, the defendant, put up a line of stakes from corner to corner on the land conveyed to him by Killgore. These stakes were seen by 4 of the witnesses, and one of them proved that after the stakes were put up, Johnson sent for Mrs. Cook, and told her the stakes were the line between them, and if she trespassed beyond it, he would sue. She never set up any claim to the land beyond the stakes, and frequently cautioned those who worked for her, not to go on *Johnson’s*land. I admitted Kill *gore’s*deed to go to the jury, as an ancient paper. I thought its antiquity sufficiently established. It was proved before a justice of the peace in 1811, and the justice was the same Harrell who conveyed the land to Mrs. Cook. He has been- gone *from*the country 15 or 16 years. The proof of Harrell’s signature to the ' probate was not very full, but I thought sufficient to go to the jury. The possession under the deed was 21 years, of a part, and the assertion of title to the whole by *setting up the stakes, 17*years. The presumption of a grant is now, I think, clearly established at 20 years, and as a necessary consequence of this, the execution of a deed could be presumed also. 1 Hill, 222 ; 2 Hill, 493, 592.

In submitting this case to the jury, I told them that according to the view which I took of the Young grant, it could not be located so as to cover the disputed land, and as a consequence the plaintiff was entitled to recover, unless the defendant was protect*497ed by the Statute of Limitations. On this subject Hold the jury that possession of a part-of the land adversely to the claims of others, gave a good title, after 10 years, to the extent of the tenant’s claim. The evidence of this claim was what was usually called color of title. It might be in writing, as a grant, a deed, a contract to purchase, or bond to make titles which so described the land as to render it susceptible .of identity, or it might be in parol, as proof that he had marked out the boundaries of his land by clear and defined lines, so as to indicate to the owner the extent of what he claimed. There is no question .that the defendant has been in possession of a part of the land for a much greater period than the statute of limitations required, and if the deed from Killgore to Johnson was a genuine deed, it was such color of title as would give the defendant the whole 40 acres. But independently of this deed, if the defendant marked out his lines by running a line of stakes from corner to corner, and more especially if he gave Mrs. Cook, the then owner of 'plaintiff’s land, notice of the extent of his claim, that this was color of title, and would give him a right to the whole disputed land.

The jury found for the defendant.

Plaintiff appeals. 1. Because his Honor erred in charging the jury, that the possession by defendant of a small portion of the land over the Pittman line, was a sufficient possession to give him a title by the Statute of Limitations to the 40 acres, included in the deed from Killgore to defendant, inasmuch a.s the deed was not located. r

2. Because his Honor erred in charging the jury that even if they considered the deed from Killgore to defendant spurious, yet if they believed that the defendant put up the line of stakes from the pine comer in the new ground to the pine stump in the old field, his possession of a piece of'the old field below the new ground for 10 years, gave him a title under the Statute of Limi- ■ tations, up to the stakes.

3. Because the court charged, that the stakes was a sufficient indication of the extent of defendant’s claim; that if defendant had in his possession any part of the land within the stakes for 10 years, he would have a statutory title to the stakes.

4. Because the court erred in permitting the defendant to give in evidence the 'deed from Killgore to defendant for 40 acres, as *498an ancient deed, without proof of its execution, or possession under it.

Curia, *per*

Butler, J.

There is a material difference between proving a deed as a part of a chain of title, and introducing a paper as color of title to show the extent of a party’s possession. In the first case, it must not -only be proved to have been in existence before the party acquires rights under it, but when it purports to be less than thirty years old, its existence must be strictly proved. The deed from Kiligore to defendant does not purport to be 30 years old; and its execution was not otherwise sufficiently proved; and if it had been offered as a part of defendant’s chain of title, he not having had sufficient possession to give him title to any part of the land, it was not legally proved. To admit a deed in evidence as an ancient deed, continuous possession under it for 30 years is not always necessary. The primary object is to show that the deed has had an existence for 30 years. To do this, possession under it for the whole length of time is the best evidence; but a possession of a shorter period of time might suffice, if there has been no. inconsistent possession to conflict with it. A deed being found in an office, recorded, may be sufficient evidence, sometimes : and at all times such testimony may be received to show the antiquity of a paper. These principles are discussed and explained in the case of *Robertson vs. Craig and wife,*1 Hill, 389. Chancellor Harper does not .lay down the law in that case, as contended, that there must be a continuous possession under a deed for 30 years, to admit it in evidence as an ancient deed. Upon an examination of his opinion, he rather comes to a different conclusion. But that which purports to be a deed from Kiligore to defendant was properly admitted by the presiding judge, as a paper to show the extent of defendant’s possession : and the only question was, was that deed in existence before the ‘defendant went into possession of his land *1*For it is admitted that it covers the land, and it was clearly proved that defendant’s possession was more than 10 years. I think it quite clear that the deed was in existence at the time defendant took possession, and it seems equally clear that he took possession and held under it; at least, this is a fact which has been established by the verdict of the jury. But on another ground there was color of title. The defendant had indicated for more than 10 years the extent of his *499possession by putting up stakes. The boundary thus indicated was made known to Mrs. Cook, who was interested to .deny it, and she acquiesced in it.

*Clinton and Hanna,*for the motion,

Graham, contra.

The motion for a new trial is refused.

Evans, Earle, Gantt and Kichardson, JJ. concurred.