CONSTITUTIONAL COURT, COLUMBIA,
APRIL, 1807.
Mazyck v. Birt.
If the defendant in an action to try titles to land, should prove that one from whom he derives his title, had five years notorious, unmolested and adverse possession, previous to his conveyance to the party, it shall he sufficient evidence of a legal right to the possession, and the defendant will be intitled to recover, notwithstanding it may appear that he from whom he obtained this title had been absent some time after the expiration of five years possession, from the land, which was left vacant, before the possession of the defendant commenced under the conveyance to him.
Trespass to try titles to land In Edgefield district, before Grimke, J. Plaintiff produced a grant to himself. Defendant proved that one Blocker had a grant of and conveyed the 'land to one Miller, and that Miller was five years and upwards in the peacéful possession of the land, and cultivated part of it. That he afterwards removed to Georgia, and three years after returned and settled on land adjoining the land in dispute, and after that sold the said land in dispute and conveyed the same to one Wright, who sold to the defendant. Blocker’s grant was of a later date than the plaintiff’s. The judge was of opinion that the defendant had not proved a sufficient possession by himself to intitle him to the land under the limitation act. He considered the possession of Miller as insufficient to give the defendant any right, especially as he had relinquished the possession some time before he sold the land to Wright, and had not possession long enough after his return from Georgia to give him a title.
Verdict for the plaintiff.
Motion for a new trial in this court.
Lesley and Goodwyk, in support of the motion,
insisted that the defendant had shewn that a good title to part of the land, at least, had been acquired by Miller under the act of limitations, which was sufficient to intitle the defendant to a verdict, since it had been proved at the trial that the plaintiff to the part claimed by him, which had been used or occupied by the defendant, had no title. At all events» there was evidence upon which the jury ought to have been charged to find for the defendant, if they should been satisfied that the possession of Miller for five years and upwards, was adverse and of sufficient notoriety, uninterrupted, and bona fide, or not fraudulent. *156That there was no evidence of fraud, or of any direliction or relinquishment of right or title on the part of Miller ; and if he acquired a title before he removed off the land, his afterwards merely going off the land would not defeat or destroy that title.
Stake®, for the plaintiff,
submitted the case without argument.
Teezevant, J.,
delivered the opinion of the whole court, except Waties and Bay, Justices. Miller’s title appears to have been complete to the land occupied by him by possession under the limitation act, which was enough to bar the plaintiff’s right to recover, as he lost his title to the land acquired by Miller. The plaintiff must recover on the strength of his own title ; and it was only necessary to prove a better title in some other. The verdict appears to have been against law and evidence, and ought not to stand.
Bay, J., of a contrary opinion, thought that Miller abandoned his title by possession when he removed to Georgia.
Waties, J., not present at the argument, but concurred with tho majority.