Opinion
(December Term, 1843.)
1. A possession of twenty-one years under colorable title and under known and visible boundaries will confer a good title and bar the entry of any person claiming under the State, without any reference to the period at which the person so entering on the previous possessor acquired his right or claim under the State.
2. The word "entry" in Rev. Stat., ch. 65, sec. 2, means an actual entry into the land, as the exercise of a right under a valid legal title derived from the State, and not an entry in a public office, as of vacant and unappropriated land to which the party intends to perfect a perfect title.
APPEAL from Dick, J., at Fall Term, 1843, of HENDERSON.
No counsel for either party.
This action of ejectment was instituted on 3 February, 1842, and the plaintiff claimed title as follows: In November, 1815, Moses Martin, by deed, conveyed the premises, as described in the declaration, to the lessor of the plaintiff, and he immediately entered and hath retained possession ever since, except as it appeared that at the time of bringing this suit the defendant has taken possession of a field, part of the land so conveyed to and possessed by the lessor of the plaintiff.
To show the title in himself, the defendant produced a grant from the State to him, dated in April, 1836, for that part of the land into which he had thus entered. And on the part of the defendant it was insisted that the plaintiff could not recover because his lessor had not possession of the premises for twenty-one years before the issuing of the grant to the defendant. Of that opinion was the court, and so instructed the jury, who gave a verdict for the defendant, and from the judgment rendered thereon the plaintiff appealed.
It must be assumed, upon the case as stated, that the defendant did not take possession of the field claimed by him before 1842, because he proved no possession before that time and because the decision of the court is based on the fact that the grant issued to the defendant before the possession of the plaintiff had continued for twenty-one years, and not upon the ground that the defendant had entered under his grant before the expiration of the twenty-one years. In that we think the opinion delivered by his Honor is erroneous. If the truth be, as it is necessarily to be inferred here, that the lessor of the plaintiff had possession for twenty-one years under colorable title of the premises, under known and visible boundaries, before the defendant entered, then the title of the lessor of the plaintiff is ratified, confirmed, and declared a good and legal bar to the entry of the defendant under the right or claim of the State by the express words of the act of 1791 (Rev. Stat., ch. 65, sec. 2), and that without any reference whatever to the period at which the defendant thus entering on the previous possessor acquired his right or claim under the State; in other words, obtained his grant. We have been at a loss to conjecture a ground for the construction of the act which was adopted in the Superior Court. The only color for it that has been suggested is that the "entry" mentioned in the act, and thereby barred, is to be understood as "an entry of the land as vacant," and, therefore, that making such an entry and obtaining a grant thereon before the expiration of twenty-one years vest in the grantee a good title, provided he sue for or take possession of the land within seven years after the grant. But that is manifestly, we think, a mistake of the sense of the Legislature. The term "entry" in the act of 1791 means precisely what it does in that of 1715, both being acts for quieting ancient titles to lands, and thus in pari materia. In the act of 1715 the language is that no person who shall have title to lands "shall thereunder enter or make claim" but within seven years, but that all possessions held without suing such claim as aforesaid shall be a perpetual bar against all persons, which unquestionably (34) means an entry into the land or a taking possession thereof. From the nature of the subject, the same word, even if standing alone, must be received in the like sense in the latter statute. But the context puts it beyond doubt. The subsequent words, "under the right or claim of the State" annexed to and qualifying the term "entry" prove the act to mean an entry into the lands as the exercise of a right under a valid legal title derived from the State, and not an entry in a public office as of vacant and unappropriated land to which the party intends to perfect a title.
PER CURIAM. Venire de novo.