Opinion
August Term, 1857.
Where it was left uncertain whether a possession (relied on to defeat an elder title) began in February or March, which was insufficient, in law, if it began in the latter month, but good, if in the other, Held that the party alleging such possession, was bound to show in which month it began, or he could take no benefit from it.
ACTION of EJECTMENT, tried before ELLIS, Judge, at the Fall Term, 1856, of Jackson Superior Court.
The plaintiff showed title in himself, by the production of a grant from the State, for the land in controversy, bearing date 14th of August, 1843. He showed the defendant in possession at the time of the service of the declaration.
The defendant, to show title in himself, produced a grant for the same land, dated six days after the date of the plaintiff's grant, to wit: on the 20th of August, 1843. He then undertook to show an adverse possession, under this grant, for more than seven-years; to do so, he showed that he owned another tract of land, called the Cathey tract, adjoining the one in question, which he cultivated; that the land, sued for, was uncultivated, and laid in a wild region of the mountains; that in February, or March, 1847, defendant built a shed on the same, near the line of the Cathey tract; that this structure was of puncheons driven upright in the ground, against which other puncheons were leaned, so as to form a shed, or roof; that during the year 1847, the defendant frequently went to cultivate the Cathey tract, which was distant several miles from his residence, and that when there, he occasionally camped or tented in this shed, and when he had worked over his crop, he returned home, and left it vacant; that in December of that year, (1847,) some of his cooking implements were found there; that hunters and others, as they traversed the mountains, were in the habit of camping under this shed, it being constantly left open for all who might choose to occupy it. It was proved that there was also a small enclosure near the camp, of about twenty pannels of fencing, in which the defendant occasionally salted some cattle which he had running in the mountains. There were no other improvements of any kind on the land in 1847, and no uses whatever were made of the premises, except those above stated. The plaintiff's declaration issued in February, 1854, and the question was whether the acts of occupation and enjoyment above stated, accompanied, during the time, with a claim of right, was sufficient to ripen this younger, and defective title, so as to defeat the plaintiff's elder title.
The Court was of opinion that it was not, and so instructed the jury. To which the defendant excepted.
Verdict for the plaintiff. Judgment; and appeal by the defendant.
Baxter, for plaintiff.
J. W. Woodfin, and Gaither, for defendant.
The defendant makes title under the statute of limitations. His paper title is defective; in other words, the plaintiff's title is the preferable one, unless he has, by permitting the defendant to remain in the adverse possession of the premises, until his title has been ripened into an indefeasable one so far as the plaintiff is concerned. The time is, by our statute, seven years. The defendant took possession of the premises, in dispute, by erecting the shed in February or March, 1847. In order to make out his possession for the time required to ripen his title, it was necessary for him to show that he took possession in February. The case states that he took possession in February or in March, 1847. This alternative time will not answer — the law ripens the defective title of the possessor only after a seven years' possession before the commencement of the action, to be calculated from the time when he went into the possession, the onus being on him, thereby giving to the rightful owner an opportunity to try the title by an action of ejectment. Here the defendant needs one month to make out his full time. The Court cannot depart from the law, and say that a less time, than that established by the act, shall suffice. If we can say six years and eleven months will answer, with equal propriety, we can say six years and six months will, or any less time will. The Legislature makes the law, our business is to expound it.
PER CURIAM. There is no error. Judgment is affirmed.