ERROR to the circuit court of the district of South Carolina.
An action of trespass to try titles was brought in the circuit court of South Carolina, on the 20th of April 1822, by the defendant in error, against the plaintiff in this court, for the recovery of six hundred acres of land situated on the Savannah river. The title claimed by the plaintiff below and the evidence are fully stated in the opinion of the court.
On the trial in the circuit court the defendant proved that Samuel Willison, his father, had possession of the land in 1789, and cultivated it will the period of his death in 1802, from which time his widow and family possessed it until the death of his widow in 1815; and that from 1815 until this action was brought, the children retained possession by their tenants. That in the lifetime of Samuel Willison, Bordeaux, through whom the plaintiff claimed, was apprised that he claimed to hold the land by an adverse title. That the widow in 1802, on demand made, refused to give possession to Ralph S. Phillips who claimed the land, and set up a title in herself, and was sued as a trespasser. That in 1793, Bordeaux and Willison were in treaty for the sale of this land; Bordeaux wishing to sell, and Willison to purchase. The plaintiff then offered in evidence a power of attorney from Bordeaux to Willison, dated February 1792, authorising him to take possession of the land, and sue trespassers; and that Willison was then a tenant of Bordeaux. The defendant having pleaded the statute of limitations (five years adverse possession giving a title under it) relied upon the foregoing facts. But the presiding judge overruled the plea, and instructed the jury that, when a tenancy had been proved to have once existed, the tenancy must not only be abandoned, but possession given up, before an adverse possession can be alleged. To this decision the defendant excepted.
The defendant brought this writ of error.
In the argument of the cause, the counsel for the plaintiff in error presented for the consideration of the court other exceptions besides that upon which the judgment of the circuit court was reversed. The decision of the court is exclusively upon the law arising on that which is stated.
The case was argued by Mr Blanding and Mr M'Duffie for the plaintiff in error, and by Mr Berrien, attorney general, for the defendant.
Mr Justice BALDWIN delivered the opinion of the Court.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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