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Watkins vs. Woolfolks.

session of Dr. Walker is, of course, to be deemed his own, in law. He occupied by his overseer. It is taken for granted, that the circumstance of Dr. Walker's being son-in-law of Woolfolk, cannot be brought forward to show that he held, like the others, as tenants to Woolfolk. Thus, the intervention of Dr. Walker's possession, breaks the series of tenancies, the sum total of which is necessary to complete the period fixed by the Act of Limitations, upon which Woolfolk relies. Commencing anew with the termination of the independent possession of Dr. Walker, seven years did not elapse before the abandonment of the lot by McGruder, in February, 1842. And therefore, the plaintiff's claim fails, as well in respect of duration of possession, as in the other element of adverse possession, to wit: color of title. The verdict, then, having been awarded to the party entitled to recovery, it was error in the Circuit Judge to set it aside, and order a new trial.

JONES, BENNING & JONES, for defendant.

Seven years of adverse possession of land, under claim and color of title, gives the occupant a complete title-enables him to maintain ejectment against any one who enters on it afterwards against his will, even against him who has the complete chain of conveyances from the State down to himself. Angel on Lim. (Ed. 1846,) 398. 3 Johns. 269. Jackson vs. Rightmyer, 16 John. 314. 8 Wend. 440. Fredrick vs. Scarl. 5 Serg. & Rawle. 236. Moody and others, vs. McKim, 5 Munford, 374.

An equitable title is sufficient to constitute such "color and claim," and if complete, is, itself, executed by the Statute of uses. Angel on Limit. (Ed. 1846,) 437, 438. 6 Peters,' 440, 441. 6 Munford, 40. Cowp. 46. 2 Wend. 134. Pitts rs. Bullard, 3 Kelly, 5, 17, and cases cited. 2 Watts, 150. 9 Serg. & R, 484. Prince, 447.

And where the equitable title is complete, a conveyance of the legal title to the cestui que trust ought to be presumed, and therefore, even in ejectment, such legal title, though apparently outstanding, will not be allowed to be set up to the prejudice of such equitable title, Bul. N. P. 110. Doe ex dem. vs. Hodsden, Staple, 2 T. R. 696, 7. Cowp. 473. 1 Green. Ev. §46. Doe vs. Cooke, 6 Bing. 173. (recognizing Lade vs. Holford &4 T. R. 682, 7 T. R. 2.) 2 Wend.

36, 37. 370.

Watkins vs. Woolfolks.

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Cowen & Hill's notes to Philips' Ev. Part II. 367, 8, 9, 11 Johns. 456. 1 Jacob & Walker, 599. (recognizing 4 T. R. 682.) 7 Johns. 5, 10.

By the Court.-WARNER, J. delivering the opinion.

[1] The only question presented by the record in this case, is, whether seven years possession, under color of title of lands, tenements, or hereditaments in this State, will entitle the party, having such possession, to maintain an action of Ejectment, against one, who has entered upon the premises in dispute, after the expiration of said seven years, claiming to hold the same, under a regular, and perfect chain of title, from the State to himself. The decision of this question must depend upon the construction to be given to the Act of 1767. Prince's Dig. 573. That Act purports to be "An Act for limitation of actions, and for avoiding suits in law." For quieting of men's estates, and for avoiding suits, it is declared by the first section of the Act, "That all suits of formedon in descender, formedon in remainder, and formedon in reverter, of any lands, tenements, or hereditaments, or any other writ, suit, or action whatsoever, at any time hereafter to be sued or brought, by occasion, or means of any title, or cause, heretofore accrued, happened, or fallen, or which may hereafter descend, happen or fall, shall be sued and taken within seven years, next after the passing of this Act, or after the title and cause of action, shall, or may descend or accrue to the same, and at no time after the said seven years; and that no person or persons, that now hath, or have, or which hereafter may have any right or tile of entry, into any lands, tenements or hereditaments, shall at any time hereafter, make any entry, but within seven years next after the passing of this Act, or after his or their right, or title, shall, or may descend or accrue to the same, and in default thereof, such persons, so not entering, and their heirs, shall be utterly excluded, and disabled from such entry, after to be made."

The third section of the Act provides, that not only those who have failed to prosecute their suits, within the time limited by the Act, but also all manner of persons whatever, that shall at any time claim under such person or persons, who may have lost, or who may hereafter lose their right, by neglecting to sue, and prose

Watkins vs. Woolfolks.

eute their claim within the time limited, shall be in like manner barred, as those under whom they claim, and that this -Act, and such clause, or clauses herein, as relates to the matters aforesaid, may be given in evidence to a jury, upon the trial of any claim, matter, or right, to any land, or tenements in question, between party and party, and that the Judges upon all such trials, shall allow the same to be given in evidence, so far as concerns the said matter in difference.

The plaintiffin error insists, that although the plaintiff below might have maintained his action of Ejectment on his prior possession, as against one having a subsequent possession of the premises, he cannot maintain it against one who has the possession under a regular chain of title. Mr. Angel states the rule to be, that "It is unquestionable where land has been held, under a claim to the fee, for the time prescribed by the Statute, and an entry is made by the party who has the written title, such party may be dispossessed by an Ejectment brought by him who has so held and claimed." Angel on Limitations, 398. Adams on Ejectment, 76, 77. Jackson vs. Oltz, 8 Wend. Rep. 440. But we think our Statute must control this question, in favor of the plaintiff, in the Court below. He is shown to have been in possession of the land, either by himself, or by tenants, for more than seven years, under color of title, before the entry of the defendant thereon. Under the Statute, the party having the right or title to the land, must bring his action within seven years, after the accrual of his cause of action, and at no time thereafter, and if he fails to bring such action, or enter upon the land within seven years, the Statute declares in the most peremptory manner, that he and his heirs shall be utterly excluded, and disabled from such entry, after to be made. After the title of the plaintiff became perfect, by his adverse possession, under the Statute, the defendant entered upon the land, and now claims to hold it, under his paper title, as against that statutory title. To allow such an entry by the defendant to prevail against the plaintiff's title, acquired under the Statute, would be, in our judgment, a virtual repeal of the Stat

ute.

The defendant's right of entry, upon the land, was as effectually bound, as his right of action would have been, had he instituted it against the plaintiff, to recover the possession of the premises. The Statute not only bars the right of action, when there has been adverse possession, under claim of right for seven years,

King & Hooper vs. Carey.

but after that period, it as imperatively bars the right of entry, also, for the purpose of quieting men's estates, and for avoiding suits in law. The Court below, in reversing its judgment, and granting a new trial, has offered the highest evidence of its desire to maintain the integrity of the Statute, and to carry into effect the legislative will, and to make the Statute what it was intended to be, a Statute of repose.

Let the judgment of the Court below, be affirmed.

No. 29.-KING & HOOPER, plaintiffs in error, vs. EDWARD CAREY, Assignee, defendant.

[1.] A rule nisi. calling upon the adverse party to show cause why a non-suit should not be set aside, and a new trial awarded, "so soon as counsel can be heard," is not returnable, and to be heard necessarily, during the term at which it is taken, but is to be considered as for a hearing when it may suit the convenience of the Court.

[2.] If the minutes show no action on such a rule at the first term, it will not be dismissed on the ground that the plaintiff who moved the rule was in default,and failed to prosecute his sult; but n such a state of facts, the rule is to be considered as having been continued by the Court. But if the opposite party, more to speed the cause, and the Court is willing to hear it, and the movant, without sufficient cause shown, fails to prosecute the rule—then, quere?

[3.] A rule nisi is sufficiently certain and distinct when the grounds taken are so plainly set forth as to notify and inform the opposite party as to what he is called upon to answer, and as to enable the Court to render a certain judgment on them. A rule nisi will not be dismissed for uncertainty, becanse it is not made returnable on a day certain in term.

Rule nisi. to set aside a nonsuit in Muscogee Superior Court, decided by Judge ALEXANDER, May Term, 1848.

The facts are disclosed in the opinion of the Court.

JOHNSON & WILLIAMS, for plaintiff in error.

DOUGHERTY, HOLT, and JONES, BENNING & JONES, for defendant.

King & Hooper vs. Carey.

By the Court.-NISBET, J. delivering the opinion.

Out of this cause grew two writs of error; one brought by the plaintiff, Edward Carey, assignee, &c. and the other by the defendants, King & Hooper, which by agreement of counsel were argued together, yet which require separate judgments and opinions. As many of the facts applicable to ore, have no relevancy to the other case, I shall consider them apart. In the case of King & Hooper, plaintiffs in error, the facts necessary to be sta. ted, are these: Upon the trial of the cause, a nonsuit was awarded against the plaintiff, and at the same time, to wit, at the May term of the Superior Court of Muscogee county, 1847, the plantiff below, moved the following rule: "Edward Carey, assignee, &c. vs. King & Hooper. Assumpsit; nonsuit. On motion of plaintiff's counsel, ordered that defendants' counsel show cause as soon as they can be heard, why the nonsuit entered in said case should not be set aside, and said case be reinstated on the following grounds:

1st. Because plaintiff's counsel were surprised on the trial of said case, by the absence of E.Barnard, who was the only person by whom notice of nonpayment, necessary to charge the defendants as indorsers, could be proved, and who is a merchant residing in the city of Columbus, and a Notary Public, and generally to be found at his office or counting room, and seldom absent therefrom in business hours; and that plaintiff went to the store of witness, for him, before the case was submitted to the jury.

2d. Because the absence of said E. Barnard, on the trial of said case, was procured at the instance and request of the said defendants, or of some person acting in their behalf, to prevent the plaintiff from having the benefit of the testimony of said Barnard, on the trial of said cause." At the next term of the Court, to wit, at November term, 1847, this rule was continued by agreement between counsel, with an understanding embodied in the agreement, that the continuance should not affect the right of the defendants, to make any motion or objection which they might have made then. At the next term, to wit, at May term, 1848, the plaintiff moved the Court to take up the rule, when the defendants, King & Hooper, objected to the rule being heard, on two grounds

1st. Because it was discharged by operation of law, by reason

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