If the subsequent entry of the claimant under the senior grant on his tract, outside of the land in controversy, would have the effect of ousting the claimant under the junior grant of any part of his boundary, then he might be ousted or dispossessed not only without his knowledge, but without any means of acquiring knowledge, and without even knowing that any person other than himself claimed title to the land. Under the loose system of granting lands in force at an early day in this State, it is well known that the same land was frequently granted to two or more persons, without any fault upon their part. The claimant under the junior grant, thinking that he had good title to the land, entered upon and actually occupied a part, claiming title to his whole tract. He afterward sells it for a full price, and his vendee takes a like possession and makes a like claim to the whole tract; and thus the land may be held, as in this case, for fifty years or more. The claimant under the senior grant then brings his action to recover the land embraced in the boundaries of the junior grant. Upon the trial of the case, the claimant under the junior grant learns for the first time that the senior grantee, or those who claim under him, had, before the statute of limitations had run in favor of those claiming under the junior grant, entered upon a part of the land embraced in the boundaries of the senior grant, five or may be twenty miles away, for these grants frequently contained from 100,000 to 500,000 acres, and had cleared and cultivated a few acres, claiming title to the whole tract. To allow a plaintiff to recover under such circumstances would work the grossest injustice to the claimants under the junior title.
The claimant under the senior patent knows, or ought to know-his own boundaries, and that another has settled within them, claim. ing and exercising dominion over the land in controversy, and if under these circumstances he remains quiet, allows the claimant under the junior grant to believe he is the true owner of the land, and fails to assert his right to the land in controversy by action or entry within the statutory period, he ought not to be allowed to recover. The statutes of limitations in real actions are founded upon a wise and salutary public policy. They require nothing but reasonable vigilance upon the part of the owner, and are necessary for the repose of bona fide settlers in the regions of our wild and uncultivated lands.
The question involved in this case is not, as counsel for the plaintiff contends, the question left undecided in the cases of Taylor v. Burnside, and Overton v. Davisson, 1 Gratt., and in later cases,
The question is this, viz.: Does the adverse possession of the claimant under a junior title extend to the whole of his tract, or only to the exteat of his enclosures, where there are conflicting grants or deeds to lands causing an interlock, the claimant under the older title being in actual possession of a part of his land outside of the interlock, when the claimant under junior title entered upon and took actual possession of a part of the interlock, claiming title to the whole extent of his boundary? That is still an open question in this State, and, as it does not arise in this case, we do not wish to be understood as expressing any opinion upon it.
It follows from what has been said that the Circuit Court erred in setting aside the verdict of the jury upon the first trial, and that all proceedings in the case in the Circuit Court subsequent to that verdict must be reversed and set aside, and judgment entered upon that verdict for the defendant.
28 Georgia, 123. - 1859. Ejectment. - Verdict for defendant. Motion for new trial.
McDonald, J. - * * * The next ground is the important one in the motion, and the point is easily extracted from the request of the court to charge the jury, and the charge of the court as given to the jury, viz.: whether a residence upon, and the actual possession and occupation of, one of two tracts of land conveyed to the defendant in the same deed, is such a constructive possession of the other tract, of which there is no actual occupation, as if continued long enough, will bar an action by the rightful owner under the statute of limitations. The court below charged the jury that it would. The defendant resided on the tract of land adjoining that sued for. He claimed both tracts of land under one and the same deed. He had a hog pen on the land in dispute, and had rails split and logs cut on it, but stated that he was not in possession of it, except that he had paid taxes for it.
By our lottery system, lands are divided into tracts by number and district, and ordinarily, there can be but one grantee or one set of grantees, as when the grant is to orphans, so that a careful and guarded purchaser can find but little difficulty in ascertaining whether he has the rightful title. This consideration alone should lead courts to adhere to the strictest rules of construction in favor of the true owner. We have, in the judgment we pronounce, laid some stress upon this matter, though it was not necessary in order to sustain the case of the plaintiff in error. It is laid down in Adams on Ejectment, 592, that where a large tract of land is divided into lots, the possession of one lot adversely will not create a constructive adverse possession of the other parts of the tract, although claimed by the defendant under the same paper title. The author cites in support of the principle the case of Johnson ex dem. Ten Eyck and Wife v. Richards, 6 Cowen, 623. "The law deems every man to be in the legal seisin and possession of land, to which he has a perfect right and complete title; this seisin and possession is co-extensive with his right, and continues until he is ousted thereof by an actual adverse possession." United States v. Arredendo and Others, 6 Peters' Rep. 743. This court has held repeatedly that the owner of land in this State, having the true title, is in constructive possession of his wild lands wherever situated, and that a possession to be adverse to him so as to create a bar under the statute of limitations, must be open, notorious and continued. That is unquestionably the true and sensible rule. One reason which is assigned why a possession is held to be adverse to the rightful owner of land, is his presumed acquiescence in the right of the possessor. There can be no acquiescence without notice, and there can be no notice if the possession has not been open, visible, notorious and continued. Hence, the reason of the rule, that to create an adverse possession it must be open and continued. If it be not continued, another presumption comes to the aid of the true owner, and every legal presumption is in his favor, and that is, that the possessor, by relinquishing the actual possession, acknowledges the superior title of the true owner. By his abandonment of the possession, the constructive possession of the true owner extends immediately to the premises, and it requires a new ouster or disseisin to fix a starting point for the statute. On this point Ch. J. Shaw said, in the case of Blood v. Woods, 1 Met. Rep. Mass. 528, " One point seems to be well settled, which is, that very strong acts of exclusive possession, such as building, inclosing or cultivating, and that for a long time, and openly and notoriously, are necessary in order to create an actual ouster of the true owner, who has no notice of such acts." In regard to the premises now in dispute, if the owner had passed the land and examined it, at any time prior to the clearing of the field in 1852 or 1853, he would have had no notice whatever of an adverse claimant, for the hog pen, which, according to the usage of the country, is no evidence of ownership of the land on which it is put, the splitting of rails or the cutting of logs, which are the ordinary works of trespassers residing on contiguous lands, would not have advertised him in the absence of an actual occupant.