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levying upon the lands, and taking the whole of his eftate however fhort or long the duration may be, and by force of fuch levy the creditor will acquire the fame right, to gather the crops of the debtor, as the debtor had. But execution cannot be levied on grafs, or grain while growing, because it is annexed to the realty, and fuch levy can give the officer no right to enter on the land of another, to harvest the grain, and carry it away. All crops be longing to any other perfon, than the owner in fee, are annexed to the freehold, and therefore cannot be confidered as perfonal estate. But his right to carry them away, may be levied upon, as well as any other eftate lefs than a fee.

e It has been determined, that the levy of an execution on a leafehold estate, for the term of nine hundred and ninety-nine years, is good, and that fuch a term is to be appraifed, and not fold at the poft. This decifion, fully recognizes the doctrine before laid down of the levy of executions on eftates lefs than fee fimple.

ƒ In an action of diffeifin, the plaintiff claimed by the levy of an execution, to which the defendant made the following exceptions; that there was a written agreement, that the execution should noɛ be taken out fo foon as it was by two months, that the juftice who appointed one of the appraisers, was not the nearest justice to the land, that the appraiser appointed by the debtor,and agreed to by the creditor, was tenant to the debtor, and not an indifferent freeholder: but the court determined that the written agreement was not admiffible evidence to defeat the title of the plaintiff, that by next, the law did not strictly mean the nearest, but fome in the town where the land lies, if there be none there, then the next living out of town and that the tenant of a party was not excluded by law, from being an appraifer: and where the parties had knowingly agreed upon him, they are eltopped to fay he is not indifferent, especially the debtor, wliofe tenant he is, and who chofe him.

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It has been decided, that where a perfon obtains a judgment against an abfent debtor, and prays out execution, without giving bonds to refund according to the ftatute, and levies his execution

on

e Man vs. Carrington, S. C. 1793. f Cheefeborough vs. Clark and Fanning S. C. 1789. g Marcy vs. Rufs, S. C. 1790.

on lands, that fuch levy is good, tho no bond was given, for the provifion of the ftatute is in favour of the debtor only, and not of creditors.

It has been adjudged, that if the creditor and debtor agree on appraisers who are not freeholders in the town where the land lies, that the levy of the execution will be void, because the agreement of the parties cannot alter the law.

A levy of an execution on lands, has been adjudged to be good, tho it did not appear from the officer's returu, that he had made a previous demand of fatisfaction of the debtor. But it appeared that the debtor appointed one of the appraifers, by which it might be prefumed, that the demand was made, or the debtor agreed to wave it; but regularly fuch demand ought to appear from the return of the officer. A creditor levied execution on lands, and procured the levy to be recorded in the office of the town clerk, but neglected to procure it to be recorded by the clerk of the county court, till after another creditor had procured a levy of an execution on the fame land, and caufed it to be recorded with the town and county clerks. The lat levy was held good, tho the creditor knew of the prior levy, because the statute is express and pofitive, that the levy must be recorded by the clerk of the court whence the execution iffùes, to make it valid.

CHAPTER TWENTIETH.

OF TITLE BY POSSESSION.

By our law, in no inftance can a man obtain even a temporary

title to land by ocupancy, on the principle that it has affigned no legal determinate owner but where the owner neglects to keep poffeffion of his lands and permits a perfon to occupy it, for the term of fifteen years, without enforcing his claim, fuch occupant during this time, is deemed a trefpaffer, but at the expiration thereof, his occupancy becomes transformed into a title, which the original proprietor cannot defeat.

In a review of the fyftem of our laws, we find that it has been

e Chapman vs. Griffing, S. C. 1790.

d Topliff vs. Davis, 1793.

the

the policy of the legislature to narrow the fources of litigation by a variety of statutes of limitation. For the purpose of avoiding fuits, refpecting controverted titles to lands, and to reduce them to the untmoft fimplicity, we find a ftatute enacted in a very early period of our government, that limits our researches for titles to lands to the short period of fifteen years.

The ftatute in fubftance enacts, that any person who has any right or title of entry into any lands or tenements, with held from him, fhall not make entry into the fame, but within fifteen years next after the right or title thereto fhall defcend or accrue to him; and in default of fuch entry, fuch perfon and his heirs, shall be utterly excluded and difabled from ever making the fame after that time. In this ftatute there is a provifo in favour of infants, femecoverts, married women, perfons non compos mentis, imprisoned, or beyond the feas, at the time the right or title fhall descend or accrue, and of their heirs-and they may notwithstanding the expiration of the time of fifteen years, bring their action, or make their entry but this must be done within five years after arriving to full age, discoverture, recovering their reafon, enlargement out of prison, or coming into New-England, or the ftate of New-York, and their heirs must make their entry, or bring their action, within five years after the death of the perfon, in whofe right they claim, and at no time afterwards.

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The expreffion of the ftatute taking away the right of entry, we fhould at first blush fuppofe intended nothing more than to drive the perfon to his action at law, and only exclude him from fubftantiating his claims by his own act of entry. For at common law a perfon may be debarred of his right of entry, and yet have a right of action as where diffeifor dies, and the land goes into the pofffion of his heirs, the proprietor is excluded from his entry, and driven to his writ of right. But we must confider that by our law every perfon who has the right of property in lands, has the right of entry, as well as the right of action; that therefore the exclufion of the right of entry, by a parity of reafon, fhall exclude the right of action; and tho the firft part of the ftatute fays nothing ref pecting

VOL. I.

X X

pecting actions, yet in the provifo of the ftatute made in favour of perfons under certain legal disabilities, the right of action, as well as the right of entry is taken away, after the expiration of the limited time. This clearly manifefts the intent of the legiflature, and the uniform conftruction of the courts of law has been, that the statute in all cafes takes away the right of action as well as the right of entry.

A perfon to acquire title by poffeflion, must have the actual occupancy and improvement of the lands. It is generally understood that they must be inclofed with a fence to give fuch a poffeflion as the law contemplates. This unqueftionably is the moft conclusive evidence of poffeffion, but it is poffible, that a person may have the actual improvement of uninclofed land in fuch a manner as to amount to poffeffion, and be capable of legal proof: as where a man conftantly takes his fire wood from timber land, and takes care of it as his own. For the law goes on the principle, that a total dereliction of property on one part, and an uninterrupted exercife of the acts of ownership on the other part, is the rule to decide the title. But where the lands are uninclosed, and neither party can be faid to be improving, the law confiders the real owner to be in poffeffion.

A perfon to acquire this title to lands, muft held the poffeffion by a title or claim adverfe to and independent of the proprietor, for where a perfon enters by the confent of the owner, and can even by implication be confidered as holding under the true owner, the poffeffion fhall not be deemed adverfary, but the poffeffion of the true owner, and no title acquired by it. For the poffeffor is fuppofed to deny the right of the owner, and the owner to relinquifh it. Therefore where there is an implied recognition of the rights of the owner, the poffeffor is acquiring no title. Thereføre in cafe of a mortgage deed, as a fecurity for money borrow. ed, if the mortgagor continue in poffeffion, for more than fifteen years, yet he is in, by the confent of the mortgagee, holding under him, and he thall never acquire a right of poffeffion against his

deed.

The law confiders the owner abandoning his property, as a forfeiture

Beach vs. Royce, S. C. 1791.

forfeiture of his title, but does not expressly decide in whom it fhall vest but the implication neceffarily is, that the person who happens to be in the poffeffion at the time the ower is divested, muft become vested with the property. He has a right to hold the eftate against the former owner, as well as every body elfe. As the property does not efcheat, and as there must be an owner to every thing, the confequence is, that he acquires the title. The law does not require that the poffeffor at the expiration of fifteen years, fhould have had the occupancy during the whole of that period, to give him the property. It is fufficient, that the proprietor has been out of poffeflion during that time, and tho there may have been a number of perfons occupying during the time, yet the poflef for at the expiration of the fifteen years, muft receive the title at the moment it paffes, by operation of law, from the proprietor. The law therefore cannot be fuppofed to require that peaceable and uninterrupted poffeffion, on the part of the poffeffor, as is required at the common law in the acquifition of rights by prefcription. Yet where the owner keeps up his claim by entry, or by bringing actions, fo that there cannot be fupppofed to be an abandonment of his right, the ftatute will not run against him. So where there are joint tenants, tenants in common, or coparceners, and one of the tenants is under either of the difabilities, provided for in the ftatute, fo as to fave his right, this fhall fave the right of all the tenants, tho under no legal difability, because the cate being joint, the faving of it for one, muft fave it for all.

CHAPTER TWENTY-HRST.

OF TITLE BY FORFEITURE.

By the laws of England, a perfon forfeits all his eftate, both re

al and perfonal, for almost every crime that can be committed. This extreme feverity probably arofe from the ferocious, and vindictive fpirit of the age in which the laws were made: but in this ftate, the enlightened minds of the people, revolted at the ideas of cruelty and barbarity in the panifhment of crimes. They were fatisfied with punifhing the offender without extending the punish

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