The opinion of the court was delivered by
Simpson, C. J.
This was an action to recover possession of a tract of land. The plaintiff, respondent, claimed through a deed from his father, David Ellen, executed in 1871, alleging that his father had been in the adverse possession of the land over ten years.
The appellant claimed by deed dated March 12th, 1861, from Zimri Ellen, a son of David, who, it was alleged, had received title from one Robert McKenzie, who derived title in 1804 from Israel Hyatt, a grantee of the State. The deed from Robert McKenzie to Zimri Ellen was not produced on the trial, having been lost during the passage of Sherman’s army through the State, which involved the destruction of not only much valuable property, but the loss of many valuable papers. It was alleged, however, that David Ellen, through whom plaintiff' claimed, during, all the time that he was in possession, held possession subordinate to this deed, and in full recognition thereof. Consequently, appellant contends that the claim of respondent, through David Ellen on account of his supposed adverse possession, has no foundation.
The verdict was for the respondent, plaintiff. The appellant, [139]*139defendant, appeals, assigning error in the charge of the judge, as appears in the following grounds:
First. He excepts to the charge, because the judge did not instruct the jury “that as to the deed of Eobert McKenzie to Zimri Ellen, the admissions of David Ellen, under whom respondent claimed, were conclusive against him, not only as to its existence, but as to its contents.”
The presiding judge, in his order refusing the motion for a new trial, uses the following language in reference to this ground:
“The first ground rests in a mistake of counsel. I distinctly charged the jury that the existence of the alleged deed from Eobert McKenzie to Zimri Ellen might be inferred by them from the testimony of Zimri Ellen, William B. Ellen, and of the old man Ellen, and it is a mistake of counsel when they say that the declarations of the old man, as testified to by witnesses, were withheld from the jury in my charge. These declarations were allowed to go to the jury as evidence against the plaintiff, his grantee.”
It seems, then, that the judge did charge in accordance with the substance of this exception. He permitted the declarations of old man David Ellen, in reference to the deed, to go to the jury without restriction, and charged them that the alleged deed might be inferred from these declarations as well as from other testimony. If the appellant had desired that the effect of these declarations should have been more strongly put to the jury than was stated by the judge, he should have so requested, but, failing to do so, the omission of the judge to' impress and intensify this point cannot now be assigned as error of law and be made a ground of appeal. Madsden v. Phoenix Ins. Co., 1 S. C. 24; Abrahams v. Kelly & Barrett, 2 S. C. 238.
The deed under which respondent claimed was executed in 1871, which, under our view of the case, was some four years before the statutory period of the adverse possession of David Ellen had expired. Upon this subject the judge instructed the jury: “That if they believed from the testimony that old man Ellen did hold, occupy and possess the land adversely to the defendant and the world from 1865 to 1876, that a title would [140]*140accrue to him. as against the defendant, notwithstanding the fact that he, in 1871, made a deed of the land to the plaintiff, in which he reserved to himself a life-estate. That until the death of his father, in 1876, the plaintiff had neither the possession nor the right to possession, but the undisputed continuance of the old man’s possession until his death inured to the benefit of his title against the defendant, and to the remainderman would pass a title thus perfected, however imperfect it might have been in 1871.”
To this appellant excepted as follows: “Because the judge charged the jury that if David Ellen held the land adversely from December 8th, 1865, till June, 1876, when he died, that this adverse possession would give title to the land, notwithstanding he had conveyed the said land to the plaintiff in 1871.” This presents an interesting question — -one which involves the discussion of the theory of title to land when resting simply upon adverse possession as a foundation.
In this case, as it has been already stated, David Ellen, some four years before the statutory period of adverse possession— ten years — had expired, conveyed the land in dispute to the plaintiff, still holding possession, however, under the terms of his deed, until the ten years had expired, when he died.
Now the question is: Did his deed to plaintiff, under these ' circumstances, operate as a good conveyance, which entitles him to recover in this action ? or, having been executed before the expiration of the ten years, did-it convey any interest whatever, although he continued to hold adversely until the full statutory period ran out ? The solution of this question will depend upon the further question: Does adverse possession give or create title which, by operation of law, is conferred upon a trespasser at the end of ten years ? or is adverse possession for ten years simply the evidence of a title which the law presumes the party in possession of when he first entered ?
There is no doubt that title to land growing out of long-continued possession — long enough to presume a grant, deed or other muniment of title — attaches at the beginning of possession on the presumption of law that a deed was executed at that time which has since been lost. Wadsworthville Poor School v. [141]*141McCully, 11 Rich. 426; 1 Greenl. Evid. 23, § 17. So, too, as to those rights which arise by prescription. The law presumes a grant or deed in favor of the party, claiming the right when he first began to enjoy it. 2 Greenl. Evid. 992.
Now, does the title, by adverse possession, rest upon this doctrine? If so, the deed of David Ellen to the plaintiff, although executed before the statutory period of ten years expired, would be a good deed; his continuing to hold for the ten years affording the evidence that when he entered he entered with title, which had subsequently been lost. I was disposed at first to take this view of the subject, and to believe that this doctrine applied as well to adverse possession as to titles arising by presumption of grant or prescription. This seemed to me to be most philosophic and more in harmony with the rights of the parties in such cases than any other; but upon the re-argument of this case, when special attention was directed to this point, it seems clear, upon the authority of the decided cases in this State, that the true doctrine is the other way. According to these decisions, an adverse possessor is a trespasser from the beginning to the end. His possession begins in trespass, and so continues until it ripens into a right at the end of the statutory period of ten years. During this time he has nothing that he can convey; nor can his possession be tacked with that of his grantee so as to defeat the title of the true owner.
He who claims under the presumption of a grant, it is true, is entitled to stand on the same ground as if he produced the grant. Such a case, however, is wholly unlike a title under the Statute of Limitations. McLeod v. Rogers & Gardner, 2 Rich.
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The opinion of the court was delivered by
Simpson, C. J.
This was an action to recover possession of a tract of land. The plaintiff, respondent, claimed through a deed from his father, David Ellen, executed in 1871, alleging that his father had been in the adverse possession of the land over ten years.
The appellant claimed by deed dated March 12th, 1861, from Zimri Ellen, a son of David, who, it was alleged, had received title from one Robert McKenzie, who derived title in 1804 from Israel Hyatt, a grantee of the State. The deed from Robert McKenzie to Zimri Ellen was not produced on the trial, having been lost during the passage of Sherman’s army through the State, which involved the destruction of not only much valuable property, but the loss of many valuable papers. It was alleged, however, that David Ellen, through whom plaintiff' claimed, during, all the time that he was in possession, held possession subordinate to this deed, and in full recognition thereof. Consequently, appellant contends that the claim of respondent, through David Ellen on account of his supposed adverse possession, has no foundation.
The verdict was for the respondent, plaintiff. The appellant, [139]*139defendant, appeals, assigning error in the charge of the judge, as appears in the following grounds:
First. He excepts to the charge, because the judge did not instruct the jury “that as to the deed of Eobert McKenzie to Zimri Ellen, the admissions of David Ellen, under whom respondent claimed, were conclusive against him, not only as to its existence, but as to its contents.”
The presiding judge, in his order refusing the motion for a new trial, uses the following language in reference to this ground:
“The first ground rests in a mistake of counsel. I distinctly charged the jury that the existence of the alleged deed from Eobert McKenzie to Zimri Ellen might be inferred by them from the testimony of Zimri Ellen, William B. Ellen, and of the old man Ellen, and it is a mistake of counsel when they say that the declarations of the old man, as testified to by witnesses, were withheld from the jury in my charge. These declarations were allowed to go to the jury as evidence against the plaintiff, his grantee.”
It seems, then, that the judge did charge in accordance with the substance of this exception. He permitted the declarations of old man David Ellen, in reference to the deed, to go to the jury without restriction, and charged them that the alleged deed might be inferred from these declarations as well as from other testimony. If the appellant had desired that the effect of these declarations should have been more strongly put to the jury than was stated by the judge, he should have so requested, but, failing to do so, the omission of the judge to' impress and intensify this point cannot now be assigned as error of law and be made a ground of appeal. Madsden v. Phoenix Ins. Co., 1 S. C. 24; Abrahams v. Kelly & Barrett, 2 S. C. 238.
The deed under which respondent claimed was executed in 1871, which, under our view of the case, was some four years before the statutory period of the adverse possession of David Ellen had expired. Upon this subject the judge instructed the jury: “That if they believed from the testimony that old man Ellen did hold, occupy and possess the land adversely to the defendant and the world from 1865 to 1876, that a title would [140]*140accrue to him. as against the defendant, notwithstanding the fact that he, in 1871, made a deed of the land to the plaintiff, in which he reserved to himself a life-estate. That until the death of his father, in 1876, the plaintiff had neither the possession nor the right to possession, but the undisputed continuance of the old man’s possession until his death inured to the benefit of his title against the defendant, and to the remainderman would pass a title thus perfected, however imperfect it might have been in 1871.”
To this appellant excepted as follows: “Because the judge charged the jury that if David Ellen held the land adversely from December 8th, 1865, till June, 1876, when he died, that this adverse possession would give title to the land, notwithstanding he had conveyed the said land to the plaintiff in 1871.” This presents an interesting question — -one which involves the discussion of the theory of title to land when resting simply upon adverse possession as a foundation.
In this case, as it has been already stated, David Ellen, some four years before the statutory period of adverse possession— ten years — had expired, conveyed the land in dispute to the plaintiff, still holding possession, however, under the terms of his deed, until the ten years had expired, when he died.
Now the question is: Did his deed to plaintiff, under these ' circumstances, operate as a good conveyance, which entitles him to recover in this action ? or, having been executed before the expiration of the ten years, did-it convey any interest whatever, although he continued to hold adversely until the full statutory period ran out ? The solution of this question will depend upon the further question: Does adverse possession give or create title which, by operation of law, is conferred upon a trespasser at the end of ten years ? or is adverse possession for ten years simply the evidence of a title which the law presumes the party in possession of when he first entered ?
There is no doubt that title to land growing out of long-continued possession — long enough to presume a grant, deed or other muniment of title — attaches at the beginning of possession on the presumption of law that a deed was executed at that time which has since been lost. Wadsworthville Poor School v. [141]*141McCully, 11 Rich. 426; 1 Greenl. Evid. 23, § 17. So, too, as to those rights which arise by prescription. The law presumes a grant or deed in favor of the party, claiming the right when he first began to enjoy it. 2 Greenl. Evid. 992.
Now, does the title, by adverse possession, rest upon this doctrine? If so, the deed of David Ellen to the plaintiff, although executed before the statutory period of ten years expired, would be a good deed; his continuing to hold for the ten years affording the evidence that when he entered he entered with title, which had subsequently been lost. I was disposed at first to take this view of the subject, and to believe that this doctrine applied as well to adverse possession as to titles arising by presumption of grant or prescription. This seemed to me to be most philosophic and more in harmony with the rights of the parties in such cases than any other; but upon the re-argument of this case, when special attention was directed to this point, it seems clear, upon the authority of the decided cases in this State, that the true doctrine is the other way. According to these decisions, an adverse possessor is a trespasser from the beginning to the end. His possession begins in trespass, and so continues until it ripens into a right at the end of the statutory period of ten years. During this time he has nothing that he can convey; nor can his possession be tacked with that of his grantee so as to defeat the title of the true owner.
He who claims under the presumption of a grant, it is true, is entitled to stand on the same ground as if he produced the grant. Such a case, however, is wholly unlike a title under the Statute of Limitations. McLeod v. Rogers & Gardner, 2 Rich. 21; see, also, King v. Smith, Rice 12; Williams v. McAliley, Cheves 200. The Statute of Limitations does not rest upon the presumption of a previous deed. It simply operates as a bar to the plaintiff’s action; and, as a general rule, no one can interpose this bar except such as may have held for the period prescribed by the statute. Under the authorities settling this doctrine, in the opinion of the court, David Ellen’s deed to plaintiff having been executed before the statutory period expired, and before his trespass had ripened into a right, conveyed [142]*142no title. The second exception of appellant is, therefore, sustained.
Neither is there any ground to hold that this deed can stand as a covenant to stand seized. In the first place, as we have just seen, David Ellen had no title himself at the time he executed this deed. He was not seized, and, if he had been, his deed conveyed the fee to his grantee at the moment of its execution, reserving only a usufruct to himself for life, which would negative the idea of a covenant to stand seized. Cripp v. Rogers, 12 S. C. 564; Jenkins v. Jenkins, 1 Mill Con. R. 48; see, also, Singleton v. Bremar, 4 McC. 15.
The third and fourth exceptions question the competency of certain declarations of David Ellen while he was in possession, sustaining his title to the land. It is a general rule that declarations of persons in possession of land explanatory of the character of their possession will be admitted when in disparagement of their title as original evidence; and Mr. Greenleaf says: “ That there can be no reason why every declaration accompanying the act of possession, whether in disparagement of the claimant’s title or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestee, leaving its effect to be governed by other rules of evidence.” 1 Greenl. Evid., §109.
In Turpin v. Brannon, 3 McC. 261, such declarations were admitted. In Martin v. Simpson, 4 McC. 262, a case of trespass to try title, such declarations were admitted on the ground that the character of every act must be determined by the circumstances attending it. The words and actions of the actor constitute a part of the thing done, and is necessary to its explanation, said the court. The same doctrine is held in several other eases in our own State not necessary now to be referred to.
The presiding judge below says that the plaintiff was confined to proof of acts of ownership; but, frequently, in bringing out the testimony, witnesses did, before they could be stopped, repeat declarations of David Ellen accompanying his acts of ownership and possession amounting to a claim of the land. But the rule of confining him to the naked acts of ownership, without declarations, was followed by him and enforced by the court as rigidly [143]*143as possible. We see no error as to the rulings of tbe judge in this respect.
There seems to be some misapprehension as to the fifth exception. The plaintiff, respondent, was allowed to prove that his father paid taxes, and the tax receipts were admitted, but the judge says: “That he explained to the jury that these were admitted as circumstances going to show claim of ownership which would, however, amount to nothing if it were proved to have been done under contract with the real owner.” Under these circumstances we do not see that the judge erred in his rulings as to this matter.
Although we have sustained the presiding judge as to several •of the exceptions of the appellant, yet one of the main grounds involved in the case, and that upon which the verdict, no doubt, in a great measure turned, is that presented in the second exception. In this we think the judge was in error, and this will necessitate a reversal of the judgment below.
It is, therefore, the judgment of this court that the judgment of the Circuit Court be reversed and the case be remanded.
McIver and McGowan, A. J7s, concurred.