35 U.S. 322 (____)
10 Pet. 322
THOMAS ELLICOTT AND JONATHAN MEREDITH, PLAINTIFFS IN ERROR,
v.
WILLIAM PEARL.
Supreme Court of United States.
The case was argued by Mr. Underwood, and by Mr. Hardin, for the plaintiffs in error. No counsel appeared for the defendant.
Mr. Justice STORY delivered the opinion of the court.
This is a writ of error to the judgment of the circuit court for the district of Kentucky, upon a writ of right, sued forth on the 17th of January, 1831, in which the plaintiffs in error were the demandants. The proceedings are in the form prescribed by the statute of Kentucky; and the cause was tried upon the issue joined by the parties. There were several writs of right against other tenants of distinct parcels of the same tract of land, held by the tenants, respectively, under a common title; and all of them were tried at the same time, by consent of the parties, as the same evidence was applicable to each.
The demandants claimed title through intermediate conveyances to a tract of land of two thousand acres, lying on the east fork of Rockcastle, in Lincoln county, under a patent granted to James Kincaid, by the commonwealth of Kentucky, dated the 2d day of February, 1796; and also another tract of land, containing one thousand acres, on me waters of Rockcastle, on the south side and contiguous to that of two thousand, on a like patent, dated on the same day.
The tenants claimed title to the premises under a patent from the commonwealth of Virginia, to Jacob Remey, of twenty thousand acres of land, lying on the waters of Rockcastle, dated on the 15th of July, 1789. Remey, on the 20th of November, 1799, conveyed thirteen thousand four hundred acres of the same tract to William Edwards: *433] *and Edwards, on the 26th of December, 1799, conveyed seven thousand acres of the same tract, by metes and bounds, to William Pearl, and tenant, under whom all the other tenants claim. The conveyance to Pearl comprehends all the land in controversy; and the same land is also included in the patents to Kincaid.
At the trial, evidence was introduced by the tenants to prove, that, in 1800, Pearl entered into and settled on the tract of land so conveyed to him, intending to take possession of the whole tract; and that he, and those claiming under him, have had possession of the same land ever since, and have always claimed to hold the land under Remey's patent. Evidence was also introduced to prove, that James M'Cammon (whose name is mentioned, as we shall hereafter see, in the bill of exceptions) moved his family and settled on a part of the land in controversy, either in the year 1800 or 1801, under a purchase from Pearl; but how much land he purchased or held did not appear: and about two years afterwards, by some arrangements between them, M'Cammon took some other part of Pearl's land, in the same tract, and Pearl took the place where M'Cammon had settled. Pearl's original settlement was a little outside of the southern bounds of Kincaid's thousand acre tract, between Sugar Camp branch and Rockcastle: and M'Cammon's original settlement was within Kincaid's two thousand acres, south of Moore's creek.
The demandants then introduced evidence to show, that Remey's patent did not cover the lands patented to Kincaid, but that it covered land at or near the mouth of Pond creek; and that the survey of Remey was in fact made on Pond creek (which was outside of the western boundary of Kincaid's patent) as the beginning corner, under a mistake, that it was Raccoon creek. If so made, it was clear, from the plea, that Remey's survey was surveyed off the land in controversy.
The foregoing are all the portions of the evidence, which seem necessary to be stated in order fully to understand the bearing of the questions made at the trial.
The first question was upon the admissibility of the evidence of witnesses, offered by the demandants, to prove, that one Moore, whose name was put down as one of the original chain carriers, in making Remey's survey, was dead; and that he attended with the witness, Camp Mullins, about twenty-four or twenty-five years ago, when one Charles Smith run from the mouth of Pond creek to the white-oak tree, and also run the line north from the mouth of Pond creek: *and while at the corner and running the line, he declared, [*434 that to be the corner made by Kincaid (the surveyor), and the line run by Wilson, by the direction of Kincaid, for Remey's original survey: and also to prove what Moore had said to others relative to the boundary of Remey's patent, and the making of the original survey, since the settlement and possession of Pearl on the land in controversy. This evidence being objected to, was rejected by the court: and this constitutes the matter of the first exception of the demandants.
We are of opinion, that the evidence was properly rejected. It was not merely hearsay, but hearsay not to matters of general reputation, or common interest among many, but to specific facts, viz. the manner and place of running the boundary lines of Remey's patent The general rule is, that evidence, to be admissible, should be given under the sanction of an oath, legally administered; and in a judicial proceeding, depending between the parties affected by it, or those who stand in privity of estate, or interest with them. So it was laid down by Lord Kenyon, in his able opinion in the King v. Eriswell, 3 T. Rep. 721. Certain exceptions have, however, been allowed, which perhaps may be as old as the rule itself. But these exceptions stand upon peculiar grounds; and as was remarked by Lord Ellenborough in Weeks v. Sparke, 1 M. and Selw. 686, the admission of hearsay evidence, upon all occasions, whether in matters of public or private right, is somewhat of an anomaly. Hearsay is admitted in cases of pedigree; of prescriptive rights and customs; and of some other cases of a public or quasi public nature. In cases of pedigree, it is admitted upon the ground of necessity, or the great difficulty, and sometimes the impossibility of proving remote facts of this sort by living witnesses. But in these cases it is only admitted when the tradition comes from persons intimately connected, or in close relation with the family; or from sources of a kindred nature, which, in a general sense, may be said to import verity; there being no lis mota or other interest to affect the credit of their statement. So the law was expounded by Lord Kenyon, in The King v. Eriswell, 3 Term Rep. 723, and by Lord Eldon in Vowles v. Young, 13 Ves. 143, and in Whitlocke v. Baker, 13 Ves. 514.
In cases of prescriptive rights and customs, and other claims of a public nature, tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having a common interest. In Morehead v. Wood, 14 East's Rep. 329 (note), Lord Kenyon stated the general ground of *435] *this exception thus: "Evidence of reputation upon general points is receivable, because all mankind being interested therein, it is natural to suppose, that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of information." "But," he says, "how can this apply to private titles, either with regard to particular customs or private prescriptions? How is it possible for strangers to know any thing that concerns only their private titles?" Lord Ellenborough, in Weeks v. Sparke, 1 M. and Selw. 686, commenting on this distinction between public and private rights, said, "I confess myself at a loss fully to understand upon what principle, even in matters of public right, reputation was ever deemed admissible evidence. It is said, indeed, that upon questions of public right all are interested, and must be presumed conversant with them; and that is the distinction taken between public and private rights. But I must confess I have not been able to see the force of the principle, on which that distinction is founded, so clearly as others have done; though I must admit its existence." And in that case, which was the case of the claim of a prescriptive right to common by the defendants, as appurtenant to a messuage, evidence of reputation was admitted on the part of the plaintiff to qualify that right, because the right in some sense partook of the nature of a public right, as it was understood, that there were other persons standing in pari jure with the defendant; and, therefore, it was a question between the plaintiff, and a multitude of persons. And, indeed, the distinction seems now clearly established in England, that hearsay, or reputation, or tradition, is not admissible in cases of mere private rights; but only in cases of public rights, or those quasi public, involving similar interests by a number of persons.[(a)] Perhaps a reason may be found, which, upon general principles would well support this distinction. It is, that in regard to private rights, the acts, possession, or assertion of title by the parties claiming for themselves are, in all cases, susceptible of direct proof; but in cases of public rights, the acts, possession and assertion of title by many persons, not in privity with each other, cannot be explained or qualified to be in furtherance of a common public right, unless the evidence of general reputation were admissible to explain the intention and objects of the parties in those acts, or that possession or *assertion of title, that is to say, [*434 whether done in furtherance of a common right, or of a private right.
It is upon the ground of this same distinction, that general reputation is admitted in England in cases of disputed boundaries between parishes and manors: because the right affects many persons, and is of public notoriety and interest as to all the inhabitants of the parish or manor.[(b)] And yet, in England, it has been held, at nisi prius, (though the point has not been settled by the highest authority) that general reputation as to the boundaries between private estates is not admissible evidence. That was so held by Baron Graham, in Clothier v. Chapman, cited in 14 East's Rep. 331, note.[(c)] The doctrine in America, in respect to boundaries, has gone farther; and has admitted evidence of general reputation as to boundaries between contiguous private estates.[(d)] but there it has stopped.
These are the principal, if not the only classes of cases, in which hearsay and reputation have been deemed admissible evidence. The exclusion of it, in other cases, stands upon the general consideration, that it is not upon oath; that the party affected by it has no opportunity of cross-examination; that it often supposes better evidence behind; that it is peculiarly liable to be obtained by fraudulent contrivances; and above all, that it is exceedingly infirm, unsatisfactory, and intrinsically weak in its very nature and character. On these accounts judges in modern times have leaned against any extension of it, as being subversive of the security of the titles of parties to property: for upon a strict adherence to the rules of evidence, that security must essentially depend. This will be clearly seen by what fell from the court in The King v. Eriswell, 3 T.R. 707. In that case Mr. Justice Buller, though in favour of the admission of the evidence upon the ground of authority, said: "The true line for courts to adhere to is, wherever evidence, not on oath, has been repeatedly received and sanctioned by judicial determinations, it shall be allowed; but beyond that, the rule that no evidence shall be admitted but what is upon oath, shall be observed." The doctrine of the other judges, on *437] that occasion, went to the same extent. In Doe v. *Thomas, 14 East's Rep. 323, the court held, that evidence of reputation, that the land had belonged to J.S. and was purchased of him by the first testator, though coupled with corroborative parol evidence, that the same had belonged to J.S., was inadmissible, upon the ground that reputation was not admissible to prove the ownership of private property.[(a)] And Mr. Chief Justice Mansfield, in delivering his opinion in the case of the Berkeley Peerage, (4 Campb. Rep. 414, 445,) after stating, that by the general rule of law, nothing said by any person can be used as evidence between contending parties unless it is delivered on oath, in the presence of those parties, said, "With two exceptions this is adhered to in all civil cases: first, on the trial of rights of common and other rights claimed by prescription: and secondly, on questions of pedigree." Perhaps this enumeration will, upon close examination, be found too narrow; but it shows the strictness with which the exception in favour of hearsay, tradition, and reputation is constantly construed, as being against the general principles of evidence.
In this court a like restricted doctrine has been maintained. In Mima Queen v. Hepburn, 7 Cranch, 290, Mr. Chief Justice Marshall, in delivering the opinion of the court, said, "If other cases (of hearsay) standing on similar principles should arise, it may well be doubted, whether justice and the general policy of the law would warrant the creation of new exceptions. The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well established rule, the value of which is felt and acknowledged by all."
These, and other cases also, fully justify the conclusion, (which is indeed stated by elementary writers,) that in order to authorize the admission of hearsay evidence, (except in cases of pedigree,) three things must generally concur: first, that the fact, to which the reputation or tradition applies, must be of a public nature: secondly, if the reputation or tradition relate to the exercise of a right or privilege, it must be supported by acts of enjoyment or privilege within the period of living memory: thirdly, that it must not be reputation or traditionary declarations to a particular fact.[(a)]
*This last qualification is most important in the present case, [*438 as it applies directly to it, and is established by clear and decisive authority. In Antram v. Wood, 5 Term Rep. 123, Lord Kenyon said, "Although a general right may be proved by traditionary evidence, yet a particular fact cannot:" and Mr. Justice Groce (the only other judge then in court) concurred in that opinion. That was a case, where hearsay evidence was offered to establish the identity of lands, and thereby a right to the coals in them; and it was held inadmissible. The same doctrine was recognized by Lord Ellenborough, in Weeks v. Sparke, 1 M. and Selw. 687; where, referring to evidence of perambulations, he admitted, that they were not evidence of a particular act done, as that such a turf was dug, or such a post put down in a particular spot. So, Mr. Chief Justice Mansfield, in his opinion on the Berkeley Peerage case, 4 Camp. Rep. 415, after alluding to the evidence of what dead men have said, as to the reputation of a right of way, common, and the like, said, "Adeclaration, with regard to a particular fact, which would support or negative the right, is inadmissible." Even in cases nearly approaching to those of pedigree, where hearsay is admissible of particular facts, such as marriages, births, and deaths, and their respective times; it has been held, that hearsay as to the place of birth, is not admissible; for it turns upon a single fact, that of locality, and that ought to be proved by the ordinary course of evidence. Rex v. Erith, 8 East's Rep. 539. In Mima Queen v. Hepburn, 7 Cranch, 290, the court decided, that hearsay evidence was not admissible to prove a specific fact, although the witnesses to the fact were dead; and, therefore, evidence of hearsay, that the ancestor of a person, suing for freedom, was free, was held inadmissible. The same point was again decided in Davis v. Wood, 1 Wheat. 6; 3 Cond. Rep. 465.
Upon these doctrines and authorities, we are of opinion, that the evidence, in the present exception stated, was rightly rejected. It was evidence not to general reputation as to boundary, but to particular facts and circumstances attendant upon the original making of Remey's survey.
The next exception is founded upon the refusal of the court to permit testimony to be given of the declarations of one Kincaid, (the surveyor of Remey's survey), under the following circumstances: Kincaid had been examined as a witness for the demandants, (by way of deposition,) and the tenants, thereupon, gave in evidence the conversations and declarations of Kincaid, to certain witnesses, in order *to discredit his (Kincaid's) testimony, and to show, that [*439 he had stated, that the survey was made by him, at the mouth of Raccoon creek, for Remey, when it was his interest to place it at Pond creek. The demandants, then, with a view to sustain Kincaid, and to support the statements going to his interest, offered witnesses to prove the statements and conversations of Kincaid at other times, corresponding with the statements made in his deposition, relative to his making the surveys of Thompson and Remey; and it being suggested by the demandants, upon an inquiry from the court, that these statements and conversations were subsequent to those testified to by the tenants' witnesses, the court, upon an objection taken by the tenants, excluded the evidence. In our opinion, the evidence was rightly excluded.
Where parol proof has been offered against the testimony of a witness under oath, in order to impeach his veracity, establishing that he has given a different account at another time, we are of opinion that, in general, evidence is not admissible, in order to confirm his testimony, to prove that at other times he has given the same account as he has under oath; for it is but his mere declaration of the fact; and that is not evidence. His testimony under oath is better evidence than his confirmatory declarations not under oath; and the repetition of his assertions does not carry his credibility further, if so far, as his oath. We say, in general, because there are exceptions; but they are of a peculiar nature, not applicable to the circumstances of the present case: as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.
It is true, that in Lutterel v. Reynell, 1 Mod. Rep. 282, it was held, that though hearsay be not allowed as direct evidence, yet it may be admitted in corroboration of a witness' testimony, to show, that he affirmed the same thing upon other occasions, and that he is still constant to himself. Lord Chief Baron Gilbert has asserted the same opinion, in his Treatise on Evidence, page 135. But Mr. Justice Buller, in his Nisi Prius Treatise, page 294, says, "But clearly it is not evidence in chief; and it seems doubtful whether it is so in reply or not." The same question came before the house of lords, in the Berkeley Peerage case; and it was there said by Lord Redesdale, that he had always understood, that for the purpose of impugning the testimony of a witness, his declarations at another time might be inquired *440] into; but not for the purpose of confirming *his evidence. Lord Eldon expressed his decided opinion, that this was the true rule to be observed by the counsel in the cause.[(a)] Lord Chief Justice Eyre is also represented to have rejected such evidence, when offered on behalf of the defendant in a prosecution for forgery.[(b)] We think this is not only the better, but the true opinion, and well founded on the general principles of evidence. There is this additional objection to the admission of the confirmatory evidence in the present case, that it is of subsequent declarations; which would enable the witness at any time to controul the effect of the former declarations, which he was conscious, that he had made, and which he might now have a motive to qualify, or weaken, or destroy.
In the farther progress of the cause, the tenants, in order to prove the boundaries of the demandants' land, as laid down in the plat, and claimed by them, gave in evidence the original plats and certificates of survey of Kincaid's two thousand and one thousand acre tracts; and then examined M'Neal, a witness of the demandants, who was first introduced to prove their boundary, who stated, that the watercourses, as found on the ground, did not correspond with those represented on the said plats: and after being examined by the demandants, for the purpose of proving that the marks on the trees, claimed by them as the corner and lines of their surveys, were as ancient as the said surveys, and also as to the position and otherwise of the lines and corners claimed by them, and represented on the plat made and used at the trial, stated, on the cross-examination of the tenants' counsel, that some of the lines, marked to suit the calls of the said surveys, appeared to be younger, and others, from their appearance, might be as old as the date of the said plats. The demandants, to counteract this evidence, and to sustain their claim, offered in evidence a survey made out by M'Neal, in an action of ejectment formerly depending between the same parties for the same land, of which survey Pearl had due notice. The tenants objected to the reading of the explanatory report accompanying this survey, and the court refused to allow so much thereof as stated the appearance as to age and otherwise of the lines and corners to go in evidence to the jury; and accordingly caused to be erased from the plat the words following, viz. "ancient" (chops); "John Forbes, Jun., *states he cut [*441 the same letters and figures;" "on the east side, the chops appear to have been marked with a larger axe than the chops on the beginning tree;" and then permitted the residue of the report and plat to go in evidence. This constitutes the third exception of the demandants.
We are of opinion, that there was no error in this refusal of the court. Strictly speaking, the demandants had no right, upon the principles already stated, to give in evidence any other prior statements of M'Neal to confirm his testimony. But, in truth, the evidence was offered to discredit, in part, his present testimony: and certainly the demandants were not at liberty to discredit their own witness by showing his former declarations on the same subject; though they might show by other witnesses that he was mistaken. But independent of these objections, the evidence was inadmissible upon general principles. It was mere hearsay. The survey, made by a surveyor, being under oath, is evidence as to all things, which are properly within the line of his duty. But his duty is confined to describing and marking on the plat, the lines, corners, trees, and other objects on the ground, and to subjoin such remarks as may explain them: but in all other respects, and as to all other facts, he stands, like any other witness, to be examined on oath in the presence of the parties; and subject to cross-examination. The reason, why a survey, made by a public surveyor in discharge of his public duties, is admitted as evidence in suits between other parties, is not that it is hearsay; but that the act is officially done under oath, and in discharge of his duties to the government and the public. But it has never been supposed, that if in such a survey the surveyor should go on to state collateral facts, or declarations of the parties, or other matters, not within the scope of his proper official functions, he could thereby make them evidence as between third persons.
In the further progress of the trial, the demandants, after the evidence was closed on both sides, moved the court to instruct the jury that if they believed, from the evidence, that the survey of Remey and the adjoining survey of Thompson, were, in point of fact, made at the mouth of Pond creek, by beginning at or near the latter L, on the plat, that the law locates the patent on the ground, where it was actually surveyed, notwithstanding the call or reference on the said patents, or either of them, to [for] the mouth of Raccoon creek; and if they found that the patent of Remey, as surveyed, does not interfere with the claim of the demandants, that they ought to *442] find *for the demandants, unless they find that the defendants have had possession by an actual residence, or fence within the patent of the demandants thirty years or more before the bringing of these [suits.] The court refused to give this instruction, as moved; but gave the instruction as moved after substituting for the word "fence" the words "improvements with the intention of taking possession." To which refusal the demandants excepted.
It is wholly unnecessary for us to consider, whether the instruction, as given, is maintainable in point of law or not; and the only question is, whether the refusal to give it as prayed for, was incorrect. But this resolves itself into the point, whether it is absolutely necessary to constitute a possession of land, sufficient to bar an adverse title thereto under the statute of limitations, limiting writs of right to thirty years, that there should be an actual residence or fence by the party claiming the benefit of the statute; that is, an actual residence on the land, or a pedis positio of it by an enclosure. The argument, in support of the instruction, as prayed, assumes that there can be no possession to defeat an adverse title, except in one or other of these ways, that is, by an actual residence, or by an actual enclosure, a doctrine wholly irreconcilable with principle and authority. Nothing can be more clear, than that a fence is not indispensable to constitute possession of a tract of land. The erection of a fence is nothing more than an act presumptive of an intention to assert an ownership and possession over the property. But there are many other acts, which are equally evincive of such an intention of asserting such ownership and possession: such as entering upon land and making improvements thereon, raising a crop of corn, felling and selling the trees thereon, &c., under colour of title.
An entry into possession of a tract of land, under a deed containing specific metes and bounds, gives a constructive possession of the whole tract, if not in any adverse possession; although there may be no fence or enclosure round the ambit of the tract, and an actual residence only on a part of it. To constitute actual possession, it is not necessary that there should be any fence or enclosure of the land. If authority were necessary, for so plain a proposition, it will be found in the case of Moss v. Scott, 2 Dana's Kent. Rep. 275, where the court say, that "It is well settled that there may be a possession in fact of land not actually enclosed by the possessor." But this subject will naturally arise and be considered more fully under the next instruction prayed for: and it is only necessary to say, that we *perceive no error in the refusal of the court to give that, which [*443 was here prayed for.
The demandants then prayed the court to instruct the jury "that unless they find that Remey's survey covers the patents, under which the demandants claim, the settlement of M'Cammon within the two thousand acres does not give a claim to a possession within the one thousand acres patent; nor does the possession with the one thousand acres patent give any possession within the two thousand acres patent. That, as to the two thousand acres, the statute runs as to that from the time a possession was taken by an actual residence, or by fencing; and the same as to the one thousand acres: consequently, that if they [the jury] find that one has been thus possessed adversely for thirty years next before the bringing of this suit, and the other not, that as to the other not so held, they should find against such tenants as were within such patents at the date of the demandants' writ; provided these settlements are not included in Remey's or Thompson's survey, as originally surveyed."
The latter part of this instruction as prayed, is disposed of by the considerations already suggested under the preceding head. The other part may require some further explanations, in order to show its bearing and pressure. The tract of seven thousand acres conveyed by Edwards to Pearl, included, as has been already stated, both of the tracts of two thousand acres and one thousand acres claimed by the demandants within its boundaries. The house and settlement of Pearl were on the southern side of the one thousand acres tract; and the house and settlement of M'Cammon were within the two thousand acres tract, and near the centre of the eastern line of that tract. Pearl entered into possession of the seven thousand acres tract under his deed from Edwards; and as that deed described the tracts by metes and bounds, Pearl must, upon the principles already stated, be deemed to have been in possession of the whole tract, unless some part of it was, which is not shown, in the adverse possession of some other claimant. In short, his entry being under colour of title by deed, his possession is deemed to extend to the bounds of that deed; although his actual settlement and improvements were on a small parcel only of the tract. In such a case, where there is no adverse possession, the law construes the entry to be co-extensive with the grant to the party; upon the ground that it is his clear intention to assert such possession. This doctrine is well settled. It was affirmed by this court in *444] Barr v. Gratz, 4 Wheat. Rep. 222, 223; *and it has been fully recognized and acted upon by the state courts of Kentucky. In Fox v. Hinton, 4 Bibb's Rep. 559, it was held by the court, that where two patents interfere in part, and before possession is taken under the elder patent, the junior patentee enters upon the land within the interference with an intention to take possession, he shall be construed to be in possession to the extent of his claim. In Thomas v. Harrow, 4 Bibb's Rep. 563, the same court held, that a person entering on land under a deed of conveyance specifying the boundaries, is in possession to the extent thereof; although the person making the conveyance had only an entry, which did not appear to cover the land, and which had not been perfected by survey or patent. The cases of Smith's Heirs v. Lockridge, 3 Littell's Rep. 19, 20; Cates v. Loftus, 4 Monroe's Rep. 442; Moss v. Currie, 1 Dana's Kent. Rep. 267; Boyce v. Blake, 2 Dana's Kent. Rep. 127; Smith's Heirs v. Frost's Devisee, 2 Dana's Kent. Rep. 148, 149; and Harrison v. M'Daniel, 2 Dana's Kent. Rep. 354, are to the same effect, and contain a full exposition of the doctrine.
M'Cammon having entered under Pearl, his possession must be deemed consistent with the title of Pearl. There is, however, no proof of the nature or extent of his claim in the case. If he entered under a deed from Pearl, then his possession would be co-extensive with the boundaries prescribed in that deed. If he entered without deed, his possession must either be deemed a continuation of that of Pearl, or bounded by his actual occupancy. In Jones v. Chiles, 2 Dana's Rep. 28, it was held by the court, that if a landlord settles a tenant without bounds upon a tract of land, he is in possession to the limits of the claim. But if the tenant is restricted by metes and bounds to a part only of the land, the landlord's possession is in like manner limited. And upon the same principles the court held, that if the proprietor of a tract sells a portion of it designated by metes and bounds, and the vendee enters into possession, his entry must be deemed of his own land, only; and it has no effect as an entry upon or possession of the rest of the tract.
If with these principles in view we examine the instruction asked of the court, it will be found open to much objection. It assumes certain facts as its basis, which were not in evidence; or, if in evidence, they were for the decision of the jury. The court were asked to instruct the jury, "That the settlement of M'Cammon within the two thousand acres tract, did not give a claim to a possession within *445] *the one thousand acres tract," without ascertaining, whether the claim or title of M'Cammon extended into the latter or not. Now, it is plain, that if his claim or title did extend into the latter, he would have had a constructive possession to the extent of that claim or title. The other part of the instruction asked is extremely vague. It is, "Nor does the possession within the one thousand acres patent give any possession within the two thousand acres." It is not said by whom the possession is supposed to be, whether by M'Cammon or by Pearl, or by any other person. If the possession intended was that of Pearl, as both tracts were within his tract of seven thousand acres, it is clear that his possession would extend over both tracts, upon the principles already stated. If the possession intended was that of M'Cammon, it is open to the objection already stated, that the boundaries of his claim or title are not ascertained, so as to enable the court to give the instruction as matter of law. In truth, the instruction asked seems to have proceeded upon a ground perfectly untenable in itself; and that is, that as to third persons, who are in under title or colour of title, their possession is to be bounded and limited by the nature and extent and origin of the distinct titles of their adversary; and not by that, under which they themselves have entered and taken possession. For these reasons we are of opinion, that the instruction was properly refused by the court.
The last exception now insisted on, is in the following instruction, given by the court upon the prayer of the tenants. "That if they [the jury] find, from the evidence, that Remey's patent does not cover the land in contest, yet if they find, from the evidence, that the tenants, or any of them, or those claiming under them, have had possession of the land in contest for thirty years next before the commencement of the demandants' suit, they must find for the tenants." It is probable, that the actual form in which this instruction was asked, was occasioned by the agreement of the parties, that all these actions against the different tenants upon the different writs of right "should be heard at the same time," without prejudice to the rights of either party; and that the evidence "should be heard as to all, and to be applied to each respectively," and therefore that the instruction should be construed accordingly, reddendo singular singulis. But we see no objection to it in the form, in which it was actually given, under the circumstances of the present case, and the titles set up by the parties respectively. The demandants claimed adversely to all the tenants, upon a title independent and distinct from theirs. The *tenants all claimed under the title of Pearl, by his deed of the [*446 seven thousand acres, that is, under a title common to them all. The demandants could not recover any tract in controversy, unless they were seised thereof within thirty years, the period prescribed by the statute of limitations for writs of right. If, therefore, there had been thirty years adverse possession of the particular tract in controversy, by any of the tenants, the demandants had failed in their suit, and were barred from any recovery. This was the whole purport of the instruction given; and, in our judgment, it was perfectly correct. It has been supposed, at the argument, that the instruction was defective in not stating, that the possession was adversary and uninterrupted during the whole thirty years: and the case of Forman v. Ambler, 2 Dana's Kent. Rep. 109, 110, is relied on to sustain the objection. But the court in that case admitted, that the instruction was free from legal exception, as understood by the court and the parties. And whatever ground there might be for the court, in that case, to come to the conclusion, that the jury might have been misled by it, (with which we do not intermeddle,) under the peculiar circumstances of the case, we are of opinion, that, under the circumstances of the present case, the instruction was definite and unambiguous in its purport and effect, and such as the law justifies.
Upon the whole, the judgment of the circuit court is affirmed with costs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.
NOTES
[(a)] See Morehead v. Wood, 13 East's Rep. 327, note, 329; 1 Phillips on Evid. ch. 7, sect. 7, third ed. p. 190; 1 Stark. Ev. 32, second London ed.; Doe v. Thomas, 14 East's Rep. 323; Freeman v. Phillips, 4 M. and Selw. 491.
[(b)] Nichols v. Parker, cited 14 East's Rep. 331, note; Paxton v. Dare, 10 B. and Cres. Rep. 17.
[(c)] See also 1 Stark. Ev. p. 33, 34, second London ed.; Phillips on Ev. ch. 7, sect. 7, p. 189, 190, third ed. But see Barnes v. Mawson, 1 M. and Selw. 77, 81.
[(d)] See Caufman v. Presbyterian Congregation, 6 Binn. 59; Conn v. Penn. 1 Peters' C. Rep. 496, 511, 512. See also The King v. Enswell, 3 T. Rep. 719.
[(a)] See Blarkett v. Lowes, 2 M. and Selw. 494.
[(a)] See 1 Starkie's Evidence, 32, 35, second London edition; 1 Philips on Evidence, ch. 7, sect. 7, p. 178, 192; Morewood v. Wood, 14 East's Rep. 327, note.
[(a)] Cited in 1 Phillips on Evidence, ch. 8, page 213, note, [230 note]; 1 Starkie's Evidence, 187, second London edition, and note (n).
[(b)] Ibid.