charge the jury that Hackett was by law a tenant in common with Ross, of which character he could not discharge himself by agreement with a younger purchaser from Donalson, and that the statute would not bar his right. With respect to the occupancy of Cox, the judge said, that merely going upon the land would not stop the running of the statute, but that if an older adverse claimant took actual possession by building houses, clearing land, &c. the operation of the statute of limitations might be thereby suspended. To this opinion, also, the counsel for the defendant excepted. On examining the whole testimony stated in the bill of exceptions, it appears that the contract with Hackett, which is stated by Meriott in his deposition, was a contract for the sale and purchase of a part of the tract of 5,000 acres sold by Donalson to Ross, and that his contract with M'Clung was a sale of M'Clung's part of the same land, on condition that he would hold the whole tract for M-Clung and Hackett. The actual possession of Meriott, then, does not appear to have extended beyond his purchase. He does not allege that Hackett put him in possession of more land than was sold to him; nor does it appear that M'Clung put him in possession of any land farther than the virtual possession which was to be implied from the agreement which has been stated. The possession of Meriott, then, was an actual possession of a part of the land under a purchase. It was his own possession, in his own right; and not the possession of Hackett and McClung. His agreement with McClung to hold 1820. M-Clung V. Ross. 1820. McClung V. Ross. the residue of the land for Hackett and M'Clung, never having been followed, so far as is shown to the Court, by actual occupation of any part of that residue, cannot, we think, be construed into such a possession by Hackett and M'Clung as to affect the title of Ross. If the defendant cannot avail himself of the possession of Meriott, then it is not shown that the bar was complete when this suit was brought. The contract of sale with Meriott was rescinded in the autumn or winter of 1808, and Hackett entered into the land in the spring of 1809. This suit was instituted on the 27th of March, 1816. The testimony does not show that the entry of Hackett was anterior to the 27th of March, 1809. This, however, ought to be left to the jury. But the judge was of opinion that the possession of Hackett was not adverse to that of Ross, because they were tenants in common. That one tenant in common may oust his co-tetenant and hold in severalty, is not to be questioned. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. The principles laid down in Barr v. Gratz, (4 Wheat. 213.) apply to this case. Neither does it appear to this Court, that there is error in that part of the charge which respects the occupation of Cox on the part of Ross. It is, that merely going upon the land will not stop the running of the statute, but that if an older adverse claimant took actual possession by building houses, clearing land, &c., the operation of the statute of limitations might be thereby suspended. It has been contended, that the statute of Tennessee can be stopped only by actual suit. This is true, when the possession is such as by its continuance to constitute a bar. But to make it such, it must be peaceable for seven years. This is the fact which creates the bar. This fact cannot exist, if the person having the better title takes actual possession in pursuance of his right. It is unnecessary to inquire whether the subsequent abandonment of this possession rendered it in this case a nullity, because the point is rendered unimportant by the circumstances that Ross and Hackett were tenants in common. There is, then, no error in the charge so far as respects the statute of limitations. But the counsel also requested the judge to charge the jury, that the name of Hackett being signed to the deed from Stockly and Donalson to Ross, since the delivery of said deed, amounts to such an alteration or addition as will vitiate such deed, unless accounted for by the plaintiff. This charge, also, the judge refused to give, but did instruct the jury that the title was vested in Ross by the deed from Donalson, and could not be devested, although there might be an alteration or addition in a material part of the said deed, such as the name of Hackett being put to the deed and not proved. 1820. M'Clung V. Ross. Ground for reversing the this case. There is some ambiguity in this instruction, and there is some doubt in the state of the fact. The judgment counsel for the defendant assumes the fact, that the signature of Hackett was affixed to the deed after its in 1820. McClung V. Ross. delivery. This does not appear in the evidence as stated. Nor does it appear whether the signature of Hackett was affixed, before or after the deed was registered. It was not proved or registered as to Hackett, and is void as to him. The Court is not, however, prepared to say, that it is void as to Donalson. But the instruction given by the judge is in terms which might mislead the jury, and which appear in fact to have misled them. He says, that the title was vested in Ross by the deed from Donalson, and could not be devested by the addition of the name of Hackett. Now, this suit was instituted for the whole tract, and the title asserted by Ross was a title to the whole tract. The instruction of the judge might have been understood as informing the jury that the title vested by the deed conformed to the title claimed by Ross. In fact, it was so understood; for the jury found a verdict for the whole tract, and the Court gave its judgment for the whole. Now, Ross had no title to more than a moiety, and the judge ought so to have instructed the jury. For this reason, the judgment is to be reversed, and the cause remanded for a new trial. Judgment reversed. JUDGMENT.-This cause came on to be heard on the transcript of the record of the Circuit Court for East Tennessee, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the Circuit Court erred in instructing the jury that the title to the whole tract of land in the proceedings mentioned, and for which judgment was rendered in the said Circuit Court, was vested in David Ross, whereas the said Court ought to have instructed the jury that only a moiety of the said land was vested in him. It is, therefore, ADJUDged and ORDERED, that the judgment of the said Circuit Court in this case be, and the same is, hereby reversed and annulled. And it is further ordered, that the said cause be remanded to the said Circuit Court with directions to issue a venire facias de novo. 1820. The Venus. (PRIZE.) The VENUS, Jademerowsky, Claimant. A question of proprietary interest, on farther proof. Restitution de- Captors' costs and expenses ordered to be paid by the claimant, it APPEAL from the Circuit Court of Georgia. This cause was continued for farther proof at February term, 1816. (Vide ante, vol. I. p. 112.) Owing to various accidents, the farther proof was not received until the last term, and the cause was now argued upon the farther proof then produced and filed. It consisted of invoices of the cargo; bills of lading; accounts of sale; accounts of disbursements; the original correspondence between the 5wh127 174 536 |