majority">Chief Justice Robertson

delivered the following Opinion

Judge Nicholas concurring — Judge Underwood dissenting^

This is an action of ejectment, in which the defendant succeeded, in consequence of an instruction given by the court to the jury, as to the construction and application of the statute of 1809, for the- speedy adjust-' *349merit of land claims, and for the protection of actual settlers. '

SíiSettlements on the land, of spactively!’jllstnlct¡ons ¡„ the circuit ct., <luestumDoctrines now settled, viz:1. One who euteredonland, in tending to take possession of the entire tract, no partofwhiohwas then held adversely, is in. possession to the extent of hia claim—2. An actual possession can be divested, but by an adverse actual entry — . not by a constructive entry, hence, where-there are conflicting claims, and the owner of the inferior enters on, and takes possession of, the lap, a subsequent entry, under the better title, upon the interfering tract, but not the lap, will not oust Him., ■

The plaintiff — claiming, under regular conveyances, an entire tract of land composed of parts of two contiguous grants, each older than that under which the defendant holds, and which covers some portion of the land included by each of the senior patents, within the boundary of plaintiff’s deed — had actually settled within the bounds of his claim, but not within those of the junior patent, before the defendant, or any person under whom he held, had ever settled or entered on the land claimed by him ; and afterwards, the defendant settled upon, and enclosed, more than seven years prior to the institution of this suit, a part of the land witbin the boundary common to the claim of. each party.

Upon these facts, the circuit judge instructed the jury, that, though the defendant had enclosed only a part of the lap, and although a part of his enclosure had not been made seven years, still the statute of 1809 protected him, and barred the plaintiff’s right of entry, to the whole extent of the interference between their claims.

The point presented by that instruction, is the only one we shall now consider.

The following doctrines are too firmly settled by authority, to be now questioned.

First. If a claimant enter upon his land, intending to take possession of the entire tract, no part of which is, at the time of his entry, actually possessed by any other claimant holding adversely to him, he is, by construction and intendment of. law, in the actual possession of all the land included within the boundary of his claim.

Second. If the person making such first entry, hold under the inferior of two conflicting, adverse titles, and enter within the lap, he will not be disseized by a subsequent entry, by a person holding under the superior title, unless that entry be made within the bounds of the inferior claim ; because an actual possession can only be divested by an actual adverse entry — and cannot be *350disturbed by a merely constructive entry or possession. Fox vs. Hinton, 4 Bibb, 559.

3. Where the holder ofthesup qrior title enters ontholand,tho’ not on the lap, his- possession being, by construction, coextensive with his claim, a subsequent entry, under the inferior title, ousts him so far only, as he is encroached upon by actual enclosures. —AndThe foregoing principles apply as well to actual settlers, claimingprotection under the “ seven years law” —act of 1809, as to those protected by the previous acts of limitation.The actual settler is protected, by the act of 1809, in the title and possession of land of which he has had continued possession, according to the aboveestahlished doctrines,for seven years: but the protection does not extend (o land of which lie has never been so possessed. — His entry and settlement, under an inlfcriortitle, will not, beyond his actual enclosure, oust an adversary who had madeaprior entry, and acquired a constructive possession, under a better title ; nor will the act. protect such subsequent settler’s claim, against such bet ter title, or bar the right of entry, or of action, under it, beyond his actual enclosure. [Judge Underwood is of a different opinion — See his Dissent, post,}

*350Third. Although the ¡trior entry or settlement, under the superior title, be not within the boundary of the inferior conflicting claim, nevertheless, a subsequent entry or settlement, under the inferior, and within the boundary of the superior claim, will not, beyond the actual dose of the claimant under the inferior right, oust the pre-existent and continuing actual possession, under the superior title ; because, except so far as there is an actual enclosure, the possession of the person subsequently entering, under the inferior claim, could only be constructive, and the prior constructive possession, under the better title, cannot be ousted or disturbed by a subsequent constructive possession, under the inferior claim : there cannot, in fact or in law, be any such constructive entry or possession under the-junior grant, after the entry, and during the continuance, of the actual possession under the paramount title. Millar vs. Humphreys, 2 Mar. 446 ; Moss et al. vs. Currie et al. 1 Dana, 266; Shrieve vs. Summers, 1 Dana, 238.

We can perceive no sufficient reason why those fundamental doctrines of possession, established under tire general statute of limitations which prescribes twenty years as the bar to an action of ejectment, should not be equally applicable under the statute of 1809 — the chief object of which, was only to substitute seven for twenty years, in favor of actual settlers. Thé extent, of the occupant’s actual possession must be determined by the rules and tests just stated ; and he cannot claim to be protected in the enjoyment of land, of which the law does not deem him to have ever been possessed. The act of 1809, properly understood, will, after' an aótual settlement for seven years, protect the settler against a suit for the possession or title of the land, of which he had been possessed, by actual settlement, for seven years ; and not against a suit for the title or possession of land of which he had never been so possessed. Then, in a case on which there was no actual possession beyond the enclosure, the act of 1809 will not bar a suit *351for the possession or title of land which had not been actually possessed or enclosed, for seven years immediately preceding the institution of the suit. Can the subsequent entry and settlement of a claimant, under a junior patent, be made, by construction, to evict the prior, actual possession of a claimant, also actually settled, within the boundary of his elder patent, and before any settlement was made under the junior patent ? Did the legislature, in enacting the statute of 1809, intend that the subsequent settler, under an inferior claim, should be preferred to a prior settler, under the superior litis ? If any settler should be deemed to be settled and possessed, to the extent of his claim, the first settler, under the best title, should surely be deemed to be settled and possessed to the whole extent of his claim ; and, being the first settler and under' the best title, he should not be postponed, by an anomolous and non-descript species of legal construction, to a subsequent settler under an inferior claim. We know of no principle, or analogy, or authority, for any such novel construction, or inconsistent, application, or rather, as we think, perversion, of the act of 1809. It cannot be material, whether the claim be large, or small. A settler on a large tract, is as much, and as meritoriously, an actual settler to the extent of his whole title, as a settler on a tract ever so small, can be deemed to be on his entire claim. In a contest between two actual settlers, which shall be preferred ? The holder of the belter right, surely.

The actual possession of the elder patentee, first entering, or first settling, within the limits of his grant, wherever he may enter or settle, or however large may be his tract, is, under the act of 1809, precisely what it is under the general limitation law; and the actual possession of the subsequent settler, wherever he may settle, or however small may be his claim, is no more extensive under the operation of the one than the other statute; and nothing short of actual, adverse possession, for seven years, by a settler, any more than by any other claimant, will oust a previous actual possession by the adverse holder óf a better title, or bar his right of *352entry, or of suit. Whenever the right of entry exists, the correlative” right of suing must also exist. And we cann°t admit that the elder.patentee, who first obtained the actual possession of his entire tract, can be barred from entering on any part of it, by a subsequent settle-. ment under a junior patent, except so far as the settler’s enclosure shall have been continued for seven years. And, in this opinion, we arc, as we believe, sustained, not only by the reason and analogies and objects of the law, but also by the authority of this court.

In Millar vs. Humphreys, 2 Marshall, 448, this court said: — “As the defendants had the elder title, and an entry on-the land was made by their ancestor, prior to any entry having, been made by the plaintiff, or any one under vyhom he claims, upon the tract covered by the interfering patent, it is evident, according to the repeated decisions of this court, that they must he held to be in the actual possession of the interference, except so far as they had been ousted by the plaintiff, or some one under whom he claims.” “The plaintiff, indeed, may have acquired a title to the land enclosed by marks, fifteen years ago, under the act to compel the speedy adjustment of land titles, which forbids all remedy for the recovery of land after an adverse possession of seven years, tinder an interfering claim; but there is no pretence to say, that he could have gained a title to the additional part of the interference enclosed by himself, only about a year before the commencement of the action ” Here, it is not only virtually decided, that an extension of an actual settler’s fence over the line of interference, is an extension of his actual settlement, but it is clearly and expressly decided that, the elder patentee, having entered first, and thus having acquired the actual possession of his entire tract, a subsequent actual settlement by the junior patentee, within the lap, did not oust the prior possession, except so far as the settler’s enclosure had been continued for seven years. And it is evident, that, in that case, this court treated the actual possession, the right of entry, and the right of action, as all depending on the same principles, under fhe statute of 1809, and under the general limitation law. It *353is true, that the elder patentee had enclosed a small part of the lap; but that circumstance could have no effect on the general principle recognised and applied by the court, in that case ; because the actual possession beyond the enclosure, was only constructive ; and the court de-. cided, that there was “no pretence” for saying that such a constructive possession had been constructively ousted, by the subsequent settlement, under the junior grant.

In Hord vs. Bodley. 5 Litt. Rep. 88, the same principle is even more explicitly and authoritatively established, and directly under the statute of 1809. In that case, it appearing, that Bodlev, claiming under the junior patent, had actually settled within the lap, and that after-wards, Hord had also entered within the boundary common to his and Bodlev’s patents, this court said : — “ To come within the operation of that act, (act of 1809,) it is not onlv necessary, that there should be'-an actual settlement upon the land, by Bodley, under an adverse title to that of Hord, but it is also essential, that there should be a continuation of-the adverse “possession for the time prescribed in the act. But, if we are correct in supposing that, by his entry, Hord acquired the possession of all the land in contest, and that he has never since been ousted of that possession, it is impossible, that Bodley can have held such a continued adverse possession. as to bring his case within,the operation of tho act of 1809 ” Thus placing the extent of the settler’s pro* tection. under the act of 1S09, on the question of actual possession, to be determined, as in all other cases, by the general rules which we have laid down. And, according to inevitable analogy, if those rules applied to that case, they must be applicable to this. For if, as decided, the actual possession, to the whole extent of his claim, acquired hv Bodley’s first entry and his. settlement, was ousted by the inconsistent, constructive possession, acquired by Hord’s subsequent entry, under the better title, on a small part of the land claimed by each, of them, surely Harrison’s prior actual possessiou of his whole tract, under his elder grant could not have been ousted by McDaniel’s subsequent settlement, further' *354t^an |ie {ia¿¡ extended his actual enclosure; for the rule 0f actual possession by construction, under the elder patent, must operate in the same way in each ease : that is, the constructive possession of the elder patentee, cannot be ousted by the constructive possession of the junior patentee.

A (party who lias title, by a deed, to two adjommg tracts, granted by two sepan^makeTan entry on the P^essmn'Toextensive with ias title by the deed. '

The act of 1809 could never have intended to bar a right of entry, or of action, against an actual settler, unless he had been, for seven years at least, after his first actual settlement, actually possessed of the land as to which the right of entry, or of action, is asserted. It clearly means, we think, that no action shall be maintained, against an actual settler, for land of which he had been, in consequence of his settlement, actually possessed for a period of Seven years prior to the institution of the suit. And such was evidently the interpretation given to the statute by this court, in the cases from which the foregoing quotations have been made.

The extent of the settler’s actual possession, like that of every other claimant, must be ascertained and determined by the general rules of Jaw, when applied to the facts of each particular case.

As then, according to those rules, and the facts of this case, Harrison, and not McDaniel, was, and continued to be, in the actual possession of all the land embraced by his deed, excepting only so much as had been actually enclosed by McDaniel; and as a portion of the enclosed land had not been enclosed as long as seven years before the commencement of this suit, he has, in the judgment of a majority of this court, a right to recover; and McDaniel is protected, by the statute of 1809, only for so much of the land as he had enclosed as long as seven years prior to the institution of this suit.

Although was two pa^ents, we cannot doubt, that, as each of them is older than that under which McDaniel holds, and as Ilarrison enterec^ on) an(* claimed to possess the entire tract included within the boundary described in his deed, possession was undivided, and was coextensive with the limits of his claim, except so far as he had been ac- , , tuaily disseized.

DISSENT, by Judge Underwood •' who i$ of opinion, that where two parties eacii claim a tract of land —the two tracts interfering with each other, and there has been no improvement made upon, nopedispos sessio of, the lap, by the owner of the elder and better title ; and the owner of the junior grant has settled on the lap, and retained an uninterrupted possession for seven years, his title is protected, by the act of 1809 (7 years law) not only as far as his enclosures extend, buttotho wholo interference.

Wherefore, it is the opinion of a majority of the court, Judge Underwood dissenting, that the instruction given to tiie jury by the circuit judge, was erroneous; and therefore, the judgment must be reversed, and the cause remanded for a new trial.

Judge Underwood,

not concurring in the foregoing Opinion and Decision of the two members of the Court constituting the majority — presented his own views of the question, as follows :—

In tins case, the defendants have been actually settled upon the land in controversy, for seven years prior to the institution of tiie suit, claiming under the junior grant. The residence upon tiie laud has been continued for seven years; for I cannot admit that the temporary absence ol the family for a few months, to regain their health, is sufficient tó oreak the continuity of residence. It cannot have that effect, any more than a visit to church or to a neighbor’s house would. During the seven years continued residence of the defendants upon the land, the plaintiff Harrison has not had possession, by any actual enclosure or by settlement and residence within the lap, although he took actual possession, and had tenants living upon the land, embraced by his elder grants, on the outside of the junior patent, under which the defendants claim, before the defendants entered and settled within the interference, and has continued, thus in possession ever since his first-entry.

The question is — how far are the defendants-protected -by the act of 1809, to compel the speedy adjustment of land claims?

The circuit court was of opinion, and so instructed the jury, that the defendants were protected to the extent of the interference.

As Harrison claimed the land covered by two adjoining patents, issued in the name of B. A. Allen, under a deed to him, embracing both tracts, and as the junior patent, under which the defendants claim, interferes with the eastern tract of Allen, to the extent of seventy-three acres, and with the western, to the extent of forty-seven acres, and as the dwelling house and all the improvements of the defendants are situated upon the *356seventy three acres, I am of opinion that the statute of 1809 does not protect the defendants, or confer on them any right to hold the forty-seven acres. My iea,* sons for this, are assigned at length, in the case of Davis vs. Young, [Ante 311.] But as to the seventy three acres, I think the defendants are protected by the statute, and hence I would affirm the-judgment; leaving Harrison at liberty to enter upon, and take possession of the forty-seven acres, when he pleases.

If the present controversy ought to be decided upon those principles of construction in regard to possession, which have heretofore been recognised by this court, as growing out of the doctrines of the common law, Í readily admit it can be shown, that the defendants have no actual possession of any land on the outside of then-enclosures. If the statute requires a pedis possessio in fact, or by construction, of the entire interference, before a settler can bring himself under its protection, I admit that the principles of the cases cited in the opinion delivered, do show, beyond a doubt, that the defendants in this case have no possession, actual or constructive, on the out side of their enclosures. It would therefore follow, that protection here cannot go further than to secure the defendants, to the extent of the land actually enclosed, field and resided on, for more than seven - years prior to the institution of the suit.. For up to those actual enclosures, the principles of construction would put Harrison in the actual possession, and being so possessed, -the limitation of seven years could not run against him. But I apprehend a decision of the controversy upon the foregoing grounds, without looking further, would be to stop short of. that rule which the legislature intended to prescribe by the act of 1809.

The present differs from all the cases heretofore decided, in one important particular. The only pedis possession on any part of the interference, is held by those claiming under the junior patent. They have been actually settled, and residing on the land, for seven years before-suit brought, and during this period, those claiming under the cider patent, have made ncr *357improvements within the interference. In all the cases heretofore decided, both parties have had parts oí the land common to their respective claims, in actual nosses- , , sion by enclosure. JLhis being the case, tbe law, by construction, put the oldest patentee into possession in fact, up to the fences of his adversary, and of all Ins adversary’s improvements likewise, according to the case, of Hord vs. Bodley. The elder patentee bemg ti*. s in possession, the limitation of seven years would not run against him. But when he has no such possession, I think the limitation, provided as a shield to the settler, may well bar any suit which he institutes.

The beneficent operation of the act of 18(39, does uot depend exclusively upon adjusting questions of possession. That act intended to connect the actual settler with his title, and to protect his tille to the extent of the interference. With this view, the statute declares, “that no action at law, bill in equity, or other process, shall be commenced <3ye. whereby to recover the'title or possession of such land &c.” In this case, the defendants exhibited a title, deducible of record from the commonwealth, and proved such settlement and residence as is required, and yet by running off upon questions of possession, the defendants lose their title to all the land in contest, except so much as they have had enclosed lor seven years. If the senior patentee had been possessed, by visible and tangible improvements within the lap, there would be strong reasons for applying the doctrines of possession founded on the common-law rules, to this case. Such a possession on the part of the senior patentee, would .operate as notice of his claim. It could not, thereafter, be regarded as of that dormant character, unknown to the neighborhood, which the legislature intended to bar. The preamble to the statute clearly proves, that the legislature intended to prohibit bringing such dormant claims forward, and asserting them by suit, to the disturbance of the actual settler. When the junior patentee is alone settled upon the lap, and no other has a visible possession in it, he may be entirely ignorant that there exists any interfering claim, I know of no principle upon which it can be presumed, *358that he is acquainted with the positions of the lines and corners of others. He may therefore settle, in good uPon the lap; and having done so, if he eontinues to reside and make his home upon it for seven years, 0|-,ject 0f the statute was to protect his possession and title, forever thereafter, against all interfering claims. Such claims are to be considered dormant in respect to, such actual settler, because not asserted within seven years after the settlement was made.

Suppose the elder patentee to be settled on a corner of his fifty thousand acres tract, and thereafter A, B and C should settle respectively on their one hundred acres tracts, under junior patents, which lie entirely within tiie hounds of the fifty thousand acres : why shall tiie senior patentee he permitted to recover all the land in these little tracts, except so much as the occupants have had under fence around their dwellings for seven years? Because, the majority of the court answer, the eider patentee was settled on his tract before the junior paténentees entered and settled. Now, if the senior patentee liad not settled at all upon Jiis tract, and had not taken actual possession of it, by some visible improvement; or had done so after the junior patentees entered and settled ; then the junior patentees would have been protected to the extent of their patents, beyond all doubt. Hence the success of the senior patentee, in the- case supposed, depends entirely upon the fact that he happened to make the first settlement or enclosure upon his tract, although it may not be within five miles of the interfering claims. When the senior patentee commences his suits as plaintiff or complainant-, he is to be favored because he settled on his tract, on the out side of the interference, before the defendants settled on their tracts. Where, I ask, is the foundation for such a preference to be found in the statute? It has no existence there. The legislature has recognised no difference .between the plaintiff or complainant, asserting a paramount legal or equitable title, who lives on the claim set up by him, and a plaintiff or complainant who does not live on his claim. To make á difference is the work of legislation. ' But what policy could lead to such a dis*359tinction and difference? The settler on the lap supposes, after seven years residence, that the benign policy of his country, has secured his land forever, against all claims which have been slumbering during that period. He is to be told, under the opinion delivered, “you are greatly mistaken, you are protected, to be sure, against non-residents and those who have no settlements or improvements on a tract, large or small, which covers your home ; but if you have a neighbor settled upon a senior patent, which covers you, although lie is settled on the outside of your lines, he may sue you and recover.” There is less apology for the settler upon the senior patent, where he delays suing the occupant of the lap, than there is for a citizen of another state, who may not be possessed in fact of one foot of land in Kentucky. The non-resident may be ignorant of the settlement by the junior patentee upon the land ; such ignorance cannot be imagined in the case of a neighbor. Hence there is no conceivable reason, which could have influenced the legislative mind, to make a distinction in favor of the neighbor, who lies by for seven years, merely because he had made the first settlement on his tract, but on the outside of the interference. And as no such distinction is expressed in the statute, hut has its foundation, if indeed there be any for it, in a presumption, that the legislature did not intend to molest the common law rules relating to possession, I cannot see any reason for making it.

There is no ground on which to base a presumption, that the legislature intended to make an exception in favor of the elder patentee who may have settled first on the outside of the lap. His is truly a dormant claim, so far as it covers the interference, if it be not asserted within seven years, — during all which time, there has beefl a tenant on the land against whom the suit might have been brought. Having been negligent so long., the statute prohibits the institution of suit upon the senior patent, to urecover the title &c.” of the occupant; and if the suit is commenced, the statute gives a bar, to defeat the suit, and the whole suit, to the extent of the conflicting titles. The object of the statute was to prevent all *360litigation between the conflicting claims, aftér a lapse of seven years, during which the junior patentee was settled on the lap. The very title of the act, to wit, “to compel the speedy adjustment of land claims” shows that the legislature never intended that the senior patentee should delay as long as he pleased, and then litigate the titles by piecemeal, as the occupant from time to time extended his improvements. The legislature looked upon the land common to the interfering claims, as an entire thing, and when it was said in the act, that no suit shall lie commenced” whereby to recover the title &c.” it was as clearly manifested as language could express it, that the entire title to the whole land in contest was meant, and not a part of it. An action of ejectment, although denominated a possessory action, is nevertheless a suit to try the title. It is a fiction for that very purpose, and so used in this case. My idea is, that McDaniel defeats the whole suit, by showing his seven years continued residence upon the lap. The majority of the court allow the action to be defeated so far as it relates to the ground which McDaniel has had under fence, for seven years before suit brought, and allow a recovery as to the residue; thus splitting up the controversy — contrary to the case of White vs. Bates, 7 J. J. Marsh. 545.

Tn the case of Davis vs. Young, the majority of the court applied the statute in behalf of Davis, not because he resided on the land, but because he had extended his fences over the line, and enclosed part of the interference. And in that case, the main argument in support of the construction given to the statute, turns upon the supposed want of wisdom on the part of the legislature, in suffering the fields, orchards &c. to be recovered, when the dwelling house might thereby be rendered useless to its tenants. The court deemed it reasonable to’give such an interpretation of the statute, as would vindicate the legislature from such folly. But in the present case, it seems that the dwelling house and cleared ground, which the defendants have possessed for seven years, are to be secured, and all else taken. Thus the tenants will be left without timber to make repairs, or *361«ven fire wood to prepare food. It requires but little forecast to see, that the inevitable' consequence of such an interpretation of the statute, in cases like this; will result in the dilapidation and abandonment of the improvements.

The case of Millar vs. Humphries, 2 Marsh. 446, contains an expression, which is supposed to fortify the construction given to the statute in the case of Davis vs. Young, and also the opinion now delivered. The court in speaking of the facts in Millar vs. Humphries, and which shew that the junior patentee had extended his fences over the line, and enclosed a part of the .interference, use the following language : — “ The plaintiff, indeed, may have gained the title to the land enclosed, fifteen years ago, under the act to compel a speedy adjustment of land titles, which forbids all remedy for the recovery of laud after an adverse possession of seven years, under an interfering claim &c.”' It is obvious, that the court overlooked the most important requirement of the statute, to wit, actual settlement. According to the language used, the bar provided by the statute attaches to an adverse possession of seven years, under an interfering claim, without regard to an actual settlement or residence. The court inadvertently followed the previous case of Skyles' heirs vs. King's heirs, 2 Marsh. 387, in which the distinction was not taken between an actual settlement or residence on the land, and a possession acquired and held by other means. In Skyles' heirs vs. King's heirs, the court say : — “If he (meaning a defendant) proves seven years possession, holding under his title, the statute shall aid him, although the plaintiff may be able to shew, by the production of his own title, or that of others, that the title did not; in law, or fact, pass to the defendant.” I was concerned, as counsel, for Skyles’ heirs, in the circuit court', and know that they did not reside on the land in'cpntest; nor had it been held by their tenants, for seven years in succession, by actual residence, and cannot suppose that the original record on which this court decided, contains any statement in the exceptions, that such facts did *362exist; 1 have not deemed it worth the trouble to examine the original record. The true construction of the act of 1809, which did not take effect until 1816, was never settled until the case of Turner vs. Anderson, 3 Marsh. 131, was decided. Actual settlement on the land was required in that case, which, by all subsequent adjudications, is construed to mean residence; and in that case, for the first time, was the distinction taken between a possession by actual settlement or residence, and a possession by fields or enclosures.

Here McDaniel has proved every thing the law requires ; the lessor of the plaintiff has no pedis possessio within the lap ; and hence, I think, the statute protects him, to the extent of the seventy three acres, on which he is settled, and which is covered by the plaintiff’s eas' tern patent. I think the other members of the court have erred in applying the doctrines of the common law, recognised by numerous decisions of this court, whereby the lessor is construed to be possessed in fact of the interference. I think the statute shews a legislative intent to change those doctrines in cases like this. If the lessor had proved a possession in fact of any part of the interference, independent of construction; in other words, if he had shewn a possession by enclosures or improvements, he would then have brought himself within the rule recognised in the case of Hord vs. Bodley, and others similar. As lie failed to do that, I think he has slept upon his right until he has lost it, to the whole interference,

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