Action was commenced on 16 August, 1845. On the trial, plaintiff gave in evidence a grant from the State to Thomas Monroe, dated November, 1792, which covered the premises described in the declaration, and proved that he died before 1845, and that the lessor of the plaintiff was his only child. Plaintiff further gave evidence that the defendant was in possession of a part of the land covered by the grant. On the part of defendant a grant to Dolan and Holeman, dated in 1752, and a deed from Dolan and Holeman to Edward Williams, were given in evidence; but the defendant did not give evidence that those conveyances *Page 110 covered any part of the premises. Defendant then gave in evidence a deed from Edward Williams to Richard Pearson, dated in 1791, which covered the part of the premises which was in defendant's possession; and also a deed for the same from said Pearson to Nathaniel Peebles, dated in 1817, and that defendant in 1844 came in by mesne conveyances under Peebles. Defendant further gave evidence that in 1835 Peebles built a cabin and also a still-house on the land claimed by Defendant, and placed two of his slaves in the cabin, and his stills and (151) stilling apparatus in the still-house, and that his slaves remained there, and he used the distillery until the spring of 1838, when he removed the slaves and stopped distilling, but that the stills and beer-tubs remained in the still-house; and that in June, 1838, defendant leased the land to one Towe for a term of years; but that in August, 1838, Towe, by the consent of the defendant, repaired the dwelling-house and prepared and farmed a piece of land around the house to make a crop of turnips, and sowed them on the 10th day of the month; and in December, 1838, he (Towe) removed to the place with his family, and he and defendant continued in possession afterwards up to the commencement of this suit.
Plaintiff gave in evidence a record from the county court, wherein it appeared that on 3 July, 1845, the lessor of the plaintiff gave to the defendant a notice in writing that on 15 July "I shall proceed to procession my land, to begin at the hickory tree on the river bank, and commence at 9 o'clock a. m.," and that to the next county court, sitting on the second Monday of August, 1845, the processioner returned his certificate that, being called on to procession the lands of Rebecca R. Crump, he commenced, on 15 July, 1845, at a hickory on the river bank, and ran thence, etc., to a store; "and then was about to run east 20 chains to a post-oak, when I was forbidden to proceed any further by Joseph F. Thompson, who contends that the line runs from the said store south 55 degrees west instead of due east, and, consequently, the lines lie in dispute between said parties." And it further appeared therein that the proceeding was dismissed at that time.
(152) Counsel for plaintiff therefore prayed the court to instruct the jury that, even if they should believe that Towe fenced and sowed a turnip patch on the premises as early as 10 August, 1838, and that he and the defendant have continued the possession ever since, the plaintiff would be entitled to recover, because the proceedings begun by the lessor of the plaintiff in July, 1845, to procession her land constituted such a suit or claim as prevented her right from being barred at the commencement of the present suit. The court refused to give the instruction, and told the jury that if the possession of the defendant and of those under whom he claims did not commence before 10 August, 1838, yet, as it had *Page 111 continued ever since, and for more than seven years, the plaintiff was not entitled to recover. Verdict and judgment for defendant, and plaintiff appealed. It must be understood that the lessor of the plaintiff made no entry in July, 1845, on the land claimed by the defendant, but stopped at the corner, from which the first disputed line ran; and, therefore, that the single question is whether an attempt to procession land is within the last proviso in the first section of the act of limitations, which is that after failing in one action of ejectment the party may bring another within one year, though the latter be brought after seven years adverse possession. The Court is of opinion that it is not. Before that proviso was inserted in 1836 the owner of land, in order to avoid the bar of such possession, was obliged to assert his claim by making an actual entry before the expiration of seven years. But under the proviso it may be done by an ejectment "for the recovery of the lands," because in that mode the possession will be taken from the wrongdoer and given to the owner. That is, instead of entering on his own authority merely, upon a claim of right, the law substitutes his (153) effort to obtain peaceable possession by process of law, after an adjudication of title, and makes that keep alive the right of entry for a year after the determination of the action in which the possession was demanded. The nature of processioning, however, seems to be entirely different. Its purpose is solely to establish, as the true boundaries of the land of the party asking it, the particular lines reported by the processioner or freeholders. But there is no judgment given of recovery by the court, much less an execution affecting the possession. On the contrary, the possession is not demanded, and the preceding does not suppose one adverse to the processioning party, but rather that he is in possession of what he claims, so far as any can be distinctly collected; for in the fourth section of the act, Rev. Stat., ch. 91, which prescribes the effect of processioning, as it is called, the provision is that every person whose lands shall be processioned two several times shall be deemed the true owner, and that, upon any suit for such lands, the party in possession may plead the general issue and give the act in evidence. It seems to have been the purpose merely that persons possessing or claiming contiguous tracts of land, instead of resorting to an ordinary action at law to try the question of boundary, might have this less expensive and sometimes, perhaps, as satisfactory summary mode for selling the boundaries; and when thus settled, to make the proceeding evidence of *Page 112 title up to those lines as the true boundaries. But it was not intended that the possession should be drawn in question nor in any other respects to substitute this proceeding for an ejectment, by submitting to five freeholders in the premises the general question of title, arising upon inquiries as to the due execution of a will, the construction of the devises in it, an allegation of fraud in a conveyance, or the length (154) and nature of a party's possession in reference to the statute of limitations. At all events, the proceeding is not to affect the possession of either party, but that is left as the subject of another suit, unless voluntarily abandoned by settling the boundary. Therefore, the defendant's possession was not disturbed nor even demanded until it was done in this action, which was a few days too late.
PER CURIAM. Affirmed.