The opinion of the Court was delivered by
Lewis, C. J.A title by settlement differs in many essential particulars from one acquired under the Statute of Limitations. The first is by right, the last by wrong. The occupier in the first case is a purchaser, in the last a disseisor. The first exists only where the land is vacant, the last where it has been previously appropriated. In the first an actual residence is absolutely indispensable ; in the last possession alone, without residence, is sufficient. In the first the residence must be continued until the title is taken out of the land office; in the last the continuance of the possession for twenty-one years completes the title without more. In the first case the claimant purchases and pays the price agreed upon; in the last his title is perfected without purchase or payment. So imperative is the requisition for actual residence, as the foundation of title by settlement, that if the dwelling-house, even by mistake, is located on an adjoining appropriated tract, the pre-emption right fails, although the principal part of the improvements be on the vacant land. Porter v. McGinnis, 1 Barr 413, recognises the distinction indicated .in what has been said; but as that was the case of a title, under the Statute of Limitations, a residence was not required.
One man cannot be a settler on two tracts: 4 Yeates 537; but he may hold the pre-emption right of several, if actual residence be'kept up and continued on each by his tenants : 8 Watts 430. Where the residence has been discontinued for the period of five years, and the discontinuance is not accounted for, it is an abandonment of the pre-emption right, and should be so pronounced by the Court as matter of law. This has been more than once determined by this Court. Whether absence for a shorter period will' produce the same effect, has not yet been decided. If the claimant *109be driven off, or be compelled to leave on business, he must return as soon as he reasonably can. The mere intention to commence or to continue a residence, at some future period, when it may suit his convenience, cannot be substituted for performance. If one entitled by settlement to 400 acres, sell a portion of his claim, including his residence, and separate it by survey and possession from the residue, the latter is abandoned unless a separate residence be commenced and continued thereon. When any portion of the claim is thus severed from the actual residence which gives it vitality, its existence as a pre-emption right is, to say the least of it, so precarious that it cannot be preserved without an actual residence commenced upon it within a reasonable time after such severance, and duly continued as the law requires. If a settler divide and sell portions of his claim to different persons, one of whom keeps up an actual residence on his part, a presumption of abandonment may arise against a purchaser of one of the other parts of the tract, in consequence of his not residing on his part; •and the Court fell into error in affirming the contrary doctrine in answer to the plaintiff’s fourth point. So far as the principles herein stated have been negatived, the instructions are erroneous. We are not able to say how far the Court submitted questions of fact to the jury without evidence. To do so is of course error. But to enable us to review a question of that kind, the recent decisions require that the evidence on the point shall be particularly-specified in the Court below, and placed on the record here. It is the duty of the party who alleges that there is evidence of a .particular fact, to set it forth specially on the demand of the opposite party.
We see no error except those already indicated.
Judgment reversed and venire facias de novo awarded.