M ANY errors have been assigned, but those I deem worthy oí notice I shall reduce to three, to wit:
First, the verdict is insufficient in finding the evidence of facts and not facts themselves.
Second, that the plaintiff proved no title in himself; and,
Third, that he is one of several tenants in common or joint tenants, and can only sue lot and recover his undivided , art
As to the first position, it must be acknowledged on all *296sjr]eSi a special verdict should find, not the evidence. of facts, but facis themselves, a established by the c: i-dence. In tbecase at the bar, the jury have virtually founcj (he facts, and not merely the evidence of facts. When they snv certain facts were proved, and that if the law arising on those facts be with the plaintiff, then they find the defendant guilty, they obviously mean that they find the existence of those facts.
As to the second position, that the plaintiff proved no title in himself, Í clearly infer from the verdict that he produced no regular evidence of a written title, and that if he has made out any tide, it must be a title by possession alone.
The verdict informs the Court that Dolive claimed under a paper with a biscuit attached; but it does not inform the Court what was the extent of the claim or the nature of the paper, from which I conclude that it was not produced, nor were its contents proved, and that it cannot weigh a feather.
Equally erroneous and uncertain is the verdict, in telling the Court that the heirs of D Dolive relinquished their right to Sifroy Dolive. In this instance the jury took upon themselves to find and confound the law and. the facts together. Who are heirs and what would be a sufficient relinquishment to pass their right, are questions of law, and not to be found by the special verdict of a jury. They should have found who and how many were the children, or next of kin of D. Dolive alive at his death, and what was the nature of the relinquishment,, and whether it was in writing, in order that the Judge might determine whether those persons were heirs at law, and whether the relinquishment was sufficient to convey their estate. The pretended conveyance from Sifroy Dolive to Powell, and the alleged certificate from the Land Office, are equally unavailiag. They were not produced, their Contents were not proved, and their absence not-accounted for. They therefore, with every link in the plaintiff’s chain of written title, must fall to the ground ; and indeed his counsel, in his brief has candidly admitted that he produced no evidence of a written title.
If then, Samuel Powell the plaintiff, recover at all, it must be by virtue of his own possession or the possession, of those under whom he c;aims.
The possession of Thomas Powell and of Dolive, cans' *297not be coupled together in order to make out a title by possession in behalf of the plaintiff, because the convey anee from. Dolive to Powell being defeated, there is ño privity of estate between them, so as to authorize Powell to claim under the possession of Dolive. The plaintiff must rely for title on the possession of Thomas Powell alone, for he must claim as heir to Daniel Powell, who was the son and heir of Thomas Powell. Thomas Powell was in possession six or eight years only ; Daniel Powell, his son, and the plaintiff, Samuel Powell, who was his brother, were never in possession ; and the question now is, whether the plaintiff, as heir to Daniel Powell, who was heir to Thomas, is entitled to recover by virtue of Thomas- Powell’s possession. It is said in the law authorities, that long possession, with a claim or assertion of title, is presumptive evidence of title. If this maxim be correct law, then Thomas Powell, if he were alive and went into possession with a claim of title, and were now suing for the premises, would recover, unless the defendant produced a litle paramount. But I presume it cannot be maintained that this imperfect inchoate right in Thomas Powell descended to his son and heir, unless the heir also had possession, and much less to the heir of that heir, neither of whom ever had possession. If the heir never had possession, he cannot avail himself of the possession of his ancestor, unless that possession had been matured into a perfect right or title. The existence of a grant is said to be presumed from long possession ; but it has been considered the sound policy of the law, to limit the presumption of a grant to a period of time analo-alogous to that of the statute of limitations. If, according to our statute of limitations, adverse possession for thirty years would constitute a sufficient defence to bar and defeat an action of trespass to try title, brought by a person having a complete chain of title, and if from lapse of time, a grant would be presumed in favor of a defendant, from analogy, I apprehend no length of possession in the ancestor, short of that period, would warrant the presumption of a grant in favor of a plaintiff, claiming by the mere naked possession of his ancestor. In this State I limit the time to thirty years, because the action of trespass to try title is a mixed action, partaking of the nature of a possessory and real action, and in which damages and mesne profits also are recoverable} and be-*298jng a mixed action, our statute of limitations bars the; right to recover against a tenant, holding by adverse possession, and who has been in continued possessi >n £or tjjjrty years. Since the substitution of the action of trespass to try title, in lieu of the action of ejectment, that section of the statute which takes away the right of entry in twenty years, can have no meaning, and has become inapplicabie and necessarily obsolete. The practice adopt» ed in some of our sister States, in all cases where the action is brought to try the title and to obtain possession of the land, is to require the plaintiff in the first instance, to deduce a regular chain of title from the original grant by the sovereign of the soil down to himself, predicating their practice on the long established rules, that the plaintiff shall recover by the strength of his own title, and not by the weakness of his adversary’s, and that the best evidence the nature of the case admits of, shall be .produced.
In England there is much reason why a grant should be presumed from long possession. In that country it ■would be a rare instance to be able to find any written evidence of an original grant of lands by the government; and in most cases, intermediate conveyances have been lost and destroyed by time and accident, and no evidence can be had of the muniments of title better than that of possession.
But in Alabama, certificates and patents by the United States, are all within the memory of man. If lands have been granted, evidence of the grant can be readily obtained ; if the original be lost or destroyed, an office copy may be procured. If granted by the British or Spanish government, and the party claiming under the grant has a perfect title, the acts of Congress require it to be re-coided in the land office; and if an imperfect title, then it must be confirmed by the commissioners of the land office, otherwise the title is declared to be void, and the land becomes liable to be sold and granted anew by the United States. The reason therefore of the old rule, that long possession is evidence of title, does not exist with us, and the rule itself must consequently cease.
Hence, Ihold that in every action to try the title to lands, it is an indispensable requisite for the plaintiff in the first instance, to shew that the land has been granted, and to trace a chain of title from the original grant, down to himself, unless he or his immediate ancestor has been in *299possession' a length of time analogous to the statute of limitations; in which case possession, together with evidence that the land has been granted, would be sufficient prima facie evidence. Actions between landlord and tenant, in which the title of the landlord could not be questioned, and perhaps a few other cases, would form exceptions to the rule as I have laid it down.
As to the third position, that the plaintiff is one of seve« ral joint tenants, or tenants in common, I deem the ob* jection equally fatal. The plaintiff must claim as heir to Daniel Powell, and not as heir to his brother Thomas Powell; for if Thomas Powell had any title on his death,, the land descended to his surviving son Daniel Powell.
Daniel Powell at his death left surviving uncles and aunts, of which the plaintiff is one. Those uncles and aunts are equally entitled to the inheritance of Daniel Powell with the plaintiff. But the plaintiff’s action and judgement is for the entire estate, and entire damages, when he was only entitled to a part. For the foregoing .reasons, I am inclined to think that the judgement ought to be reversed.
By the Court. All the members of the Court are of the opinion that the case must be reversed, and a majority, that it must be remanded, that a venire de novo may be awarded.
Reversed and remanded,