The opinion of the Court was delivered by
Rogers, J.A person who without title, or colour of title, enters on unseated land which has been surveyed and patented to another, acquires a right under the statute of limitations, by twenty-one years’ possession, only to so much as he actually cultivates or encloses, Miller v. Shaw, 2 Serg. & Rawle 129. The same point was again considered in Royer v. Benlow, 10 Serg. & Rawle 302, where it was held, that an improver who enters upon land held by another by warrant and survey, is protected, after twenty-one years, by the statute of limita-, tions, as to all that he encloses, or cultivates without enclosure, but not as to those parts which remain in woods, unenclosed, though he uses; them for fuel, fences, &,c. Although this is the general rule, it at the same time is admitted that this rule is subject to many excep-, tions; such as the owner confessing himself out of possession of woodland, unenclosed; suffering the improver to pay taxes for it, It is also said in Benlow v. Royer, that there may be other cases in which there may be a presumption of ouster, without actual enclot sure. If he suffers his adversary, who has designated his claim by marks on the ground, to pay taxes for it, he may be presumed to be. ousted. In these cases, when the party is confined to his actual enclosure, he i^ treated as a trespasser, entering on the land o.f another without colour or pretence of right. Another reason which has been assigned why a settler should not gain possession b,y con-, struction beyond the bounds of his enclosure is, that he is under nq obligation to take any definite quantity, nor to. lay ou.t his land iq any particular shape. But do these reasons apply here? The de-, fendants entered into possession of the whole tract under a deed fronq John Moyer, who claims by virtue of a judicial act, and cannot therefore be iooked upon with any propriety as a mere trespasser, of wrongdoer, entering without colour of title. A regular survey was. made, and the boundaries of the tract were distinctly marked on the ground. The defendants built a house and saw mill, and cleared a few acres of ground, and continued tq huid possession of the wholq *38tract within the limits of the survey, up to the institution of the suit. The land claimed was assessed for taxes in their name, and in (he name of those from whom (hey claim, from the year 1805, and no (axes were paid by the plaintiff. And they continued to exercise acts of ownership, by cutting timber for the use of their saw mill (which constituted its great value) from the date of the purchase to the institution of the suit. It has been thought by some that, the law has been carried in the cases to which I have referred as far as the true policy will admit; at any rate we are not disposed to extend it. The statute of limitations is a statute of repose, which is entitled to a fair and liberal construction. It is of the first importance that the titles of land should be settled, nor should such possessions be disturbgd on slight grounds. There is in this case such a possession as brings the case within it. free from the reasons on which the previous cases were ruled. The court therefore erred in instructing the jury that there was no ground to presume an ouster, and that there was no pretence of claim by the defendants under the statute of limitations, beyond the ground actually occupied by them.
Judgment reversed, and a venire de novo awarded.