(after stating the facts). There was no question raised in the case, as to the title being out of the State, and we must therefore consider that as conceded.
The defendant based his defence mainly upon two grounds: 1st. That neither Sarah Johnson, under whom the plaintiffs claim, nor Henry W. Miller, acquired any titled to the land purported to be conveyed to the latter, by the deed of Henry Mordecai, of date December 23rd, 1855, and the plaintiffs have no right to maintain this action ; and, 2nd. That if said deed did pass the title, the plaintiff’s right of action is barred by the statute of limitations.
We are of the opinion that the grounds of defendant’s defence are well taken, and are fatal to the plaintiff’s right to recover.
The land in controversy was a small portion of a large tract of 409-J acres, conveyed by Henry Mordecai to Henry W. Miller, to the separate use of Sarah Johnson and her heirs. All that tract was conveyed to one George Taylor, by said Miller, with the written consent of Sarah Johnson: 1st. 325 acres on the 25th of December, 1855, and 2nd. 73 acres on the 11th of May, 1857, leaving the residue, consisting of ten or eleven acres, which is the land in controversy, and was claimed by John R. Taylor, by a verbal contract made with Wiley Johnson, some three years before the- date of the deed of Mordecai to Miller. And to show that Sarah Johnson, after the execution of that deed, recognized and acquiesced in the contract made between her husband *779and John R. Taylor, in the deed executed by H. W. Miller to George Taylor, with her written consent for the 73 acres,, in describing the boundaries of that tract, there is a call “to John Taylor’s corner, thence along John Taylor’s line to the Tarboro road.”. She no doubt knew that the land had been paid for by Taylor, and she had probably received the benefit of the price, and therefore did not wish to disturb his possession, and then her heirs, the plaintiffs, have acquiesced in his title for twenty years after her death, before bringing this action. The claim is inequitable, and it subserves the justice of the case, that the defendant is able to establish a defence that is sufficient to defeat the plaintiff’s action.
It is in evidence, that at the time of the execution of the deed from Henry Mordecai to Henry W. Miller, John R. Taylor was, and had been for more than two years, in the actual adverse possession of the land, claiming it as his own.
The common law is in force in this State, and it is a general rule of that law, that a conveyance of land by a person against whom it was adversely held at the time of making it, is void, and the reason of the rule, according to Lord Coke, is for avoiding maintenance, suppression of right and stiring up of suits. Oohe on Littleton, 214, and Tyler on Treatment, 925.
The general rule of the common law, however, is to be taken with the qualification, that a deed taken for land, while another is in the adverse possession, is void only in relation to the person so in possession and those claiming under him. As to all the rest of the world, the deed is valid and passes the title. Tyler on Ejectment, 937. But this qualification does not affect the title of the defendant, for he claims under Taylor, the person in the adverse possession when the deed was executed.
It was to avoid this consequence of a deed executed while another was in adverse possession, that in the practice under the old system, it was common for the plaintiff to lay two demises in his declaration, the one in his own name, and another in that of the grantor.
*780But the plaintiffs contend that the rigid rule of the common law has been relaxed by the act of 1875, ch. 256. The Code, §177, which provides, “that an action may be maintained by a grantee of real estate in his own name, whenever he, or any graDtor, or other person through whom he may claim title, notwithstanding the grant of such grantor or other conveyance be void by reason of the actual possession of a person claiming under a title adverse to that of such grantor or other person, at the time of the delivery of such grant or other conveyance.”
But it is a general rule, in reference to statutes, that they are to be so construed as to have a. prospective effect, and will not be permitted to affect past transactions, unless the Legislature has clearly and unequivocally expressed its intention to the contrary. Wood on Limitations, 29, and note 1. Whether this intention is so unequivocally expressed by the wording of this statute, it is unnecessary to decide. For conceding that the act does have a retrospective operation, it only gives the right to the grantee to sue in his own name, if the original grantor might have done so, and this raises the question, could the grantor, Henry Mordecai, or his heirs, could have maintained this action?
They certainly could not, for prior to the commencement of the action, Prairie had been in the actual possession of the land for more than seven years with color of title. On the 22nd day of May, 1858, John R. Taylor, who had been for several years in the actual adverse possession of the land, executed a deed of mortgage to Henry B. Jordan. Taylor then, as mortgagor, was concluded by his deed, and after its execution, his possession is by consent of the mortgagee, and in law, the possession of the mortgagee; Williams v. Bennett, 4 Ired., 122; Adams’ Equity, p. 114. He is the tenant at sufferance of the mortgagee, and when in 1859 Taylor assigned his equity of redemption to H. B. Jordan, who entered thereafter in possession, his conveyance of the equity of redemption could not have the effect of changing their nature. And so when Jordan conveyed to Prairie the same land, by deed bearing date 19th of December, 1872, the same relation between *781him and Prairie still subsisted. His possession having been once the possession of Jordan, it must continue, so long as he remains in possession, to be the possession of his alienee.
The defendant Prairie, then, and Jordan, under whom he claimed, had color of title and possession, more than seven years, prior to the commencement of the action, claiming it up to known and visible boundaries; for all the other portions of the land had been conveyed to George Taylor by two deeds, one of which called for a corner and line of the John Taylor tract, the land in controversy, and it would seem to follow as matter of course, that its boundaries must be circumscribed by the lines of one or both of those tracts, and the outside line of the whole tract conveyed by Henry Mordecai to Henry W. Miller.
The possession, under the color of title held by the defendant would have barred the action if brought by the heirs of Henry Mordecai, and if they could not have maintained the action, it follows that neither Henry Miller’s heirs, nor the heirs of Sarah Johnson could have maintained it, for the statute only gives them the action in their own names, provided the grantor could have brought it.
Our opinion is, the plaintiff had no right to recover, and there is no error in the judgment of the Superior Court, which is therefore affirmed.
No error. Affirmed.