100 S.E. 254 | N.C. | 1919
This is an action to recover the possession of land, for an injunction, and for damages. Defendant disclaimed ownership as to the first tract, but denied plaintiff's title as to the second tract of seventeen acres. The plaintiff claimed the land under a grant from the State, issued on 12 December, 1898, to one James R. Grady, and mesne conveyances from the latter and others to himself. Defendant asserted his right to the land by adverse possession for more than thirty years prior to the date of the grant to J. R. Grady, and he also proved that N. G. Jones conveyed it to J. R. Grady, 7 October, 1862; that John A. Green, sheriff, conveyed it to Geo. W. Pegram by deed dated 1 June, 1877, which was made by him at a sale pursuant to a levy under an execution against Grady. Geo. W. Pegram *139 died, and his executor, John D. Pegram, sold the land, under a power contained in his will, to J. R. Grady for life, with remainder to the children of Mary I. Grady, wife of J. R. Grady, four of whom conveyed their interests as tenants in common to the defendant. The latter also introduced a deed from D.H. McLean, commissioner, to him, dated 8 July, 1911. It was admitted that J. R. Grady resided on the land and occupied it until his death, which occurred 11 June, 1906. Defendant testified that he took possession of the land immediately after receiving his deed from D.H. McLean, commissioner.
The court charged the jury that the plaintiff was entitled to recover the land unless the defendant had satisfied them, by the greater weight of the testimony, that he and those under whom he claimed or derived his title had been in possession of the (131) land openly, notoriously and adversely for thirty years before the grant was issued to J. R. Grady, which, under the presumption that a grant had theretofore been issued, would take the title out of the State; and further, he must so prove that he and those under whom he claims had held possession of the land adversely, as above defined, for twenty years of said time, or in lieu of such proof, he must show that he and those under whom he claims has so held for twenty-one years under color of title before the State had granted the land to Grady. The verdict was for the defendant, and judgment being entered thereon, plaintiff appealed. after stating the case: The plaintiff reserved but two exceptions — first, that the deed of D.H. McLean, commissioner, to defendant was incompetent, as it did not appear that he had authority to make it, and that it does not appear that it covers this land; and second, that the charge in reference to the possession of the defendant and those under whom he claims was erroneous.
1. We do not see why the recitals in the McLean deed were not competent and sufficient to show his authority to make the deed. Irvin v. Clark,
2. The charge of the court was correct, as it appears to have been admitted that J. R. Grady was in possession of the land until his death on 11 June, 1906, and plaintiff therefore could not have had adverse possession for so long a time as seven years, because the defendant took possession about 8 July, 1911, when the deed of D.H. McLean, commissioner, was executed to him. Besides, James R. Grady had but a life estate, and the remaindermen were not affected by the statute of limitations during the period of his life.
We do not overlook Gilchrist v. Middleton,
It may be that all of the evidence is not set out in the record, or not distinctly so, but as it now appears to us, the principles of law we have stated must govern the case, and when they are correctly applied, as was done by the court below, there can be no error upon the facts found by the jury.
No error.
Cited: Harris v. Turner,
(133)
