28 S.E. 963 | N.C. | 1898
This is an action upon an alleged breach of warranty in a deed for real property. The plaintiff went into possession of the land under a deed from the defendant in 1874. This was color of title whether the defendant was the owner of the land or not, which would ripen into a perfect title by seven years adverse possession thereunder. There was evidence tending to prove that the plaintiff was in the adverse possession of this property from 1874 until 1890, when he surrendered it to a claimant by the name of Wynn.
Joseph W. Burden testified that Britton, the plaintiff, "took possession of the swamp in 1874 and kept it until 1890, when Wynn took it. Britton worked it and sold timber to other parties." This evidence raised the question of fact as to the length of time the plaintiff had the possession. This fact was one for the jury and not for the Court. If the plaintiff held possession under this deed for more than seven years, *74 he was the legal owner in 1890, when he surrendered to Wynn. His cause of action (if he has one) did not accrue until the breach of the warranty, and this was in 1890 (if at all) when the plaintiff surrendered possession to Wynn. If he had been in possession seven years when he surrendered the possession, he had the superior title and it was (115) his folly to surrender to Wynn, who had no title; and there has been no breach of warranty. The Court charged the jury that, upon the whole evidence, they should find that the plaintiff had not been in possession for seven years. To this charge the defendant excepted. There is error, for which the defendant is entitled to a new trial. There were other exceptions as to evidence, etc., which may not arise again, and we have not considered them.
New trial.
Cited: S. c.,
