Bryan v. . Spivey
13 S.E. 766
N.C.
1891
Check Treatment
Shepherd, J.:

The exceptions addressed to the admission of the documentary evidence of the plaintiff having been abandoned, the only questions which remain for our consideration, are whether the testimony adduced upon the trial was legally sufficient to sustain the findings of fact, and whether these findings warrant the conclusions of law as declared by the Court below.

(1). It is first insisted by the defendants, that upon the whole testimony the plaintiff has failed to show that the title has passed out of the State, and that, granting that the title is out of the State, there is nothing to support the presumption of a conveyance to the plaintiff or those under whom .she claims.

It is well settled that an adverse possession of land for thirty years raises the presumption of a grant from the State, “and that it is not necessary even that there should be a privity or connection among the successive tenants.” Davis v. McArthur, 78 N. C., 357; Reed v. Barnhart, 10 Ired., 516; Wallace v. Maxwell, 10 Ired., 110; Fitzrandolph v. Norman, N. C. Term Rep., 127. “ This presumption,” says Smith, C. J., (in the case first cited), “ arises at common law and without the aid of the act of 1791, and it is the duty of the Court to *67 instruct the jury to act upon it as a rule of the law of evidence. Simpson v. Hyatt, 1 Jones, 517.” ' Now, if, as found by his Honor, the land in controversy was “in the possession of the children and devisees of Richard D. Speight, and those claiming through them,” from 1829 to 1858 (a period of twenty-nine years), and that from that date until 1862 it was occupied by Peter G. Evans, the law would raise a presumption that the title had passed out of the State, and this without reference to whether the said Evans was claiming jointly with Richard S. Donnell, and regardless of any privity between him and the preceding occupants.

If the title was out of the State, the law would also presume that a deed had been executed by the true owner to the parties under whom the plaintiff claims, they having had continuous adverse possession of the same, succeeding each other as privies, for twenty years. Hill v. Overton, 81 N. C., 395; Seawell v. Bunch, 6 Jones, 195; Taylor v. Gooch, 3 Jones, 467; Davis v. McArthur, supra; Melvin v. Waddell, 75 N. C., 361. These propositions do not seem to be seriously controverted by the counsel for the defendants, but they insist that the testimony is' not sufficient to show any possession whatever from which his Honor could find, as a legal inference, or otherwise, that there was an adverse occupation as claimed by the plaintiff. In support of this position they say “that the testimony of W. H. Marshall (the only witness introduced by the plaintiff) in regard to possession, was insufficient; too uncertain and indefinite; that possession is a question of fact and law, and that plaintiff must show that the land was used and occupied by showing what was done on it and by whom.”

It cannot be doubted that what constitutes adverse possession is a mixed question of law and fact, and the same may be said of a possession that is not adverse where the evidence shows that the possession claimed is constructive only, or in other instances where it depends upon the application of legal principles.

*68 Where, however, a witness testifies that a certain person is in possession of land, and where, as in the present case, there is nothing in his or any other testimony to indicate that the possession was a conflicting one, or tüat the witness intended that his language should be 'understood in- any other than its ordinary sense among laymen, to-wit, actual possession or occupation, we cannot but treat it as the statement of a simple fact, and as such a proper subject for the consideration of a jury, or the Court when a jury trial has been waived. That such is the ordinary meaning of the language is manifest from the following authorities:

“Possession expresses the closest relation of fact that can exist between a corporeal thing and the person who possesses it, implying either (according to its strictest etymology) an actual physical contact as by sitting, or (as some would have it) standing upon a thing.” Burril Law Dict., 313.
“ A witness may testify directly in the first instance to the fact of possession if he can do so positively, subject, of course, to cross-examination.” Abbott’s Trial Ev., 622, 590.

In Rand v. Freeman (1 Allen, 517), a witness was asked, “Did you take possession of the property?” The question was objected to as incompetent to prove possession. The Court said, “ It is objected, that the question was illegal because possession consists partly of law and partly of fact. But it is a sufficient answer to this to say, that the word is often used merely in reference .to the fact, and the defendant could have protected himself from all prejudice by cross-examination.” In Hardenburgh v. Crary, 1 Barb., 32, the Court, in reference to a similar question, said, “It might involve the necessity of further questions, and perhaps of a rigid cross-examination, but this last, we think, was the true remedy and not an objection to the question itself. It belongs to that class of facts, of which there are many in the law, seemingly involving, to some extent, the expression of an opinion, or a conclusion from other particular facts as to which, from the *69 necessity of the case, the law tolerates a direct and comprehensive question.”

Our conclusion, therefore, is that the testimony of the witness Marshall was evidence of actual possession and occupation, and, as such, was proper to be considered by the Court.

It is further objected that the testimony of the said witness — that “ Richard D. Speight and those claiming under him, had it (the land) in possession from 1829 to 1858” — was “insufficient, uncertain and improper, unless the names of the persons referred to were given, and evidence of the manner of their claims under him was shown.” The witness, after testifying as above, immediately proceeded to state, with much particularity, the names of the heirs and devisees of the said Speight, and the successive descents and devises, down to the date of the conveyance of the property in question to the plaintiff. His Honor finds, in substance, that these were the persons who were claiming under the said Speight, and were in possession, as stated by the said witness. We think that a fair construction of the testimony warranted the finding. This being so, we have but to apply the presumption of the adverse character of the holding arising from the unexplained fact of actual occupation, and the conclusion of the Court, that those under whom the plaintiff claims were the owners of the property, is fully vindicated. Ruffin v. Overby, 88 N. C., 369. The case just cited is fully sustained by Jackson v. Commissioners of Hillsboro, 1 Dev. & Bat., 177, in which it is said (RuffiN, C. J., delivering the opinion)-, that “ every possession is taken to be on the possessor’s own title until the contrary appears, as the possession is in itself the strongest evidence of the claim of title, and when long continued, of the title also. * * Leaving the possession to the jury as a ground of presumption, left it as evidence both of the right and the claim of right; and it cannot be doubted that the jury must have under *70 stood that, to authorize the presumption, they must believe that Brooks occupied and used the ground as his own. To establish such claim did not require express evidence of it independent of the possession itself.”

(2). It is further contended that admitting that the title was in the persons above named, the defendants are protected by their adverse possession under color of title for seven years. This defence is an affirmative one, and the onus probandi is, of course, upon the defendants to establish it Ruffin v. Overby, 105 N. C., 78. It is admitted by the plaintiff that the defendants have been in the adverse possession of the several parts of the property (James City) since 1863, “ claiming the same, as the * * * witness Wm. Benbury.” It is denied, however, that they claim under color of title, and his Honor finds that they entered, without such color, in 1863, and that after the execution of the deed by Hunter and others to James Salter in 1867, the defendants ‘'continued to occupy their several lots enclosed by them in the same manner as before, and that the character of their possession was not thereby changed.” “ This finding,” says his Honor, “is based upon the fact that the testimony in respect thereto is conflicting, and taken in connection with the answer of November 11th, 1890, the Court is unable to find that they were holding under the provisions of said deed for seven years prior to the commencement of this action.” It is insisted that this finding was unauthorized by the testimony, and especially by reason of the admission of plaintiff. It will be observed that the admission was not that the defendants were holding under color of title, but that they were claiming in the same manner as the witness Benbury. The testimony of this witness, as his Honor says, is conflicting. The witness says, first, that he claims under the deed to Salter. This deed, it will be noticed, is in trust for “ the people of. James City”: by which we must understand (nothing further appearing), they are to take as tenants in common. He then states, in effect, that he claims his lot in *71 severalty, and further remarks, “ I claim it in the same way I did when I first went there.” Eliminating, even, the answer above mentioned, which claims in severalty and makes no mention of the deed, we are not surprised at the inability of his Honor to find that Benbury was claiming under color of the deed to Salter; and surely his statement referred to in the admission of plaintiff cannot, even in the absence of the finding, be construed into' the concession insisted upon. Appreciating the force of this reasoning, the counsel for defendants very earnestly contend that the possession, being admittedly adverse, and the deed to Salter having been proved and introduced in evidence, the law raises a presumption that the defendants claim under it, and that therefore the burden of proof is shifted, and it is incumbent on the plaintiff to rebut such presumption. Register v. Rowell) 3 Jones, 312. To this it may be answered that the supposed presumption is already rebutted by the finding of the Court, and that we cannot review its conclusion of fact when there is any evidence tending to sustain it. Treating the finding, however, as negative in its character (which is not the case), and conceding, that in order to raise the presumption it is unnecessary that the color of title should have been executed contemporaneously with the entry, an insuperable objection to the defendant’s contention is encountered in the fact that none of these defendants are grantees in the deed; nor are they named therein as cestuis que trustent. Graybeal v. Davis, 95 N. C., 508, and the cases cited. This is an indispensable requisite to the presumption insisted upon. Such being the case the burden continued upon the defendants to connect themselves with the said deed and to show that they claimed under the same. Having failed to show this to the satisfaction of the Court, and, indeed, it having been affirmatively found to the contrary, we are unable to see any ground for reversing the judgment, and it must therefore be affirmed.

Affirmed.