44 N.C. 461 | N.C. | 1853
The lessors of the plaintiff offered in evidence a grant to their ancestor for fifty acres of land, issued in 1834, and proved that the defendants were in possession of about one acre of it, and had been so in possession for six or eight years. The defendants claimed title under one John Potter to the tract adjoining, and which covered nearly the whole of the Brown grant, and they proved that the said John, and those claiming under him, had been in the continuous possession, within known and visible boundaries, for upwards of thirty years, and claiming the same up to said boundaries. And it also appeared that the marked lines and corners (with the exception of two lines) of said tract of land, when blocked, counted upwards of forty acres; and that the said John *422 Potter lived on said land before the year 1815, claiming the said boundaries as circumscribing the same, and that he continued to live thereon many years. That when he left, it was occupied by those claiming under him, down to the present defendants. It further appeared, that the mother and sister of the said John lived on said land, and had a small improvement thereon, between two and three years, and the said improvement was then abandoned. That at one time the said John lived in a house on the north end of the tract, and at another there was a house occupied on another part thereof (not within the boundaries of the Brown grant); and that fields on different parts of the same had been cultivated and worn out. Brown, the grantee, died in 1835, (462) leaving the lessors of the plaintiff his heirs, who were all under twenty-one years of age when this ejectment was brought.
His Honor, the presiding judge, charged the jury, that if they believed from the evidence that the defendants and those under whom they claimed, had been in the possession of the tract of land in question for thirty years, claiming and cultivating it as deposed to, and claiming the boundaries around it, they ought to presume a grant for the same; and that the taking out of the grant by the ancestor of the lessors of the plaintiff — there being no actual possession taken under it — would not prevent the operation of the presumption.
There was a verdict for the defendants, and a new trial having been moved for and refused, and judgment rendered on the verdict, the lessors of the plaintiff appealed to the Supreme Court. There is error in the charge. A grant issued in 1834 to the father of the lessors of the plaintiff, which includes the locus in quo. The defendants claim that their father had been in possession of a tract of land under known and visible boundaries, and which also included the locusin quo, for upwards of thirty years, and insisted that the law presumed a grant to have issued. John Potter and his heirs lived on the upper part of the tract claimed by him, but possessio pedis upon any part of the lappage, until within about eight years before the action was brought; but this did not ripen their title, as the lessors of the plaintiff were under age. The action was brought in 1846, and the trial was had at Spring Term, 1853, of Ashe Superior Court. The plaintiffs have had no other possession under their grant, than that which the law draws to the title. Giving to the possession of the defendants the benefit of a thirty years' continuance, up to Spring Term, 1853, it will have *423 commenced in 1823; and in 1834, when Brown took out his grant, not more than eleven years had elapsed, and to 1846, eighteen; and giving to the possession of Potter the full benefit of the time designated by the marks on the line trees, say forty years, before the (463) commencement of the action, then but twenty-one years, or at most but twenty-eight, had elapsed when the grant under which the lessors of the plaintiff claim title issued, and that possession was not accompanied by any color of title, and the State had a right to issue the grant she did. The court, however, instructed the jury, that if the defendants had been in possession thirty years, before the commencement of this suit, claiming and cultivating it as deposed to, and claiming to the boundaries, they ought to presume a grant for the same; that the taking out the grant by Brown — there being no actual possession — would not prevent the operation of the presumption. In the latter part of the proposition, there is error; for if it be true that the issuing of the grant to Brown, in 1834, did not stop the running of the presumption, as to the land not covered by it, still it certainly must have that effect as to all the land that was covered by it; for at that time the title to the land was in the State, no sufficient length of possession having elapsed to raise the presumption of a grant; and the case, in that respect, presented, at the trial, the ordinary one of the lappage of two grants, neither party being in the actual possession of the lappage. The title to the locus inquo, at the time the action was brought, was in the lessors of the plaintiff, and drew to it the possession; which possession was not disturbed, until the taking of the possession of the small portion mentioned in the case. His Honor, therefore, erred in stating to the jury that the grant to Brown did not interrupt the presumption of a grant to Potter. It did interrupt it, as to all the land covered by it.
It is urged by the defendants' counsel, that the possession of Potter, in the north part of the tract, drew with it the possession of all the land within the boundaries to which he claimed. This would be true, if he had the legal title at the time, and there was no actual adverse possession in another person. Up to 1834, he had acquired no title, and after that time, his possession ripened his title only to that portion of the land within his boundaries, not covered by the grant to Brown. This doctrine is fully recognized and established by the case of Carson v.Mills Burnett,
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Kitchen v. Wilson,