| N.C. | Jun 5, 1849
The action was commenced on 16 August, 1845. The plaintiff gave in evidence a grant for the premises to Thomas Monroe, dated on 27 November, 1792, and that he died many years ago, and that the lessor of the plaintiff was his only child and heir at law, and intermarried with Mark Crump.
The defendant gave in evidence a patent to one Henry Dolin, dated in 1752, for a large tract of land, and a deed from Dolin to Edward Williams for the same land, and a deed from Williams to Richmond Pearson for certain lands therein described by metes and bounds, and dated in 1791. The defendant gave no direct evidence to show what land the said patent and deed covered, or that they included any part of the premises in dispute. But the defendant gave in evidence a deed from (492) the said Pearson to one Nathaniel Peebles, dated in 1817, conveying a certain tract of land in fee, which is therein described by metes and bounds and also as being part of a tract of land conveyed by Edward Williams to the said Pearson in 1791; and the defendant then gave evidence that the deed to Peebles covered that part of the land claimed by the plaintiff, of which the defendant was in possession, and that he, the defendant, entered and claimed under the said Peebles.
Thereupon the counsel for the defendant moved the court to instruct the jury that the recital in the deed from Pearson to Peebles was sufficient evidence to satisfy the jury that the patent to Dolin covered the premises in dispute. The court refused to give the instruction.
The defendant then offered evidence that in 1837 or 1838 the land conveyed by Pearson to Nathaniel Peebles was divided *343 between his heirs, and that the part thereof which is covered by the grant to Monroe was allotted to Hubbard Peebles, one of the heirs, under whom the defendant claims; that Mark Crump, then the husband of the lessor of the plaintiff, was present at the time, and objected to the allotment thereof, but that, nevertheless, the said Hubbard took the possession of the land in dispute immediately, and he and those claiming under him have continued in possession ever since. The defendant further gave evidence that Mark Crump died in November, 1838, after the said Hubbard had taken possession.
The counsel for the defendant thereupon prayed the court to instruct the jury that if they should believe that Hubbard Peebles and those claiming under him had seven years' continued possession of the premises before the commencement of this suit, the lessor of the plaintiff's right of entry was barred by the statute of limitations. But the court refused to give the instruction, and, on the contrary, directed the jury that, although the defendant's possession might have begun in 1837, yet the statute of limitations did not bar, because (493) the lessor of the plaintiff had seven years from the death of her husband in November, 1838, in which to enter or bring suit; and that it was immaterial to this purpose whether the possession of the defendant was under or in opposition to Mark Crump.
Verdict and judgment for the plaintiff, and the defendant appealed. The Court concurs with his Honor on the first point. One object of the defendant was to show the better paper title to be out of the lessor of the plaintiff, by virtue of a grant for the same land prior to that of Monroe. But the only evidence he gave that the two tracts or parts of them were identical was that Pearson's deed to Peebles, after describing the land by corners, metes and bounds, goes on to say that the land was part of a tract one Williams conveyed to Pearson. But there is no warrant of authority or reason for the position that a recital or description in a deed proves its own truth in favor of the party himself. Upon a question of boundary, it might perhaps be evidence, with other things, of the locality of a line of the patent, that the parties to an ancient deed therein called a particular line that of the patent. But, of itself, a *344 declaration in a deed that the land conveyed by it had been before granted to a certain person is not evidence for the parties to the deed that in fact it was thus granted.
On the point of the statute of limitations, however, the Court holds the opinion given to the jury to be wrong. It assumes that the defendant's possession may have begun in 1837, or so early in 1838 as to have continued for more than seven (494) years before suit brought, and that it may have been adverse to Crump and wife at the beginning, yet it concludes that the statute did not bar, because the wife has seven years from the death of the husband to enter. But that is clearly erroneous — being in direct contradiction to the words of the act. The statute runs against all persons, as well femescovert as others, making the seven years, next after the right accrued, a bar; with a proviso, however, that a person who was a feme covert when her right first accrued shall and may, notwithstanding the seven years be expired, commence her suit within three years after discoverture. The language of the act is as plain as it can be. The seven years began to run from the ouster of the owner, when an action arose against the wrongdoer. The possession was taken by Peebles adversely to Crump and wife, and there is no doubt the husband might have entered in right of himself and his wife or have brought an ejectment. Had seven years expired in Crump's lifetime, the proviso is explicit that the feme should have three years more, and only three, to commence her suit. But when the seven years have not expired in the life of the husband, as was not the case here, the two periods of seven years from the ouster and three years from the death of the husband are concurrent, until one of them shall have run out, and then the feme is entitled to the other and longer period to enter or sue. She derives no benefit from the proviso, therefore, unless the seven years from the ouster shall have expired before the three years from her discoverture. It was, consequently, wrong to make the death of the husband the terminus from which the seven years began to run. It is only the three years which refer to that event; and the seven years never relate to it, but only to the period of the ouster. If, indeed, the defendant had entered under the husband, as upon a conveyance from him purporting to be for the fee, then the lessor of the plaintiff would have had seven years from (495) the husband's death to bring suit. But that would be, not because the act gives the feme seven years from her husband's death to bring suit, but because it gives her seven years from her right of entry and action accrued, and that would not accrue until the husband died; for the possession of *345 the husband's alienee would be consistent with the estate of the lessor of the plaintiff until the death of the husband, and it would be upon that event only that the possession would become adverse to her, so as to entitle her to an action. But here the ouster was in the time of the husband, and the adverse possession continued for more than seven years from the ouster, and also more than three years from the death of the husband. The case, therefore, was within the express words of the enacting clause of the statute, and not within the saving of the proviso; and the jury ought to have been instructed that, upon the facts supposed, the statute was a bar.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Day v. Howard,
(496)