| N.C. | Aug 5, 1860
(617) Peter Eddleman was the owner of a parcel of land on the west side of Leeper's Creek (see diagram), which he, in 1832, conveyed to Jacob Forney, and he, in 1835, to the defendant Carpenter. These conveyances described the boundaries of the land as beginning at a point on the creek marked A, then running around and back to the creek at Y, "thence to the beginning." At the time of these conveyances, in 1832 and 1835, Peter Eddleman was not the owner of any portion of the land on the east side of Leeper's Creek, but in 1838 he acquired from one Abernathy a title to the whole of that represented by the figure A, K, L, I, G.
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
It was proved that after the titles to Forney and Carpenter, in 1832 and 1835, they respectively claimed and used the land only on the west side of the creek, and that Peter Eddleman and the plaintiff, who claimed under him as heir at law, had claimed and used the land on the east side of Leeper's Creek from the date of the deed, in 1838, until 1856, when Carpenter entered and cut a ditch from A to L, for which this suit is brought. It was proved further on the part of the plaintiff that (618) Peter Eddleman had actually cleared the area, A, K, L, and he *475 and the plaintiff, claiming under him, had cultivated it and held it adversely to all others for more than seven years consecutively before the entry of Carpenter in 1856. The defendant contended that the conveyances of 1832 and 1835 embrace all the lands on the west side of a straight line from A to Y, and although, at the time, no title passed to any land on the east side of the creek, because the vendor had no title to convey, yet, upon the acquisition of title in 1838, it inured to the defendant's benefit as to all that part between the creek and the straight line A, Y, and that Peter Eddleman could not afterwards, by adverse possession under said deed of 1838, obtain a title to the disputed portion.
The court concurred with the defendant in his view of the construction of the conveyances of 1832 and 1835, and, furthermore, was of opinion with him that the title to the disputed land was in the defendant by estoppel against Peter Eddleman and his heirs after he acquired title in 1838.
But his Honor was further of opinion that if Peter Eddleman had occupied the disputed part for more than seven years continuously, cultivating the same under a claim of right to the whole of the land on the east side, through his deed of 1838, he acquired a right by possession. Instructions to this effect were delivered to the jury, and the defendant excepted.
Verdict for plaintiff. Judgment, and appeal by defendant. We concur with his Honor on both points presented:
1. There is nothing to control the call of the deed executed by Peter Eddleman to Forney in 1832, and by Forney to Carpenter in 1835; that is, "to a stake on the bank of the creek, thence to the beginning," which is a straight line, and includes the locus in quo, and does (619) not run with the meanders of the creek; consequently those deeds (although such may not have been the intention of the parties) included the bend of the creek, and made an estoppel in respect to Peter Eddleman, although in 1832 he did not own the land. Afterwards, in 1838, when he acquired title by the deed of Abernathy to him, the "estoppel was fed," so as by the act of law to vest the title in Carpenter in the same manner as if Eddleman had owned the land in 1832.
2. But there is no principle of law which prevented him from afterwards divesting the title of Carpenter, thus perfected by estoppel, in the same way that any third person could have divested it and acquired the title; that is; by a disseizin and twenty years adverse possession, during *476 all which time he was exposed to the action of Carpenter; or by a color of title and seven years adverse possession, during which time he was in like manner exposed to the action of Carpenter, which, under our statute, would toll the right of entry and ripen his color of title into a good title; for, although he and all those claiming under him were estopped in respect to Forney, and call claiming under him from denying that, in 1832, he owned the land in the bend of the creek, and then passed the title to Forney, yet he might well be heard to say: "I admit that I passed the land to you by my deed in 1832, but I have since acquired a new title by means of a color oftitle and seven years adverse possession, and although by act of law the title which I acquired from Abernathy in 1838 inured to your benefit, and went to feed the estoppel, still his deed to me was color of title, and my adverse possession of the land under it for more than seven years divested your title and gave me a new and distinct title, which then had no existence, and which, of course, I did not profess to pass to you by my deed of 1832. So, your right of entry has been tolled, and your title lost by matter ex post facto."
This conclusion is fully sustained by Cuthrell v. Hawkins,
PER CURIAM. No error.
Cited: Weil v. Uzzle,
(620)