19 S.E. 607 | N.C. | 1894
The defendants requested the court to instruct the jury that (535) the plaintiff's possession was not of such character as to perfect his defective title. The court intimated that the jury would be so instructed. The plaintiff submitted to a nonsuit in deference to this opinion of the court and appealed. The action was brought on 30 November, 1892. (536) The plaintiff proposed to show title under a sheriff's deed for *339 2,425 acres, executed 22 May, 1869, and several mesne conveyances, for a tract containing 425 acres, included within the boundaries of the older deed. Plaintiff introduced no grant from the State, but defendant offered a patent for 152 acres bearing date 21 September, 1892, which it was admitted embraced the whole of the locus in quo.
In order to raise a presumption of a grant from the State it is not necessary to show continuous and unceasing possession. Reed v.Earnhardt,
Applying the principles we have stated to the facts of this case, we are of opinion that the planting of tobacco beds in different places not upon the same spot for more than two successive years, though continued for the statutory period, would not constitute an actual possession such as would mature title, since the occupancy does not divest title beyond its actual bounds (Scott v. Elkins, supra) and is therefore not continuous as to any one spot. If as to any particular portion of territory it is a continuous, open, notorious and unequivocal assertion of right, the law extends the benefit of such a possession of a spot, however small, by raising the presumption that it was held in the assertion of a claim to the limits of the occupant's paper title. Ruffin v. Overby,
Where a claimant subjects the land to some use of which it (538) is susceptible in its present state and at such intervals as to indicate unmistakably that he means to be considered as claiming the ownership and not to commit an occasional trespass simply, such occupancy is sufficient (Williams v. Buchanan,
The statute (The Code, sec. 139) provides that the State "will not sue any person for or in respect to any real property or the issues or profits thereof by reason of the right or title of the State to the same . . . when the person in possession or those under whom he claims have been in possession under colorable title for twenty-one years, such possession having been ascertained and identified under known and visible lines and boundaries." Upon the principle that the plaintiff in an action for possession must show title good against the world, including the State under whom all lands are held, it has become a settled rule that where no grant is introduced the burden of proof cannot be shifted to the defendant in such actions without prima facie proof of possession under colorable title for twenty-one years. But where either party exhibits a patent to the land in dispute, since the State can no longer assert any claim, it is familiar learning that either the (539) grantee or the party claiming adversely to it after its introduction may, as a general rule, use it to show that the State is no longer a claimant and make good his own claim by proof of possession *341
under colorable title for seven years only. Gilchrist v. Middleton,
But where it is conceded that the defendant's grant dated 20 September, 1892, for 152 acres embraces the land in dispute and precludes the State from any claim of title, it may be contended, upon the authority of Brown v. Potter,
The Court say that the doctrine announced was "fully recognized and established by the case of Carson v. Mills,
In ascertaining whether the plaintiff had acquired title by possession under color for twenty-one years the time that elapsed between the issuing of the grant and the entry of the defendants upon the lappage might have been counted in order to make up the full period under a fair construction of section 139 (2). If such intervening time had been sufficient with the previous occupancy the grantee could not complain if the effect of the grant was to place him in the shoes of the State with the right possessed by the State to stop the running of the statute, by entry or action, before the end of the twenty-one years. But as the testimony restricts the plaintiff to the claim by virtue of colorable title for seven years under section 141 of The Code a very different question (542) is presented. That section provides that "no entry shall be made or action sustained against such possession except during seven years after his right shall have descended or accrued." The right *343 of the defendants did not accrue till the grant was issued, and therefore the seven years' statute (section 141) did not begin to run as against their right till 20 September, 1892.
We cannot lay down the rule as applicable in all cases that the issuing of a patent covering a tract of land which does not appear to have been theretofore granted deprives an occupant on the land of the benefit of his previous adverse holding. Where an occupant is seated on the interference when the overlapping grant is issued, and is claiming colorable title adversely to the State under section 139 (2), the statute still continues to run in his favor as to the whole lappage unless the grantee, or those claiming under him, enter upon and occupy some portion of the lappage or bring an action. Boomer v. Gibbs, supra. If, on the contrary, the occupant of the lappage wishes to use his adversary's grant to show that the title is out of the State in order to establish it in himself, he must prove an adverse occupation for seven years after the grantee's right of action accrued on receiving his grant.
There was no error in the intimation of the court that the plaintiff was not in any view of the testimony entitled to recover, and the judgment of nonsuit is
Affirmed.
Cited: S. v. Suttle,
(543)