3 N.C. 32 | Sup. Ct. N.C. | 1798
The law is undoubtedly as laid down by Mr. (34) Harris. Any circumstance whatever plainly indicative of his satisfaction with the paper as his will at a particular period may be taken to be a republication from that time, and particularly a codicil is so considered. The court then stated to the jury the evidence which had been given, and said the question depends upon what is meant by the Beaver Dam. This may perhaps be explained by the words of the will itself.
They are in the one case the tract called the Beaver Dam, held by patent; in the other, a piece of land purchased of Foy. The different modes by which he had acquired these lands seem to have been mentioned by the devisor for the purpose of distinguishing the lands themselves. The residue of the Beaver Dam was never purchased of Foy, and the land purchased of Foy he held immediately by a deed from him, and not under a patent, as he held the other. This seems to be decisive; but in addition to this, he always considered and called the residue of the tract, after part was sold to Foy, the Beaver Dam, and devised it in a former will by that name.
There is also another point in this case: The defendant, after the death of Lemuel, acted as the plaintiff's guardian, took possession of the land in question as guardian and rented it out from year to year till the plaintiff came of age. This possession will have exactly the same effect as if another person had been guardian and had done the same acts; and such a possession would have given title to the plaintiff after seven years, if it were accompanied with all other legal requisites. But here the plaintiff had no color of title to the land in question unless it be included in the devise to him. There is no need to resort to the aid of a seven years possession.
There was a verdict for the plaintiff and a new trial moved for, but the Court refused to make a rule. *54
