Marshall v. Corbett., 50 S.E. 210

Marshall v. Corbett.

50 S.E. 210 | N.C. | 1905

The plaintiff brings his civil action pursuant to the provisions of chapter 6, Laws 1893, for the purpose of quieting title. He alleges that *407 he is the owner and in the possession of the locus in quo; that defendant claims title thereto adverse to him, etc. Defendant denies plaintiff's ownership and avers that he is the owner. For the purpose of showing title the plaintiff introduced a deed duly registered from W. A. Lamb to himself, bearing date 1 January, 1893. The land is described as "Beginning at a stake on the run of Colly, running S. 21, W. 73 poles to a stake in Moore's and Lamb's line, thence, S. 57, E. 138 poles to a stake, thence N. 23 E. 21 poles to a lightwood stump in the edge of Colly Swamp, thence with Colly to the beginning." He next introduced a deed duly registered from George F. Walker to W. A. Lamb, bearing date 22 December, 1863, conveying six tracts of land. Several of the tracts are described as being covered by grants to Samuel Waters — dated during the years 1762 and 1764. Plaintiff next offered to introduce several abstracts of grants issued by the State to Samuel Waters during the years 1762-'64. The abstracts were in the (556) usual form — "Samuel Waters, 640, on Colly Creek" (with description and date), signed by Arthur Dobbs. They were duly certified as correct copies by the Secretary of State and recorded in the office of the register of deeds, etc. Defendant objected. "The court being of opinion that said abstracts were not grants and not sufficient to take title out of the State, excluded the grants from the consideration of the jury." Plaintiff excepted. Plaintiff introduced one Barnhill, who testified that he owned land adjoining the land in controversy. That he was present when Mr. Colvin surveyed the land in controversy pursuant to the order of the Court made in this cause. That he was also present when W. A. Lamb made a survey of the same land twelve months before he sold to Marshall. That no other survey was thereafter made until Mr. Colvin surveyed it, pursuant to the order of the court. Plaintiff then offered to show by the witness that he was a chain-bearer at the time Lamb made the survey and that the lines were run as claimed by the plaintiff. Defendant objected; sustained. Plaintiff excepted. The following issues were submitted to the jury, to which they responded as set out in the record:

"1. Has the plaintiff located his land; if so, where are the boundaries?" Answer: "No."

"2. Has the plaintiff had exclusive, adverse possession of the land conveyed by his deed for twenty-one years, counting the time from 23 September, 1863, or any part thereof; if so, what part?" Answer:.......

"3. Has the plaintiff had open, notorious, adverse, exclusive possession of the land claimed by him, or any part thereof, for thirty years, including the time W. A. Lamb had possession, before the commencement of suit; if so, what part?" Answer: "From A to B, from B to K, from K to L, from L to A." (557) *408

His Honor rendered judgment that plaintiff was the owner of the land included within the boundaries indicated by the jury in response to the third issue. Plaintiff excepted and appealed. After stating the facts: We were not favored with a brief or argument in behalf of the defendant and are not quite sure we understand upon what ground his Honor excluded the abstracts of grants offered by the plaintiff. They appear to be in the usual form and duly certified. The only statement in the record is that in the opinion of the court that they were not grants and not sufficient to take title out of the State. The abstracts are in exactly the same form as the one which was held by this Court to be competent in McLenan v. Chisholm, 64, N.C. 323. Pearson, C. J., says: "From the abstract it appears with the requisite certainty that Sampson Williams was the grantee, Governor Martin the grantor, and 300 acres of land therein described the subject of the grant, and that a grant was executed 24 May, 1773. This is settled." With a change of names, etc., the language is strictly appropriate to the case before us. Nash, J., in Clarke v. Diggs, 28 N.C. 159, says that the Legislature by an act passed in 1748 made the abstracts entered in the office of Lord Granville, or exemplifications of them duly proven, evidence as if the originals were produced. "The paper offered in evidence is an abstract containing the courses and distances of the lines, and the date and is signed by the Governor of the Colony, and the Secretary of State has certified that it is a true copy of the record of the grant. We believe that the practice has been uniform to record abstracts, and though the act is not brought forward (558) in the Revised Statutes, we are of the opinion that the act merely recognized the rule of the common law, and by the latter the copy was evidence." Candler v. Lunsford, 20 N.C. 142. The plaintiff's exception must be sustained. It was not necessary for plaintiff to connect his title with that of Waters'. The plaintiff, if permitted to show title out of the State, was entitled to show, if he could, a chain of title connecting himself with the grantor, or if unable to do this, to build up title in himself by any of the ways pointed out in Mobley v. Griffin,104 N.C. 112. After the rejection of the grants, plaintiff undertook to show title out of the State by showing thirty years possession or twenty years under color of title. For the latter purpose it was necessary that he locate the land within the boundaries of his deed. He encountered difficulty in this effort because his deed called for a line beginning at a stake on Colly Creek. Unless there was some call in the *409 deed for a natural object, or something equivalent thereto, he could not locate the land. Archibald v. Davis, 50 N.C. 322. There is, however, a call for a "lightwood stump on the run of Colly." If he could locate this stump to the satisfaction of the jury, there was no reason why, by reversing the calls, the jury may not have ascertained and located the lines back to the beginning and thence with the swamp to the stump.Dobson v. Finley, 53 N.C. 495. His Honor correctly so charged the jury. For the purpose of locating the stump and aiding the jury in locating the lines therefrom, the proposed testimony of Barnhill was competent, and, if accepted by the jury, very valuable. To show by the chain-bearer at a survey made a year before the execution of the deed what lines were run and marked around the locus in quo was most material. The plaintiff's several exceptions in this respect, from two to five inclusive, must be sustained. We have examined with care the entire record. There are quite a number of exceptions. As (559) the case goes back for a new trial, we deem it best not to discuss them, as they may not arise again. It may be that in the light of the finding of the jury the rejection of the grants did not injuriously affect the plaintiff; we cannot tell how this is. There must be a

New trial.

Cited: Ipock v. Gaskins, 161 N.C. 684.