McMillan v. . Turner

52 N.C. 435 | N.C. | 1860

The land in question was that of which James Teachy died seized and possessed, and the lessors of the plaintiffs are his heirs at law.

The said Teachy died intestate about twenty-five or thirty years ago, leaving a widow. A witness testified that after her husband's death, there being other lands, he heard her father propose to the administrators that his daughter should take the tract in question in lieu and satisfaction of her dower, to which there was no reply; but she immediately entered into the occupation of the same, and held it for more than twenty years, holding part of the time by herself, partly by a second husband, who cleared and cultivated the same at will, and partly through tenants, who used the pine timber for the collection of turpentine and obtaining tun-timber. This suit was brought in January, 1858.

The defendant's counsel asked the court to charge, first, that there was evidence from which the jury might presume that the locus in quo had been assigned to the widow of James Teachy (under whom defendant claimed), as her dower; and, secondly, that there was evidence that the widow of James Teachy, and her second husband, were in possession of the locus in quo, claiming it adversely at the time the alleged trespass was committed, and that in either aspect the plaintiffs were not entitled to recover. The judge declined giving such instruction, and defendant excepted.

Verdict and judgment for the plaintiff, from which defendant appealed. Whether the first instruction which the counsel for the defendant requested the court to give to the jury is a proper one, it is unnecessary for us to decide, because we are clearly of opinion that the second ought to have been given, and that is fatal to the right of the plaintiff to recover in the present form of action. (437)

In Spencer v. Weston, 18 N.C. 213, a question is made but not decided whether, in this State, dower is not necessarily assignable at law by petition only. There is no doubt that the remedy by petition, as prescribed by the act of 1784 (Rev. Code, ch. 118, sec. 2), is a substitute for the action of dower at the common law; but we cannot well imagine any good reason why the heirs may not assign dower to the widow, and if that may be done, it is well worth the inquiry whether the presumption of such an assignment might not be raised from twenty years continuous possession by the widow of a certain tract or parcel of land, claimed as a dower.

There is a strong intimation of the Court, in Spencer v. Weston, that a release, if properly pleaded, might be presumed against a widow who had failed to claim her dower for twenty years or more.

We have said that the second instruction asked for by the defendant's counsel ought to have been given, and we think Smith v. Bryan, 44 N.C. 180, is an authority for that position. It is there held that if a person, without any color of title, enters upon a tract of land with certain known boundaries, and continues to occupy it and exercise ownership over it by clearing and cultivating different parts for more than twenty years, he will acquire, by the presumption of a conveyance, a right which will enable him to maintain ejectment against a stranger who enters into any part of the land, though it may not be that part upon which the lessor of the plaintiff had actual positio pedis. It is true that this doctrine will not apply to the case of an owner of an adjacent tract which lapped upon the one claimed by the lessor, because, unless the lessor had made an actual entry upon the lappage, he would not have exposed himself to the action of the owner of the other tract, and, therefore, could not, by a mere verbal claim, extend his possession so as to acquire a title to the lappage by the presumption of a grant. In any other case where the title is shown to be out of the State, an entry (438) into a tract, though without any color of title, claiming the whole of it, will extend the possession of the whole, provided the true owner is not in actual occupancy of it, so as to raise the presumption of a conveyance for the whole tract. Why is this? Certainly because the person making the entry is exposed to the action of the true owner for a trespass to any part, and there is no necessity for restricting the possession to one part more than another of the entire tract. If, then, such a person enter and remain in possession for more than three years, so that the trespass in making the original entry is barred by the statute of limitations, the owner cannot maintain the action of trespass quare clausumfregit until he regains the possession by means of the action of ejectment, which must be brought within twenty years to prevent the enterer from protecting himself by a claim of title arising from the presumption of a conveyance. This principle applies directly to our case. The widow of James Teachy was in possession of a certain tract of land which had belonged to her husband, and she first, and afterwards she and her second husband, claimed and occupied portions of it for many years, and then leased a part of it to the present defendant, who entered and was in possession under his lease. Under these circumstances the plaintiffs, as the heirs at law of James Teachy, had lost their possession, and, consequently, could not maintain trespass without first regaining it by an action of ejectment. The judgment must be reversed.

PER CURIAM. Venire de novo.

Cited: McLean v. Murchison, 53 N.C. 41; Scott v. Elkins, 83 N.C. 427.

(439)