63 S.E. 278 | N.C. | 1908
This action was brought to recover the possession of one thousand *240 acres of land, and damages for the detention. The real controversy is as to the true location of the land described in a grant to Jacob Anthony. This grant was introduced by the plaintiffs to show title out of the State, and they claimed that by virtue of a deed of Margaret Erwin to their ancestors, H.C. Tate, and seven years adverse possession, they had acquired title to the land covered by the Anthony grant and the said deed. It is sufficient to set out only the issues and charge of the court, as the material facts not mentioned in the charge are stated in the opinion of the Court.
1. Are the plaintiffs the owners of the land described in the complaint, or any part thereof? If so, what part? Answer: Yes, the land covered by Anthony grant, beginning at W. O. marked T and P running west to black Q, thence south to 10 and back to beginning.
2. Did the defendant Chas. Laxton wrongfully and unlawfully enter upon said land and commit a trespass thereon? Answer: Yes. (329) Did Richard Michaux wrongfully and unlawfully enter upon said land and commit a trespass thereon? Answer: Yes.
4. What damages, if any, are plaintiffs entitled to recover of said Laxton? Answer: Five cents.
5. What damages, if any, are plaintiffs entitled to recover of said Michaux? Answer: Nothing.
The court charged the jury as follows, to wit:
"The plaintiffs in their complaint claim title to a large tract of land, about 1,000 acres, but they have not introduced any testimony tending to show title to any land except that embraced in the calls of the Jacob Anthony grant of 6 December, 1799.
"The plaintiffs must recover, if at all, upon the strength of their own title. For the purpose of showing title out of the State they introduced a grant dated 6 December, 1799, to Jacob Anthony, and then a deed from Margaret Erwin to H.C. Tate, father of plaintiff, dated 1 January, 1853, containing the same metes and bounds as those of the Jacob Anthony grant, and they claim that under said deed they or their ancestor entered into possession of said land and since then (he and they) have been in the open and notorious possession of said land by known and visible metes and bounds, adversely to all the world. Before plaintiff can recover, they must satisfy you by the greater weight of the evidence of the following facts:
"1. That they have located the Jacob Anthony grant, and that it is included in the lands described in the complaint.
"2. That they and those under whom they claim have been in the open, notorious adverse possession of the land embraced in the Jacob Anthony grant for more than seven years next preceding the commencement of this action, under the deed from Margaret Erwin to H.C. Tate. *241 The possession of a part of the land embraced in the Margaret Erwin deed would extend to the whole, in the absence of evidence tending to show that some one else possesses any part of said land (330) adversely to the plaintiffs, or their ancestor H.C. Tate.
"It is admitted that the Anthony grant and the Margaret Erwin deed
[EDITORS' NOTE: THE GRAPH IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
149 N.C. 241 .]
cover the same land. In locating the land described in said grant and deed, the natural boundaries called for must, when they can be ascertained and located to your satisfaction, control course and (331) distance. If plaintiffs have failed to satisfy you of the location of any of the natural boundaries called for in said grant or deed, then *242 you should answer the first issue No. If you are satisfied by the greater weight of the evidence that at figure 15 on the map, a white oak, was marked for a corner and, further, that said white oak is the white oak in the Perkins line called for in the grant and Margaret Erwin deed, said grant and said deed being silent as to the distance between the white oak called for and the beginning point, you can consider the distance between these two points as shown by the plat made at the time of the grant. If you find by the greater weight of the evidence that the beginning corner of the Jacob Anthony grant is at O W O, on the map, and that the calls of the grant go from there west to black 2; thence S. to black 3 and to 10; thence west to 11; thence south to 12; thence east to 13; thence north to 14; thence west to 15; thence north to O W O, you will answer the first issue Yes, the lands covered by the Anthony grant beginning at O W O, provided you further find that the plaintiffs were, or their ancestor H.C. Tate was, in the actual, open and notorious possession, for more than seven years next before this action was commenced, of any part of said land. It is true, as claimed by defendants, that the calls, courses and distances laid down on a plat at the same time a grant is made can not control or vary the calls, courses and distances given in the grant, but where the grant is silent as to the distance between any two natural boundaries called for in the grant, and the distance is laid down on the plat, and you have located one of said natural boundaries, you can consider the distance given on the plat in locating the other natural boundary called for, if it aids you in locating the other natural boundary.
"The effect of the burnt or lost record proceeding is to estop plaintiffs from saying that the deeds or records established in the pro (332) proceeding are not true copies of the lost or burnt deeds and records mentioned therein. These copies have the same force and effect as the lost or destroyed deeds and records would have, were they not lost or destroyed. They do not estop or prevent the plaintiffs from showing, if they can, that they have a better title to any of the lands embraced in said lost deeds than Mrs. Michaux, and those claiming under her.
"If you locate the beginning of the Anthony grant at 18, you will answer the first issue Yes, the lands embraced in the Jacob Anthony grant beginning at 18 on the map. If you locate the beginning corner of the Jacob Anthony grant at O W O, and you further find that plaintiffs are the owners of the lands covered by the Jacob Anthony grant, then you should answer Yes to the issue, Did Charles Laxton enter upon said land and commit a trespass thereon? Said Laxton on cross-examination said that he had cut and carried away timber trees from said land. If you locate the beginning point of the Jacob Anthony grant at 18, then you should answer this issue No, because the land *243 Laxton said he cut timber trees on is not included in the Jacob Anthony grant, if its beginning corner is at 18."
The court recapitulated the contentions of both sides, and at the conclusion of the charge asked if there was anything else either side desired called to the attention of the jury, and both sides were silent. No exception was made on the trial to the contentions of either side as given by the court, or to the failure of the court to give other contentions.
The defendants' motion for a new trial was overruled, and judgment entered upon the verdict. Defendants appealed.
After stating the case: The plaintiffs, for the purpose of establishing the boundaries of the land claimed by them, introduced as a witness J. T. Perkins, who testified that there is a forked branch on the land of H.C. Tate (under whom plaintiffs claim), (333) and that he had heard the upper prong called Shingle Branch. The defendants objected to this testimony but it was admitted. One of the calls in the grant to Anthony and in the deed of Margaret Erwin to H.C. Tate was for Shingle Branch. What the witness said was some evidence of the true name of the branch. In Willis v. Quinby,
The defendants introduced the record of a proceeding brought by Mrs. Susan F. Michaux against H.C. Tate and others under Code, sec. 56 (Revisal, sec. 328), to set up and establish certain deeds and conveyances *244
to her father John Jerkins, which had been destroyed by fire, the registry thereof having also been destroyed by fire when the court (334) house was burned. The defendants insisted that the effect of this proceeding, in which a judgment in her favor was entered, was to estop the plaintiffs from denying the location of the boundaries as ascertained and declared by the Court therein. It appears from the record of the proceeding that it was brought by Mrs. Michaux under Code, ch. 8, concerning "Burnt and Lost Records." We are unable to concur in that view. The statute expressly declares (sec. 56) that the proceeding shall have, "as to the persons notified, the effect of a deed for the (land) executed by the person possessed of the same, next before the petitioner." It was necessary to have the land surveyed to ascertain the boundaries as described in the lost instrument, and the judgment in the proceeding can have only the force and effect of the original conveyance if the latter had not been destroyed, but had itself been in evidence. Waters v. Crabtree,
The exclusion of the evidence of Charles Laxton as to the burning of Mrs. Michaux's papers, if erroneous, was harmless, as the defendants established the fact afterwards by introducing the record of the proceedings between Mrs. Michaux, as plaintiff, and H.C. Tate and others, as defendants.
The court properly instructed the jury that in determining the length of the line in the calls of the grant, as the length was not stated in the grant but was given in the annexed plat, they might consider the distance as specified in the plat in locating that line. Cooper v. White,
The defendants' third prayer for instructions, that if the (335) plaintiffs had failed to satisfy the jury as to the location of the lines of other tracts called for in the Anthony grant, they should answer the first issue No, was properly refused. The true rule is stated in Moore v. McClain,
The defendant contended that there was no evidence to show that the land granted to Anthony was any part of that described in the complaint. But we think there was some evidence of that fact. The correspondence between the boundaries as set forth in the complaint and those of the Anthony grant, and the testimony of R. J. Halyburton, was some evidence that at least a part of the land described in the Anthony grant was included within the boundaries stated in the complaint. The witness Halyburton testified: "If the jury find 3 to be the N.W. corner of the Anthony grant, and run thence to 18, the Anthony grant would not cover any of the land in dispute, but if it is located, as claimed by the plaintiff, it would include fifty-six acres in dispute."
The contentions of the parties as to the true location of the Anthony grant were clearly stated in the charge to the jury, (336) and the law arising upon the evidence was correctly applied.
The instructions, to which the defendants were entitled, were substantially given by the court. After a careful consideration of the defendants' exceptions and of the numerous questions presented by them, we have been unable to discover any error in the rulings and charge of the court.
No error.
Cited: Stewart v. McCormick,
