29 N.C. 169 | N.C. | 1847
The lessors of the plaintiff claimed all the land contained within the boundaries of a grant made in 1760 to James Pace, lying on the east side of Drowning Creek, beginning about a mile above Overstreet's bridge at a red oak, thence 87 E. 179 poles to a pine, then S. 3 W. 179 poles to a pine; thence N. 87 W. 179 poles to a hickory; thence the courses to the swamp to the beginning. The distance mentioned in the third line gave out 9 chains and 50 links from the swamp; there was no hickory corner to be found, nor any proof of its existence. The judge charged the jury that the call of the fourth line of the grant from the hickory, "thence the courses of the swampto the beginning," entitled them to extend the third line of the swamp (a natural boundary), and thence along the swamp to the beginning red oak. This part of the charge we think was correct. In Sandifer v. Foster,
2. The judge charged that the declaration of Daniel McPhaul, that his fourth or west line ran from the termination of the distance mentioned in the third line to the beginning red oak, did not divest him of his title to the land lying between that line and the swamp, in the absence of any conveyance from him or adverse possession held (174) under such circumstances as would give a title to the possessor. We see no error in this part of the charge. If the land in dispute belonged to Daniel McPhaul, he could not part with the title to it by parol; nor was his admission binding on him and those who claim under him, if they were made under ignorance or a clear mistake of his rights.
3. Neil McPhaul in 1772 purchased of Richard Smith the land mentioned in the aforesaid patent. Neil McPhaul died about the close of the Revolutionary War, and before 1784, leaving Daniel McPhaul his eldest son and heir at law. The heir entered on the land shortly after the death of his father, and continued to reside on it from that time to the commencement of this suit. Neil McPhaul was a Tory, and died *128 a captain in the service of the British Government. The county court of Bladen, at its August Sessions, 1782, entered a judgment of confiscation of the estate of Neil McPhaul, as is mentioned in the case. The Legislature had by the confiscation acts declared that the lands of all such persons as adhered to and aided the enemy, by taking up arms in their favor, should be forfeited. Commissioners of confiscation were directed to be appointed in each county, who were to give bond and take an oath faithfully to perform their duties. The duties of these commissioners were to take possession of lands and movable property, in the name and for the use of the State, which by the act of Assembly were declared to be forfeited to the State, and to sell the same and make titles to the purchasers, and account for the purchase money. The act of 1780, ch. 170 (Rev. Code), enacts that for want of commissioners of forfeited estates in each county the sheriff or coroner, and where there is no sheriff or coroner, the county court, is hereby strictly enjoined to seize and take into their possession all such property as has been described in the said act.
(175) If the court was authorized to act in the place of commissioners, and if the order could be construed to include this piece of land, it condemned the land to confiscation without any notice to the heir to defend, which was contrary to law; and, moreover, the land, was never seized to the use of the State by any officer or person, but remained in the actual adverse possession of the heir for more than sixty years before this controversy arose. We think that the title of Daniel McPhaul never was divested by any office found in the mode pointed out by any of the confiscation acts. The judgment is affirmed.
PER CURIAM. No error.
Cited: Literary Board v. Clark,
