49 S.E. 345 | N.C. | 1904
Lead Opinion
The plaintiff seeks to recover upon a title founded upon a disseisin follotved by twenty years’ adverse possession. It is conceded that the original trespass by the plaintiff’s ancestor was wrongful. This does not necessarily mean that it was such an ouster as put the true owner to an action of ejectment and thereby put the statute of' limitations into operation. His Honor correctly told the jury that such possession to ripen into title must be open, notorious, continuous, exclusive, adverse, etc. The. defendant insists
It is elementary learning that the adverse possession necessary to bar the entry of the true owner must be continuous. Ruffin, J., in Malloy v. Bruden, 86 N. C., 251, says: “At all times there is a presumption in favor of the true owner, and he is deemed by law to have possession co-extensive with his title, unless actually ousted by the personal occupation of another; and so, too, whenever that oceupation by another ceases the title again draws to it the possession and the seisin of the owner is restored, and a subsequent entry by the same wrong-doer and under the same claim of title constitutes a new disseisin from the date of which the statute takes a fresh start.” In this case a break of two years was held sufficient to prevent the continuity of the possession. In Holdfast v. Shepherd, 28 N. C., 361, a break “of four and a half or five
The defendant asked his Honor to instruct the jury: “There is no presumption that the possession of the plaintiffs and those under whom they claim is adverse.” This was refused and his Honor instructed the jury: “If you should find from the evidence that Thomas Monk and his son, J. W.
Several other interesting questions are raised upon the record. The plaintiff put in evidence the deed from Adam Empie, administrator of J. S. Green, to W. A. Wright, bearing date March 16, 1813. lie then shows that this deed covers the locus in quo. The defendant also puts this deed in evidence. The plaintiff asked his Honor to charge the jury that, in the absence of any evidence showing that Mr.
New Trial.
Dissenting Opinion
dissenting. Want of time prevents me, at this late day, from thoroughly discussing the opinion of the Court, and so I will merely indicate one or two of the salient points of error. The opinion apparently attempts to reconcile the testimony by excluding that of the plaintiff, and then proceeds to find as a fact that there was a break in Monk’s possession. In the opinion appear the following significant
Again, the opinion of the Court places upon the evidence of Rhodes the construction most unfavorable to the plaintiff, while deciding against the plaintiff. It is true Rhodes said “I do not say I rented this seven acres,” but he evidently meant to say that he did not know whether he had a valid lease. This is shown by his further testimony that when Wright wished to rent the land to Rhodes he expressly declined to rent because he had already rented the same land from Monk. Ilis exact words as stated in the record are as follows: “I told him I thought I already had it rented; that I had rented it from Monk.” This is clearly consistent with Monk’s testimony, if the question of consistency can be considered by this Court.
This Court held, in Ruffin v. Overby, 88 N. C., 369, that “Every possession of land by one other than the claimant is deemed to be adverse until proof to the contrary is made”; that is, that the possessor is deemed to be holding under his own right. But suppose that this decision is in conflict with section 146 of The Code, that section does not profess to be conclusive. The presumption does not arise until the claimant “establishes a legal right to the premises,” and not then
This case was one peculiarly for the jury, and I do not think that their verdict should be disturbed, except for some material error of law in the trial, certainly not on account of any view we might have as to the weight of conflicting evidence.
Lead Opinion
DOUGLAS, J., dissenting. The plaintiff seeks to recover upon a title founded upon a disseizin, followed by twenty years adverse possession. It is conceded that the original trespass by the plaintiff's ancestor was wrongful. This does not necessarily mean that it was such an ouster as put the true owner to an action of ejectment, and thereby put the statute of limitations into operation. His Honor correctly told the jury that such possession to ripen into title must be open, notorious, continuous, exclusive, adverse, etc. The defendant insists that this has not been (323) shown.
The plaintiff John W. Monk says that his father, after purchasing the thirty acres adjoining the locus in quo, in 1876 or 1877, ran his fence in the manner described by him, which it is claimed covers the land. He continued such occupancy as he had until his death in 1882. His wife remained in the occupation of the same character until her death in 1885.
Thomas J. Kenan, one of the plaintiff's witnesses, the husband of thefeme plaintiff, testified: "After she died, my wife and John W. Monk rented the land to one Dodge. My wife and Mr. Monk made a division of the land in 1886. After division, I put some cattle in pasture occasionally. I know the boundaries of the 30-acre tract. That is an independent tract, and has nothing to do with the land in controversy. After the widow of Thomas Monk died, my wife and John W. Monk leased the locus for five years to Dodge." After testifying to other matters, this witness continues: "Some seven acres of the land upon which the rock quarry is situated is fit for cultivation. You could have planted a crop where the rock quarry is now. That land was fit for cultivation. After the lease to Dodge was out, John W. Monk, the coplaintiff, did not lease the seven acres where the rock quarry is, to Southerland, or Rhodes, or to any one else. Rhodes leased from John W. Monk the 30-acre tract east of that. It was not leased to anybody after the Dodge lease was out, but Rhodes pastured his cattle there after he leased the other land from John W. Monk. Nor did John W. Monk do anything on the land after the Dodge lease was out. The Dodge lease was for five years from 1885."
Mr. Rhodes, a witness for the plaintiff, testified: "In 1893 I rented some land from Mr. Monk. I don't say I rented this seven acres. I rented all the land that John W. Monk owned between the New Bern road and plank road, except five acres which was reserved on the side next to the plank road, which does not touch the place where the (324) rock quarry now is. I pastured my cattle upon the land where *245 the rock quarry is, in 1893, until the rock quarry was started in 1899 and the fence was torn down. I used the land for pasture where the rock quarry is, and that was all it was used for. The 30-acre tract and the other land which I rented was used for cultivation. I rented the land that I rented from Mr. Monk for five years from 1893 and until it was sold. When I had my cattle on the land in controversy Mr. W. A. Wright came to me one day, three or four or five years before they began to excavate rock at the rock quarry, and wanted to rent the seven acres in controversy, and I told him that I didn't wish to rent it; that I had more land than I wanted, and I had already rented it; that I didn't want it. I told him I thought I already had it rented; that I had rented it from Monk. He then tried to sell it to me, and I told him that I didn't want to buy. This was in 1895, '96, or '97; it was before the rock quarry was started. I think it was three or four years before the rock quarry was started. The next thing I saw, the rock quarry was going on there."
It is elementary learning that the adverse possession necessary to bar the entry of the true owner must be continuous. Ruffin, J., in Malloy v.Bruden,
The defendant asked his Honor to instruct the jury: "There is no presumption that the possession of the plaintiffs and those under whom they claim is adverse." This was refused, and his Honor instructed the jury: "If you should find from the evidence that Thomas Monk (326) and his son, J. W. Monk, had actual possession of the disputed land, said possession is deemed to be adverse, and will be so held until the contrary appears." The defendant excepted. It must be conceded that there is some conflict in the authorities upon this question. JudgeBynum, writing for a unanimous Court, in Parker v. Banks,
Several other interesting questions are raised upon the record. The plaintiff put in evidence the deed from Adam Empie, administrator of J. S. Green, to W. A. Wright, bearing date 16 March, 1873. He then shows that this deed covers the locus in quo. The defendant also puts this deed in evidence. The plaintiff asked his Honor to charge the jury *247
that, in the absence of any evidence showing that Mr. Empie was administrator and obtained license to sell this land, the deed conveyed no title. Whether, after putting the deed in evidence, the plaintiff (327) can thus attack it, is not clear. It will be observed that the deed is thirty years old. How far its recitals may be taken as true by reason of its age is an interesting question. If this deed conveys the title, it would seem that the plaintiff, together with the defendant, has shown an unbroken chain of title from the State to Mr. Wright, and that the statutory presumption in regard to the character of Monk's occupancy would arise. Of course, if this deed does not convey title, his Honor was correct in holding that there was a break in the paper title. It does not appear why the record was not put in evidence. It is to be hoped that if this case shall again come to this Court the record will clearly present for construction the language of section 146 of The Code. It seems that Ruffinv. Overby,
New trial.