217 F. 335 | 4th Cir. | 1914
Lead Opinion
The plaintiff in error, also plaintiff below, claimed, in .this action, that, as tenant in common with the defendants, he -was the owner of an- undivided two-thirds. interest in a tract of 3,306 acres of land, a part of the Josiah White tract, situate in Pasquotank-county,-N. C. He charged defendants with entering thereon,- unlawfully cutting timber therefrom, and refusing to account to him therefor, or any part thereof, wherefore he had secured an injunction from the court below, inhibiting such timber cutting until this action could be instituted at law and the title inter partes'could be .determined therein. Replying to this complaint, defendants substantially pleaded adverse possession, under color of title, for 3, 7, or 20 years, according to whichever term of limitation, by law, might be necessary to bar plaintiff’s right o'f entry. A trial had in the court below- resulted- ifi.;a verdict and judgment for the defendants.
Without setting forth the long .and .complicated. chain, whereby
(1) No length of constructive possession will ripen a defective title to land into a good one; the possession must be actual and continuous.
Governed by these well-settled principles of law, an examination of all the evidence introduced for the purpose of establishing adverse possession, under color of title in the defendants, of the land actually in controversy in this case, has convinced us that it was wholly instxfficient for the purpose, but, on the contrary, tended to refute the claim .that such possession had been attempted to be taken within the boundaries of the land lying west of the division line to which this controversy alone related, except upon one occasion, when an injunction was promptly secured against it. The learned trial judge, therefox'e, erred in refusixig the plaintiff’s motion for an instructed verdict in his favor.
The judgment of the court below will be reversed, and the case remanded, with instructions to set aside the verdict and award a new trial.
Reversed.
Rehearing
On Rehearing.
This case was heard and decided by this court at the Februax'y term, 1914, at which time the court filed an opinion, reversing the judgment of the lower court, in which it was held that there was not sufficient evidence offered in that court bearing upon the question as to the possession of the defendants to justify the jury in finding in favor of the defendants, and a reversal was directed, and judgment exitered accordingly.
On June 13, 1914, a rehearing was gx-anted upon a petition of de
Therefore we adhere to our former decision reversing the judgment of the lower court.