33 N.C. 4 | N.C. | 1850
The following is the case sent up from the Court below:
This was an action of trespass quare clausum fregit, to which the defendants pleaded not guilty.
The plaintiff relied upon both an actual and constructive possession of the locus in quo at the time when the trespass was alleged to have been committed. To show a constructive possession, founded on title, he produced a grant to John Talbot, dated in 1847, and a deed from Talbot to George Mendenhall, dated in 1793. He then produced the deed from one Robert Stewart to Eli Pugh, dated 14 November, 1830; a deed from the said Pugh to John Horney, dated 11 November, 1834; a deed (5) from said Horney to Jeffrey Horney, dated September, 1835, and a deed from said Horney to John Lamb, dated September, 1840, and then a deed from the said Lamb to the plaintiff, dated 25 April, 1843, all of which included the locus in quo. It was testified that the land included in the deed to Stewart was open forest, no part of which was in cultivation, but he and the successive proprietors after him occasionally cut rails upon it for the use of other plantations. It was stated that Jeffrey Horney cut rails upon it every year, while he owned it, and hauled them off to a plantation which he cultivated about three miles distant. It was stated, further, that Lamb built a house upon the land in April or May, 1839. The deed from Lamb to the plaintiff conveyed a small half-acre lot, situated in the town or hamlet of Florence, upon which was an unfinished house, built by William Patterson, a son of the plaintiff. It was then shown that the defendants moved this house from the lot in March, 1846; and it was for this that the action was brought, the writ having been issued 17 June, 1846.
To show an actual possession the plaintiff introduced, a witness who testified that, immediately after the plaintiff's purchase, he went and nailed boards across the space intended for a chimney and windows, which were open, and put some empty boxes and barrels in the house.
The defendants contended that the plaintiff had shown no such title as gave him a constructive possession of the house and lot *16 in question, and that at the time when the house was removed it was in the actual possession of them or one of them, and therefore the action could not be sustained. To prove this possession, they called as a witness one Thomas Barnum, who testified that the defendant Bodenhammer came to his residence in Westminster and requested him to go and see him take (6) possession of the house in question; that he went and saw the said defendant tear off the boards which the plaintiff had nailed across the windows and put out the plaintiff's boxes and barrels, and agreed with the defendant Dillon, by parol, that he might have the house for twelve months at six-pence per month, each party being at liberty to put an end to the lease by giving the other notice. This was in May, 1844. Another witness testified that the defendants Dillon and White had some timber and a wagon in the house, and that a man named Beard also kept a wagon in it, being kept open; and that it was used for no other purpose than as a repository for such things.
The defendants offered in evidence a paper for the purpose of showing that William Patterson had an interest in the house and lot which was liable to be sold for the payment of his debts, and also for the purpose of showing that upon William Patterson's failing to comply with his contract, the defendant Dillon, who had bought from Lamb the residue of the tract of land, was entitled to take possession of the locus in quo; but it being admitted that William Patterson had failed to comply with the terms of his contract, and that the defendant Dillon had no deed covering the house and lot in question, the court rejected it, holding that it was immaterial, as they had already been permitted to show themselves, as far as they could, to have been in the actual possession of the house at the time of its removal.
The court was of opinion, and so charged the jury, that the plaintiff had not shown a complete title, so as to give him a constructive possession, but that, if the evidence were believed, he had shown an actual possession, against which the defendants had proved nothing to prevent his recovering in this action. The plaintiff had a verdict, whereupon the defendants moved for a new trial for the rejection of testimony and for (7) misdirection in the charge, which motion was overruled and a judgment given, from which the defendants appealed.
The judgment in this case must be reversed. The plaintiff has shown neither an actual nor constructive possession of the premises in question. To avail himself of the latter, he must prove the legal title in himself at the time the alleged trespass was committed. In this he has not succeeded, (8) and the jury were so instructed by his Honor who tried the cause. It is, however, in the second branch of the charge that the error lies of which the defendants complain. After informing the jury that the legal title was not in the plaintiff, the charge proceeds, "that if the evidence is believed, the plaintiff had shown an actual possession, against which the defendants had proved nothing to prevent his recovery in this action." We do not concur with his Honor. At the time that Lamb, who claimed title to the premises, conveyed to the plaintiff in 1843, there was on them an unfinished house. The plaintiff put into it some empty barrels and boxes and nailed plank over the spaces left in the walls for a window and fireplace. This was the only possession he ever had, as far as the case discloses. A year after, in May, 1844, the defendant Bodenhammer pulled off these boards, and threw out the articles put there by the plaintiff, and leased the house for twelve months to one of the other defendants, who put into it some wagon timber. In this condition the premises remained until March, 1846, when the house was removed by the defendants; and the case states that this removal constituted the trespass for which the action was brought. It is very clear it cannot be sustained. Whatever possession the plaintiff may have acquired by putting into an unfinished house, which had never been inhabited by him or any other person, some empty barrels and boxes and nailing on the boards as set forth in the case, was lost to him by the acts of Bodenhammer of a similar character. If they were sufficient to give Patterson the actual possession, similar acts on the part of the defendant were sufficient to divest him of it and place the actual possession in the latter. The acts were of the same character and must carry with them the same effects. Two years after Bodenhammer had dispossessed the plaintiff, and while his possession, so acquired, continued, the house was removed. To enable the plaintiff to (9) maintain an action for the removing of the house, he ought to have re-entered before the house was removed and thereby revert the possession in himself. The action of quare clausumfregit is a remedy for an injury to the possession (Dobbs v. Gullidge,
His Honor erred in directing the jury that at the time the house was removed Patterson, the plaintiff, was in the actual possession of it and could maintain his action.
PER CURIAM. Judgment reversed, and a venire de novo ordered.
Cited: Brooks v. Stinson,
