267 F. 363 | 4th Cir. | 1920
In its complaint Richmond Cedar Works alleges ownership of 22/2* interest in a tract of land in the county of Pasquotank, N. C., containing 2,081.9 acres and trespass by defendant Foreman Blades Dumber Company by cutting timber thereon of the value of $120,000. The defendant disclaimed title to all of. the land described in the complaint, not included in a conveyance to it from C. L. Hinton and others dated April 1, 1912. It admitted cutting timber from the land embraced in that deed, but denied plaintiff’s title thereto. The jury’s affirmative answer to the following issue decided all the issues in favor of the defendant:
“Has the defendant, Eoreman Blades Lumber Company, or those under, whom said company claims, been in the possession of the land described in the complaint, known as the ‘Proctor Tract,’ under known and visible lines and boundaries, under color of title, for seven years prior to the 9th day of July, 1915.”
The plaintiff made out a complete chain of title beginning with a grant from the state of North Carolina to John Hamilton, dated December 27, 1792; but there was no proof that it or any of its predecessors in title had been in possession of the land, and there was affirmative proof that none of them had for many years paid any taxes there
The defendant relies entirely on adverse possession under color of title. This color of title commences with a tax deed dated September 8, 1812, held by the court to be invalid as a conveyance, hut available as color of title. Among the successive deeds constituting color of title, one was made in 1831 by Elizabeth Proctor to her son, Fred S-Proctor, and one in 1856 by Fred S. Proctor to James W. Hinton and. W. W. Griffin. In 1857 Griffin executed a deed to W. R. Abbott for his half interest, and in 1860 R. F. Overman, assignee in bankruptcy of Abbott, conveyed to James W. FI inton Abbott’s interest in the property.
The testimony as to the location of the house of Mathias on the Proctor land seems to us conclusive. It was furnished by the old negroes and J. H. Hinton, who were familiar with its location, and confirmed by the surveyor, Dudley, who saw the evidence of clearing and cultivation on the land in dispute. Against this there is no testimony whatever, except that "of D. O. Newberry, an agent of the plaintiff, who looked after its litigation, to the effect that he went on the Proctor land with Elijah Edge, one of the old negro witnesses, that he saw the lines of the Proctor tract, and that the place where old Mathias and his wife lived, as indicated to him by Edge, was off the Proctor land. Thus it is apparent that the location of the Mathias house on the land in dispute was proved by such an overwhelming preponderance of the evidence that it would have been the duty of the trial judge to. set' aside a verdict based on an opposite conclusion.
As the evidence recited required a verdict for the defendant on the issue presented to the jury, we do not think discussion of the numerous and somewhat refined assignments of error would be of value. There was evidence, also, of adverse possession under color of title by continuous cutting of timber for 7 or 8 years under color of title by those under whom defendant claims. This evidence was properly submitted to the jury.
Affirmed.