23 S.E. 154 | N.C. | 1895
The plaintiff alleged possession in himself of the lands described in the complaint and deduced title from John C. Blake, trustee, to whom one S. T. Carrow had executed a deed in trust with power of sale. The lands had been bought by Carrow in 1872 at execution sale against Noah W. Guilford, issued on judgments rendered prior to 1868. The defendant asserted title to the land upon which the trespass was alleged to have been committed. In his further defense the defendant alleged "that during or about the months of April or May, 1872, while the said S. T. Carrow was in possession of the lands described in the complaint, excepting that claimed by this defendant, the said Carrow and this defendant had their lands surveyed and agreed upon the lines separating their lands and had the same distinctly marked. That from that time until the beginning of this suit the said Carrow (17) and those claiming under him have always acknowledged and recognized the said line, and have asserted to claim to the lands claimed by this defendant."
On the trial the plaintiff, in locating his deed covering the locus inquo, was permitted by the court, after objection by the defendant, to show that a sweet-gum at the edge of Jacob's Creek was by general reputation in the neighborhood known as Bond's corner. This is the first error complained of.
The defendant claimed under one G. W. Guilford, trustee for G. A. Guilford. Carrow in 1872 had a survey of the lands claimed by him, and on that survey Carrow marked a gum in the southern line of his (Carrow's) land, as fixed by his (Carrow's) deed, and marked a line from the gum north, at the time saying that the gum was the corner of Graham Guilford's land, and that line was the line between them. Upon objection by plaintiff this testimony was ruled out, and defendant excepted. *13
Defendant offered to show that S. T. Carrow, under whom plaintiff claimed, prior to the conveyance by Carrow, agreed to execute a deed to Graham Guilford, but that in consequence of Carrow's being involved he thought it best that the deed should be made by N.W. Guilford alone. Upon objection by plaintiff this testimony was excluded.
Defendant offered to show that he cut and carried a raft of timber off the land in controversy to Washington, and that Paul Lincke prevented a sale of this raft. This with the view of showing damages. Upon objection, testimony excluded, and defendant excepted. There was no evidence that Lincke was the agent of plaintiff, and the court excluded the evidence.
Defendant requested the court to hold that it was necessary (18) for the plaintiff to show an advertisement and sale under the deed in trust to Blake, independent of the recitals in his deed. The court declined to so hold, and defendant excepted.
Defendant asked the court to charge the jury that the Sheriff's sale was void, for that no homestead was laid off. The court declined so to do, as the judgments under which the land was sold were on debts created prior to 1868, or some of them were. Defendant excepted.
The defendant relied upon color of title and possession to defeat plaintiff's title.
The court charged that there was no sufficient evidence of possession for such a length of time as would ripen defendant's color of title into title. Defendant excepted.
This land was all woods land; it was not cleared, fenced or cultivated.
The defendant testified to the following acts, which were alleged to show possession sufficient to ripen color of title into title.
In 1872, a survey of the land; in 1873, Colonel Carrow cut timber on the land from the latter part of the summer until nearly Christmas, under Guilford; in 1874, one Watt Lewis, by authority of Guilford, got two trees for boards; in 1875, Eli Moore made boards on the land; in 1876, John Brown got some large trees for ship timber; in 1877, Simon Whitehurst worked up two trees, cut down by Brown, into boards; worked on them off and on for four weeks; in 1878, in the spring, a road was surveyed across the land, and in the fall partly cut out; in the fall of 1879, Mack Smith got some staves on the land; in 1880, the defendant got oak timber; he began in January, got some in January, February, and March, and then quit and began cutting again in September; paid one-fourth rent, and the rent amounted to ten dollars; in 1881, Peyton Taylor worked on the land to the same (19) extent as the defendant had done in 1880; in 1882, defendant got four sills for a ginhouse off the land; "in the fall of 1883, I rented *14 some ginhouse timber to one C. W. Bonner; he paid me two dollars rent; in 1884, one Rollins got some flat knees; worked off and on from summer until about September; in 1885, the defendant bought the land, built a cabin on the land and occupied it for his hands in getting off timber."
The suit was brought in 1886.
This is all of the evidence of possession, except that during the fall and winter of every year the defendant would haul a load of lightwood knots and dead tree tops, and occasionally cut up a dead pine stump or tree, cutting in all fifteen or twenty trees.
The court charged the jury that there was not sufficient evidence of possession for a sufficient length of time to defeat plaintiff's title.
There was verdict for the plaintiff, and from the judgment thereon the defendant appealed.
In the discussion of the admissibility of evidence by reputation and of hearsay evidence, in Dobson v. Finkley,
The rule that testimony by reputation was competent, under any circumstances, to locate the boundaries of land was admitted to be a departure from the English doctrine, which is still adhered to in many of the States, notably by the Court of Massachusetts; but the fact that the country had been recently settled and was still but sparsely inhabited and that consequently monuments of title could not be so well known or firmly established as in an older country seems to have been ample justification for a modification which adapted the rule to the reason. The fact that the courts of Tennessee and of Kentucky, where the conditions were similar, followed the ruling in this State is additional evidence of the necessity for the change. Sasser v. Herring,
The newly adopted principle was subject, however, to the single restriction that it was not competent to show a general reputation that the premises claimed were located within the limits of certain grants, without any evidence as to monuments of title, though the claimant was permitted to prove that particular landmarks, such as trees, streams or lines, constituted, according to the general report, parts of his boundary, or that he held possession with the acquiescence of others up to a known line.Mendenhall v. Cassels,
The exception, therefore, to the testimony of the witness (21) Whitehurst that there was a general reputation in the neighborhood that the sweet-gum at 12 was Bond's corner is without merit.
"Occasional acts of ownership, however clearly they may indicate a purpose to claim title and exercise dominion over land, do not constitute a possession that will mature title." Ruffin v. Overby,
The sweet-gum at 12 had, it seems, been marked by S. T. Carrow as a pointer to show where a stake called for as a corner was located. The marking was done in the progress of a survey made by one S. T. Roberson, to determine the location of the line between Carrow's land and that of Noah W. Guilford. The plaintiff claimed through S. T. Carrow, to whom the Sheriff of Beaufort County conveyed, by virtue of a sale under execution of the lands of Noah W. Guilford, on 6 January, 1872. Plaintiff exhibited mesne conveyances, including deed of trust from Carrow to John C. Blake, deed from Blake, trustee, to the First National Bank of Raleigh, and from the bank to the plaintiff, dated 31 October, 1883.
The defendant claimed under a deed from N.W. Guilford to George W. Guilford, trustee for Graham A. Guilford, dated 23 May, 1872. It was in evidence that this survey was made between the date of the deed of Satchwell, Sheriff, to Carrow and that of Noah W. Guilford to George Guilford, trustee, and at some time in the spring of 1872. S. T. Carrow was at the time of the survey in possession under the Sheriff's deed.
A deed conveying land is a species of contract, in the enforcement of which the leading purpose of the courts, where the controversy involves a question of boundary, is to ascertain the precise lines and (23) corners as to which the minds of grantor and grantee occurred. Parol proof, of course, is not as a general rule admissible to vary or contradict a plain written description, but it is always competent to show where the parties located the lines and corners by a contemporaneous survey, in order to define more exactly what was intended to pass. Cherry v. Slade,
Though Carrow is dead, his declarations made in his own interest would be no more competent when they relate to the boundaries of land than when made in reference to other subjects. Heddrick v. Gobble,
If the declaration of Carrow would have been competent against him as plaintiff in this action, it would be competent under the general rule applicable to all classes of cases against the plaintiff, who claims through him. May v. Gentry,
The recitals in the deed from the trustee to the bank are deemed prima facie correct in so far as they show that the sale was made by the trustee in pursuance of the power contained in (27) the deed of trust. Shaffer v. Hahn, supra. The executions under which the land was sold as the property of N.W. Guilford and bought by Carrow issued upon debts created before the year 1868. The title passed to the purchaser, therefore, discharged of all liability to allotment as a homestead. Long v. Walker,
Upon a careful review of all the exceptions we conclude that the judgment must be
Affirmed.
Cited: Hamilton v. Icard, post, 478; Deaver v. Jones,