77 S.E. 761 | N.C. | 1913
This action was brought to recover a tract of land containing 250 acres. Plaintiffs were nonsuited at the close of their testimony. The first ground of the nonsuit was, as agreed here, that they had not identified the land, of which they had the adverse possession, as that described in the complaint and deeds, the description in the complaint and deeds being the same. Plaintiff relied upon the deeds as color of title, and they described the land by metes and bounds. There was evidence, as we think, that plaintiffs and those under whom they claimed had been in adverse possession, under the deeds, for more than thirty years, one witness, Nick Bell, testifying that "old man John Wood, under whom plaintiffs claimed, had been in possession for fifty or fifty-five years," and there was other testimony tending to show a possession of from forty to fifty years by him. In this connection, defendant's counsel contended that it was incumbent on plaintiffs to show a seizin or possession of the premises in question for twenty years before the commencement of the action, in order to maintain this action to recover the land under Revisal, sec. 383. But if plaintiffs had acquired the title by adverse possession of the land under color for more than thirty years, which was the evidence, then it follows, nothing else appearing, that they had at least constructive seizin or possession within twenty years before this suit was brought, which would satisfy the requirement of that section of the Revisal, as seizin follows the title, if there is no actual possession. Bland v. Beasley,
It was contended that plaintiffs had not shown that defendants were in possession of the land at the commencement of the action. Assuming that it is necessary to show this when the title itself is in controversy independently of the possession, it appears that one of the defendants, in his answer, admits he was in possession at that time, and the other defendants, in their answers, virtually admit their possession.
New trial.
Cited: Mintz v. Russ, post, 540; Land Co. v. Floyd,