Den v. Tucker, 1 N.C. 157, 1 Tay. 157 (1801)

July 1801 · North Carolina Superior Court

1 N.C. 157, 1 Tay. 157

Den on the demise of Hanks versus Tucker.

From an uninterrupted possession for a great length of time, a jury may, under certain circumstances, infer that its origin was lawful.

THE plaintiff claimed 130 acres of land, under a grant from the State issued in February 1799. The defendant claimed under Creel, who had been in possession for forty years; and who had formerly shewn one of the witnesses an old marked line, telling him that it was the line which separated his land from Taylor’s. A grant, issued in 1757 in favour of a third person, was also produced by the defendant, which called for Creel’s line and beginning tree. There was also some evidence given by the son of old Creel, that he had seen in his father’s possession and amongst his papers, a seal which appeared to have belonged to an old grant. The plaintiff introduced some evidence of a loose conversation between old Creel and Taylor in 1785, wherein the former said he had not patented the land, and that he should not trouble himself about it.

The Court left it to the jury to consider whether the possession and its attendant circumstances, were strong enough to induce a presumption, that a grant had once issued in favour of Creel. That no possession would amount to a positive title against the State, until the act of 1721, cap. 15. by which a possession of twenty one years, ascertained and indentified under known and visible lines and boundaries, and accompanied with a colourable title, was made to bar the entry of all persons under the claim of the State.

Vide Eldridge versus Knott, Cowp. 214 Mayor of Kingston versus Horner, Cowp. 102.

But this case being unaffected by the act, must be decided according to those principles of law which had operation, before the legislature made a positive provision for certain cases; and which still remained un-repealed. That from the establishment of one fact, the jury may, and frequently do, presume the existence of another; and from an uninterrupted possession for a great length of time, may under certain circumstances infer that its origin was lawful.

Verdict for the Defendant.