adjudged the jus possessionis was lost by the plaintiff and ordered a nonsuit.
Strudwick v. Shaw, 1 N.C. 34, 1 Mart. 34 (1793)
1793
·
North Carolina Superior Court
1 N.C. 34, 1 Mart. 34
Hillsborough,
- Term, 179-.
STRUDWICK versus SHAW.
IN the year 1728, this land was granted to Foster; in 1730 Foster conveyed it to Barrington, who some time afterwards went to England. Hopkins settled on the land in 1751, and lived on it thirteen years and died, leaving a son, in 1754. Barrington sold it to Strudwick who never took possession, nor made continual claim nor brought suit till 1786 or 1787.
Davie's argument for defendant-
In point of law, if the plaintiff ever had any right to recover in ejectment, he has lost it. The nature of title is that it consists of possession, right of possession, and right of property. 2d. Bl. Comm. 196, 197, 175, and actual possession may ripen into title. Such title as a man may recover by, in ejectment, must consist, of possession and right of possession, at least,* and by neglect a right of possession may be lost, thus one man may be in possession, he who is ousted may have the right of possession, and be entitled to recover in ejectment, but by acquiescing seven years may lose his right that is to say, unless within that time he enters or brings suit or makes perpetual claim. The law presumes in such case that he in possession had at first a good title, or that since his first entry, he hath acquired one.
It is an old maxim in the law that a man must recover by the strength of his own title, in an ejectment, and not by the weakness of his adversary’s. Where a man loses his right of entry, he cannot recover in ejectment; perhaps the writ of right or some other writ might lie in such case. But I do not know of any decisions in this country to that effect. Runnington 112. Ejectment competent only where plaintiff may enter within twenty years, 1 Burr. 119, per lord Mansfield, same doctrine almost in the same words: and possession for twenty year makes a positive right in the possessor, in case a right of possession, and it also takes away the plaintiff’s right of possession in this country. If seven years pass without entry or claim the jus possessionis is lost. 1715, 27, 12. This is a law of the utmost importance ; the object of society is to protect men in their property, and to quiet them in it. This is the very object of entering into society: the case now before the court is the very object of this law. Where owners have deserted their lands and gone away, and others not knowing of their appropriation, have taken up the same, settled thereon, and improved them, and remained seven years in possession, surely it would be very incompatible, if they could be turned out of possession; this law of ours says that after seven years’ quiet possession, no person shall make entry or claim. Our law is copied from that of 12 Jac. except with this addition to make it more strong; our law intended to make, possession strong*35er towards title than the act of James did. Thus must I have said to shew that the decisions in England will apply to our law. Both acts limit from the time that the title or entry shall accrue. The decisions in England, have been uniformly that the right of possession, is lost by not entering within twenty years. Runnington 14, 15. Twenty years’ adverse possession is not only a negative bar, but also a good title. If defendant had been possessed but one day, yet if the plaintiff had not been possessed within twenty years, then no title in ejectment, Salk. 421, twenty years’possession tolls the entry like a descent cast. He may gain the jus possessionis by twenty years’ possession. To apply these principles, they have not possession brought no suit, made no legal claim in seven years, Runnington 112. Possession must be proved in the plaintiff within twenty years. 2 Bl. Comm. 196, 197. It is not upon the mere right of property that a person can recover in ejectment, it must be upon the jus possessionis. Buller 302. Twenty years possession tolls the entry. Buller 102. None shall enter but within twenty years, and plaintiff shall be nonsuited, if he cannot prove possession within that time, and this must be an actual possession, not a mere constructive one, Buller 102, or it must be what the law deems tantamount to an actual possession, as continual claim where the party dares not enter. Cases in K. Bench, 16, 503*, Inst. 15. I conclude therefore that the plaintiff must prove actual possession within twenty years, or in this country within seven years, and if the law is so in England, much more so ought it to be thus taken in this country, where our act evidently goes further than the act of James. And as to the decisions in this country, no case hath ever shaken these authorities, except the case of Mallet and Minns, in this court, may be thought to have done so, but in reality it does not. For in that case two points were determined, first, when the possession is in fact vacant, he who has a conveyance is deemed to be in constructive possession. Here an adverse possession hath existed ever since the year 1751. If they had made any entry, claim, &c. to prevent the operation we contend for, they should have shewn it in evidence. The third section of our act relates only to the plaintiff’s title, not to the defendant, the second relates only to the title of persons in possession, not those out of it: in the whole statute of James there is nothing like this section. By the statute of James, the writ of right will lie after the jus possessionis destroyed: by ours no writ whatsoever will lie afterwards. Had it not been for the second section, a writ of right would have lain in this country. Upon our act there have been variety of opinions. Some saying that a possession with colour of title was necessary: others that a naked possession only was good and sufficient. In our case if a naked possession only would do, they could not recover in a writ of right: but it is clear in ejectment it is enough for our purpose to be able to say, you have lost your entry by your latches. There is one other point of great importance not before settled in this country. Howell was thirteen years in *36possession, he died and a descent cast upon his son. Such a descent tolls on entry, by the law of England. Five years possession, and a descent cast tolls an entry, unless the disseisee hath made continua claim within a year and day after each preceeding claim, Inst. 250 p. 255 sec. 426, Gilbert’s Tenures, 18, 19, 33, 36, 37. In the case of persons beyond sea, they must claim within eight years from the accruing of their title, and where the act ever begins to run it shall not be suspended. For then the purpose of the act might be totally frustrated as if a man has been six years and eleven months in possession; the owner dies, his heir within age; the heir lives to marry three years after his coming to age and he dies, his heir within age: here the limitation would not have effect in the course of sixty or seventy years; and to prove this point he cited Plowden 368—72.
Moore in reply
cited Burr. 60, to shew the doctrine of seisin and disseisin, and to prove there could be no such thing as disseisin in this country.