Campbell v. Morrison, 116 N.C. 629 (1895)

Feb. 1895 · Supreme Court of North Carolina

116 N.C. 629

ALEXANDER CAMPBELL v. B. M. MORRISON et al.

Action to Recover Land — Trial—Evidence—Instructions.

1. Where, in the trial of an action to recover land, the plaintiff introduced as a part of his chain of title a grant from the State containing certain calls, differing in some respects from a deed under which he claimed title and which covered the locus in quo, he is not precluded from introducing the latter deed by reason of such variations in the calls.

2. Where, in the trial of an action to recover land, the plaintiff introduced a deed covering the locus in quo the calls of which deed differed from those of a grant previously introduced which did not cover the land in controversy, and defendant’s evidence tended to show that plaintiff’s deed originally corresponded with the grant and also to establish adverse possession by the defendant, it was error to charge that, if a certain point on the plat exhibited in evidence was the corner of plaintiff’s-grant, the plaintiff had located his grant, for such charge did not take into account the location of the grant and deeds, the question as to the alleged alteration of the calls in the deed, the location of defendant’s deed and the question of defendant’s actual possession of the locus in quo.

AotioN for the recovery of' land, commenced July 28th, 1890, and tried before Winston, I., and a jury, at August Term, 1892, of Moore Superior Court. There was a verdict for the plaintiff, and. from the judgment therein defendant appealed. The facts are stated in the opinion of Associate Justice Furohes.

Mr. W. E.- Murchison, for plaintiff.

Messrs. Black d> Adams, W. G. Do%oglass, Shaw da Scales, for defendants (appellants).

Furches, J.:

Plaintiff, for the purpose of mailing out his title, introduced a copy of a grant from the State to Malcom Gilchrist, bearing date the 18th of December, 1197, and then offered a deed from Malcom Gilchrist, to Daniel Campbell, the calls of the deed covering the locus in quo, as plaintiff alleged, while it seems the copy of the grant did not. Defendant objected to the introduction of this deed for the reason, as they alleged, that plaintiff had introduced the grant, and was bound by that. The Court overruled this objection and defendants excepted.

¥e do not see any grounds upon which this exception can be sustained. This is 'too clear to admit of argument. But the courses and distances in the grant from the State to Malcom Gilchrist taking the point “A” on the map as the proper beginning corner (and this was admitted by both sides) do not seem to cover the locus in quo. While it seems that the calls in the deed from Malcom Gilchrist to Daniel Campbell do, if the survey is correct. But defendants offered evidence tending to show — and which, so far as we can see from the case presented by the record, was uncontrg,dicted — that this deed originally contained the same calls as the grant to Malcom Gilchrist. Defendants also offered a deed from Duncan Buie to Morris Morrison, a deed from Morris Morrison to Allen B. Morrison, dated 15th of July, 1843, and a deed from Allen B. Morrison to defendants for one hundred acres of land, which defendants contend covers the locus in quo, and which, according to the survey and plot, does cover the land in dispute. Defendants also offered evidence tending to show that defendants had been in the actual possession of the locus in quo ever since 1872; and that this action was not commenced until the 28th day of July, 1890. Upon the evidence the Judge charged “That if the ¡joint at A on the plat was the beginning corner of the plaintiff’s grant, or the copy of the grant and of his deed, then the plaintiff had located his land.” To which charge the defendants excepted. We think there was error in this charge, which entitles the defendants to a new trial. Tbe rest of the. Judge’s charge is not given, and therefore we can see nothing to correct this error, if there was anything in the charge to correct it. And therefore pass upon it, as it appears from the record, which was sent in answer to a writ of certiorari issued from this Court.

It seems to us from this record tb at there are several questions presented, which should have been submitted to the jury under proper instructions from the Court — such as the location of the grant and deeds, the question as to the alteration of calls in the deed from Gilchrist to Daniel Morrison, the location of defendant’s deed, and the question of actual possession of the locus in quo by the defendants under their deeds.

There is error and a new trial is ordered»

New Trial.