Den on the demise of Park v. Cochran, 2 N.C. 205, 1 Hayw. 205 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 205, 1 Hayw. 205

Den on the demise of Park, v. Cochran and others.

A party who has been guilty of neglect, may, upon seeking a continuance, be compelled to pay the costs of the term, as the condition of the continuance ; and thmie coins are not to be refunded even though he should succeed in the cause. In this country, no actual entry is nec-ssary until an adverse possession commences. A pos-' session to bar an entry must be a continued one.

Ejectment. The continuance of this cause was moved for upon mi affidavit, staling that the Plaintiff had at the last lertn procured ati order of survey of the premises in dispute; that he had given notice that he would begin the survey four day's before the beginning of this term; that it had been begun accordingly, and that the survey was not yet completed, though it would he completed by the end of this (lay, the day on which the motion is made. It appeared on tiie other hand that this order had been first procured about three years ago, and liad been renewed from term to term ever since, and that the survey had never yet been completed. Per curiam, the Plaintiff has been guilty of great neglect; he might have procured a survey before this time. This is distinguishable from the case of 8t. Lawrence last term, at lldisborough, to which it has been compared — St. Lawrence had made no preparations at all for the trial, for want of notice as he said,ofa new trial having been granted the term before-; whereas he might have known it, had he made the proper enquiry, as he ought to have done — the motion for a new tria! being his own motion. Here the Plaintiff began his survey in time, as he supposed, to complete it by "the time of the setting of-this court at the present term ; but hath been prevented by some unforeseen difficulties, and will be ready with his plats after this day — his cause therefore should be continued; hutas he. has not used all the diligence that he might have used to prepare for the trial, therefore according to the act of 1779, c. 4, s. 5, he must pay all the costs accrued &r this term; which arc not to be refunded to him even although he should eventually prevail. Rather than submit to these conditions, the Plaintiff thought proper to proceed to trial; and upon tiie trial, H appeared that Dyer and Carroll had been the proprietors of the land out of which this lot was ta-feen ; that they conveyed to the. Plaintiff’s father, by deed dated the ninth of May, 1763. Its execution by Carroll only had been proven, and if had been registered upon that proof; and the Plaintsif was proved to he the heir at law of the bargainee. On the other side it appeared, that on the 22d of November 1764, Baer and Carroll and others, assignees of the estate, of the first, mentioned Carroll, conveyed part of this large tract of land to Edmond Fannins;, and on the same day Dyer and wife conveyed another part thereof to the said Edmond Wanning; and it seemed to be admitted that the lot conveyed to Park, or described in his deed, lay somewhere Within the lot conveyed to Fanning. The 3d of May, 1775, Fanning conveyed to Cochran, father of the Defendants, who is now deceased. Fanning between the commencement of the year 1764, and the year 1766, built a house upon the lot now claimed, and was sometime in erecting buildings which when built had fallen down ; after which time he had no actual possession — he had no actual possession to the time of his conveyance to Cochran. Cochran took possession in 1775, and that possession has been continued to the present time. Parks had never any actual possession. This being the evidence, Mr. Williams for the Defendant, moved that the Plairi-iiffmight be called. • He cited many authbrities from the English b'>oks to prove that unless a man has entered within the time limited by law, he can «ever enter after-' Wards, but loses his right of entry. That here was an adverse possession in Fanning between the years 1764 and 1766, and the possession once being adverse need not be continued. That Cochran’s possession commenced in 1775, and was an actual adverse possession. But per curiam, though the law as stated by Mr. Williams, is so in England, yet it is different in this country — in this country there is no necessity for an entry, until .an actual adverse possession commences, and that actual adverse possession must be continued for seven years, without entry or claim on the other side, before it can toll the Plaintiff’s right of entry. The contrary doctrine in this country would be attended with consequences very fatal to titles for-land. According :o Mr. Williams’ position, if a man had title to a tract of land which he had not been upon for seven years, Defendant next day after the seven years expired, might enter without any colour of title, and hold it forever against the first lawful proprietor. Fanning’s possession was not continued longer than the house was building. The next adverse possession of Mr. Cochran, commenced in 1775 j from that time to the first of June 1784, the operation of the act of limitations is suspended ; and in 1784, before ihe act began to run, the Plaintiff’s father died, leaving- the Plaintiff an infant, and he continued an infant, till just before the commencement of this action, so that the Plaintiff ought not to be nonsuited; but afterwards at another stage of this trial, a juror was withdrawn for another reason.

Note. — As to the continuance see Tyce v. Ledford, ante 26. Upon the other questions see the note to Strudwick v. Shaw. ante 5.