Graham v. Spaulding, 226 N.C. 86 (1946)

Jan. 31, 1946 · Supreme Court of North Carolina
226 N.C. 86


(Filed 31 January, 1946.)

1. Adverse Possession § 19—

In an action involving title to' timber lands, evidence that plaintiff, for a period of 27 years, listed the property for taxes, cleared and cultivated small patches, cut and removed logs and crossties, held sufficient to be submitted to the jury on the question of adverse possession by the continuous use of the property for the purpose of which it was susceptible.

2. Trial § 16—

Where evidence is admitted conditionally and later excluded and the jury instructed not to consider it, any error in its admission is corrected and an exception to its admission cannot be sustained.

3. Adverse Possession § 18—

In a case tried solely on the theory of adverse possession for a period of 20 years, a deed to plaintiff executed at the time he took possession but unregistered until after defendant’s deed, is competent as a relevant fact in connection with other circumstances tending to show claim of title.

4. Same—

Under a claim of title by 20 years adverse possession, tax receipts, though insufficient alone, are competent in connection with other circumstances to show that plaintiff had been asserting a claim to the property.

5. Evidence § 15—

Conflict in statements in plaintiff’s evidence affects its credibility but not its competency.

Appeal by defendant from Hamilton, Special Judge, at February Term, 1945, of Columbus.

Civil action for trespass.

The plaintiff alleges he is the owner and in possession of a 13-acre tract of land in Columbus County, described by metes and bounds in the complaint ; that the defendant has trespassed thereon, after being forbidden, *87and that plaintiff is entitled to injunctive relief and damages for the trespass already committed.

Plaintiff further alleges that he obtained a deed to the locus in quo 11 October, 1917, from Mary F. Jacobs, which deed was not recorded until 20 June, 1944; that he purchased the property in good faith and entered into possession immediately and claims title thereto by adverse possession for twenty years.

The defendant admits he cut and removed timber from the land described in the complaint, in July, 1944, but alleges he is the owner of the property, having obtained a quitclaim deed therefor, 17 J une, 1944, from Eliza Pigford, the daughter and only child of Mary F. Jacobs, and her husband, W. Figford, which deed recites a cash consideration of $30.00 and was recorded prior to plaintiff’s deed.

Issues of ownership, trespass and damages were submitted to the jury and answered in'favor of the plaintiff.

From judgment thereon, the defendant appealed, assigning error.

Powell & Lewis and R. H. Burns for plaintiff.

E. M. Toon and Parser, McIntyre & Henry for defendant.

Denny, J.

The appellant assigns as error the failure of the court below to sustain his motion for judgment as of nonsuit, and for a directed verdict in favor of defendant. This assignment of error cannot be sustained.

It is in evidence that the plaintiff has cultivated part of the land in controversy, and cut logs, piling poles and crossties off the premises from time to time, over a period of 27 years prior to the institution of this action. Substantially all of the land is in timber. Small patches have been cleared by the plaintiff and used during the last ten or twelve years for tobacco beds. The plaintiff has listed the property for taxes for 27 years.

We think there is sufficient evidence of adverse possession to be submitted to the jury under the decisions of this Court in Ward v. Smith, 223 N. C., 141, 25 S. E. (2d), 463; Berry v. Coppersmith, 212 N. C., 50, 193 S. E., 3; Locklear v. Savage, 159 N. C., 236, 74 S. E., 347; Coxe v. Carpenter, 157 N. C., 557, 73 S. E., 113; and Berry v. McPherson, 153 N. C., 4, 68 S. E., 892.

When the evidence is considered, as it must be, in the light most favorable to the plaintiff, it tends to show use and occupation by the plaintiff for the required statutory period, and that during said period the plaintiff has from time to time, continuously subjected the disputed land to the only use of which it was susceptible.

*88Tbe appellant seriously contends and assigns as error tbe admission in evidence of plaintiff’s deed from Mary F. Jacobs, notwithstanding tbe fact that tbe court at tbe time tbe deed was offered and admitted, stated that it was admitted conditionally and later excluded it and instructed tbe jury not to consider tbe deed or tbe evidence with respect to it. This assignment of error cannot be sustained. If tbe deed bad been improperly admitted tbe error was corrected. Moreover, tbe appellant did not except to tbe introduction of tbe deed, but only to tbe testimony with respect to it after it bad been introduced without objection. As a matter of fact, we think tbe deed was competent to show plaintiff’s claim of title. Since another deed to tbe identical property which plaintiff claims, bad been filed of record, prior to tbe filing of bis deed, tbe plaintiff bad a right to offer bis deed, not as evidence of adverse possession, but as a relevant fact in connection with other circumstances tending to show claim of title; a claim of title, however, which under tbe circumstances was not a good and indefeasible one, unless tbe plaintiff could further show that be bad held tbe premises which be claimed, adversely for twenty years. There is an allegation in tbe complaint to tbe effect that plaintiff has held possession of tbe premises for seven years adversely under bis deed; however, tbe case was tried below upon tbe allegations of adverse possession for twenty years and no evidence was adduced in support of a claim for title under color. In view of tbe theory upon which tbe case was tried, tbe defendant would have no cause for complaint if tbe deed bad not been excluded. For this Court said, in Tilghman v. Hancock, 196 N. C., 180, 147 S. E., 300: “There is no presumption of law that a purchaser takes possession under a deed. Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800. Therefore, tbe deed of itself wus not sufficient evidence of possession. As tbe deed was made before tbe controversy arose, tbe execution and recording thereof would be a relevant fact in connection with other sufficient evidence tending to show a claim of title and adverse possession. Though not sufficient of itself for that purpose, under tbe circumstances tbe deed would be analogous in probative weight to tbe listing of land and tbe payment of taxes thereon.”

Tbe appellant also assigns as error tbe admission of plaintiff’s tax receipts in evidence. Tbe plaintiff testified be bad listed tbe property for taxes for 27 years and offered in evidence certain tax receipts. These tax receipts were admissible for tbe purpose of showing that tbe plaintiff was and bad been asserting a claim to tbe property. They were so admitted and tbe jury instructed accordingly. Tbe court further instructed tbe jury that payment of taxes alone was not sufficient to prove a claim of adverse possession. This Court has repeatedly held : “Tbe listing of tbe land and payment of taxes is a relevant fact, in connection with *89other circumstances, tending to show a claim of title and an adverse or hostile possession, though not sufficient by itself for the purpose.” Austin v. King, 97 N. C., 339; Ruffin v. Overby, 105 N. C., 78, 11 S. E., 251; Bernhardt v. Brown, 122 N. C., 587, 29 S. E., 884; Christman v. Hilliard, 167 N. C., 4, 82 S. E., 949; Belk v. Belk, 175 N. C., 69, 94 S. E., 726; Perry v. Alford, 225 N. C., 146, 33 S. E. (2d), 665. This assignment of error cannot be sustained.

We have carefully considered the remaining thirty-three exceptions, thirty-two of which are to his Honor’s charge, and we find none of them of sufficient merit to disturb the verdict below.

There are conflicting statements in plaintiff’s evidence, but, as stated in Ward v. Smith, supra: “Discrepancies and contradictions, even in plaintiff’s evidence, are matters for the jury, and not for the court.”

In the trial below, we find

No error.