Smith on demise of Wall v. Tomlinson, 27 N.C. 548, 5 Ired. 548 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 548, 5 Ired. 548

RICHARD SMITH ON DEMISE OF WM. WALL vs. THOMAS TOMLINSON.

When, upon a survey in an action of ejectment, the defendant admitted certain lines to be the lines of the plaintiff’s land, and according to that boundary, the defendant was in possession of part of the plaintiff’s land, without seven years’ possession under color of title, the Court, upon the motion of the plaintiff’s counsel, should have instructed the jury that the plaintiff' was entitled to recover.

Appeal from the Superior Court of Law of Stanly County, at the Spring Term 1845, his Honor Judge Pearson presiding.

This is an action of ejectment. The plaintiff claimed under a grant to William Whitfield, which was prior, in date, to that under which the defendant claimed, and deduced a regular title from the grantee to himself. The question, as it turned out, was one of boundary. The surveyor stated that certain lines, delineated on the survey, which constituted a part of the case, and beginning at a particular corner, and called yellow lines, were laid down by the direction of the de-"" fendant, who said, they were the boundaries of the land granted to Whitfield, under whom the plaintiff claimed. The fendant contended, although his was the junior grant, yet that he had been in the actual possession of the land, on which the' grants lapped, for more than seven years, claiming it as his own and adversely to all the world, and such was the fact, if the grant to Whitfield began where the plaintiif alleged it did. But upon the evidence it appeared, that within the yellow lines, admitted by the defendant to be those of the Whitfield-grant, was a slip of land cleared and enclosed by the defendant, not more than four years before the bringing of the action, and'that he had no other possession within those lines. Upon this being made appear, and upon the testimony of the surveyor, as to the declarations of the defendant, the plaintiff contended, that he had proved the defendant a trespasser and entitled himself to a verdict and moved the Court to charge to that effect. The cause however did not here stop, but under- • went a laborious investigation, nor does it appear how this; objection of the plaintiff was disposed of, nor does the Court in its charge notice it. There was a verdict for the defendant and1 the plaintiff’appealed.

Mendenhall for the plaintiff

Strange for the defendant.-

Nash, J.

From thefact that this motion was not noticed1 by his Honor,, we are to conclude, that his Honor did not agree' with the counsel of the plaintiff’, and overruled his motion. We' think, if this were so, the Court erred; and ifiit were not literal- ■ ly so, there was error in not charging counsel, that the plaintiff1 was entitled to a verdict upon the point, when made by the' plaintiff’s counsel. What an individual says concerning his1 own rights and interest is always evidence against him, and'. evidence of the highest character. When the parties went upon the land for the purpose of surveying, it, in this as in* every other similar ease, the plaintiff’s lines were first to be {0 ascertajn where the land was he claimed. The sur- ' veyor, ignorant where to commence, was directed by the defendant, to begin at a particular spot, which he asserts is the beginning corner of the plaintifi’s land, and the yellow lines are run by his direction, as being the line? of the Whitfield grant. Here, then, was his distinct admission, as to the boundaries of that grant, and within them he had cleared and fenced in land, within four years before the bringing of the action. He had not had seven years adverse possession of that strip, under title. We think, under the testimony, the plaintiff was entitled to a verdict for the land so cleared within the yellow lines, and that the Court ought so to have instructed the jury.

Per CuRiam, Judgment reversed and venire de novo.