Williams v. Miller, 29 N.C. 186, 7 Ired. 186 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 186, 7 Ired. 186

DEN EX DEM, T. L. WILLIAMS & AL. vs. JOHN MILLER.

If two grants lap and one of tho claimants be seated oil tho lapped part, and the other not, tho possession of tho whole interference is in the former exclusively — possession of part of tho lands included in both deeds being possession of all of it.

‘I’lio cases of Green v. Harman, 4 Dev. 158, Dobbins v. Stephens, 1 Dev. & Bat. G, Carson v. Burnett, 1 Dev. & Bat. 546 and Williams v. Buchanan, 1. Irod. 535, cited and approved.

Appeal from the Superior Court of Law of Stolces pounty at the Spring Term 1847, his Honor Judge Man*, ly, presiding.

Upon the trial of this ejectment the plaintiff read, in evidence, a grant to Joseph Williams, the ancestor of the plaintiffs’ lessors, bearing date in 1755, and proved the defendant to be in possession of part of the land covered thereby. In his defence tho defendant read a grant to himself bearing date in 1761, and offered evidence to prove that it covered all tho land, of which lie was in possession. If that was true, then there was a piece of land covered by both patents; and it appeared, that the two patentees, and those claiming under them, had beep in actual possession, respectively, for upwards of fifty years, of those parts of their several tracts, not included within the lap, as insisted on by the defendant. The defendant then further offered evidence, that, twelve years before this suit was brought, he cleared a portion of the lapped land and had kept it enclosed and cultivated ever since. On the part of the plaintiff, evidence was offered that tho grant to the defendant was bounded by the lines of the grant to Joseph Williams, and that there was no interference of the two patents. And tho plaintiff further proved, that, about three years before this suit, the defendant enlarged his clearing and enclosure and took in another portion of the land within the lap, if the two. patents did interfere, as the defendant contended.

Upon tbia evidence the counsel for the plaintiff insisted before the jury, that the line of the two tracts was the same, and that the grant to Miller did not cover so much of the land, in the possession of tiic defendant, as is covered by the grant to Williams ; and, therefore, that the plaintiff had a right to recover. And upon that point, the Court instructed the jury, that if they should find that the land in possession of tho defendant, which was claimed by the plaintiff, was not covered by the grant to tho defendant, then they should find for the plaintiff, Tho plaintiff further insisted, that, if the jury should believe that the defendant’s patent did cover all the land in his possession, yet that would give him a title only to such part of the land, which was also covered by the grant to Williams, as tho defendant had been in actual and continued,possession of by enclosure for seven years ; and, therefore, that the more recent enlargement of the defendants field entitled the plaintiff to a verdict in this action. Rut the Court instructed tho jury, that the possession of the defendant within the lapping of tho patent^ for seven years (the lessors of the plaintiff having no possession therein) was a possession of tho whole lap, and gave the defendant a good title thereto.

Upon the trial, the plaintiff produced a witness, who deposed that, about fifty years ago, Joseph Williams surveyed the line, which the plaintiff now claims as that between him and the defendant, and then claimed it as the line of his patent. And the plaintiff offered further to prove by that witness, that, when the line was run, tho surveyor began at a point on the Yadkin river, which was some distance from tho line, and that said Williams then stated, “why it was necessary to begin at that point on the Yadkin, in order to strike the linebut, being objected to by the defendant, the Court excluded tho evidence of those declarations.

There was a verdict for the defendant, and from the judgment the plaintiffs appealed,

No counsel for the plaintiffs.

Norwood, for the defendant.

Ruffin, C. J.

The instructions of his Honor were un-

doubtedly correct. As the case stands upon the exception, it is to be assumed, that the line of the Williams grant was where the plaintiff'claimed ; and, where, indeed, the defendant admitted it to be ; but it is to be assumed also, that the line of the defendant’s grant was where ho claimed it to bo, and where the plaintiff denied it to be : so that in point of fact there was, according to the expression that has come into common use, a lapping of the-grants upon eaeli other. In such a case, the law has been held in many cases to bo, that if one of the claimants be seated on that part, and the other not, the possession of the whole interference is in the former exclusively— possession of part of the land included in both deeds, being possession of all of it. Green v. Harman, 4 Dev. 158, Dobbins v. Stephens, 1 Dev. & Rat. 5, Carson v. Burnett, 1 Dev. .& Bat. 54(5. Williams v. Buchanan, 1 Ired. 535. 4-S the defendant thus had the possession, for seven years, of the whole of the laud covered by both grants, he ac* quired a good title to the whole, though his was the junior grant.

The plaintiff cannot have a reversal of the judgment for the rejection of the declarations of Williams, as to the. reasons for beginning to survey, not on any line of his tract, but at a place on the Yadkin, at some distance from the land. In the first place, the plaintiff has not set forth in his exception, what the reasons declared were; and it is therefore impossible to determine,.whether they were relevant, or not, to any point in controversy. It is incumbent on the appellant to show the íelevancy of the declarations, in order to establish an error in rejecting them. But the case is even stronger* than that against the plaintiff', for, as far as the nature of the declarations can be conjectured from the circumstances, they must have been irrelevant or incompetent. If the object was to show that Williams then claimed the line, which the plaintiff now does, as the line of his patent, the evidence was wholly immaterial; inasmuch as fhe defendant did not at all deny that to be Williams’ line, but admitted it throughout, and put his case entirely upon the title gained under the statute of limitations by a possession of more than seven years, under the color of his own grant. If the object was to prove by those declarations where the line of the defendant’s patent was, they were manifestly imeompetent for that purpose ; for, upon a question of boundary, it cannot be competent for one claimant to prove by his own declarations at a former period, what is the ambit of his adversary’s deed. In every point of view, therefore, there does not appear to have been an error in ruling out those declarations,

Per Cueiam, Judgment affirmed.