Borrets v. Turner, 3 N.C. 113, 2 Hayw. 113 (1800)

April 1800 · North Carolina Superior Court

3 N.C. 113, 2 Hayw. 113

Borrets vs. Turner.

"TpHIS V7R3 an ejectment for 100 acres of land in the county of Tyrrell. The lords proprietors granted-44© acres to John, Worsley in 1724: he died in 1740, devising his lands to his son Joshua; he died, leaving two sons, Joshua and William, and three daughters, Esther, Elizabeth and Lavinia. Joshua, the grandson, died ; and then William died ; and the lands were divided amongst the three daughters. The part in question being 100 acres, was allotted to Easthers Jaauary» 1792. In 1794 she conveyed 60 the plaintiff. On the SO'.h of April, 1725, Joba Worsley conveyed 100 acrts to one Jon -s ; and on the 4th of March, 1729, he convex ed 340 acres to J -skua, describing ii as bounded to the westward by the lands in tire possession of Jacob Blount, who then possessed the ICO acres now in dispute* In the year 1770, M’Kie took possession of a tract of land called Cooper’s, adj titling to this 100 acres, and claimed both the 100.' acres and Cooper’s tract; and extended the clearing of Cooper’strait int > and over a part of this lG0:cies. About 30 years Jigo, M’Kie ran the line along the edge of the plantation of Wovtsley, within the 340 acres. There was an execution against Moseley, who then possessed the 100 acres, and M’Kie purchased it.

Per curtain.

-Much has been said in the argument about the rtet of limitation ; That has two clauses — 'he nist regaids possession under irregular and informal convey anees made before the passing of that act, and confirms the title where there either had been a possession for seven years, or where there had been a possession for part of seven years, which should be completed after the act; the other regarded future possessions and- titles, and meant to establish the title of a subsequent patentee or bar-gainee of a patentee, who should take ano keep an undisturbed possession of seven veáis under such latter title. But it ripen.3 no possession into title which is not accompanied with a colour oí title, it is true, as argued, that possession of part, is posses-aiofi of the whole : but this applies only where two patents cover m part the same tract of land, the one lopping over upon-the other ; and both claimants are in possession oi that part covered by his patent, and not covered by the other parent. He who has the elder title, is then in the h gal possession-of the. whole land within- his patent, as well that covered by the other, patent as that which is not: but if one of the patentees actually nits down upon the part covered by both patents, and is in possession thereof seven vears, the legal possession1 is his, not the other’s ; and the act of limitations will in such case complete irs title, though tnc weaker one before : this must be however, an actual possession taken and kept by himself in prison, his-' tenants, slaves or agents ; and it must be a continued possession for the tv hole, seven yerra. If its the present case, the 100 acres in' dispute was severed by the conveyance of the patentee from the 340 acres, h'is possession of part of the 340, extended no-further than to the dividing line between the 340 utd the 100 ^ores severed ñom it; nor could it ever extend into the ICO-acres so as to tipen into title, unless he by some other conveyance, device or the like, regained a colourable title thereto. 4.0 years possession of the 340 acres,, could not give a tide to the J,Q0 acre tract.

Verdict and judgment for the defendant.