Doe on Demise of Wallace v. Maxwell, 32 N.C. 110, 10 Ired. 110 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 110, 10 Ired. 110

JOHN DOE ON DEMISE OF MATTHEW WALLACE vs. JOHN T. MAXWELL.

The doctrine of estoppel does not apply to the sovereign nor to the assignee of the sovereign.

From an actual, continuous’possession of laud up to known boundaries for thirty years, the law presumes a grant to the party in possession and a title in those claiming under him, and the jury should so find.

The occupation must be such as is consistent with the usages of agricul- . ture, such as cultivating the land, clearing new, and turning out, old fields, and cutting timber promiscuously.

The cases of Taylor v. Shepard. 4 Haw. 132, Candler v. Lunsford, 4 Dev. 4r Bat. 407, and Fitzgerald v. Norman, No. Ca. T. R. 131, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Spring Term 1849, his Honor Judge Ellis presiding.

The plaintiff claimed the land in dispute under a grant from the State, issued to him in May, 1842. The defendant proved, that one Black cultivated a part of the land in controversy, thirty or thirty-five years ago, and claimed the whole up to the boundary lines of the plaintiff’s grant for forty years, and cut timber from different parts of the premises during that time, and that the boundaries were well known in the neighborhood, and Black’s claim, under which the defendant, claimed, was public and notorious. The defendant married a daughter of Black, and has been living upon the land, since his death, and is so still in possession, claiming up to the same boundaries. One of the cleared fields has been turned out, and is now an old field, and had not been cultivated, fourteen or fifteen years before the bringing of this action. The defendant offered in evidence a grant issued by the royal government to one Selwyn. The reading of it was objected to by the plaintiff, upon the ground, that the defendant claimed title under the State, and could not prove the title in any one else. To sustain his objection, he gave in evidence a grant of this same land, issued by the State to the defendant, in June, 1842.. The Court over-ruled the objection, and a witness proved, that the grant to Selwyn covered the land described in the plaintiff’s declaration. The plaintiff contended first, that the defendant had not sufficiently proved his claim under Black; 2ndly, that cutting timber on the land was not a sufficient possession to warrant the presumption of a grant; and Srdly, that a part of the land had been abandoned by turning out an old field.

His Honor instructed the jury, that, if they believed that the defendant and Black had successively claimed the land up to the known visible boundaries, and had an actual adverse and continuous possession of the same, such as was consistent with the usages of agriculture, for thirty years, they ought to presume a grant and all the necessary mesne conveyances for the same to the defendant : That such possession must be by actual occupation and continuous, and accompanied by the exercise of all such acts of ownership over the same, as persons usu* ually exercise/m their own lands ; that, among these acts of ownership, were the clearing and cultivating of new fields and turning out old ones, when worn out, and cutting timber promiscuously ; that if the defendant, and those under whom he claimed, had such an adverse possession for twenty-five years and thence up to thirty years, to known and visible boundaries, they, the jury, would be at liberty to presume a grant to have issued ; that, if they believed the Selwyn grant from George the 3d, covered the premises, then the plaintiff would not be entitled to recover. There was a verdict for the defendant.

Rule for a new trial, for admission oí improper testimony and for error in the charge. Rule discharged and appeal.

Alexander, Wilson and Boyden, for the plaintiff

Osborne, for the defendant.

Nash, J.

We concur with his Honor, the presiding Judge, who tried the cause below, both in admiting the testimony objected to, and in his charge. The evidence objected to was the grant by George the 3rd to Selwyn ; and upon the ground that the State had granted the same land t.o the defendant in June 1842. The sovereign can not be estopped. It acts by agents and is a trustee for the people, and for their benefit, the truth may always be shown. Taylor v. Shuford 4 Haw. 132. Candler v. Lunsford, 4 Dev. & Bat. 407, is to the same effect, with the additional principle, that when the sovereign is not bound his assignee is not. These authorities only sustained his Honor in this part of the case. The charge delivered by the Court divides itself into two branches, and in each his Honor was correct. The first was, that as the defendant and Black had for thirty years had a continuous adverse possession of the land in question, up to known and visible boundaries, they ought to presume a grant, that is, that the law presumed a grant and they ought so to find. The case of Fitzgerald v. Norman, N. C. T. R. 131, which is the leading case in this State, states, that such a possession for thirty-five years raises the legal •presumption of a grant, and that of Candler v. Lunsford cuts down the time to thirty years. Less time than thirty years has never been permitted in this State to raise this presumption of law, nor are we disposed to admit it, under a shorter period. The case states, that the boundaries of the tract were well known and visible ; that Black had opened and cleared up different portions of the land and enclosed them, and had been in the actual adverse possession for thirty' years and upwards, and had continually claimed up to the boundaries, by using the wood-land as his own, and that the defendant who had married his daughter, had, since his death, continued the possession. Under these circumstances, if the jury believed them, they were instructed to find that the law presumed a grant. In the second place, his Honor instructed the jury, that if they should not be satisfied, that the possession of the defendant and Black had continued for thirty years, but only for twenty-five, yet if it were a continued adverse actual possession for that length of time, accompanied by a continued claim of ownership, up to the known and visible boundaries for five years more, they were at liberty to find, as a matter of fact, that a grant had been issued, if from the circumstances they were satisfied such was the fact. We see no error in this portion of his charge. It is in strict accordance with the decision oí this Court in this case when before us heretofore. 7th Ir. 135. This Court on that occasion said, that the actual possession of Black, for twenty-five or thirty years, accompanied with a claim and the exercise of acts of ownership and of dominion up to a well defined boundary, was evidence that ought to have been left to the Jury to presume a grant of the land to Black or those under whom he claimed. This was done by his Honor in this case. His Honor was careful to tell the jury, what he meant as to the acts of ownership, which were to accompany the actual possession. They were such acts as persons usually exercise over their owh land — such as clearing and cultivating new fields, and turning but old ones, when worn out, and cutting timber promiscuously. These directions were an answer to the second and third objections made by the plaintiff.

Per Curiam.

.Judgment affirmed.