Doe on Demise of Lenoir v. South, 32 N.C. 237, 10 Ired. 237 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 237, 10 Ired. 237

DOE ON DEMISE OF W. B. LENOIR vs. ELI SOUTH.

The actual possession, under color of title, for seven years, though of a very ' small portion of the land and that in the midst of the woods, will confer the title on the possessor to the whole tract covered by his grant, there being no actual possession of any other part by another person.

In an ejectment the jury may find the precise interest of the lessor of the plaintiff and find the defendant guilty as to that, and judgment shall be entered accordingly.

A plaintiff may appeal from a judgment in his own favor.

The cases of Green v. Harman, 4 Dev. 158, Carson v. Burnet, 1 Dev. <£• Bat. 54G, Godfrey v. Cartwright, 4 Dev. 487, Love v. Wellborn, 5 Ired. 444, and Holdfast v. Shepard, 9 Ire. 223, cited and approved.

Appeal from the Superior Court of Law of Ashe County, at the Spring .Term 1S49, his Honor Judge Ellis presiding.

This action was commenced on the 7th of December, 1847. The plaintiff showed a title to the premises by an old grant to his lessor. As to half an acre, the defendant admitted himself to be in possession without color of title, and submitted to a verdict. The residue of the land in the defendant’s possession consisted of two adjoining tracts of 100 acres each, and, in respect thereto, he relied on the statute of limitations. In support of his defence, the defendant gave in evidence two grants to himself for those two tracts, issued twenty years before the trial; and he also offered evidence, that, in the Spring of 1S41, he claimed the land covered by his grants and cleared a small piece of land, about three rods square,on the line between his two tracts, and including a part of each, and enclosed it by felling four trees around it and throwing branches and brushwood on them; and that he planted potatoes therein, cultivated and gathered them in 1840: and further, that, in the Spring of 1841, he again planted the same acre in potatoes and cultivated them, but that pigs got in and rooted them nearly all up, so that there were in autumn but a few vines to be seen, and a few stalks of corn, which seemed to have been worked: that, in 1842, he enlarged the clearing to three acres, embracing about equal parts of both tracts, and fenced it and planted a crop of corn therein that year and every year afterwards to 1847, inclusive, and cultivated and gathered the crops. On the part of the plaintiff, evidence was then given, that the defendant’s field or enclosure, was surrounded by woods and was three quarters of a mile from the defendant’s dwelling, which was nearer than any other ; and that the land was situate in a mountainous region, where there were but few inhabitants. The plaintiff also gave evidence, that, eight or nine years before the bringing of this suit, his lessor surveyed the land claimed by him, and, on that occasion, made blazes on several trees near his lines, and that the defendant defaced those marks on some of the trees, and felled others of the trees ; and that he requested a witness not to give the lessor of the plaintiff information of a certain tree, as it would enable him to identify his land and injure the defendant.

The counsel for the plaintiff insisted, that the defendant’s possession was so minute and detached, as not to conform to the usages of agriculture, nor exhibit the requisite notoriety; and that a possession, thus apparently clandestine and contrived for concealment, was fraudulent and ought not to bar the entry of the true owner, and moved the Court so to instruct the jury. His Honor declined giving an instruction in the terms asked, but charged the jury as follows: that if they should find from the evidence, that the defendant had been in the continuous adverse possession of the land, covered by the two grants to him, for seven years before the suit was brought, tbe plaintiff could not recover ; that to constitute such adverse possession, it must be open and not clandestine, such as is consistent with the usages of agriculture in sowing the land and reaping the fruits ; that the failure to gather the crop of potatoes planted in 1841 would not amount to an abandonment of the possession, if they believed the testimony which had accounted for it; that it would not deprive the defendant of the benefit of his possession (if they should find that it had been taken under his grants and continued on that claim for seven years) even should they believe, that the defendant knew, from the beginning, that the land belonged to the lessor of the plaintiff; and that it was sufficient to prevent the defendant’s possession from being considered clandestine and to constitute an open and adverse one, if it was to such an extent and of such a character, that the public generally might have known it and some of his neighbours did know it, although some others of them did not see it.

The jury found the defendant guilty as to the half acre, and not guilty as to the 200 acres included in the defendant’s grants. For the plaintiff it was moved, that the verdict should be entered generally, but the Court directed the verdict to be recorded as it had been given in ; and from a judgment accordingly the plaintiff appealed.

Lenoir and Avery, for the plaintiff.

Craige, for the defendant,

Ruffin, C. J.

It may seem, at first view, a hardship on the owner of wild land, situate as this is, and perhaps at a distance from him, to lose his title by reason of a possession, of which he, probably, would not, and here, cer« tainly, had not early knowledge. But the law cannot . suppose, that an owner will not look to the condition of his property, at least so far as to discover an intruder within the period of seven years, and take the necessary steps to assert his own right; and therefore an omission to do so must amount to the laches, for which the law deprives him of his entry and vests the title in the possessor. It follows from these observations, that the instructions given to the jury were as favorable to the plaintiff, as they could well be. Indeed, it is not easy to comprehend, what is meant by a clandestine possession of seven years. One may enter clandestinely or by a trick ; but when he is once in and continues there, claiming to hold the land as his own, the possession, it would seem, cannot, in its nature, be secret, but is necessarily visible. The furthest the Court has gone, in laying down a doctrine at all applicable to this quesiion, was in Green v. Harman, 4 Dev. 158; in which case it was mentioned with some hesitation, that, if a defendant run his fence so near the line between him and the lessor of the plaintiff, as to induce the jury to believe that it was a mistake merely, or that the lessor of the plaintiff, though reason ably diligent, might so have thought it and have mistaken the character of the possession, and thought the other party did not intend to usurp a possession of a part of the land belonging to him, then such a possession might be considered as permissive and not adverse. But it was put distinctly on the ground, that the defendant had a good title to the land adjoining the plaintiff’s, and that the fence was the enclosure around-it, and that in building it but slight encroachments were made over the line on the land of the plaintiff; and it was expressly said, that, if he had not had a good title to the field adjoining, his entry on the land of the plaintiff would be distinct notice and could not be deceptive. For there is in that last case the possession in fact and nothing to mislead as to its character. Such is precisely the state of the present case. There can be no question of the object of the defendant in taking possession, nor of its character throughout, that it was adverse. It is plain indeed, that he hoped the lessor of the plaintiff would neither see it nor be informed of it, until it should ripen his title. But that can make no.difference ; for, in its nature, the defence of the statute of limitations is a protection against the title, and it has never been held, that the possessor must give notice of his claim, otherwise than by that most effective notice to an owner of ordinary vigilance, namely, the possession itself. As that existed in fact and spoke for itself, so that the lessor of the plaintiff could not have been mistaken, either as to the fact of possession or its character, if he had gone to the place or otherwise had kept due oversight of his land, there is no ground, on which the operation of the statute can be impeded. For, there is no doubt that the possession of the defendant was, from the beginning, such as made him liable to an ejectment; and, if so, that determines the question. No one will question, that be must have been so liable, to the extent of his enclosures from time to time. Then it follows, according to the settled rule in this State, that his possession of those parts was the possession of the whole covered by his patents, as the lessor of the plaintiff had no actual possession within those bounds, Carson v. Burnet, 1 Dev. & Bat. 546 ; which rule is the necessary consequence of our doctrine of color of title, and of the condition of our country in being still mostly in woods. His Honor therefore certainly did not err in leaving this case to the jury as one, in which they might find an adverse possession in the defendants, extending to the whole of the two tracts claimed by him. The Court also holds that the verdict was properly recorded as delivered by the jury, because, first, it was so delivered ; and, secondly, it was the most proper form for it. The jury may indeed give a general verdict, and, it is usual to do so; but where the precise interest of the lessor or lessors of the plaintiff'appears, it is generally proper and most for the convenience of the parties, that the verdict should be according to it. Godfrey v. Cartwright, 4 Dev. 487. Love v. Welborne, 5 Ire. 344. Holdfast v. Shepard, 9 Ire. 228. McAstor v. Porter, 6 Peters, 205.

It seems proper to notice an objection taken in this Court, that a plaintiff could not appeal from a judgment in his own favor ; as we have no doubt he may. The enquiry to him is of the same nature, whether the error be in not giving him all or a part of what he is entitled to; and he has a right to the judgment of this Court, whether he ought not to have had a verdict and judgment for all he claimed instead of the small part he got. Hence it is settled at common law, that a plaintiff may bring a writ of error on his own judgment, and so he may have his appeal under the statute.

Per Curiam.

Judgment affirmed, with costs against the plaintiff in this Court.