Osborne v. Ballew, 34 N.C. 373, 12 Ired. 373 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 373, 12 Ired. 373

CALEB OSBORNE vs. JOHN BALLEW.

An entry, under a deed, into a part of a tract of land, shall, as against a filero wrongdoer, be considered an entry into the whole — át not appearing that any olle else has possession of any part.

The Case of Myrielc v. Bishop, 1 Hawks 485¡ cited and approved;

Appeal from the Superior Court of Law of Wilkes County, Spring Term 1851, his Honor Judge Battue presiding.

The action is quaré clausum frágil, and the plea, not guilty. On the trial the plaintiff gave in evidence a deed to himself) covering the locus in (quo. Tie also gave in evidence a grant to another person,- which likewise covered the locus in quo ; but he was unable to deduce title from the grantee to his bargainor. Upon taking his deed, the plaintiff went to reside in a house situate on the land and cultivated a field that was enclosed ; and soon afterwards the defendant committed the alleged trespass on an unenclosed part of the -wood land included in the plaintiff’s deed.

The counsel for the defendant moved the Court to instruct the jury, that the action could not be maintained, because the plaintiff had not shown himself to be in posses-; sion of the locus in quo by having it enclosed, or otherwise in his actual occupation, or by having a title for it against all the world. But the Court refused to give the instruction, and directed the jury, that the plaintiff’s actual entry under his deed into a part of the land covered by the deed -w&s, prima facie, sufficient to maintain trespass against the defendant, who set up no claim to the locus in quo, and was a mere wrong doer — no other person appearing to be' in possession of another part of the land under a conveyance, also covering the locus in quo.

Qúion-, for the plaintiff;

Btsydert, far the defendant.

llnrriN, íb .T.

Although, as between (wo persons clairri-ing under deeds which interfere,, the possession be with the better title, unless the other party have an actual possession within the disputed part, yet, as applied to the case of a mere wrong-doer, the instructions conform to our adjudications, and seetn, indeed, to follow from the doctrine of constructive possession, which is indispensable, in the present state of the country, to the protection of peaceable posses-' sors and claimants against lawless intrusions. The case of Wyrick v. Bishop, 1 Hawks 485, is in point, and gives yery satisfactory reasons, why ail entf^ under a deed into a part'of a tract of larid should, .as against a mere wrongdoer, be considered an entry into the wnole-^-it not appear® ing that any one else has possession of any part.

Feu Cvíxiáúj Jüdgméiit affirmed,-