Heirs of Sheppard v. Sheppard, 4 N.C. 108, 1 Taylor 108 (1817)

Jan. 1817 · Supreme Court of North Carolina

4 N.C. 108, 1 Taylor 108

HEIRS of WILLIAM SHEPPARD against STEPHANUS SHEPPARD.

_ A colour of S^eari?conti. nued posses-Bion, will not entitle the fectmeinto6" recover, even against an t^pder.

THIS was an Action of Ejectment to recover the pos» session of the premises of which Defendant was in possess;on The Tury, by direction of the Court, found for j j i j the Plaintiff, subject to the opinion of the Court upon the following facts. That the premises were patented by Bar-fltld_ 21st April, 1764; that Benjamin Sheppard, in May, ' , , , r , , , 1792, conveyed the same to the ancestor of the lessor ot the Plaintiff, who entered thereupon and died within seven years ; that after his death, the lessor (the children of the deceased) being infants, were removed by Benjamin Sheppard ; the personal property was also removed, and soon thereafter Gardner Sheppard, the brothef to the deceased, entered upon the premises then unoccupied. After his removal, which was about ten years ago, the present Defendant, another brother, also entered, and has continued in possession. No other possession is proven by the Plaintiff, or any other title given in evidence, when the Court directed the question to be transmitted to the Supreme Court.

Afor decaí, for the Plaintiffs.

It is not intended to controvert the rule so long established, that the Plaintiff in Ejectment must recover on the strength of his own title ; but we insist that the evidence w . . . ' rr ' 1 given by the Plaintiffs in this case, was sufficient to autho-pise the J ury to presume that they had title.

If the Plaintiff prove that A was in possession of the premises, and that his lessor is heir to A, it is prima fa-cie sufficient; for it shall be intended that A had a seisin in fee, till the contrary appears.^* In Allen v. Bivington, ^† . . ⅜* the matter of law was never argued, because it appeared upon the record, that the lessor of the Plaintiff had priority of possession, and there was not any title found for the Defendant, and the priority of possession alone gires a good title to the lessor of the Plaintiff, and all the world, except the heir of the disseisor.”

In Bateman v. Allen,^‡ it is said, “ forasmuch as it is not found in the verdict that the Defendant had the primer possession, nor that he entered in the right, or by the pommand of any who had title, but that he entered on the possession of the Plaintiff without title, his entry is not lawiul.”

Every presumption ought to be made against a bare intruder. He who has had possession should be presumed to have had it rightfully, and not be bound to deduce it minutely, in order to expel every vagabond who thinks proper to usurp it.

* Bul. 103.

† 2 Saund. 111.

‡ Cro. Eliz. 437.

Daniel, J.

delivered the Opinion of the Court:

The ancestors of the lessors of the Plaintiffs did not derive any title from the Patentee, or from any person claiming under him : They claim by virtue of a deed made and executed to their ancestor by a certain B. Sheppardy dated in May, 1792. It is admitted by the case, that neither their ancestor, in his lifetime, nor themselves since his death, have had a seven years continued possession of the premises in question; and we are therefore of opinion, that the dee,d of 1792, accompanied with a possesfsion short of seven years, did not ripen into such a tide, as authorises thp present lessors of the Plaintiffs to recover in this action. Judgment for the Defendant.