Den on demise of Clinton v. Herring, 5 N.C. 414, 1 Mur. 414 (1810)

July 1810 · Supreme Court of North Carolina

5 N.C. 414, 1 Mur. 414

Den on demise of Penelope Clinton and others v. Enoch Herring

¡>B’rom Sampson.

A constructive possession of lands under colour of title, for twenty-one ' years, under known and visible boundaries or lines, will not bar tlie right of entry under the State.

Nor will the actual possession, for twenty-one years, of different parts of the lands covered by the colour of title, by purchasers from him to whom the colour of title was made, avail him as to the pjits of the lands not sold and actually possessed. Por they are distinct tracts, held by different persons in different rights.

The principal question in this case was, Whether, under the act of 1791, ch. 13, a constructive possession,of lands for twenty-one years, under known and visible boundaries, bars the right of entry under the State? Upon the trial of the ejectment, the lessors of the Plaintiff gave in evidence a deed bearing date 3d November, 3.761, executed by Felix Kennon, Sheriff of Sampson county. This deed recited a judgment recovered by John Sampson against one Vaughan, and an execution that issued on the judgment, which was levied on the land, and that John Sampson became the purchaser. The record of tiie judgment and execution was not produced. In 1783, John Sampson devised the lands to Richard Clinton, who died intestate in 1794, leaving Thomas, Richard, Owen, and William, his sons and heirs at law. Thomas conveyed to Penelope Clinton his undivided share, and she, with the said Richard, Owen and William, were the lessors of the Plaintiff.

The Defendant claimed title under a grant from the State, which issued in 1800, about two years before the commencement of this suit. The fact that the lands were ascertained arid identified under known and visible lines or boundaries, was admitted, for the purpose of getting the opinion of the Court upon the main questions in the case ; which were,

1. Whether a constructive possession of the lands, for more than twenty-one years, under the Sheriff’s deed aforesaid, will, under the act of 1791, ch. 15, bar the entry of any person under the State; it being admitted that as to so much of the lands covered by the said deed, as is claimed in this suit, the lessors of the Plaintiff and those under whom they claim' have not had twenty-one year's actual possession ?

2. Whether, if a constructive possession be not sufficient to bar the right of entry, the actual possession for twenty-one years of divers different parts of the lands covered by the Sheriff’s deed, by purchasers from Sampson, shall avail him and those claiming under him, as to the parts not sold and actually possessed ?

Upon the trial of this case, in the Superior Court, the Jury found a verdict for the Defendant under the charge of the Court; and a rule for a new trial being obtained, the same was sent to this Court.

Hahi, Judge,

delivered the opinion of the Court:

The act of 1791, ch. 15, declares, That where any , . . person or persons, or the person or persons under whom jiej s|ie or |{iey claim, shall have been, or shall continue to be in possession of any lands, tenements or heredita-ments whatsoever, under titles derived from sales made either by creditors, executors or administrators of any person deceased, or by husbands and their wives, or by endorsement of patents, or other colourable title, for the space of twenty-one years, all such possessions of lands, tenements or hereditaments, under such title, shall be, and they are hereby ratiiied, confirmed and declared to be a legal and good bar, against the entry of any person or persons under the right or claim of the State, to all intents and purposes whatsoever, any former act, law or usage to the contrary in any wise notwithstanding : Provided nevertheless, that the possession so set up shall have been ascertained and identified under known and visible boundaries or lines.” Before this act, no possession, however long and however well ascertained and identified under known and visible lines or boundaries, could have ripened into.a title against the State. Where the title was out of the State, and in an individual, the act of 1715 had declared that an adverse possession for seven years should bar the right of entry under such title. The obvious policy of the act of 1791, was to favor persons who took actual possession of lands under known and visible boundaries, and remained in such possession for twenty-oné years. It certainly could not have been the intention of the Legislature, to confirm the titles of those who claimed lands under some one or other of the titles mentioned in the act, and who had been only constructively, not actually possessed of the lands for twenty-one years.

As to the second question made in this case, it is to be observed, that when Sampson sold a part of the lands covered by tine Sheriff’s deed to him, and the purchaser took actual possession of such part, that possession extended to the limits of the lands so purchased, and no further. The purchaser had no more right to the possession of the residue of the lands, (the title to which still remained in Sampson,) than Sampson had to the possession of the land he had sold. They were two distinct tracts, held by different persons, in different rights. It is not. like the case of one person holding possession on behalf of and under the title of another. If the person had not purchased, but taken possession of a part of the tract in the name of the whole, for and on behalf of Sampson, and by his permission, that would have been Sampson’s possession. The rule for a new trial must be discharged.