Doe on the Demise of Borden v. Bell, 53 N.C. 294, 8 Jones 294 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 294, 8 Jones 294

Doe on the demise of LUCRETIA BORDEN v. WILLIAM F. BELL.

Where one rented a plantation- for a year, and having joined the fences of another planiation, owned by him, to the fences of the rented place, and then at the end of the year, quit without removing the fence, placed there, and after five years entered again, it was held that he was no.t entitled to notice to quit, before bringing suit against him.

Action of ejectment, tried before Bailey, J., at Pall Term, 1860, of Carteret Superior Court.

The land, in dispute, is comprised within the lines E, C, D-, F, on the west side .of Rocky Run; (see diagram.) The defendant had purchased from Barclay Borden a tract of land, called the Deer Neck Plantation, A, B., E, G, which he, for a while, contended ran across Rocky run and embraced the disputed land, but afterwards, he, in 1852, rented the land E, C, D, F, from the guardian of the plaintiff’s lessor, Lucretia, the heir-at-law of the said Barclay Borden. While in this occupation, he extended the fences of the Deer neck tract across Rocky run, and joined them to the fences of the disputed land. He quitted the possession of the land in question, at the end of 1852, but left the fences, as above stated, extending across the run, in which situation they remained until 1858, when he took possession again, and held it until he was sued by the plaintiff in that year. The plaintiff’s title to the land, in question, was established, and the question was, whether there was such a tenancy of the disputed land, as entitled the defendant to a notice to quit, before a suit could ’be brought. The Court'charged the jury, tha'tlhere was not-, ‘-and defendant 'excepted-.

Yferdict and judgment for the plaintiff. Appeal by the defendant.

Hubbard and Green, for the plaintiff.

Ha/ughton, J. W. Bryan and Henry G. Jone'for def’t.

Manly, J.

The only question which seems to be presented by this record is, whether there was a tenancy of the disputed 'land, on the part of the defendant, which entitled him -to notice before'suit. We Concur Yith the Court below, that there was not.

It seems the laúd was rented to defendant in 1852. After ’that, it does not appear whether it was occupied until 1858, 'when it was taken ipossession of by the defendant. The defendant’s fence, in 1852, extended ‘across Rocky run upon •the land, in dispute, and joined the fence on that side, and so 'continued from that time to 1858.

■From the facts stated, we-assume that the land, -in dispute, 'was not occupied from 1852 to 1858 by any tenant, but the ‘defendant’s fence was left extended across the run as in the ’former year, and the question is, what effect had this fence up'on the relations and rights of the parties. We do not perceive that'it had any. The -superior title being in the plaintiff’s ‘lessor, she was in constructive possession of the land and fence until 1858, when defendant again entered -and exposed himself to an action. There was no tenancy of the land, by defendant, after 1852, and the Court properly declined giving any instructions upon that supposition.

Per Curiam,

Judgment affirmed.