Newsom v. Kinnamon, 60 N.C. 99, 1 Win. 99 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 99, 1 Win. 99

THOMAS T. NEWSOM v. SAMUEL KINNAMON.

Where A owned a tract of latid in the 'form of a parallelogram, of which he had an actual possession on one end and severed the two ends by selling a piece from the middle, and at the .end of 22 years he conveyed the southern end to J3, who continued the possession until the possession of the whole extended beyond thirty years, and then conveyed the northern end by a separate deed, but had no actual occupation o'f that end, it was held that holding it thus for more than thirty years; was not sufficient to authorise the presumption of a grant to this northern end.

Trespasss Q. C. E. tried, before IíowARb, J., at Fall Term, 1861, of Forsyth Superior Court.

The plaintiff offered in evidence a State grant for the tract E, F, O, D, covering the locus in quo, dated in December, 1S59, the defendant admitted the trespass by clearing one acre of the land, included within the boundary of the said grant since the issuing thereof.

The defendant read in evidence a deed from one Ashman to one Matthews, dated in 1823, for the whole tract, A, B, C, D ; also-a deed from Matthews to J. Newsom for the same. The said Ashman and Matthews had actual possession of the southern end of this tract. In 1834, J. Newsom convoyed to-one Johnson the land contained in the diagram-. G, II, E, E,. and Johnson, in 1840, convejmd the'same to-the plaintiff.. The said J. Newsom, in 1845, conveyed the southern end of the land, A, B, II, Gi to- the defendant, and in 1846, he conveyed the northern end E, F, O, D;.to-him, the defendant also. The several deeds, evidencing these- transfers,, were produced and read- in evidence.. Ashman,. Matthews- and the defendant continued the- actual, possession- of the- southern end of the-land, described';,, for more-than, thirty years continuously, but there was no actual occupation of the northern part, E, F, C, D, until the entry of the defendant, and' clearing the-one acre, as above described, for which- this suit is brought, it. being in forrest.

Upon this state of the facts, his Honor instructed the jury, that the plaintiff was entitled to- recover. Defendant’s counsel excepted. Merdict and judgment for the plaintiff, and-appeal by the defendant.

Gorrell, for the-plaintiff.

Gilmer and Stovrbuehy for the- defendant.

PeaRSON-, C. J.

"We concur with his Honor that upon the facts stated, the plaintiff was entitled to recover. In 1834, J. Newsom, under the deed of Matthews, having actual possession of the southern- part of the tract, had possession of the whole. He then-conveyed the middle part to Johnson, cutting the tract in. two, so as completely to separate the-southern part where his possession was, from the northern, part.. From the view we take of the case, it is not necessary to decide, whether the fact of his thus separating the two parts, had the effect of confining his- possession to the southern part, or whether he would still, be considered as being also in possession of the northern part by force of the deed of' Newsom; for, suppose-he-was still in. possession of both, parts, in 1845, he conveyed the southern part to the defendant, and no longer had any actual possession, so that he then had no ground on which to claim to be in possession of the northern part, unless he had title from which a possession would be inferred, and the case is narrowed to this : did he, in 1845., have title to the northern part?

The deed from Ashman to Matthews was Sn 1823, and a continued possession under that deed up to 1845, would only ■make twenty-two years, which is not long enough to presume a grant. So the title was still in the State. In Reid v. Earnhart, 10 Ired. 516, it is said “ In England, a possession of sixty years is required, but the necessity ef the rule and its manifest good policy in a new settled country, induced our courts to shorten the time, and by successive decisions it has been reduced to 50, 40, 30 years, and an intimation is -made that it might be supported by 25 years.” Thus it is seen that twenty-two years is not long enough. As in 1845, J. Newsom had no title to the northern part, and had conveyed away the middle and southern parts, he had no possession whatever, and the effect of his making a deed to the defendant for the northern part in 184(3, conld, on no principle, extend the possession of the defendant in the southern part, which he held under the deed of 1845, so as to put him in possession of the northern part, which he claimed under the deed of 1846, because he claimed under two distinct deeds, and had no actual possession of the northern part, the title to which, was in the State, and there was, consequently, nothing to divest the title out of the State .until 1859, when the plaintiff obtained a grant.

There is np error.

P.Í5TB GuRJAM, Judgment affirmed.