Doe on dem. of Kerr v. Elliott, 61 N.C. 601, 1 Phil. 601 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 601, 1 Phil. 601

Doe on dem. of JAMES M. KERR v. R. W. ELLIOTT.

If the person who claims under the elder title, have no actual possession of a lappage, such possession, although for a part only, by him who has the junior title continued for seven years, will confer a valid title for the whole.

Ejectment, tried, before Mitchell, J., at December (Special) Term 1867 of the Superior Court of Mecklenburg.

The elder title to the land in dispute was in the'plain tiff; and the land was a lappage between 7ns’southern line (DS E) and the northern line (N 0) of the defendant. In 1842 one Orr, who then claimed the tract now owned by the defendant, conveyed it to one Frazier -by a deed which covered the lappage', and on the 11th of December 1848 the defendant purchased the tract (with the same extent) of Frazier, taking at first a bond for the title, and-in 1852 a conveyance.

On the plats'[used in the trial below] immediately north of D S E, were dots representing a narrow space of cleared ground adjoining D S E. Two witnesses who were called for the defendant testified that they were not certain, to their own knowledge, of the location of the line D S E, but that the defendant as soon as he purchased, viz. in December 1848, took possession immediately north of the cleared ground, that this possession was continued and extended north to and along the line N 0 before the commencement of this suit.

The court instructed the jury that if tire evidence of these witnesses was believed by them, the defendant was entitled to a verdict; and there was a verdict accordingly.

Rule for a New Trial “on the ground that the two witnesses did not know with certainty the location of the said line D S E, and that their evidence did not with sufficient certainty locate the commencement of the defendant’s possession.” Rule discharged; Judgment, and Appeal by the plain tiff.

Osborne and Boyden, for the appellant.

J. H. Wilson, contra.

Pearson, C. J.

The survey shows that the cleared ground as indicated by “the dots” was north and inside of the line of the defendant D S E and that the defendant, as soon as he purchased, in December 1848, took possession immediately north of the cleared ground, and this possession, according to the evidence, was continued and extended from time to time, north to the line N O. .

So the defendant ever since December 1848 has had a possession inside of the lappage which exposed him to an action; and consequently ripened his title after seven years adverse possession under the deed. The fact that he from time to time extended his possession, that is took in more land, does not at all affect the question; and the matter is too plain to admit of discussion.

There is no error.

Per Curiam. Judgment affirmed.