Doe on demise of Orbison v. Morrison, 8 N.C. 467, 1 Hawks 467 (1821)

Dec. 1821 · Supreme Court of North Carolina

8 N.C. 467, 1 Hawks 467

Doe on demise of Orbison, v. Morrison.

1-From Iredell.

Where a part of a tract of land is included in A’s deed or patent, and the same part is also included in B’s deed or patent, and each grantee is settled upon that part of the land comprised in his deed or patent, although not included in both deeds, the possession of the part included in both deeds, is in him whose deed or patent is the elder ; but if one of them is actually settled for seven years-together, upon the part comprehended in both deeds, the possession is his, and the other will be barred thereby.

Ejectment. The Plaintiff’s lessor claimed title to the land under a grant, dated 21st May, 1791, and proved that Defendant was in possession. Defendant claimed title by two grants, bearing date respectively in 1801 and 1809, and proved that he took possession by building a house on one tract and living therein, and by clearing a field on the other tract in October, 1808 $ that he had retained the possession ever since, and that in both cases liis possession was, upon the land, covered by Plaintiff’s grant. The Plaintiff never had actual possession of that part covered by Defendant’s grants but proved that in May, 1815, before Defendant had held the possession seven years, Plaintiff procured a surveyor to run the lines of his grant, and when they came to the Defendant’s lines, he forbade them to proceed, and at that time the Plaintiff being on the land in dispute, claimed it as his: afterwards, in February, 1816, Plaintiff again being on the land, and in presence of the Defendant, claimed it. The suit was commenced in August, 1818. The Court below instructed the Jury, that as to Defendant’s possession, it would give him title, not only to that part of his grants in actual possession, but also to all. the land included within the boundaries of his grants, unless controlled by the Plaintiff’s claim upon the. land : and that if they believed such claim was made, it was such an entry and claim of the Plaintiff as prevented the operation of the statute of limitation, and the Plaintiff was entitled to recover. Verdict for the p]ajnt¡ff. new trial refused ; judgment, and appeal.

Tayjlor, Chief-Justice,

delivered the opinion of the Court:

The laud in controversy is within the boundaries, both of the Plaintiff’s grant, and of the two grants of the Defendant. The latter, however, are younger grants, and the Defendant has been in possession, under them, for seven years. Á question is therefore presented, which rnay be considered settled by very many adjudications, and which it would be dangerous now to disturb, since it is familiar to the profession, and has become a rule of property under which many titles are held. A long train of decisions, with very few to the contrary, has fixed the principle, that where part of a tract is included in A’s deed or patent, and the same part is also included in B’s deed or patent, and each grantee is settled upon that part of the land comprised in his deed or patent, although not included in both deeds, the possession of the part included in both deeds, is in him whose deed or patent is the oldest: but if one of them, as in this case, is actually settled for seven years together upon the part comprehended in both deeds, the possession is his, and the other will be barred thereby. The entry made by the Plaintiff, was in 1815 $ but the suit was not brought till 1818 ; it cannot, therefore, interfere with the Defendant’s possession. The statute of 4 and 5 Anne, c. 16, was in force in England when the act of 1715 was passed here, which was in the 2nd George 1; and the latter act enforces all statute laws made for the limitation of actions, and preventing vexatious law suits. And according to the statute of Anne, there must be an action -commenced within one year after the making such entry and claim, and prosecuted with effect, otherwise it is of no force to avoid the statute. There must be a new trial.