Walden v. . Ray , 121 N.C. 237 ( 1897 )

This is an action, in the nature of ejectment, for the recovery of land. The plaintiffs claim through the feme plaintiff, whose ancestor went upon the land fifty years ago. The land appears to have been in the uninterrupted adverse possession of the plaintiffs and those through whom they claim, for more than twenty years, and, with a slight interruption, for more than thirty years. No paper title was shown by the plaintiffs. The defendant claims under a tax title. The issues submitted were as follows: "(1) Is the plaintiff the owner of the land described in the complaint? (2) Is the defendant N.W. Ray wrongfully in possession thereof? (3) What damage is plaintiff entitled to recover from the defendant N.W. Ray?" The jury answered the first issue in the negative, and consequently did not answer the two remaining.

There are several exceptions, only one of which it becomes necessary to consider. (238)

Among other things, the court charged that, "To prove title by possession simply, plaintiff must prove by a greater weight of testimony that she and those under whom she claims have been in the quiet, open and continuous possession, without break, for thirty years before the bringing of this action." This was clearly error, as only twenty years' adverse possession is required to give a title in fee to the possessor as against all persons not under disability. Code, sec. 144. Thirty years' adverse possession is necessary only to bar the State, and this need not be continuous, nor need there be any connection between the tenants. Code, sec. 139; Fitzrandolph v. Norman, 4 N.C. 564; Candler v. Lunsford,20 N.C. 407; Reed v. Earnhart, 32 N.C. 516; Davis v. McArthur,78 N.C. 357; Cowles v. Hall, 90 N.C. 330; Mallett v. Simpson, 94 N.C. 37;Bryan v. Spivey, 109 N.C. 57; Hamilton v. Icard, 114 N.C. 532.

This is the practically uniform current of authority, both before and after the adoption of the Code of Civil Procedure. For this misdirection of the jury a new trial must be ordered.

New trial.

Cited: Lewis v. Overby, 126 N.C. 351; Brinkley v. Smith, 131 N.C. 132.