Hedrick v. . Gobble , 61 N.C. 348 ( 1867 )

The plaintiff claimed under a grant from the State made in 1858.

The defendant claimed under a deed from his father made in 1830, and the latter under a deed from one Millsaps made in 1805; and Millsaps had received a grant from the State in 1783. Whether the locus in quo was covered by the grant of 1783 was not clear, but it was covered by the deeds of 1805 and 1830 (which extended the boundaries of that grant), and also by the grant of 1858. The defendant had long been in actual possession of the land clearly covered by the grant of 1783, but of the lappage he had had possession only for a short time before this suit was brought.

In one aspect of the case his Honor instructed the jury, that if they found that the mesne conveyances covered the land in controversy with known and visible boundaries (though the grant of 1783 might not), and that from 1805 until 1858 (the date of the last grant) the defendant and his father had had continued actual possession of a part of the land, claiming the whole up to said boundaries, although such part was common to both the mesne conveyances and the Millsaps grant, the plaintiff was not entitled to recover.

Verdict for the defendant; rule for a new trial; rule discharged; judgment and appeal by the plaintiff. The defendant never had such a possession of the locus in quo as exposed him to an action by the State, and therefore the lapse of time has not divested its title. Williams v. Buchanan, 1 Ire., 535; Fitzrandolph v.Norman, N.C. T. R., 131; Graham v. Houston, 4 Dev., 232; Pace v. Shelton, 4 Ire., 32. The defendant seeks to justify the trespass alleged in the declaration, upon the ground that he had acquired title to the locus in quo under the act of 1791, Rev. Code, ch. 65, sec. 2. That act makes a possession of twenty-one years under a color of title, under known and visible lines or boundaries, a bar to the State. All the cases show that the possession spoken of must be constituted by such acts as would expose the party to a suit by the State, or by some person claiming under the State; for it is the forbearance to sue that raises such a presumption of right as induced the Legislature to ratify the apparent title. The same rule holds with regard to the possession for seven years under color of title, which bars the claims of an individual — Revised Code, ch. 65, sec. 1. It is for this reason that if two grantee or deeds lap, the adverse possession for seven years of the junior grantee or bargainee, who has not taken actual possession of the lapped part of the land, cannot give him any right to that part against the elder grantee or bargainee; see Smith v. Ingram, 7 Ire., 175, and other cases in Battle's Digest under the title of Ejectment — of the title necessary to support the action. Analogous to this is the case of the State before it has made any grant, and a person who has taken a deed for a parcel of vacant land from another person, but has not entered into possession. The opposing claims of the State and the bargainee may be said to lap, but the possession will be that of the State, until the bargainee makes an actual entry and takes possession of the land; until he does that (350) the State cannot sue him, and therefore no length of time, though there may be visible lines or boundaries, can give him a title against the State.

In the present case, the defendant held a rightful possession under the title derived from the grant to Millsaps, but he never took possession of any part of the land outside of the bounds of that grant and within those of the deed from Millsaps to his father, and therefore the possession of the State to such part was never divested before it made the grant to the plaintiff.

Upon the facts proved, the plaintiff was, in our opinion, entitled to recover, and his Honor erred in not so instructing the jury.

PER CURIAM. Judgment reversed and venire de novo.