Williams v. . Wallace , 78 N.C. 354 ( 1878 )

This is a plain case for defendants. It is admitted that the title of the locus in quo was in the defendant Sallie Wallace in 1844. It is immaterial what has become of her title since, unless the plaintiff has connected himself with it. This he has not done, but, on the contrary, he claims under the deed of one Seth Davis, who purported to sell the land as administrator of one J. P. Davis by deed dated 28 September, 1857. This title was therefore a defective one, and could ripen into a good one by an adverse possession of seven years only.

But as the action was begun on 4 February, 1874, after eliminating the time during which the running of the statute of limitations was suspended, only six years and nine months had elapsed before the commencement of the action, so the title was not perfect in this way. But no length of constructive possession will ripen a defective title into a good one. To have this effect the possession must be actual and continuous.

This action, therefore, can only be maintained upon the possession of the plaintiff. If he has failed to show an actual occupation (356) by himself, the law adjudges the possession to be constructively with the title, that is, with the defendant Sallie Wallace and those deriving title under her.

When there is no actual occupation shown, the law carries the possession of the real title. So it is immaterial in this view whether the defendants had the actual possession or not.

The question then is, whether the plaintiff, having only a defective title, had been for seven years in the actual occupation of the premises at the commencement of the action. Cohoon v. Simmons, 29 N.C. 189; McCormickv. Monroe, 46 N.C. 13. About this there can be no doubt.

No witness proves that the plaintiff or those under whom he claims had been in the actual possession of the lands in dispute for a year, a month, or a week continuously, prior to the commencement of the action. From 1857, the date of the deed under which the plaintiff claims, to 1873, when the action was instituted, a period of sixteen years, only a few single acts of trespass were proved, such as cutting ton timber at one time, firewood at another, making rails at another, making bricks at still another, all occasional and at long intervals, unaccompanied by a continuous possession of public notoriety, such as the law requires to be given to the world that the plaintiff is not a mere trespasser, but claims title to the land against all mankind.

A possession under color of title must be taken by a man himself, his servants, or tenants, and by him or them continued for seven years together.

The acts constituting this possession should be such "as to admit of no other construction than this, that the possessor means to claim the land as his own. In order to make this notorious in the county, he must also continue in possession for seven years. Occasional entries upon the land will not serve, for they may either be not observed, (357) or, if observed, may not be considered as the assertion of rights." Grant v. Winborne, 3 N.C. 56; Loftin v. Cobb, 46 N.C. 406;Andrews v. Mulford, 2 N.C. 311; Bynum v. Carter, 26 N.C. 310;Bartlett v. Simmons, 49 N.C. 295.

The plaintiff having wholly failed to establish such a possession as would entitle him to maintain the action, it is unnecessary to notice the title of the defendants.

PER CURIAM. Affirmed.

Cited: Kitchen v. Wilson, 80 N.C. 197; Gudger v. Hensley, 82 N.C. 483;Scott v. Elkins, 83 N.C. 427; Simmons v. Ballard, 102 N.C. 111;Ruffin v. Overby, 105 N.C. 86; McLean v. Smith, 106 N.C. 178; Cox v.Ward, 107 N.C. 512; S. v. Boyce, 109 N.C. 756; Cooper v. Axley,114 N.C. 646; McLean v. Smith, ib., 365, 366; Hamilton v. Icard, ib., 536, 537; Woodlief v. Wester, 136 N.C. 166.