Doe on Dem. of McLenan v. Chisholm

The plaintiff claimed under a chain of title, beginning with a grant from the State in 1825. In order to show title out of the plaintiff, the defendant offered in evidence, an abstract (324) of a grant from the State, in the following terms: "Sampson Williams 300 acres, Anson, on Mountain Creek, beginning at a pine [then tracing the boundaries,] May 24th 1773. (Signed) Jo Martin."

The plaintiff objected, and the Court excluded it.

It is not necessary to report the other facts in the case.

The plaintiff had a verdict; Rule, etc.; Judgment and Appeal. His Honor erred in rejecting "the abstract of a grant" (Exhibit A.), which was offered by the defendant. From the abstract it appears, with the requisite certainty, that Sampson Williams was the grantee, Gov. Martin the grantor, the three hundred acres of land therein described, the subject of the grant, and that a grant was executed, May 24th 1773. This is settled:Clarke v. Diggs, 28 N.C. 159; Candler v. Lunsford, 20 N.C. 19.

It is said, in the argument, that this error did not affect the defendant's case, as he failed to connect his title with the Williams grant. There is no telling how far the defendant's case was affected by this error. Where there is error, its immateriality must clearly appear on the face of the record, in order to warrant this court in treating it as surplusage. In order to ripen his title by adverse possession, a party need not connect it with the original grant. That may be offered simply to show title out of the State, in (325) which case seven years adverse possession under color of title, will ripen it; Whereas, a much longer time is required, if title out of the State be not shown: Reid v. Earnhardt,32 N.C. 516.

It is not necessary to enter further into the case. There is error.

Per curiam.

Venire de novo.

Cited: Tolson v. Mainor, 85 N.C. 238; Strickland v. Draughan,88 N.C. 319; Aycock v. R. R., 89 N.C. 324; Marshall v. Corbett,137 N.C. 557; Bryant v. Bryant, 178 N.C. 81; Stanley v. Lumber Co.,184 N.C. 306; S. v. McLeod, 196 N.C. 546.