Carswell v. Town of Morganton

72 S.E.2d 748 (1952) 236 N.C. 375

CARSWELL
v.
TOWN OF MORGANTON.

No. 313.

Supreme Court of North Carolina.

October 29, 1952.

Mull, Patton & Craven, Morganton, for plaintiff, appellant.

John H. McMurray, Morganton, for defendant, appellee.

ERVIN, Justice.

This question arises at the threshold of the appeal: Does the plaintiff's evidence suffice to show that his supposed predecessor, Joel Walker, acting through tenants, acquired title to all the land embraced within the boundaries of the tracts in controversy by twenty years adverse possession under known and visible lines and boundaries within the purview of the statute codified as G.S. § 1-40?

This question must be answered in the negative for the very simple reason that there can be no constructive possession by one holding land adversely unless he holds under color of title.

An adverse possessor of land without color of title can not acquire title to any greater amount of land than that which he has actually occupied for the statutory period. Georgia-Carolina Land & Timber Co. v. Potter, 189 N.C. 56, 127 S.E. 343; Rhodes v. Ange, 173 N.C. 25, 91 S.E. 356; Anderson v. Meadows, 162 N.C. 400, 78 S.E. 279; May v. Manufacturing & Trading Co., 164 N.C. 262, 80 S.E. 380; Berryman v. Kelly, 35 N.C. 269; 2 C.J.S., Adverse Possession, § 181. He cannot enlarge his rights beyond the limits of his actual possession by a claim of title to other land abutting that which he actually occupies, even though such other land may be defined by marked boundaries. Logan v. Fitzgerald, 87 N.C. 308; Bynum v. Thompson, 25 N.C. 578.

The reason for the rule restricting one who holds adversely without color of title to the amount of land actually occupied by him was well stated by that great jurist, Chief Justice Ruffin, more than a century ago. He said: "But the question is, what is possession for that purpose? Plainly, it must be actual possession and enjoyment. It is true, indeed, that if one enters into land under a deed or will, the entry is into the whole tract described in the conveyance, prima facie, and is so deemed in reality, unless some other person has possession of a part, either actually or by virtue of the title. But when one enters on land, without any conveyance, or other thing, to show what he claims, how can the possession by any presumption or implication be extended beyond his occupation de facto? To allow him to say that he claims to certain boundaries beyond his occupation, and by construction to hold his possession to be commensurate with the claim, would be to hold the ouster of the owner without giving him an action therefor. One cannot thus make in himself a possession, contrary to the fact." Bynum v. Thompson, supra.

Inasmuch as Joel Walker had no color of title to the two tracts, his claim to ownership of the 100 acres included within their outer boundaries did not extend his possession or his rights an inch beyond the dwelling and the curtilage actually occupied by his tenants and the 15 or 20 acres actually cultivated by them. As a consequence, the plaintiff's evidence is insufficient to establish possession by Joel Walker's tenants of all the land involved in this action for the statutory period. Indeed, the testimony does not warrant a verdict that Joel Walker acquired title by adverse possession to the parts of the land actually occupied by his tenants. This is so because the evidence does not describe, identify, or locate these parts of the property as definite areas of land. Wainwright v. Marbury Lumber Co., 206 Ala. 559, 90 So. 315; Maney v. Dennison, 110 Ark. 571, 163 S.W. 783; Weston v. Morgan, 162 S.C. 177, 160 S.E. 436. The defective state of the testimony in this respect is undoubtedly due to changes made on the land by the passing years.

These considerations show that the allowance of the motion for a compulsory nonsuit was proper. For this reason, we do not rule on the question whether Caroline Walker took a fee or a life estate in any real property which may have passed to her under this clause of the will: "In fact I bequeath unto her all of my real estate that is in this County."

The judgment dismissing the action upon an involuntary nonsuit is

Affirmed.