Sessoms v. McDonald

75 S.E.2d 904 (1953) 237 N.C. 720

SESSOMS et al.
v.
McDONALD et al.

No. 678.

Supreme Court of North Carolina.

May 20, 1953.

Thomas H. Williams, Fayetteville, and Taylor & Mitchell, Raleigh, for plaintiff, appellees.

Charles G. Rose, Jr., Fayetteville, for defendant, appellants.

PARKER, Justice.

The sole question presented for decision is whether there was sufficient evidence to carry the case to the jury that the plaintiffs have ripened title to Lot 51 by twenty years adverse possession under known and visible lines and boundaries. G. S. § 1-40; Johnson v. Fry, 195 N.C. 832, 143 S.E. 857. There is no evidence that any one was under any disability.

The State not being a party to the action, the title is conclusively presumed to be out of the State. G.S. § 1-36.

One issue was submitted to the jury: "Are the plaintiffs the owners and entitled to possession of the property described in the complaint?", to which they responded Yes.

A very clear and concise definition of adverse possession is given in Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665, 666 as follows: "To constitute adverse possession the possession must have been actual, open, continuous, and denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible", citing authorities.

This Court has also said in Vance v. Guy, 223 N.C. 409 at page 413, 27 S.E.2d 117, 120 "the possession must be continuous, though not necessarily unceasing, for the statutory period, and of such character as to subject the property to the only use of which it is susceptible." Citing Locklear v. Savage, 159 N.C. 236, 74 S.E. 347; Davis v. Federal Land Bank, 219 N.C. 248, 13 S.E.2d 417. However, occasional acts of ownership, no matter how adverse, do not constitute a possession that will mature title. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851.

The plaintiffs unregistered deed does not prevent their setting up adverse possession for twenty years to Lot 51. Johnson v. Fry, supra; Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899.

The plaintiffs rely upon adverse possession alone without color of title. Title acquired under such circumstances is confined to the lands actually occupied. "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." Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748, 749. Citing many authorities.

In ruling on a motion for nonsuit the Court does not pass on the credibility of the witnesses or the weight of the testimony—that is for the jury. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Contradictions in the plaintiff's evidence do not justify a nonsuit. Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791. "When the defendant moves for a compulsory nonsuit, he admits, for the purpose of the motion, the truth of all facts in evidence tending to sustain the plaintiff's claim; and the plaintiff is entitled to have the court, in ruling on the motion, to give him the benefit of every favorable inference which the testimony fairly supports." Graham v. North Carolina Butane Gas. Co., 231 N.C. 680, 58 S.E.2d 757, 760, 17 A.L.R.2d 881.

The deed from W. A. Vanstory and wife to the plaintiffs is good as between the parties to the deed. Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849. The inference seems to be irresistible that whatever use the plaintiffs made of Lot 51, they did it with intent to hold this Lot solely for themselves to the exclusion of all others, and that such use was made in the character of owners, in opposition to the right or claim of any other person, and not merely as occasional trespassers.

Frank Sessoms listed Lot 51 for taxes every year. He had tax receipts on this Lot to cover the years 1937 to 1951, both inclusive, except the years 1943, 1945, 1947 and 1950. He had tax receipts prior to 1937, but his wife lost them. The listing and payment of taxes on Lot 51 by Frank Sessoms, while not sufficient by themselves to show adverse possession are relevant facts in connection with the other circumstances as tending to show a claim of title. Perry v. Alford, supra.

Upon receipt of their unregistered deed on September 21, 1929 Frank Sessoms ploughed Lot 51, and he and his wife tended all of it as a garden until 1935, when he and his wife separated; Frank Sessoms used it as a garden until 1940 or 1941; Simpson and Rhone, with Frank Sessoms' permission, used it as a garden in 1943, 1944, 1945 and 1946. Hardy Rhone testified there was a garden on Lot 51 every year—it was cultivated somewhat every year, just about like city folks do. In 1931 Frank Sessons planted fruit trees on this Lot, which stayed there 10 or 12 years. In 1931 Frank Sessoms put a fence around all of Lot 51 and his other two adjacent Lots, which stayed there 8 or 9 years. In 1938 or 1939 or 1944 he had cotton seed moult put on the Lot. In 1944 he put piles of dirt on the Lot to build up the rear where it was low. These piles remained until Alec Mc-Donald levelled them with a bulldozer in 1952 to move his house on the Lot. Frank Sessoms' tenant cut a ditch on Lot 51 after the dirt was piled on this Lot to keep the water off of Lot 49 where the tenant lived. This ditch remained open until Alec Mc-Donald moved on the Lot. The tenant, Simpson, kept his car on Lot 51; grazed his cow on it each fall; and part of his smokehouse is still on it. Lot 51 never grew up in small trees. There has been no break in continuous possession.

When the dirt in 1944 was piled on Lot 51 to the extent that a bulldozer levelled it, it is obvious all of the Lot could not be planted as a garden.

Considering the size of this Lot— 40.1 feet wide and 140 feet deep—it seems to us that giving to the plaintiffs every favorable inference which the testimony fairly supports that from September 21, 1929 until the defendant appellants moved on this Lot in 1952, the plaintiffs actually occupied all of Lot 51 with intent to hold it solely as possessors to the exclusion of all others; that they exercised acts of dominion over this Lot in making the ordinary use and taking the ordinary profits of which this small city lot was susceptible in its condition, and that such acts were so repeated as to show that they were done in the character of owners, in opposition to the right or claim of any other person and not merely as occasional trespassers.

The facts in this case are far different from the cases relied upon by the defendant appellants, which are cases of "occasional acts of ownership" or a break in the continuity of possession.

The Court below was correct in overruling the motions for judgment of nonsuit.

The only other assignment of error by the defendant appellants is to the signing of the judgment., which is overruled.

Under a charge that is not brought forward, and is deemed to be correct, the jury, the sole judges of the credibility of the witnesses and the weight of the testimony, have answered the issue in favor of the plaintiffs, by which verdict the defendant appellants must abide.

In the trial we find

No error.