McAllister v. . Devane , 76 N.C. 57 ( 1877 )

His Honor put the case upon the true point, and in that way reduced it to very narrow limits. We also commended the counsel of the plaintiff for abandoning several points taken in the excitement of the trial in the Court below, which upon reflection he became satisfied were untenable; a course of that kind, if pursued by the members of the bar in all cases would greatly relieve the members of this Court — indeed it has almost become a necessity by reason of the voluminous records that are sent up.

The "locus in quo" is a mill and a few acres of land appurtenant thereto. It is agreed that the 70 acre tract under which the defendant derives title, covers it, and it is assumed according to the view taken of the case by His Honor, that the 33 acre tract under which the plaintiff derives title covers it also — so as to make a case of "lappage" as it is termed in the books.

No exception is taken to the correctness of the rules laid down by His Honor in respect to the doctrine of lappage; but plaintiff's counsel excepts.

1. Because His Honor withdrew the case from the jury and decided it himself. This was right provided there was nothing which called for the action of a jury. That is the question. The 70 acre grant is older than the 33 acre grant, and in case of a lap, the law considers the party having the better title to be in possession; unless the party having the junior grant be in the actual possession. So without any inquiry as to the actual possession on the side of the defendant, it is sufficient for him to rely upon possession in law, incident to his title, and it is for the plaintiff to show how the title of defendant has been divested, and how it has been passed over to his side.

There was no evidence fit to be left to a jury of a possession by any one on plaintiff's side, since 1815, about which time the old mill was burnt, and there was no evidence of any adverse possession before that time by the McAllisters; they only claimed one-half of the mill and its appurtenances as tenants in common with defendant's side.

Had the defendant been driven to the necessity of showing actual possession on his side, although the evidence was plenary that actual possession had been held by the defendant's side from the date of the building of the new mill and "hitherto up to the commencement of the action," still that would have been an issue of fact which His Honor ought to have submitted to the jury with instructions that if they believe the witnesses the defendant had proved, c., and if they did not believe the witnesses then the defendant had failed to prove an actual possession. The reply is, the laboring oar was on the plaintiff.

2. The deed executed by the side of plaintiff, and accepted by the side of defendant, to-wit; the deed of the executors of McAllister, created an estoppel upon the side of the defendant and having accepted title under the plaintiff, the title of the defendant cannot be set up in opposition thereto.

The reply is, at the date of the execution of this deed the defendant's side was in possession under the elder and better title and accepted this deed as a release of a right operating by way of extinguishment of any claim of the plaintiff's side to the one-half of the mill and its appurtenances which was not intended, and could not have the legal effect of impairing the title of the defendant, but was made in aid thereof and by way of removing all clouds. When one in possession under a claim of title accepts a release of the right of one having an adverse claim he does notcome into possession under the release, and it works no estoppel, but is looked upon in its legal effect as what is called a "quit claim deed."

3. The deed of the executors of McAllister only conveys the mill and certain easements to which the land is servient, to-wit; the short road from the mill to the Raleigh road, and the privilege of taking dirt to repair the dam; reply, the defendant stood in no need of this deed in regard to the land, and in taking it simply extinguished the plaintiff's dominant right to these easements under which his land was servient by the original agreement, to build the mill on equal shares.

No error.

PER CURIAM. Judgment affirmed.