McMillan v. . Gambill , 106 N.C. 359 ( 1890 )

The formation of the county of Ashe, in the year 1800, did not destroy the validity of an entry covering land within the boundaries of said county, but made in the entry-taker's office of Wilkes County in 1798, and surveyed by virtue of a warrant issuing from said office in 1799; nor is a grant that issued for said land upon said survey and entry in January, 1801, void. The grant was admissible, and was sufficient, if located so as to include within its boundaries the disputed land (as to which there was no controversy), to show the title out of the State.

His Honor refused to charge the jury that a deed made by the administrator of Martin Gambill was void for all purposes, and, upon his refusal, rests the only remaining exception. Being a deed in form, it purported to pass the fee, and was unquestionably color of title.Ellington v. Ellington, 103 N.C. 54; Avent v. Arrington,105 N.C. 377. The jury were properly instructed that, (362) though it was shown that the State had issued a grant to Martin Gambill for the land in controversy, the plaintiff must have shown continuous adverse possession, exclusive of the time elapsing between 20 May, 1861, and 1 January, 1870, under the deed from the administrator, in order to entitle him to recover the land against the defendant, who was tenant in common with him. Page v. Branch, 97 N.C. 97; Breeden v. McLaurin, 98 N.C. 307: The exception raises only the question whether the deed was available as color of title to ripen the plaintiff's possession, if undisturbed, open, continuous and adverse for twenty years.

His Honor was not put on notice to send up all of the testimony bearing upon the length of the occupancy by plaintiff under his deed, and the defendant will not be allowed, under the rules, and the construction given to the law by this Court, to raise the question here for the first time, that there was not sufficient evidence to go to the jury to prove such possession. McKinnon v. Morrison, 104 N.C. 354.

There is no error.

Affirmed.

Cited: Long v. Rankin, 108 N.C. 337; S. v. Harris, 120 N.C. 578;Wyman v. Taylor, 124 N.C. 432.