Kennedy v. . Maness , 138 N.C. 35 ( 1905 )

This was an action to recover 216 acres of land lying in one body, but in four separate tracts. The defendants answered, denying the plaintiff's title; an issue was submitted as to title of each defendant in his respective tract. The plaintiffs recovered judgment except as to the 6 acres of which the defendant T. W. Maness was adjudged owner, and another tract of 57 acres, with respect to which last the court below granted a new trial. Upon the trial it appeared that Thomas W. Maness was in possession of the 6 acres claimed by him, and was not in possession. of any other part of said lands. To this he claimed title by continuous adverse possession. He introduced a deed dated 15 February, 1875, from Elias Maness, under whom the plaintiffs claim by virtue ofmesne conveyances from the purchaser at a foreclosure sale under a mortgage executed by said Elias Maness, 22 May, 1878. The aforesaid conveyance from Elias to Thomas W. Maness described the property as follows: "Beginning at a white oak, running south of west 33 rods to a stake; thence east of south 33 rods to a stake; thence west of north 33 rods to the beginning, containing 6 acres, more or less." It was in evidence that the defendant had lived on the said 6 acres since 1875; that this 6-acre tract was surveyed for Elias that he might make said conveyance to his son (Thomas); that there are lines around the 6 acres; that there is a public road on one side; that through the woods part there is a chopped line; that at the beginning there was a white oak with a blaze and two chops; that there were in 1875, and there still are, stakes at two of the other three corners; that Thomas has cultivated a part of the (37) cleared land every year; the woods he has used as pasture, except a part of it which he cleared up and has cultivated; that he has also continuously used the fruit from the orchard. There was conflicting evidence that Thomas W. Maness has occupied and used said 6-acre tract, claiming it as his own continuously since 15 February, 1875, and, on the contrary, that he rented it from the purchaser at the mortgage sale, which was left to the jury, who found for the defendant.

The plaintiff contended that the conveyance from Elias Maness to Thomas W. Maness, 15 February, 1875, was void for vagueness in the above-recited description. The court so ruled and admitted the paper only as a declaration of Elias bearing upon the character of the possession by Thomas of said 6-acre tract, and charged the jury that "if they should find from the evidence that said 6-acre tract of land had marked lines and boundaries, as testified by the witnesses, where said lines and boundaries of said tract passed through wooded lands, and there was a white oak marked as a corner in said woods, as testified by the witnesses, and at two other corners of said tract there were stakes, and at the other corner there had been a stake that was broken off, and that Thomas Maness cultivated every year the open land up to the straight lines running from one stake to the other, used the woods for a pasture and for wood, timber, and litter, and also used the fruit from the orchard — these would constitute such known and visible boundaries as to make a possession thereunder that would ripen into title by twenty years' adverse possession as aforesaid." `The plaintiffs excepted and assigned the same as error. The court further instructed the jury that "The fact that the plaintiffs did not know how Thomas W. Maness claimed to hold the land upon which he was living, has nothing to do with this case. It was the duty of the plaintiffs, before they undertook to buy, to go to this party and find out how he held." The (38) plaintiffs expected to this instruction and assigned the same as error.

In none of these particulars do we find any error. The plaintiffs also contend that there was error in taxing all the costs against the plaintiffs, but the judgment provides only that "Thomas W. Maness go without day and recover of the plaintiffs his costs of this action." To this he is certainly entitled. The costs between the plaintiffs and the other defendant is a matter for adjudication in the several judgments between them.

No error.

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