Melvin v. . Waddell , 75 N.C. 361 ( 1876 )

The first exception of the defendant is to the instructions of the judge to the jury, that from the facts that the locus in quo was in an old town and had been conveyed as early as 1816, they might presume that the title was out of the State. We do not know of any authority for this proposition, and it might often lead to false conclusions. There are several unoccupied lots in Raleigh which it is well known that the State has never granted. If the question was whether the State, in fact, had granted certain land, then in case no grant could be produced, it might be open to proof as questions of fact in general are, by the proof of any circumstances which might make the fact that a grant had or had not issued more or less probable.

But the question of the presumption of a grant from adverse possession has never been regarded as one to be decided upon natural (366) presumptions as to the fact, but upon a statutory or arbitrary rule established by the Legislature or by the courts to prevent the uncertainty of titles which would arise if the question in each case were to be determined by a jury on their belief of the fact derived from a consideration of all the circumstances in evidence. If there has been an adverse possession for any time short of thirty years, it is not a circumstance to be submitted to a jury, either alone or with others of like tendency, as evidence upon which they may find the fact of a grant. But on an adverse possession of thirty years a jury is not at liberty to find that in fact no grant ever issued. These views are fully sustained by Reed v. Earnhart, 32 N.C. 516; Bullard v. Barksdale, 33 N.C. 461; and the other cases cited by plaintiff's counsel and by sec. 18 of C. C. P.

This error of the judge, however, did not prejudice the defendant, for it sufficiently appears upon admitted facts that the title was out of the State at the commencement of the action. If the question is to be decided upon the law existing prior to the Code, it appears from Reed v. Earnhart,ante, and Candler v. Lunsford, 20 N.C. 542, that a plaintiff, in proving the title out of the State by an adverse possession of thirty years, may avail himself of any possession by others adverse to the State, although he may not be able to connect himself with them. The possession of the plaintiff, coupled with that of Moore, Lutterloh and others under whom defendant claims, which, while adverse to the plaintiff was also adverse to the State, exceeded thirty years, after deducting the time during which the presumption did not run.

Whether sec. 18 of the Code of Civil Procedure applies in this action, and whether it makes any change in the former law, we need not inquire, for it seems to have been conceded at the trial that the former law governed the case. The defendant did not except to the judge's ruling, on the ground that the law had been changed by the Code, (367) and he took no such ground in the argument here.

Second exception of defendant. The judge told the jury that there was evidence tending to prove a possession of twenty years by Constant Johnson and those claiming under him, and that the title being out of the State, they might presume a deed to him or them from any person having a title.

There is no error in this. We conceive it to be settled law. See C. C. P., sec. 23.

Third exception of defendant. The judge told the jury that if Moore acquired the possession from the widow of Constant Johnson, as her tenant, that neither his possession nor that of any one claiming under him was adverse to the heirs of Johnson or to any one claiming under them. And if the possession of Lutterloh and those claiming under him was adverse, their possession had not continued long enough to give them a good title — that is, it had not continued for seven years, not counting the time from 1860 to 1870, when the statute was suspended. There is no error in this of which the defendant can complain. Before the Code of Civil Procedure it might be said generally that if one who entered as a tenant remained in possession a very long time after the expiration of his tenancy, without paying rent or otherwise acknowledging the tenancy, his possession would or might be deemed adverse; and so of one who took a deed in fee from the tenant. But we do not know that it was anywhere settled before the Code what length of time, either by itself or in connection with other circumstances, would require or justify a jury in presuming a release from the landlord. In Callender v. Sherman,27 N.C. 711, it was held that a possession for thirty-five years by a Masonic Lodge claiming the property as its own under a supposed will of the landlord which was invalid and was never proved as a will, would not be held adverse to his heirs, when it appeared that the lodge commenced its possession by an agreement with a tenant of the (368) supposed devisor whose term had not expired at the death of the devisor.

The time is now fixed by section 26 of the Code at twenty years after the expiration of the tenancy, etc. There is

PER CURIAM. No error. Cited: Kitchin v. Wilson, 80 N.C. 198; Cowles v. Hall, 90 N.C. 334;Phipps v. Pierce, 94 N.C. 518; Pearson v. Simmons, 98 N.C. 283; Springsv. Schenck, 99 N.C. 558; Mobley v. Griffin, 104 N.C. 115; Bryan v.Spivey, 109 N.C. 67; Asbury v. Fair, 111 N.C. 257; Ladd v. Byrd,113 N.C. 469; Bernhardt v. Brown, 122 N.C. 591.