Stewart v. . McCormick , 161 N.C. 625 ( 1913 )

This action was brought to recover a tract of land containing 250 acres. Plaintiffs were nonsuited at the close of their testimony. The first ground of the nonsuit was, as agreed here, that they had not identified the land, of which they had the adverse possession, as that described in the complaint and deeds, the description in the complaint and deeds being the same. Plaintiff relied upon the deeds as color of title, and they described the land by metes and bounds. There was evidence, as we think, that plaintiffs and those under whom they claimed had been in adverse possession, under the deeds, for more than thirty years, one witness, Nick Bell, testifying that "old man John Wood, under whom plaintiffs claimed, had been in possession for fifty or fifty-five years," and there was other testimony tending to show a possession of from forty to fifty years by him. In this connection, defendant's counsel contended that it was incumbent on plaintiffs to show a seizin or possession of the premises in question for twenty years before the commencement of the action, in order to maintain this action to recover the land under Revisal, sec. 383. But if plaintiffs had acquired the title by adverse possession of the land under color for more than thirty years, which was the evidence, then it follows, nothing else appearing, that they had at least constructive seizin or possession within twenty years before this suit was brought, which would satisfy the requirement of that section of the Revisal, as seizin follows the title, if there is no actual possession. Bland v. Beasley, 145 N.C. 168. The adverse possession for seven years under color, which bars the entry of the true owner, must be open, continuous, uninterrupted, and manifested by distinct and unequivocal acts of ownership, (627) the burden being upon him who asserts that he has thus acquired the title, to show such actual adverse possession. Monk v. Wilmington,137 N.C. 322; Bland v. Beasley, supra. Sole adverse possession of a part of the land covered by the deeds under which plaintiffs claimed as color of title is extended by the law constructively to the outer or external boundaries of the land, or, as it is sometimes expressed, possession of a part is deemed to be of the whole. Currie v. Gilchrist, 147 N.C. 649;Simmons v. Box Co., 153 N.C. 261; Pheeny v. Hughes, 158 N.C. 463. There is no conflict of titles here and no question of lappage. Where there is no actual occupation of the land, the law adjudges the possession to be in him who has the title (Drake v. Howell, 133 N.C. 163); but where, as here, there is a possession of a part of the land under color, and the party claiming thereunder has been exposed to an action for the trespass on or invasion of the premises, his possession must be taken as extending to the entire tract. Pheeny v. Hughes, supra; McLeanv. Smith, 106 N.C. 172; Berryman v. Kelly, 35 N.C. 269. There certainly was some evidence that the possession of plaintiffs or of those under whom they claimed was adverse for a sufficient time to ripen the title, and this evidence should have been submitted to the jury (Britton v.Ruffin, 122 N.C. 113; Cowles v. McNeill, 125 N.C. 385), and the court erred in deciding the question as matter of law. As this is an appeal from a nonsuit, we need only say, as we did in Currie v. Gilchrist,supra, that there was more than a mere scintilla of evidence as to the location of the boundaries of the land described in the complaint and the deeds upon which plaintiffs relied as color (McNeely v. Laxton,149 N.C. 327), and also as to adverse possession. The evidence may not have been very satisfactory, as argued by defendant's counsel, nor yet very convincing, but that was a matter for the consideration of the jury, and not for the judge below or this Court to pass upon. The evidence, also, must be considered most favorably to the plaintiffs, and all reasonable inferences made therefrom in their favor. All things considered, we must say (628) that there was some evidence that the State had parted with its title and that plaintiffs had become the owners of the land.

It was contended that plaintiffs had not shown that defendants were in possession of the land at the commencement of the action. Assuming that it is necessary to show this when the title itself is in controversy independently of the possession, it appears that one of the defendants, in his answer, admits he was in possession at that time, and the other defendants, in their answers, virtually admit their possession.

New trial.

Cited: Mintz v. Russ, post, 540; Land Co. v. Floyd, 171 N.C. 545.