Sucro v. Worthington

• Decision Date: 12 June 1939
• Docket Number: No. 4427,4428.,4427
• Citation: 104 F.2d 472
• Parties: SUCRO v. WORTHINGTON et al. SAME v. MARTIN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

104 F.2d 472 (1939)

SUCRO v. WORTHINGTON et al. SAME v. MARTIN et al.

Nos. 4427, 4428.

Circuit Court of Appeals, Fourth Circuit.

June 12, 1939.

M. B. Simpson, of Elizabeth City, N. C. (R. Clarence Dozier, of Elizabeth City, N. C., on the brief), for appellant.

W. D. Pruden, of Edenton, N. C., and J. Kenyon Wilson, of Elizabeth City, N. C. (Worth & Horner, of Elizabeth City, N. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

These are appeals in two actions instituted to try title to land. From verdict and judgment in favor of the defendants in each case, the plaintiff has appealed. Plaintiff is the same person who was plaintiff and appellee in the recent case of Peterson et al. v. Sucro, 4 Cir., 101 F.2d 282. In both of the cases at bar she relied upon the same title held good by this court in the Peterson case. Defendants claimed different portions of the land covered by the Greenleaf grant, under which plaintiff claimed, and relied upon grants to Peter Baum as invalidating the Greenleaf grant. They relied also upon adverse possession. The plaintiff's sole contention in each appeal is that the evidence relied upon by defendants was legally insufficient and that verdict should have been directed in her favor, as was done in the Peterson case, supra, affirmed by the court.

In so far as the Peter Baum grants are concerned, we find nothing in the records in these cases to distinguish them from the Peterson case; and what is said in the opinion in that case as to the invalidity of those grants and the attempted location thereof is controlling here and need not be repeated.

The only remaining question which we need consider is as to the sufficiency of the evidence relied upon by the defendants in the Worthington case, No. 4427, to establish adverse possession, as no contention is made before us that there was sufficient evidence of adverse possession in No. 4428. The deeds under which defendants claim in No. 4427 embrace a tract of one hundred and fifty acres of land, but only a few acres of this fall within the boundaries of the grant under which plaintiff claims. Since plaintiff is claiming under the superior title, we may ignore evidence as to acts of possession by defendants outside the lappage; for the rule is well settled that constructive possession of one claiming under color of title, which in ordinary cases extends to the boundaries of the deed under which he claims, does not extend to land embraced within a lappage of which the claimant is not in actual possession and is covered by superior title in his adversary. As said by the Supreme Court of North Carolina in Georgia-Carolina Land & Timber Co. v. Potter, 189 N.C. 56, 127 S.E. 343, 346, "to mature a title under the junior grant, there must be shown adverse and exclusive possession of the lappage, or the law will presume possession to be in the true owner as to all that portion of the lappage not actually occupied by the junior claimant." The reason for this rule, as pointed out in Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226, is that the claimant under color does not oust the claimant under the superior title and subject himself to ejectment at the suit of the latter until he actually enters upon the lappage. See also McLean v. Smith, 106 N.C. 172, 11 S.E. 184. We may ignore also evidence as to possession of the lots upon which the Nixon and Winborne cottages were built, since adverse possession by a grantee to whom a part of a tract of land is conveyed does not ordinarily inure to the benefit of the grantor as to the remainder (2 C.J.S. Adverse Possession, § 39, page 552), and also because the grantees obtained quitclaim deeds from plaintiff's predecessor in title.

As to the remainder of the lappage, there was evidence not only that defendants were claiming same under deeds which constituted color of title and that they had paid the taxes thereon, but also that more than seven years before the institution of the action they had laid out and platted streets through the property, had divided it into residential lots, had marked the corners of the lots, had placed signs on the property offering it for sale, and, since that time, had continued to offer it for sale and had maintained...