Sessoms v. McDonald

• Decision Date: 20 May 1953
• Docket Number: No. 678,678
• Court: North Carolina Supreme Court
• Parties: SESSOMS et al. v. McDONALD et al

Page 904

75 S.E.2d 904

237 N.C. 720

SESSOMS et al. v. McDONALD et al.

No. 678

Supreme Court of North Carolina

May 20, 1953

Thomas H. Williams, Fayetteville, and Taylor & Mitchell, Raleigh, for plaintiff, appellees.

Charles G. Rose, Jr., Fayetteville, for defendant, appellants.

PARKER, Justice.

The sole question presented for decision is whether there was sufficient evidence to carry the case to the jury that the plaintiffs have ripened title to Lot 51 by twenty years adverse possession under known and visible lines and boundaries. G S. § 1-40; Johnson v. Fry, 195 N.C. 832, 143 S.E. 857. There is no evidence that any one was under any disability.

The State not being a party to the action, the title is conclusively presumed to be out of the State. G.S. § 1-36.

One issue was submitted to the jury: 'Are the plaintiffs the owners and entitled to possession of the property described in the complaint?', to which they responded Yes.

A very clear and concise definition of adverse possession is given in Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665, 666 as follows': 'To constitute adverse possession the possession must have been actual, open, continuous, and denoted by the exercise of acts of dominion over the land in making the ordinary use and taking the ordinary profits of which it is susceptible', citing authorities.

This Court has also said in Vance v. Guy, 223 N.C. 409 at page 413, 27 S.E.2d 117, 120 'the possession must be continuous, though not necessarily unceasing, for the statutory period, and of such character as to subject the property to the only use of which it is susceptible.' Citing Locklear v. Savage, 159 N.C. 236, 74 S.E. 347; Davis v. Federal Land Bank, 219 N.C. 248, 13 S.E.2d 417. However, occasional acts of ownership, no matter how adverse, do not constitute a possession that will mature title. Price v. Whisnant, 236 N.C. 381, 72 S.E.2d 851.

The plaintiffs unregistered deed does not prevent their setting up adverse possession for twenty years to Lot 51. Johnson v. Fry, supra; Glass v. Lynchburg Shoe Co., 212 N.C. 70, 192 S.E. 899.

The plaintiffs rely upon adverse possession alone without color of title. Title acquired under such circumstances is confined to the lands actually occupied. 'An adverse possessor of land without color of title can not acquire title to any greater amount of land than that which he has actually occupied for the statutory period.' Carswell v. Town of Morganton, 236 N.C. 375, 72 S.E.2d 748, 749. Citing many authorities.

In ruling on a motion for nonsuit the Court does not pass on the credibility of the witnesses or the weight of the testimony--that is for the jury. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Contradictions in the plaintiff's evidence do not justify a nonsuit. Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791. 'When the defendant moves for a compulsory nonsuit, he admits, for the purpose of the motion, the truth of all facts in evidence tending to sustain the plaintiff's claim; and the plaintiff is entitled to have the court, in ruling on the motion, to give him the benefit of every favorable inference which the testimony fairly supports.' Graham v. North Carolina Butane Gas. Co., 231 N.C. 680, 58 S.E.2d 757, 760, 17 A.L.R.2d 881.

The deed from W. A. Vanstory and wife to the plaintiffs is good as between the parties to the deed. Patterson v. Bryant, 216 N.C. 550, 5 S.E.2d 849. The inference seems to be irresistible that whatever use the plaintiffs made of Lot 51, they did it with intent to hold this Lot solely for themselves to the exclusion of all others, and that such use was made in the character of owners, in opposition to the right or claim of any other person, and not merely as occasional trespassers.

Frank Sessoms listed Lot 51 for taxes every year. He had tax receipts on this Lot to cover the years 1937 to 1951, both inclusive, except the years 1943, 1945, 1947 and 1950. He had tax receipts prior to 1937, but his wife lost them. The listing and payment of taxes on Lot 51 by Frank Sessoms, while not sufficient by themselves to show adverse possession are relevant facts in connection with the other circumstances as tending to show a claim of title. Perry v. Alford, supra.

Upon receipt of their unregistered deed on September 21, 1929 Frank Sessoms ploughed Lot 51, and he and his wife tended all of it as a garden until 1935, when he and his wife separated; Frank Sessoms used it as a garden until 1940 or 1941; Simpson and...