Bland v. Beasley

• Decision Date: 10 October 1907
• Citation: 58 S.E. 993,145 N.C. 168
• Parties: BLAND et al. v. BEASLEY et al.
• Court: North Carolina Supreme Court

58 S.E. 993

145 N.C. 168

BLAND et al. v. BEASLEY et al.

Supreme Court of North Carolina

October 10, 1907

Appeal from Superior Court, Pender County; Long, Judge.

Ejectment by J. T. Bland and others against L. A. Beasley and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

L. A Beasley, H. L. Stevens, C. D. Weeks, and Shepherd & Shepherd for appellants.

J. D Kerr, Jas. O. Carr, Simmons, Ward & Allen, E. K. Bryan, and C. E. McCullen, for appellees.

CLARK C.J.

Action to recover land. The defendants excepted because the court refused to charge the jury, as prayed, that, the plaintiffs having failed to show actual possession in themselves or in those under whom they claim within 20 years before this action was begun, they cannot recover. The plaintiffs acquired their title within said period, the defendant being then in possession. An action of ejectment could not have been maintained under St. 32 Hen. VIII (Code 1883, § 1333) which made a conveyance under such circumstances void, but that rule was modified by Code 1883, § 177, now Revisal 1905, § 400, which provides that "an action may be maintained by a grantee of real estate in his own name, whenever he or any grantor or other person through whom he may derive title might maintain such action, notwithstanding the grant of such grantor, or other conveyance be void by reason of the actual possession of a person claiming under a title adverse to that of such grantor or other person at the time of the delivery of such grant or other conveyance." Johnson v. Prarie, 94 N.C. 773; Osborne v. Anderson, 89 N.C. 261. Indeed, section 1333 of the Code has been later totally repealed by chapter 42, p. 138, Pub. Laws 1899, and hence does not appear in the Revisal at all.

It will be noted that this defense is not under Revisal 1905, § 384 for the defendants did not prove "20 years' adverse possession." It is true that Revisal 1905, § 383, debars the plaintiffs from maintaining an action for recovery of realty, unless it appear that they or those under whom they claim were "seised or possessed of the premises" in question within 20 years before beginning the action. But the defendants have not shown 20 years' possession, and, the plaintiffs having shown the legal title, the law carries the seisin to the party having the legal title, when neither is in possession. His honor was correct in charging the jury that "the possession for seven years...