Brittain v. Daniels

• Decision Date: 28 February 1886
• Citation: 94 N.C. 781
• Court: North Carolina Supreme Court
• Parties: GEO. W. BRITTAIN v. JOHN DANIELS.

94 N.C. 781

GEO. W. BRITTAIN

v.JOHN DANIELS.

Supreme Court of North Carolina.

February Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, for the recovery of land, tried before Gudger, Judge, and a jury, at August Term, 1885, of the Superior Court of BUNCOMBE county.

The facts appear in the opinion.

There was a verdict and judgment for the plaintiff, and the dafendant appealed.

Messrs. M. E. Carter and C. A. Moore, ( Messrs. F. A. Sondley and C. M. McLeod were with them on the brief,) for the plaintiff .

Mr. J. H. Merrimon, filed a brief for the defendant .

ASHE, J.

This action was constituted by the consolidation of two actions into one. The first was begun on the 21st day of October, 1881, and claimed the land represented on the plat, by the lines A, B, P, C, D, 6, 5, 1, 0, A, in the first paragraph of the complaint, and by the lines A, B, C, D, E, F, G, H, I, J, K, L, M, N, I, 5, 1, 0, A, in the second paragraph.

The second action, commenced on the 27th of February, 1883, was brought to recover the land embraced within the lines, 1, 5, 7, 1.

It was admitted by both parties, that the title to the land in controversy was out of the State. The following plat will show the several tracts of land that were respectively claimed by the parties:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The plaintiff, in his complaint, alleged that he was the owner in fee simple of the lands described therein, and that the defendant wrongfully withheld from him the possession of said land. The defendant denied that the plaintiff was the owner in fee simple, and also that he wrongfully held the possession of the same.

The plaintiff introduced a deed from Joseph Eller to himself, dated the 10th of March, 1838, for all the land described in the first complaint, represented on the plat as “G. W. Brittain's, Joseph Eller deed.” But this deed conveyed the plaintiff only a life estate, and as his Honor correctly held, under the pleadings in the case, the plaintiff was not entitled to recover any less estate than an estate in fee simple. The plaintiff must make out his case secundum allegata. Harkey v. Houston, 65 N. C., 137; Falls v. Gamble, 66 N. C., 455, and Malone on Real Property Trials, p. 54. We are of opinion, therefore, that he is not entitled to recover the land claimed under the Joseph Eller deed, by virtue of that deed, in this action. But his Honor charged the jury, that if the plaintiff had claimed the land up to known and visible boundaries, and had actual, adverse, and continuous possession of the same, for twenty years, excluding the time elapsing between the 20th of May, 1866, and the 1st of January, 1870, title having been admitted to be out of the State, such possession as was consistant with the uses of agriculture, the jury would be at liberty to presume the necessary conveyances for the same to the plaintiff, and if the plaintiff had such possession, he would be entitled to recover. That such possession must be by actual occupation, and continuous, and accompanied by all such acts of ownership, as persons usually exercise over their own lands. To this instruction the defendant excepted.

We find no error in this instrtuction as an abstract proposition, as against the defendant who is a stranger; and as he is neither a party or privy to the deed from Joseph Eller to plaintiff, there is no estoppel upon the plaintiff. There is then, no reason why the plaintiff, notwithstanding the deed from Joseph Eller conveyed to him only a life-estate, may not, as against the defendant in this case, show that he has, independent of the Eller deed, a good fee simple title to the land. This principle was decided in Hurley v. Morgan, 1 D. & B., 425. RUFFIN, C. J., there laid down the proposition as follows: “We deem it entirely incorrect to hold that a party, who, upon the trial of a cause in which he asserts a title to the thing in dispute, offers an argument, that a particular deed vested the title in him, is precluded, either by way of estoppel or presumption, from insisting that another deed shown in evidence or presumed, did vest it. It is indeed a presumption of fact, to be decided by the jury, but it is deduced upon legal principles, and may properly be found, and in many cases ought to be found, although the Court and jury may be satisfied that it never was in fact made.” Bearing on the same point is the case of Osborne v. Anderson, 89 N. C., 261.

But his Honor, we think, failed to make a proper application of the principle, to the facts of the case. For there was evidence here, on the part of the plaintiff, that he had been in possession of that part of the land in controversy, near the angle at A, for forty years or more, and the defendant offered evidence that Adam Eller, under whom he claimed, had been in possession of the same land,...