Bryson v. Slagle

• Citation: 44 N.C. 449
• Court: North Carolina Supreme Court
• Decision Date: 31 August 1853
• Parties: JOSEPH Y. BRYSON v. CHARLES SLAGLE, et al.

44 N.C. 449

JOSEPH Y. BRYSON

v.CHARLES SLAGLE, et al.

Supreme Court of North Carolina.

August Term, 1853.

If two grants lap, and while neither grantee is settled upon the lapped part, the junior enter upon the lappage and clear, enclose and cultivate a field upon it for seven years, he will acquire a title to it. But if, at the time he encloses his field, it be with the permission of the elder grantee, upon his agreeing to set his fence back whenever it appears by a survey that it is over the line of the older grant, his possession of the field will not prevent the elder grantee, or one claiming under him, from having his lines run according to the calls of his grant.

An agreement made by a junior grantee, in relation to his possession of a part of his land covered by an older grant, with the widow of the elder grantee who continued in possession after the death of her husband, is evidence that she had an interest in the land, and had, therefore, the right to make the agreement: and at all events, the junior grantee, and those claiming under him, are estopped from calling that matter in question.

THIS was a proceeding by the plaintiff to have his land processioned according to the provisions of the 91st ch. of the Revised Statutes, as follows:--At March Term, 1849, of the County Court of Henderson, George Orr, the processioner of that county, made a report, wherein he stated, that at the instance of the plaintiff he proceeded, on the 13th day of January, to procession the lands of the plaintiff, (it appearing that due notice had been given to the adjoining proprietors) as follows, to wit: Beginning at a post oak on the side of a hill on the west side of French Broad river, as called for in the grant bearing date the 6th day of December, 1799, No. 740, and granted to James Bryson & John Davis, and runs west eighty poles to a stake, (the old corner black oak not found,) thence north thirty poles to a stake, thence west one hundred and forty poles to a stake, thence south, intending to run to a white oak as called for in the grant, and claimed by said plaintiff as being the corner, one hundred and thirty-six poles. At the point D. Charles Slagle, the guardian of the minor heirs of Isaac Ledbetter, deceased, forbade him to proceed further in running and marking the said line, claiming under a grant from the State to Samuel King, bearing date the 17th December, 1799, and by possession with known boundaries under said title, of the part marked A., and by actual possession under the same title of the part marked B., all which is shown in the annexed plat, whereupon he desisted. The report further set forth that the plaintiff claimed title under the grant above mentioned to James Bryson & John Davis, a conveyance from said Bryson & Davis to William Bryson, sen., and under the will of the said William Bryson, and regular conveyances from his devisees, and under known and visible boundaries from the date of the grant, to the part designated by the letter A.; and to the part designated by the letter B. by virtue of an agreement with Isaac Ledbetter, the ancestor of the infant defendants, that if the fence was not on the line, it should be removed at any time to the proper place. Annexed to the report as a part thereof, was the following plat:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

This report was confirmed by the Court, and thereupon five persons were appointed commissioners to settle the said disputed line or lines, who, together with the said processioner, made their reports to the Court at the following June Term, in which they set forth in full what they had done, of which it is only necessary to state that they decided that the plaintiff was entitled to have his south line run to the white oak and his other lines so run as to include the part marked A., but to exclude the part marked B., which was within the enclosed field of the defendants. The testimony of one witness only was set out in the report, which was, that at the time Ledbetter enclosed the field, it was agreed be tween him and Elizabeth Bryson (who was the widow of William Bryson, and who continued in possession of the land until her death,) that he might put his fence there, with the undestanding that whenever it appeared by a survey that the fence...