Carson v. Mills

• Decision Date: 31 December 1835
• Citation: 18 N.C. 546
• Parties: DEN ex dem. JOSEPH McD. CARSON v. JOHN MILLS and LOVVRY BURNETT.
• Court: North Carolina Supreme Court

18 N.C. 546

DEN ex dem. JOSEPH McD. CARSON

v.JOHN MILLS and LOVVRY BURNETT.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1835.

Although the possession of part of a tract of land is in law the possession of the whole when there is no adverse possession, yet if the land be composed of different tracts, held under different grants, and described in the deed to the person in possession by different boundaries, an actual possession upon one does not in law extend to the other; and if both are covered by an elder grant, the statute of limitations perfects the title of that only on which there was an actual possession.

EJECTMENT, tried before Strange, J., at RUTHERFORD, on the last circuit.

The lessor of the plaintiff claimed title under twoseparate grants; and to understand the case, it will be necessary to consult the annexed map.

First, he claimed title under a grant to one John Burnett, which issued in the year 1767, and is represented on the map by the lines H, I, J, K. The defendant claimed under two grants, one of which issued to Samuel French, in 1780, and is represented on the map by

the lines A, B, C, D; the other was dated in 1801, and issued to Benjamin Cook, and is represented on the map by the lines G, B, E, F. The land covered by the two last-mentioned grants, was conveyed by separate deeds from the respective grantees, or those claiming under them, to one Murray, who in 1813 conveyed them both by one deed to the defendant Mills, describing them as "that tract or tracts, pieces or parcels of land, in, etc., on, etc., included in two surveys, viz., one tract containing, etc., beginning, etc. (as in the grant), granted to Samuel French, on, etc. Also one other tract, beginning, etc. (also as in the grant), granted to Benjamin Cook, on, etc." In the habendum, the description was, "which said tracts, pieces, or parcels of land, etc." Immediately after his purchase, the defendant Mills took actual possession of the land conveyed by the grant to French, where it interfered with the lines of the grant to Burnett, but not where it interfered with those of the grant to Cook, say at Y; and continued this possession within the boundaries of the grant to French until the year 1829, when he leased to the defendant Burnett that part of the land covered by the grant to Cook, which interfered with the grant to Burnett, who took possession and committed the trespass for which this action was brought, say at X. While the defendant Mills was in possession as above stated, the lessor of the plaintiff purchased from the heirs of Burnett, who had been long out of possession, and with whom he could show no previous connection; but he was in the actual possession of a small piece of land at A, covered by both the grant to Burnett, and that to French, where the latter crossed Green River. The only color of title under which he held was a grant to William Walton, for one hundred acres, described on the map by the lines L, M, N, O, P, I, and calling for the river as one of its boundaries, and which also covered the small interference between the grants to Burnett and French at A. The possession of the lessor of the plaintiff on the south side of the river, was confined to the lines II, P, G, F, and didnot extend to any part of the land covered by the grant to Cook. Secondly, the lessor of the plaintiff claimed as follows: He produced a grant dated in 1798 to William Walton, for one hundred and fifty acres, R, S, T,

U, V, X, and deduced the title by mesne conveyances to himself. He proved that at the date of this grant, Walton was the owner of the two tracts of land designated on the map as David Harvey's and George Parrish's; he contended, that after running the courses of the grant to X, the next course being then "with his own line south forty degrees east, and with Murray's line two hundred and six poles, to a stake in Murray's line—thence south six east to the beginning"—he must either follow X, Z, H, and thence to the river, and thence down the river to Murray's line at G, and thence go directly to U, the beginning; or he must follow Murray's line A, B, to its termination, and then run to the beginning; or else, running according to the course and distance, he must from V, run the line of his survey to the nearest point in Murray's line A, B, and then to U, in either of which cases the locus in quo would be included in his grant. There were no marked lines found upon any of Murray's lines, except upon the line C, D.

The plaintiff then offered to show trespasses by the defendant Mills at other points besides X, but as Mills had made himself party to defend the possession of his lessee, Burnett, the Judge refused to admit the evidence. His Honor instructed the jury, that although the plaintiff might have recovered upon a demise by the heirs of Burnett, the defendant was so adversely in possession of the land covered by the grants to French and Cook, at the time the lessor took his deed from them, as to prevent a recovery on the demise set forth in the declaration. That as to the second mode in which the lessor of the plaintiff sought to establish his title, it was their province to ascertain whether the descriptive objects mentioned in the grant to Walton, were to be found, and where and what land was embraced within them: that in locating grants where all the objects of description referred to were to be found, and the several modes of description, in their application to the objects reallyexisting, harmonized with each other, there was no difficulty; but where various descriptions in a grant could not be made to harmonize with objects as they existed, that description in which there was least room for mistake, should be taken; that other more particular rules had been adopted, which were, that where a natural boundary was called for, it

must be adopted, to the exclusion of all other descriptions; that where trees had actually been marked for boundaries, they must be taken in exclusion of any other description except a natural boundary; that the lines of other grants, when distinctly marked and established, was a description to be preferred to course and distance; that when the description was by course and distance alone, they were of necessity to be followed—as they were when they were accompanied by descriptions of existing objects which could not be found; that in the application of these rules, if they were satisfied of the existence of any line of Murray's regularly marked and distinctly known at the date of the grant to Walton, and indicated by something more certain than course and distance alone, whether that line was the line A, B, or any other line, and further believed that was the line referred to in the grant to Walton, they were bound so to locate the grant as to reach it and include some part of it; but that if they believed no such line ever existed, except as indicated by course and distance, there were no means left of locating the grant, except by following its calls.

The counsel for the plaintiff moved his Honor to instruct the jury that the possession of a part of a tract of land did not extend to the whole thereof, when the proper title under which it was held interfered with an elder grant, although he who claimed title under the oldest grant was not in the actual possession of any part of the land covered by it. His Honor declined giving this instruction, but informed the jury that when two persons were in possession of parts of their land covered by paper titles which interfered, neither of them having actual possession of land within the interference, the law adjudged the possession of the interference to be in him who had the oldest title; but when he who had the oldest title was in possession of no part of the landcovered by it, and he who had the youngest title was in the actual possession of any part of the land covered by it, although his possession did not extend to the interference, the law adjudged his possession to be co-extensive with his paper title, notwithstanding its interference with the elder title.

A verdict being returned for the defendant, the plaintiff appealed.

RUFFIN, C. J. Several exceptions are taken to the instructions in this case. Those principally discussed and relied on relate to the opinions expressed by the Court on the extent and effect of the defendant's possession. Having refused to give certain instructions prayed for by the defendant's counsel, the Court laid it down to the jury, that "when two persons were in possession of parts of their lands, covered by paper titles which lap, neither having any actual possession within the lappage, the law adjudged the possession in him who had the elder title; but where the holder of the elder title was in possession of no part of the land covered by his title, and he who had the younger title was in possession of any part of the land covered thereby, although such possession might not be within the lappage, the law adjudged his possession co-extensive with his title, notwithstanding its lap-page upon an elder title, of which there was no possession." The materiality of this instruction to the rights of the parties, upon the facts stated in the record, is not perceived. For if the two tracts conveyed by Murray to Mills are to be regarded as one, so that the entry by Mills into either portion is an entry into the other portion of the entire tract, then Mills had made such an entry, within the admission of the plaintiff's counsel, for he was actually possessed of that part of the French patent which the patent to Burnett also covered. If, on the other hand, the two tracts continued several after the conveyance to Mills, then the possession on the one could not embrace the other, unless the other instruction, which will be hereafter noticed, be correct; which would render the one now under consideration unnecessary and immaterial. We might, therefore, be relieved from passing on this,without omitting any duty to the parties...