Den on Demise of Stanley v. Turner
Decision Date | 31 December 1804 |
Parties | DEN ON DEMISE OF STANLEY v. TURNER. |
Court | North Carolina Supreme Court |
Seven years' possession without color of title is no bar to the right of entry.
EJECTMENT. The jury found a verdict for the plaintiff, subject to the opinion of the court upon the following case, to wit:
Upon this case the jury prayed the advice of the court "Whether such possession unaccompanied by any other title or color of title be sufficient to bar an ejectment." If the opinion of the court be in favor of the plaintiff, they find the defendant guilty, and assess sixpence damages and sixpence costs; if in favor of the defendant, they find him not guilty.
The question is, whether an adverse possession for seven years without color of title bars the right of entry. The law in this case I had considered as settled, until lately, when it has been alleged that a naked adverse possession, without color of title, does not bar the right of entry.
To investigate this subject, it will be necessary to compare our statute of limitations, passed in 1715, with the statute of limitations in England, 21 Jac. I., ch. 16, that it may appear how the decisions upon this latter statute apply in principle to the cases affected by our own statute of limitations.
The act of 21 Jac. I., ch. 16, entitled "An act for limitation of actions, and for avoiding suits at law," declares in the first section, "That for quieting men's estates and avoiding suits at law, etc., all writs of formedon in descender, formedon in remainder, and formedon in reverter, at any time hereafter to be sued or brought of or for any manors, lands, tenements,hereditaments, whereunto any person or persons now hath or have any title or cause to pursue, or have any such writ, shall be sued and taken within twenty years next after the end of this present session of Parliament; and after the said twenty years expire, no such person or persons, or any of their heirs, shall have or maintain any such writ of or for any of the said manors, lands, tenements or hereditaments; and that all writs of formedon in descender, formedon in remainder and formedon in reverter, of any manors, lands, tenements, or other hereditaments whatsoever, at any time hereafter to be sued or brought by occasion or means of any title or cause hereafter happening, shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years; and that no person or persons that now hath any right or title of entry into any manors, lands, tenements or hereditaments, now held for him or them, shall thereinto enter but within twenty years next after the end of this present session of Parliament, or within twenty years next after any other title of entry accrued; and that no person or persons shall at any time hereafter make any entry into any lands, tenements or hereditaments but within twenty years next after his or their right or title, which shall hereafter
first descend or accrue to the same; and in default thereof such person so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made; any former laws or statutes to the contrary notwithstanding."
And in the second section the statute declares: "Provided, nevertheless, that if any person or persons that is or shall be entitled to such writ or writs, or that hath or shall have such right or title of entry, be, at the time of the said right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person andpersons, and his and their heir and heirs shall or may, notwithstanding the said twenty years expired, bring his action or make his entry as he might have done before this act, so as such person and persons, or his or their heir and heirs, shall within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said ten years."
Our statute of limitations passed in 1715, ch. 27, entitled "An act concerning old titles of lands, and for limitation of actions, and for avoiding suits in law," declares:
claim, but within seven years next after his, her or their right or title, which shall descend or accrue; and in default thereof, such person or persons so not entering or making default shall be utterly excluded and disabled from any entry or claim thereof to be made.
Under the statute of 24 Jac. I. it has been held, But though a good and lawful title may in fact subsistin the plaintiff, yet he may be barred of his entry, and so of his recovering by this action, under 21 Jac. I., ch. 16, which enacts that no person shall make an entry into lands, etc., but within twenty years after his right and title shall accrue, with the usual savings of feme coverts, infants and persons insane, etc." "Therefore, if the lessor of the plaintiff is not able to prove himself or his ancestors to have been in possession within twenty years before the action brought, he shall be nonsuited."
"The possession or entry of the lessor of the plaintiff within twenty years, which is necessary to give him title, must be an actual possession or entry, not a presumptive or implied one.
Esp., 432. So that the twenty years' possession, which is sufficient to bar the ejectment or to give a title, must be an adverse possession, for when it appears not to be adverse, the statute of limitation does not run." Id., 433. In Reading v. Royster, 2 Salk., 423, this doctrine is more fully explained. Also, in Cowp., 217. It is to be submitted to the jury to say what is an adverse possession. It is not necessary that a man should be expelled from his possession with force. The getting of possession lawfully, but afterwards holding against the will of the owner, will amount to an adverse possession. Proof of possession...
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