Den on Demise of Tate v. Southard

• Court: North Carolina Supreme Court
• Writing for the Court: HENDERSON
• Citation: Den on Demise of Tate v. Southard, 8 N.C. 45 (N.C. 1820)
• Decision Date: 30 June 1820
• Parties: DEN ON DEMISE OF TATE v. SOUTHARD.

8 N.C. 45

DEN ON DEMISE OF TATE

v.SOUTHARD.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1820.

1. Under the act of 1791, c. 15, it is sufficient to show that, by common reputation, a tract of land has certain known and visible lines and boundaries, although those lines and boundaries belong to adjacent tracts and were not made for the land in dispute, nor, in any deed thereof, are recognized as the lines of such tract, for reputation and hearsay are of themselves evidence of boundary.

2. A verdict which finds a fact contrary to a legal presumption is repugnant and void.

3. It seems that the return of the sheriff upon a fi. fa. is a colorable title under the act of 91, though no deed be made by the sheriff. 4. A new trial will be granted for misdirection, although the record does not show that the verdict ought to have been otherwise, if the court had directed otherwise.

THIS was an action of ejectment, from BURKE, in which the lessor of the plaintiff claimed title to the lands in dispute by a grant from the State bearing date 11 October, 1814. The defendant claimed the land under a sheriff's sale made to one James

Greenlee, under a judgment and execution against one T. Kennedy in 1783; and that Greenlee and the defendant, who claimed under him, had a continued possession for upwards of twenty-nine years before this suit was brought, and defendant was then in possession. The defendant showed no grant to Kennedy or any other person for the land, nor any deed from the sheriff to Greenlee or from Greenlee to himself. He proved, however, that the land claimed by him was surrounded by other tracts, and that it was understood and believed by all the neighbors that the land thus enclosed by the lines of the surrounding tracts was Kennedy's at the time of the sale in 1783, and it had been called Greenlee's ever since; that although the witnesses had never known any lines run and marked for Kennedy's tract yet an old grant for adjoining land (which was produced) called for Kennedy's lines; that about thirty acres were cleared and fenced at the sale in 1783, and had continued to be enclosed andcultivated ever since. It was also proved that many years ago a branch was shown to a witness by a person now dead as one of the dividing linos between Kennedy's and another tract; and another witness proved that he also had been told long ago, by a person now dead and who lived in the neighborhood, where another of Kennedy's lines crossed a certain road, and by those lines the defendant claimed now to be bounded. According to these facts the defendant insisted that under the act of Assembly of 1791, ch. 15, he had title to the land in dispute. The case was tried before Mangum, J., who charged the jury that if the lines which surrounded the land in controversy were not originally run for that tract but belonged to the adjacent tracts, then the land in question was not included in such known and visible lines and boundaries as are required by the act of...