Den on the Demise of Andrews v. Mulford

• Decision Date: 31 May 1796
• Citation: 2 N.C. 311
• Court: North Carolina Supreme Court
• Parties: DEN ON THE DEMISE OF ANDREWS v. MULFORD.

2 N.C. 311

DEN ON THE DEMISE OF ANDREWS

v.MULFORD.

SUPERIOR COURTS OF NORTH CAROLINA

WILMINGTON-MAY TERM, 1796

Where two patents or grants bear date on the same day, the number of the patents or grants must determine their priority. No possession except an actual one, by the claimant himself or his tenant, commenced bona fide, under a patent or grant, adverse and continued for seven years, will give title under the act of limitations. When the act of limitations once begins to run, none of the impediments mentioned in the act will stop its course.

EJECTMENT. Andrews had lately purchased a tract of land of the heirs of Mr. Waddle, the patentee. Mulford derived his title under Spikes, the patentee of an adjoining tract. He proved the beginning of Spike's tract, and every line and corner mentioned in the patent, and located that tract beyond doubt. Andrews proved that a line called Waddle's line was seen when recently made, many years ago, by one of the witnesses on the other side, which line included a part of the land comprised in Spike's patent, and this line had been acknowledged in

conversation since, by Spikes. It was also proved that Waddle informed Spikes many years ago that that was his line. Both Spikes' and Waddle's patents were dated on the same day. Waddle's was numbered with the number 4, and Spikes' with the number 73; but Spikes' survey was made several months before Waddle's. Spikes used this disputed part of the land, with the other part included within the lines of his patent, very soon after it was issued, by keeping his cattle upon it, and continued to use it as a range until 1770, when he took actual possession in person. About the beginning of the late war, Mr. Waddle moved to Europe, carrying with him his two sons, infants of very tender years, who returned and came of age within three years previous to the bringing of this suit, which was commenced some time in 1794. Spikes purchased his location of this land from a man who had built an hut, and lived upon it several years, intending to enter it in the land office prior to the time of Spikes' entry.

PER CURIAM. HAYWOOD, J., only present. Will it not be proper to consider whether, if the act of limitations began to run from the time actual possession was taken (which is stated to have been in the lifetime of Mr. Waddle, the patentee, and about three years before he went to Europe) its operation can be suspended by his going beyond sea, or by his death, leaving infant heirs.

Counsel for the plaintiff: General Davie and myself have formerly considered of that question. It is a rule adopted only in the case of fines in England; it does not apply to the act of limitations.

PER CURIAM. The Court thinks it is equally applicable in cases subject to the act of limitations. There are many authorities to that effect, and the reason of the thing strongly supports that position. The Court will inform the jury that is the law. If they should find accordingly, and you shall be of opinion, upon further consideration, that the law is not so, a new trial may be moved for, and the Court will hear this point more deliberately argued.

The counsel on both sides assented to this proposition.

PER CURIAM. The first point in order to be considered is whether the land in dispute be included within the boundaries of Waddle's patent. If it be, then other points will arise to be considered; if it be not, then

the dispute is at an end. There is full proof that the land claimed is within the boundaries of the patent under which the defendant claims. This is not doubted by any one; it is not disputed by the plaintiff. For them to recover, it is necessary to show a title superior to that of the defendant. Their patent is for land lying on the same stream, very probably for a part of the land in dispute. One of the chain carriers, in making Spikes' survey some weeks after, saw and showed to Spikes a line then recently marked, running through the land contained in Spike's patent, and, as he describes it, must have run somewhere between the boundary of Spikes' patent and the line now described in the plat, and claimed to by the plaintiffs. That line has been since spoken of and admitted in conversation by the defendant. When Spikes sold, he refused to warrant the land in dispute, because of Waddle's claim.

The Court then enumerated the other circumstance given in evidence relative to the corner pine, and the other line spoken of at the bar, and concluded this point by saying it is not the province ofthe Court to draw any conclusions with respect to this line, whether it existed, or where it is. Such conclusions can only be drawn by the jury. The Court only recapitulates the evidence in the presence of the counsel, to assist the memory of the jury, not for the purpose of directing them to lay stress upon this or that part of the testimony. Should the Court deliver an opinion with respect to the evidence, the jury are only bound by it should that opinion coincide with their own, drawn from the evidence they have heard. Should the jury, however, in the present case believe that Waddle's patent covered the lands in dispute, then the next circumstance to be considered is which of these two patents is entitled to preference. They are both dated on the same day. Waddle's is numbered with the number 4, and Spikes' with the number 73; but Spikes' survey was made several months before Waddle's.

The rule that hath hitherto prevailed is that the patent or grant of the first date shall be preferred. There is no other evidence of title by appropriation of lands but that of the grant. He who first obtains his grant without fraud, obtains title; and from that moment may exclude all others from the possession. We cannot be influenced in determining a point of preference by the first survey or the first entry, or the first payment of money for the land. Any of these circumstances, or all of them together make no title. If the grant does not follow, they signify nothing; and when it does follow, they cease from the moment of its execution to be of any consideration. That, and that only, creates the title; and that only is to be consulted where the question of title arises between different claimants. Supposing this rule not to have been founded upon propriety at first, it would be attended with terrible

consequences to alter or impair the force of it at this day. Rules of property, where they have once become fixed and known, and to be generally acted under, should never be broken in upon but for reasons of the most urgent necessity, and then only by the Legislature. In such instances it is of much more consequence that the rule should be certain and notorious than that it should be conformable to strict notions of justice. Should we decide by preferring the grantee who had his land first surveyed, it might perhaps serve the purposes of a decision well enough in the present instance; yet many cases might occur where the factof the first survey could not be ascertained, as in the case of old grants issued before the practice of annexing plats began, and in cases of new grants, where the plat annexed to either of them was severed from the grant and lost. In all such instances it would be necessary to adopt another rule of decision. It is better to follow one that will answer for the decision of all cases which may arise—by adhering to the old rule of preferring the grant first perfected; and, when they are dated on the same day, of preferring that grant which from some circumstances apparent on the face of the deed may appear the best entitled to it.

In the present case it appears in the fact of Waddle's patent that it was numbered with the number 4, whereas Spikes' was numbered with the number 73; from whence the strong presumption is that Waddle's grant was first completed, and that it was numbered in the same order with respect to the other deed in which they were severally completed; and if any other circumstance of equal weight should appear in the face of the grant, it should have equal influence in deciding the preference. If Waddle's grant be entitled to preference, then it will be necessary to consider whether Spikes or those claiming under him have acquired a title by possession under the act of limitations.

It is urged that the possession of the ax-enterer, as he is called, of whom Spikes purchased the location, it to be taken into computation, and, next, that the possession which Spikes had by his cattle is to be reckoned. We will consider them, separately, and for that purpose it is proper to state briefly the true import and intent of the act of...