Fisher v. Cid Copper Mining Co. of North Carolina
| Citation | 94 N.C. 397 |
| Court | North Carolina Supreme Court |
| Decision Date | 28 February 1886 |
| Parties | F. C. FISHER et als. v. THE CID COPPER MINING COMPANY OF NORTH CAROLINA. |
OPINION TEXT STARTS HERE
CIVIL ACTION, tried before Montgomery, Judge, and a jury, at Fall Term, 1885, of the Superior Court of DAVIDSON county.
The facts appear in the opinion.
The plaintiffs appealed.
Mr. F. C. Fisher, for the plaintiffs .
Mr. Theo. F. Klutz, for the defendant .
The plaintiffs claim to be owners of the minerals and mines found beneath the surface of the tract of land mentioned in their complaint, which mines are being worked by the defendant company, and the minerals removed and converted to its own use.
The action is to recover possession of the property, and damages for the alleged trespasses of the company.
The answer denies any right in the plaintiffs to the said minerals, and asserts title both to them and to the territory in which they are buried.
Thus a distinct issue is raised, which the record does not show was put in form, while the jury were empanelled without such issue, and proceeded to try the controversy as it appeared in the pleadings, in disregard of the statutory mandate, and the reiterated rulings of the Court, that it must be observed. Rudasill v. Falls, 92 N. C., 222; Bowen v. Whitaker, Ib. 367. Unless it is, it may become necessary to refuse to take cognizance of the cause upon such imperfect record. In the present case, the formal issues do not affect any inquiry into the alleged error upon which the appeal is founded. The intimation of the Court being that the plaintiffs had failed upon the proofs offered, to show any title to the property in themselves, or cause of action against the defendant, the plaintiffs suffered a non-suit and appealed from the ruling.
The plaintiffs proved that some of them were the heirs-at-law of Charles Fisher, deceased, and then proceeded to read in evidence, to estop the defendant, a deed from the said deceased to one Owen Gallimore--the will of the latter--a deed from the administrator of Cynthia Gallimore, devisee in said will, to Henry K. Grubb,--a deed from the latter and lease to Daniel Lindsay--a deed from said Lindsay and wife to Edmund L. Levy,--and a deed from Levy and wife to the defendant Company, by which the plaintiffs insist the land has been transmitted to the Company, all of the instruments except that just named, purporting, and in form sufficient, to convey an estate in fee.
The operative clause in the conveyance of said Charles Fisher, deceased, is in these words:
“Hath sold and conveyed, and doth hereby sell and convey, to the party of the second part, (Owen Gallimore), all that tract or parcel of land, lying and being in the county of Davidson and State of North Carolina, bounded” &c., giving the specific boundary lines, “containing 45 acres more or less.”
The deed bears date on May 13th, 1847, while the last to the company, was executed on November 25th, 1882. As the deed from Fisher has following his signature and seal, the suffix “agent No. Ca. G. M. Co.,” while throughout, the instrument, including the covenants of seizin and warranty, is the personal act of the grantor, and no intimation of an agency or trust is intimated, we cannot entertain the suggestion that it affords any evidence itself, that the title was vested in any other than the grantor himself.
The argument here for the appellant, assumes that an acceptance of the conveyance of the land, is a recognition, operating to prevent the defendant from denying title in the deceased to the land conveyed, and equally, title to the property reserved, which is parcel of the land, and this separated from what is conveyed, unless it can show a superior title elsewhere acquired. Christenburg v. King, 85 N. C., 229; Caldwell v. Neely, 81 N. C., 114; Ray v. Gardner,...
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Vance v. Pritchard
...not to apply to the title to an estate or property reserved which is thereby severed from the granted interest in the land. In Fisher v. Mining Co., 94 N.C. 397, the claimed the minerals and mines as heirs of Chas. Fisher, and offered deeds showing that the defendant derived its title under......
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Vance v. Pritchard, 242.
...to the title to an estate or property reserved which is thereby severed from the granted interest in the land. In Fisher v. Mining Co., 94 N.C. 397, the plaintiffs claimed the minerals and mines as heirs of Chas. Fisher, and offered deeds showing that the defendant derived its title under a......
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Wallace v. Bellamy
...the same time they base their right of entry. Hill v. Hill, 176 N.C. 194, 96 S.E. 958; Fort v. Allen, 110 N.C. 183 14 S.E. 685; Fisher v. Mining Co., 94 N.C. 397; Curlee Smith, 91 N.C. 172; Leach v. Jones, 86 N.C. 404; Grandy v. Bailey, 35 N.C. 221. This is not a denial of their right to es......
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Wallace v. Bellamy Et Ux, 283.
...base their right of entry. Hill v. Hill, 176 N. C. 194, 96 S. E. 958; Fort v. Allen, 110 N. C. 183, 14 S. E. 685; (Fisher v. Mining Co., 94 N. C. 397; Curlee v. Smith, 91 N. C. 172; Leach v. Jones, 86 N. C. 404; Grandy v. Bailey, 35 N. C. 221. This is not a denial of their right to establis......