Gilchrist v. McLaughlin

• Decision Date: 30 June 1847
• Citation: Gilchrist v. McLaughlin, 7 Ired. 310, 29 N.C. 310 (N.C. 1847)
• Court: North Carolina Supreme Court
• Parties: JOHN GILCHRIST, JUN. v. ARCHIBALD D. McLAUGHLIN.

7 Ired. 310

29 N.C. 310

JOHN GILCHRIST, JUN.

v.ARCHIBALD D. McLAUGHLIN.

Supreme Court of North Carolina.

June Term, 1847.

The plea of liberum tenementum in an action of trespass, q. c. f. admits the fact, that the plaintiff was in possession of the close described in the declaration, and that the defendant did the acts complained of, raising only the question whether the close mentioned was the defendant's freehold or not.

In a controversy about boundary, the plaintiff may give in evidence a recovery in an ejectment suit, twenty-five years ago, by one under whom the plaintiff claims against the defendant and the subsequent abandonment by the defendant of the land now claimed by the plaintiff.

A plaintiff may recover damages for a wrongful entry upon his land by a disseisor, although he may not have regained possession of his land at the time of the action brought.

Where a tenant claims by a disseisin, ripened into a good title by lapse of time, he must shew an actual, open and exclusive possession and use of the land as his own, adversely to the title of the demandant. It must be known to the adverse claimant or be accompanied by circumstances of notoriety.

Where a person intends to place his fence on a particular line, but accidentally places a small part of it on land claimed by another, this will not be a possession adverse to such claimant.

Where, in running a line, another known line is called for, and the distance gives out before reaching the line called for, the distance is to be disregarded.

The case of Green v. Harman, 4 Dev. 158, cited and approved.

Appeal from the Superior Court of Law of Richmond County, at the Spring Term, 1847, his Honor Judge BATTLE presiding.

The facts, on which the questions of law arose in this case, are stated in the opinion delivered in this Court.

Badger, for the plaintiff .

Strange, for the defendant .

DANIEL, J.

This is an action of trespass q. c. fregit. The pleas are, “ liberum tenementum,” and “ not guilty.” The first plea admits the fact, that the plaintiff was in possession of the close described in the declaration; and that the defendant did the acts complained of; raising only the question, whether the close described was the defendant's freehold or not. 2 Greenleaf on Ev. Sec. 626. But under the plea of “not guilty,” the defendant may give in evidence any matters, which go to show that he never did the acts complained of; for example, that he did not enter the plaintiff's close; so, he may show, that the freehold and immediate right of possession are in himself, or in one, under whom he claims title; thus disproving the plaintiff's allegation, that the right of possession is in him. 2 Greenleaf 513. Under the first plea, if it stood alone, the plaintiff would have had to prove nothing but the amount of damages he had sustained; and the burthen of proving that the freehold was in the defendant (if the fact was so) lay upon him. Under the other plea not guilty, (the defendant may plead double) the plaintiff was driven to the necessity of sustaining by proof, the affirmative allegation in his declaration, that the defendant broke and entered his close, and built thereon his stables.

The eastern abuttal of the close, as described in the plaintiff's declaration, is Watson's line. The plaintiff, to show his constructive possession of the place, when the defendant entered and built his stables, began his evidence by exhibiting a grant, made to John McFarland for 150 acres of land, and dated the 18th of August 1787. The first line of the patent, ran to Smiley's corner, (Gulledge's grant of 1774, or 5,) then with, and beyond his line South 60, East 180 poles, to a stake among three pines on Watson's line; then, with and beyond it, South 35, West 125 poles; then North 67, West 184 poles to the beginning. The plaintiff then introduced a deed, dated on the 30th day of December 1816, from A. Nicholson to Angus Gilchrist, for the same land, and described by the same boundaries. He then proved, that A. Gilchrist entered and possessed the said lands up to his death, in the year 1834, when he devised it to his son James Gilchrist, who took it into possession. James Gilchrist conveyed the same land to the plaintiff, John Gilchrist, by deed, dated the 20th day of January, in the year 1840, who entered and possessed it, up to the commencement of this action.

The distance called for, in the plaintiff's second line, gives out before it reaches Watson's line as contended by the plaintiff; he, however, insisted, that he had a right to go to the Watson line, called for in his title deeds; and he offered witnesses to prove, that it had been so reputed and understood for a long time. The defendant objected to parol evidence, as inadmissible to establish where Watson's line ran, before the plaintiff had laid a foundation for such evidence, by showing some written document, that Watson ever had a line for any land in that neighborhood, and he insisted, that the plaintiff should be non-suited in case of his inability to produce some written document to that effect. The Court, however, refused to non-suit the plaintiff, and let in the parol evidence. We think that the defendant has no right to complain of this; because, independent of the plaintiff's right to prove a line of Watson by reputation, the Court had no right to non suit, if the plaintiff was willing to risk a verdict against him. The defendant did not, however, rely upon an error in that decision, and stop his case. He proceeded and exhibited a grant for a 100 acre tract of land to one Thomas Gaddy, dated in the year 1773, and a deed for the same lands from T. Gaddy to Alexander Watson, dated in the year 1776, and thus, himself, showed a line of Watson, as called for. Both parties, then admitted, that the call for Watson's line, in the plaintiff's title deeds, must be the Western boundary line of the Gaddy grant. And where that Western line ran, or lay, was the bone of contention between the parties.

The plaintiff insisted that the red dotted line, designated as X. N. Y., was the true Watson line. And the defendant, (who had married Watson's daughter, and had purchased of him, the two tracts of land mentioned on the plot, to-wit: the Gaddy grant of 100 acres, and the Alexder Watson grant of 250 acres,) insisted that the black line, designated as running from black L. to 2, was the Eastern boundary of...