Graham v. Houston

• Decision Date: 31 December 1833
• Citation: 15 N.C. 232
• Court: North Carolina Supreme Court
• Parties: STEPHEN GRAHAM v. STEPHEN M. HOUSTON.

15 N.C. 232

STEPHEN GRAHAM

v.STEPHEN M. HOUSTON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833.

1. Under the Act of 1791 (Rev., ch. 346), a possession of 21 years with color of title, under known and visible boundaries, constitutes a valid title, and no evidence tending to rebut the presumption that a grant had in fact issued, can defeat such title.

2. Possession of the whole of a tract of land, in virtue of the actual possession of part holds only where no other person is in the actual possession of any part—as soon as another takes possession of part, either with or without a paper title, the plaintiff loses possession of that part.

3. One who rents turpentine boxes, agreeing to give a certain part of the turpentine for rent, is not a tenant, has no interest in the soil, and the owner may bring T. Q. C. F. for an entry upon the land, et semble for taking away the turpentine also.

4. For acts done after an ouster, no action lies till a re-entry, but only for the first entry.

Trespass QUARE CLAUSUM FREGIT, tried before Settle, J., at Fall Term. 1833. of DUPLIN.

The plaintiff claimed the land on which the alleged trespass was committed, under a deed from Daniel Glisson, Sheriff of Duplin, to one Jacob Williams, dated 23 January, 1793, and

produced the judgment and execution under which the land was sold. Jacob Williams died in October, 1823, and the land descended to his daughter, the wife of the present plaintiff— the plaintiff and those under whom he claimed had been in the actual and continued possession of different parts of the land conveyed by said deed, from the time of the purchase by said Williams, till the time of the trespass complained of and had held it under known and visible lines and boundaries. Between some of the different parts of the land, one George Houston had obtained two patents; the one dated 29 November, 1803, the other 28 November, 1818; and under said patents, had taken and held possession by tending turpentine boxes, from the day of their date; but between one part of the land so possessed by the plaintiff, and that upon which the alleged trespass was committed, no grant intervened—of the land claimed by the defendant, and which was also within the boundaries of the deed under which the plaintiff claimed, there was no actual possession of the plaintiff or those under whom he claimed, except as proved by a witness named Woodward,who testified that in 1829 by permission of the plaintiff, he tended turpentine boxes situate as well on the lands within the bounds of the defendant's patent as on that within the bounds of the plaintiff's deed and without those of the defendant's patent—the said witness agreeing to pay the plaintiff one-third of all the turpentine he should make on the land— the witness with the consent of the plaintiff continued to tend said trees till April or May, 1830, when he was ousted by the defendant; this was before the commencement of this suit. After Woodward was ousted from the land, he abandoned his interest therein, and the defendant entered and took possession of and appropriated to his own use a quantity of the turpentine made by Woodward. The defendant's grant was dated 29 December, 1829. He also produced a patent to Jacob Williams under whom the plaintiff claimed, for a part of the tract contained in Glisson's deed to Williams, dated 23 November, 1832. The defendant also proved the declarations of said Jacob Williams, subsequent to the date of his deed from Glisson, that the land granted to the defendant was vacant, and further proved, that it was, since the date of said deed, actually entered as vacant land by said Williams.

The jury were instructed, that if they believed the evidence, they might presume a grant from the State for the land in controversy; that the deed from Glisson to Williams was a color of title and might be taken into consideration by them as a circumstance in raising that presumption—but that

presumption might be rebutted by evidence on the part of the defendant. They were further instructed, that under the act of 1791 (Rev., c. 346), if the plaintiff or those under whom he claimed had been in the actual and continued possession of any part of the land, contained within the boundaries of the deed from Glisson to Williams, for twenty-one years, under known and visible lines and boundaries, he had acquired a valid and indefeasible title thereto, and that no circumstance which could be offered or proved by the defendant to rebut thepresumption of a grant having issued, would be of any avail to defeat the plaintiff's title so acquired. His Honor also instructed them, that if the plaintiff had possession of any part of the land contained within the bounds of the deed from Glisson to Williams, such possession was in law considered the possession of the whole land contained within said deed, except so far as the defendant or any other person had a paper title for a part of said land accompanied by a seven years continued adverse possession, and that if they believed the testimony, the plaintiff had such a possession as would enable him to maintain this action.

Pursuant to these instructions the jury returned a verdict for the plaintiff, and a rule for a new trial being discharged, the defendant appealed to this Court.

RUFFIN, C. J. The counsel for the appellant has made several points, of which, that principally relied on is, that the Judge of the Superior Court erred in holding that, under the Act of 1791, a possession of twenty-one years with color of title under known and visible boundaries, constitutes a valid title, and that no evidence tending to rebut the presumption that a grant had in fact issued, can defeat such title.

The act is entitled, "an act for quieting ancient titles and limiting the claim of the State;" and its enacting words are, that such possessions shall be a legal bar against "the entry of any person under the right or claim of the State to all intents and purposes," Stronger or more precise language could not be used to take away the right of entry of all persons but the possessor and thereby to confirm his. The act is plainly upon its face a statute of limitations, to operate against the sovereign. It was not intended to prescribe a rule of evidence, from which presumptions of fact were to be made by the Court or jury. None was necessary, for before the act a grant might be presumed as well as any other deed. It is true that in the

preamble, the necessity for passing the act is stated to arise from the loss of grants, and therefore the act rests upon a presumption that a grant has issued. But that doesnot change the nature nor the effect of the enactments. Similar presumptions are the grounds of all statutes of limitation. They are not presumptions which are to be deduced under the law, but have been already drawn by the legislators and produce the law which prescribes a positive rule to the judicial tribunals, without reference to the actual presumptions they might form in each particular case. The anonymous case in 2 N. C., 466 was cited for the defendant, but it does not support the argument. What is there said is true in reference to the question then before the Court. It was a caveat of an entry, in which the caveator relied on a possession of 21 years. A caveat implies that the land is vacant; and the contest is, which of the parties shall have the grant, which both of them admit that one or the other of them must have. Laws 1777, c. 114; Laws 1779, c. 140. McNeill v. Lewis 4 N. C., 517. It is absurd to say that one is entitled to a grant now, because he already has a legal title. The case only decides, that if the caveator had a title, either by grant shown or presumption of a grant, it was not competent for him to prove it, because in that very proceeding he admits as it were of record,...