Gudger v. Hensley

• Decision Date: 31 January 1880
• Citation: 82 N.C. 481
• Court: North Carolina Supreme Court
• Parties: JAMES M. GUDGER v. CLINGMAN HENSLEY.

82 N.C. 481

JAMES M. GUDGER

v.CLINGMAN HENSLEY.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION to recover possession of Land, tried at Fall Term, 1879, of YANCEY Superior Court, before Schenck, J.

Verdict and judgment for plaintiff, appeal by defendant.

Messrs. J. L. Henry and Merrimon & Fuller, for plaintiff.Messrs T. F. Davidson and Reade, Busbee & Busbee for defendant .

SMITH, C. J.

The plaintiff derives title to the land described in the complaint under a grant from the state in 1796, to John Gray Blount, and successive conveyances through intermediate parties to himself. The defendant relies on seven years' adverse possession, by those from whom he claims, of the part occupied by him with color of title, and the insufficiency of the grant to Blount to pass the estate in the disputed lands.

In making out the defence, the defendant showed a grant issued in 1798 to Abraham Turner, and, without connection with the grantee, a series of deeds commencing with a deed from Samuel Banks to Abraham Banks, executed in 1827, a devise and several descents, whereby the title is transmitted to the defendant and his wife, Sarah, a daughter of Polly Penland, deceased. To support his alleged possession, the defendant proved that in 1860 or 1861, Absalom Penland, the husband of Polly, went on the land which lies upon the slope of a mountain, and enclosed a cove (known as the “Nettle Cove,”) deadened some trees, and cleared up a small patch, but did not fence it in; that in 1866, the children of Polly Penland enclosed about one-eighth of an acre, set out a few peach trees and planted corn and tobacco, but did not cultivate the ground, and when the fence was down, would repair it; that no further attempt was made to cultivate this small area until 1877, when the defendant ploughed and sowed it in oats.

The court held, and we concur in the correctness of the opinion, that these temporary occupations, separated by long intervals of time, were not in law a possession, sufficient with a deed purporting to convey the estate to vest the title and bar the entry of the legal owner. The possession, to have this effect, must be continuous and uninterrupted for the period of seven years. Sheppard v. Sheppard, N. C. T. Rep., 108; Moore v. Thompson, 69 N. C., 120; Williams v. Wallace, 78 N. C., 354. An interruption of twelve months in such occupation is fatal to the claim of title. Ward v. Herrin, 4 Jones, 23. And even for a shorter period. Holdfast v. Shepard, 6 Ired., 361.

Not only must the possession be unbroken for the full period of seven years, but it must be manifested by distinct and unequivocal acts of ownership, as distinguished from successive and occasional trespasses. There have been many cases where the court has been called on to determine what acts do and do not constitute a possession, which by force of the statute will ripen a defective into a perfect title. It has accordingly been held that such possession is shown by,

1. The occupation of pine land by annually making turpentine thereon. Bynum v. Carter, 4 Ired., 310.

2. Entering upon, ditching and making roads in a cypress swamp, and working up the timber into shingles. Tredwell v. Reddick, 1 Ired., 56.

3. Keeping up fish traps in a non-navigable stream, erecting and repairing dams over it, and using it every year during the fishing season. Williams v. Buchanan, 1 Ired., 535.

On the contrary, possession is not shown by,

1. Cutting timber for a saw mill, and feeding hogs upon land susceptible of other uses. Loftin v. Cobb, 1 Jones, 406.

2. Making pole-bridges over a ditch on the side of a public road for driving cattle into a swamp, and the occasional cutting and getting timber therein. Morris v. Hayes, 2 Jones, 93.

3. Cutting timber for rails every year for a few weeks at a time, on land valuable only for its growth of timber. Bartlett v. Simmons, 4 Jones, 295.

It is obvious then that the short occupancy of small pieces of the land in 1861 and in 1866, and again in 1877, in the manner described, is not the possession required by law, and cannot aid the defendant's defective title.

II. It is also insisted for the defendant that the grant to Blount was inoperative to convey the land in dispute, by reason of the exception following the description of the boundaries of the tract, and the plaintiff's failure to show that the portion he now seeks to recover is embraced in the exception: The exception is in these words--“Within which boundary there are 13,735 acres of land, entered by persons whose names are hereunto annexed, since the date of said Blount's entries and by his permission; but as they are not yet surveyed, their situation cannot be delineated.” There was no list of names annexed to the grant exhibited in evidence, and no proof that any such ever was, beyond what is furnished by the grant itself.

In Waugh v. Richardson, 8 Ired., 470, the grant comprised within its boundaries (as ascertained by computation) 8,699 acres of land, and then follows these words--“Including within its bounds 5,699 acres of land which is excepted in this grant;” and the reservation was declared to be void for uncertainty. “The granting part of a deed,” says RUFFIN, C. J., “is not avoided by a defect in the exception, but the exception itself becomes ineffectual thereby, and the grant remains in force.”

In McCormick v. Monroe, 1...