Hawkins v. Works

• Decision Date: 26 April 1898
• Citation: 122 N.C. 87,30 S.E. 13
• Court: North Carolina Supreme Court
• Parties: HAWKINS et al. v. RICHMOND CEDAR WORKS et al.

30 S.E. 13

122 N.C. 87

HAWKINS et al.

v.RICHMOND CEDAR WORKS et al.

Supreme Court of North Carolina.

April 26, 1898.

Adverse Possession—Appeal—Judgment—Costs.

1. Where one, after entry, acquires color of title, and continues in unbroken possession thereunder for more than seven years, the title ripens by adverse possession.

2. Questions of fact raised for the first time on appeal cannot be considered.

3. Where all the parties to an action consented that the judge was to hear and determine the case outside of the county, no limitation as to time or place being stated, if the judgment is rendered before such consent is withdrawn no objection can be made that the judgment was signed out of court.

4. Where a judgment is affirmed in part and reversed in part, the costs will be divided on appeal, as provided by Code, § 527.

Appeal from superior court, Dare county; Timberlake, Judge.

Action by W. M. Hawkins and others against the Richmond Cedar Works and others. From a judgment against defendants, they appeal. Modified.

Shepherd & Busbee, R. T. Gray, and W. D. Pruden, for appellants.

E. F. Aydlett and F. H. Busbee, for appellees.

CLARK, J. Sykes had been in possession a year or more before he obtained the Be-langia deed, but it is not necessary, to ripen a title by seven years' adverse possession, that the entry shall be made under color of title, nor, when color of title is obtained subsequent to the entry, that any declaration shall be made or any act of publicity shown to indicate that the holding thereafter is under color of title. Every possession is pre sumed to be under such title as the party in possession holds, and from the time such title is acquired. Bryan v. Spivey, 109 N. C. 57, 13 S. E. 766, does not sustain the plaintiff's contention, but is to the contrary. Indeed, we find no authority for his contention. Sykes entered in 1868, but as he acquired color of title in 1870, and held possession under it till 1881, the referee properly ruled that this ripened the title in him. In Rogers v. Mabe, 15 N. C, at page 195, Ruffin, C. J., says: "If one in possession take a deed in fee from another, who has no right, that is colorable title, which apparently authorizes the subsequent possession."

As to the contention that the "Richmond Cedar Works Company" and the "Richmond Cedar Works Company, Limited, " were different corporations, if there was any evidence to sustain it, the point should have been presented, and the fact found below. It is too late to make that exception for the first time in this court. There was evidence of slight breaks in the possession of Sykes, but there was evidence which authorized the referee to find that there had in law been a continuous possession under color of title by Sykes for more than seven years. We do not understand that his honor overruled that finding of fact, but to have sustained the plaintiff's exception upon the ground that color of title must be acquired contemporaneously with possession. He did not reverse the finding of fact, but the conclusion of law.

The defendants' exception that the central tract should have been held a parallelogram, instead of a triangle, is...