Jacobs v. Williams

• Decision Date: 04 April 1917
• Docket Number: 303.
• Citation: 91 S.E. 951,173 N.C. 276
• Parties: JACOBS ET AL. v. WILLIAMS ET AL.
• Court: North Carolina Supreme Court

91 S.E. 951

173 N.C. 276

JACOBS ET AL. v. WILLIAMS ET AL.

No. 303.

Supreme Court of North Carolina

April 4, 1917

Appeal from Superior Court, Pender County; Connor, Judge.

Action by Taylor Jacobs and others against Riley Williams and others. Judgment for plaintiffs, and defendants appeal. No error.

Where there is evidence of adverse possession of entire tract, it is unnecessary to decide what effect possession of a portion under a dower right would have on the remainder.

This is an action to recover land. The plaintiffs are the heirs at law of Matthew Jacobs, and claim title by adverse possession. They introduced a deed covering the land in controversy from Thomas Jacobs to Matthew Jacobs of date September 10, 1840 and offered evidence tending to prove that their ancestor the grantee in said deed, had continuous possession of said land from the date of the deed until his death about 1858 and claimed and used it as his own. After his death dower was allotted in said land to the widow of Matthew Jacobs, Eliza Jacobs, at December term, 1858, of the court of pleas and quarter sessions. Evidence was also introduced tending to prove that the widow remained in possession of the land after the death of her husband until her death in 1900, and that during a part of the time the plaintiffs were in possession with her. The widow, Eliza Jacobs, afterwards married William Williams, the date not stated. In 1860, June 2, W. A. Lamb executed a deed to William Williams covering the land, and it is under this deed the defendants claim. On the 1st day of June, 1897, William Williams conveyed a part of said land to one of the defendants, and a part to another defendant.

The defendants offered evidence tending to prove that Eliza Jacobs died in 1899, and that they have been in the adverse possession of said land since that time.

An action was commenced by the plaintiffs against the defendants to recover said land February 4, 1907, in which judgment of nonsuit was entered at January term, 1910, and this action was commenced within one year thereafter.

The defendants moved for judgment of nonsuit, upon the ground that there was no evidence of 21 years' adverse possession under color in the plaintiffs, and therefore it had not been proven that title was out of the state, which was overruled, and the defendants excepted. There are also several exceptions to the charge, but all of them, except one to a statement of an agreement by counsel as a misapprehension, are on the ground there was no sufficient evidence to justify the charge given.

The jury returned the following verdict:

"(1) Are the plaintiffs, or any of them, the owners and entitled to the possession of the land described in the complaint as the Matthew Jacobs land outside the dower? Answer: Yes.

(2) Are the plaintiffs, or any of them, the owners and entitled to the possession of the land described in the complaint as the dower of Eliza (Williams) Jacobs? Answer: Yes.

(3) Are defendants in the unlawful possession of either of said tracts of land? Answer: Yes.

(4) What sum, if any, are plaintiffs entitled to recover of defendants as damages? Answer: One penny.

(5) Did Eliza Williams die seven years or more before February 4, 1907? Answer: No."

Judgment was entered upon the verdict in favor of the plaintiffs, and the defendants excepted and appealed.

Bland & Bland and C. E. McCullen, all of Burgaw, for appellants.

R. G. Grady and C. D. Weeks, both of Wilmington, for appellees.

ALLEN J.

The only question presented by the appeal is whether there is any evidence that the plaintiffs and those under whom they claim have had an adverse possession under color for 21 years, and in considering this question we must accept the evidence of the plaintiffs as true, and must give to it the construction most favorable to them. As to the part of the land covered by the dower the evidence showing title...