Jennings v. White

• Decision Date: 12 September 1905
• Parties: JENNINGS et al. v. WHITE.
• Court: North Carolina Supreme Court

139 N.C. 23

51 S.E. 799

JENNINGS et al.

v.WHITE.

Supreme Court of North Carolina.

Sept. 12, 1905.

1. Action fob Possession of Land—Deeds-Calls—Instructions.

Where, in a suit for the possession of real estate, a call in a deed relied on by a party was a specified number of feet to a designated line, the omission of the court to charge that the call should not exceed the specified number of feet, unless the jury fixed the designated line at some other point, in which event they should extend the call to the line, was error.

2. Adverse Possession—Tacking Successive Possessions.

Where the deed to one claiming title to land by adverse possession did not cover the land, the possession thereof by his grantor could not be tacked onto his possession for the purpose of showing a continuous adverse possession for the statutory period.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 213-228.]

S. Appeal — Instructions — Prejudicial Error.

Where, in a suit for the possession of land, the court on appeal could not determine whether the verdict of the jury was based on its establishment of a line designated in a deed after disregarding the distance called for in the call, or whether it was based on a finding of title by adverse possession, an error in an instruction as to title by adverse possession was prejudicial.

Appeal from Superior Court, Pasquotank County; E. B. Jones, Judge.

Action by W. M. Jennings and another against W. H. White. From a judgment for plaintiffs, defendant appeals. Reversed.

W. M. Bond and C. E. Thompson, for appellant.

Aydlett & Ehringhaus, for appellees.

CONNOR, J. Plaintiff alleged that he was the owner and in possession of a lot in Elizabeth City, on Road street, beginning at the north east corner of Scott's lot, and running at a right angle with Road street, along the fence of said Scott, 410 feet to Commander's line; thence northwardly, parallel with Road street, about 56 feet, to W. K. Carter's line; thence eastwardly, with Carter's line, parallel with the first line, to Road Street; thence, with said street, about 56 feet, to the beginning. The defendant admitted that he was in possession of a part of said lot, denying plaintiff's alleged title thereto, and alleged that he was the owner thereof. Plaintiff introduced several deeds executed prior to October, 1876, which defendant conceded covered the lot described in the complaint. Plaintiff introduced a deed from G. F. Steel to Sarah Gasklns, bearing date October 16, 1876, conveying a lot "beginning on Road street, at the northeast corner of Charles' lot; running thence with said street 56 feet to the Colored Odd Fellows' lot at a large elm tree; thence north, 82 1/2 degrees west, 410 feet, to Thomas Commander's line; thence south, 4 degrees west, 18 feet, to W. F. Martin's line; thence south, 82 1/2 degrees east, along Martin's and Mrs. Dashiell's line. 115 feet: thence south 11 degrees east, 38 1/2 feet, to said Dashiell's line; thence along her line and Charles' line south, 82 1/2 degrees east, 295 feet, to the beginning." A deed from Sarah Gaskins to G. W. Cobb, dated September 1, 1887, conveyed by the same description the lot conveyed to her. Cobb conveyed by the same description to plaintiff July 8, 1889.

It is contended by defendant that for some reason Steel, who it is conceded was the owner of the parallelogram described in the complaint, in conveying to Sarah Gaskins retained the southwestern corner of the lot. The plaintiff says that, while it is true that the third call is "south, 4 degrees west, 18 feet, " it is also to "Col. W. F. Martin's line, " and that the last part of the call will control, by invoking the well-settled principle that, where the call is for a certain distance to a natural object, or a known and fixed line of another tract, the distance will be disregarded, and the natural object or line control. This principle is conceded. The court was not requested to instruct the jury upon this view. His honor simply told the jury to inquire whether the deed under which plaintiff claimed covered the land in dispute. The court should instruct the jury, as a question of law, what the boundaries are, leaving to them the question where they are. Under the description contained in the plaintiff's deed and those of Gaskins and Cobb, the third call should not exceed 18 feet, unless the jury fixed "Col. W. F. Martin's line" at some other point, in which event they would extend the call to such line. His honor inadvertently omitted to give the jury any guide by which they could be governed in answering the question submitted to them. No special instructions were asked, and it may be that defendant is not in a position to avail himself of the failure to so instruct the jury. If the grantor in the deed to Sarah Gaskins intended to make the third line 56 feet, instead of 18, he has made a break in the side line, running into another lot 38 feet, which would prevent him from reaching the beginning point by the calls in the deed at the end of the line of 295 feet. It would seem difficult to reconcile the calls in the deed from Steel to Gaskins and those leading up to and including plaintiff's deed, so as to include all the original lot, being a parallelogram, with two sides of 410 feet and two ends of 56 feet each.

The...