Kennedy v. Maness

• Decision Date: 04 April 1905
• Citation: 50 S.E. 450,138 N.C. 35
• Court: North Carolina Supreme Court
• Parties: KENNEDY et al. v. MANESS et al.

138 N.C. 35

50 S.E. 450

KENNEDY et al.

v.MANESS et al.

Supreme Court of North Carolina.

April 4, 1905.

DEEDS—DESCRIPTION—UNCERTAINTY—ADVERSE POSSESSION—INSTRUCTIONS—JUDGMENT.

1. A deed describing certain property as: "Beginning at a white oak, running south of west 33 rods to a stake; thence east of south 33 rods to a stake; thence west of north 33 rods to the beginning, containing six acres more or less"—was void for indefiniteness.

2. Where certain land was conveyed by a deed void for indefiniteness of description, an instruction that if the land so conveyed had marked boundaries, as testified by the witnesses, where the boundaries passed through wooded lands, and there was a white oak marked as a corner in the woods, and at two other corners there were stakes, and at another a stake that was broken off, and the grantee cultivated every year the open land up to the straight lines running from one stake to the other, used the woods for a pasture, etc., and the fruit from the orchard, these would constitute known boundaries, and possession thereunder would ripen into title by 20 years' adverse use, was proper.

3. Where defendant claimed land sued for by adverse possession, that plaintiffs did not know defendant claimed to own the land on which he was living was immaterial; plaintiffs being bound to ascertain the nature of defendant's claim.

[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adverse Possession, §§ 128-133.]

4. Where, in an action to recover land, one of the defendants proved title to the tract occupied by him by adverse possession, a judgment directing that he go without day, and recover of plaintiffs his costs, was not objectionable, as taxing all costs against plaintiffs.

Appeal from Superior Court, Moore County; Peebles, Judge.

Action by Duncan Kennedy and others against Thomas W. Maness and another. From a judgment in favor of defendant Maness, plaintiffs appeal. Affirmed.

H. F. Sea well, for appellants.

CLARK, C. J. This was an action to recover 216 acres of land lying in one body, but in four separate tracts. The defendants answered, denying plaintiffs' title, and an issue was submitted as to title of each defendant in his respective tract. The plaintiffs recovered judgment except as to the six acresof which the defendant T. W. Maness was adjudged owner, and another tract of 57 acres, with respect to which last the court below granted a new trial. Upon the trial it appeared that Thomas W. Maness was in possession of the six acres claimed by him, and was not in possession of any other part of said lands. To this he claimed title by continuous adverse possession. He introduced a deed dated 15th February, 1875, from Elias Maness, under whom the plaintiffs claim by virtue of mesne conveyances from the purchaser at a foreclosure sale under a mortgage executed by...