Kitchen v. Wilson

• Decision Date: 31 January 1879
• Citation: 80 N.C. 191
• Parties: GEORGE W. KITCHEN and others v. GEORGE W. WILSON and others.
• Court: North Carolina Supreme Court

80 N.C. 191

GEORGE W. KITCHEN and others

v.GEORGE W. WILSON and others.

Supreme Court of North Carolina.

January Term, 1879.

CIVIL ACTION to recover Possession of Land tried at Fall Term, 1878, of TRANSYLVANIA Superior Court, before Avery, J.

The opinion contains the facts. Judgment for defendants, appeal by plaintiffs.

Messrs. J. H. Merrimon and C. M. McLoud, for plaintiffs .

Messrs. T. F. Davidson and Reade, Busbee & Busbee for defendants .

SMITH, C. J.

The plaintiffs claim title to the land in dispute under a deed from Beverly Daniel, marshal of the United States, to George C. Neil, dated December 6th, 1811, and a deed from the latter to George Clayton, ancestor of the plaintiffs dated March 10th, 1823, operating as color of title and possession thereunder. In both deeds the land is described as being in the county of Buncombe, “beginning on a small black oak and pointer, on the top of a ridge and runs 225 poles north to a stake, thence east 256 poles to a stake, thence 225 poles south to a stake in James and William Davidson's line, thence with their line 174 poles west, passing their pine corner 82 poles to the beginning, containing 200 acres more or less.”

The defendants derive their title under grants from the state to John Clayton, their ancestor, one dated December 4th, 1815, on an entry of October 29th, 1814, conveying one hundred acres, the other dated December 5th, 1818, on an entry of January 3rd, 1816, conveying one hundred acres. The jury rendered a special verdict in which they find the following facts:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

The boundaries given in the deeds from Daniel to Neil and from Neil to George Clayton are correctly laid down in the plat A, B, C, D, and as appears therefrom, include the land in dispute. The plaintiffs and those under whom they claim have been in possession since the year 1820, of so much of the tract as lies south of the dotted line, marked thereon and embracing the larger part of it. The grants to John Clayton and his home tract are also properly located on the map, and the locus in quo lies in the boundaries of one or both of the two grants from the state. The defendants and John Clayton have been in actual possession of the lands defined in the grants, but outside of the plaintiffs' boundaries since the year 1824, and of a portion of their land lying within those boundaries, since the year 1869. The plaintiffs and George Clayton have never been in actual possession of the lappage or part covered by the conflicting claims, until the year 1856, since which time some of it has been occupied by the plaintiffs. Upon the verdict, judgment was entered for the defendants.

The plaintiffs' exceptions relate to the exclusion of evidence offered by them on the trial, and to the insufficiency of the findings of the jury to warrant the judgment that was rendered. The latter will be first considered.

1. The action is trespass for breaking and entering the plaintiffs' close and a constructive possession is in law sufficient to sustain it. By reference to the complaint it will be seen that the plaintiffs claim title in fee to the land described in the deed from Neil to Clayton, allege an unlawful entry thereon by the defendants, in December, 1869, and a withholding of the same to the time of bringing suit, and demand the restoration of possession and damages for detaining their property. The case made in the complaint has, therefore, all the elements of the old superseded action of ejectment and must be governed by the same rules. But proof of property in the plaintiffs is necessary to their recovery of the land, whether the action be in one or the other form, since the title, if not changed and vested in them by their possession, remains in the defendants under the grants.

2. The allegation of possession of the disputed territory since, and for nine years preceding the year 1823, is not denied in the answer, and the fact is thereby admitted. This objection rests upon a misapprehension of what is contained in the answer of defendants Wilson and others who assert a right to the premises. In the 2nd paragraph of their answer, disclaiming personal knowledge, they say on information and belief, that neither the plaintiff nor any one under whom he claims has ever had such possession or title to such tract as to give actual or constructive possession, nor have they (plaintiff or Neil) or either of them had possession of or title to any portion included in the boundaries now in possession of any of these defendants, or that was in possession of any of them at the beginning of the action; or in which any of these defendants have entered or cut or converted trees or timber. It would be difficult to use words more directly and explicitly denying the plaintiffs' averment, and the issue thus made was very properly left to and disposed of by the jury.

3. The deed from John Clayton to the defendants was inoperative to convey lands then in the adverse occupancy of the plaintiffs. This point was not pressed in the argument for the two-fold reason: (1) The defendants as heirs at law of John Clayton would take by descent if not under his deed; (2) If such adverse possession existed it would have the effect to vest title in the plaintiffs, and their right to recover would be inaffected by the deed.

4. We are now brought to a consideration of the facts determined by the special verdict and their effect upon the conflicting claims of the parties to the land in contest between them. The plaintiffs insist that their actual occupancy for so long a time, below the dotted line, of the land defined in the deeds of Daniel and Neil was in law a constructive possession, co-extensive with the described boundaries, and there being no actual adverse possession above the line, conferred a valid title to the entire tract.

This is correct as to the lands of others embraced within the plaintiff's deeds, upon which they may have made an actual entry and thus become liable to the action of the rightful owner, and it is because the owner fails to bring his action and assert his title when he could do so, that after a time his entry is barred, and the possession transfers the title. But the proposition is not correct when applied to lands within the boundaries of the deed, not actually entered upon so as to give a right of action to the owner. As to lands thus situated a different rule prevails and it is held that the title draws possession to it and restricts pro tanto the constructive possession under the deed. The numerous cas...