Loftin v. Cobb

• Decision Date: 30 June 1854
• Court: North Carolina Supreme Court
• Parties: DOE ON THE DEMISE OF WILLIAM C. LOFTIN v. RICHARD G. COBB.

1 Jones (NC) 406

46 N.C. 406

62 Am.Dec. 173

DOE ON THE DEMISE OF WILLIAM C. LOFTIN

v.RICHARD G. COBB.

Supreme Court of North Carolina.

June Term, 1854.

Possession of two tracts of land, adjacent to the one in controversy, for seven years, with color of title, though they had all three been conveyed in one deed, by separate and distinct descriptions, is not a possession of the land in question, and will not amount to a bar under the Statute of Limitations.

Cutting of trees upon a tract of land susceptible of other uses and enjoyment, and feeding hogs upon it, under a color of title for seven years, do not constitute such a possession as will bar an entry.

THIS was an Action of Ejectment tried before his Honor Judge BAILEY, at the Spring Term, 1854, of Lenoir Superior Court.

There were two counts in the declarations, one, upon the demise of William C. Loftin, and the other upon that of the trustees of the University. The plaintiffs claimed title from one Thomas Box, to whom two grants had issued, one in 1757, and the other in 1760, which together covered the land in dispute. It was proved by a witness, now seventy years old, “that he had heard Thomas Box spoken of, and that it was said that he had left this country about, or soon after, the Revolutionary war, and went to South Carolina; that he had never known or heard of any relations he had left; and he had never heard of him, or of his return, after he had left, and no person had appeared claiming to be his heir, that he had heard of.” Plaintiff then introduced a deed from the Trustees of the University to William C. Loftin, one of the lessors of the plaintiff, dated in 1850, and he proved the defendant's possession at the time of the service of the declaration.

The defendant showed title to various tracts of land adjoining the one in question, to wit, deeds from one Mundine to Tisdale, in 1771, and from Tisdale to Richard Caswell, in 1775, and from Caswell to Jesse Cobb, in 1783.

The deed from Caswell to Cobb conveyed three tracts of land, by separate and distinct descriptions, and by separate and distinct clauses of conveyance, one of which was the tract in question between the parties, which was adjoining the other two: of the two former tracts, the defendants had had a long possession of thirty years, both by residence and cultivation: of the other, the tract in dispute, they had no possession, except that for more than seven years, he, and those under whom he claimed, cut timber upon it, and hauled it off to a saw-mill on one of the other tracts, where it was sawed into lumber, and that he, and those under whom he claimed, for that length of time, fed hogs upon it. The land was not swamp land, but was good turpentine land, having on it a good many pine trees, fit for making turpentine, which were not cut or carried off, but the timber trees during this period had been nearly all taken off. The tract in question was wood land, and had not been cultivated, or in anywise improved or occupied.

The defendant insisted that the plaintiff could not recover, upon the ground--

1st. Because Wm. C. Loftin had no title.

2d. Because the persons under whom defendant claimed had possession of the adjacent tract, for upwards of thirty years, and being in possession of a part, he was in possession of the whole, under the deed aforesaid, and that the law would presume a grant for the same land.

3d. That, if the actual possession of the other two tracts would not in law be a possession of the tract in dispute, that the cutting of timber on the land, and having the same sawed at his mill, and feeding his hogs upon the land, constituted an actual possession, and this continuing for seven years, under color of title, his defective title became a good one.

As to the first objection, the Court instructed the jury, that though Loftin's deed was invalid, the plaintiff would be entitled to recover upon the other demise, provided the land had escheated to the University; that, if Thomas Box died without leaving any heirs, the lands would, by law, escheat to the trustees of the University; that the possession of the two tracts of land, adjoining the lands in dispute, was not a possession of that tract, and that the cutting of timber on the land, and having the same sawed, and feeding hogs upon the land, although this continued for seven years, was not such a possession as would, with color of title, give him a good title.

Under these instructions, the jury found a verdict for the plaintiff, and the defendant obtained a rule for a new trial. Rule discharged and appeal.

Person and Green, for the plaintiff .

J. W. Bryan, for the defendant .

BATTLE, J.

Upon the trial, three objections were taken against the right of the plaintiff to recover, of which two only have been urged by the defendant's counsel in the argument here. The proposition, that because the defendant, and those under whom he claimed, had been in possession for more than thirty years of the adjoining tracts of land, they thereby had possession of the tract in question, inasmuch as all the tracts, though separate and separately described, had been conveyed by one deed, has been properly given up. It cannot be supported upon principle, and is directly opposed by the authority of the case of CARSON v. BURNETT, 1 Dev. and Bat. 546.

The objection to the title of the Trustees of the University, under whose demise the verdict for the plaintiff was taken, is founded upon an alleged error in the Court, in leaving the question of escheat to the jury, as one of fact, instead of deciding it as one of law. But, by looking at the charge, in connection with the evidence, it will be seen that no such error as is supposed was committed.” The testimony of an aged witness was, that Thomas Box, the grantee of the land under whom the Trustees claimed, “had left the State about the period of the Revolution, and had never since been heard of; that he had no...