McLean v. Smith

• Decision Date: 24 March 1890
• Citation: McLean v. Smith, 106 N.C. 172, 11 S.E. 184 (N.C. 1890)
• Parties: McLEAN v. SMITH et al.
• Court: North Carolina Supreme Court

11 S.E. 184

106 N.C. 172

McLEAN v. SMITH et al.

Supreme Court of North Carolina

March 24, 1890

Appeal from superior court, Robeson county; J. H. MERRIMON, Judge.

Action to try title to land by J. L. McLean against Nancy Smith and others.

It was admitted by the parties that the title to the land was out of the state, and the plaintiff admitted that the defendant Smith, had and held under the older grant. A plat of the plaintiff's and defendants' lands, showing the line of their respective tracts of land, and a lappage, A, B, C D, A, is herewith set out as a part of the case on appeal:

About one acre of plaintiff's inclosed field, and the same of defendants', is on the lappage.

The plaintiff testified that he is in possession of the lands conveyed by his father's grant. His residence had been there since he could remember. His possession inclosed by fence. In cultivation 35 or 40 years ago. Fence around it now. Fence has been moved in once or twice. It was cultivated a long time before the fence was moved in. Part between O and X was once in his inclosure. The other part was woodland outside of X. He had been using it for anything the would use woodland for. Made rails and lightwood. Cut one stick of timber off of it, about all there was on it. Had been there 12 years. Had farm under his control. Did not know how long his father lived there. Can remember 35 years back. Has known his father to make rails on it, and haul straw. His father kept up fence around X since he (witness) can remember. His father died in 1876. There is a possession by defendant Henry McLean, defendant Nancy Smith's tenant at O. He moved there in 1879. Has been there ever since. Summons issued in this case December 22, 1884. The part at O not worth much,--not more than one-fourth an acre. Something over three acres in lap. Did not know where his line was until D. S Morrison surveyed it, about the year 1880. Never knew defendant Nancy claimed it. He claimed all the grant called for. Did not know where the line called for. Told McCaskill, about 1879, he was using the land outside of his field. Nancy Smith has been in possession of her land. There was some clearing on it when he could recollect. Did not mean to take possession of Smith's land when he went there. Smith showed him once about where his line ran. She showed him about where his corner was. Daniel Leach testified for the defendants that he knew where the lands in dispute were. Had known all his life. Was 30 odd years old. Was principally raised there. Had hauled light wood and straw off the land for the defendant Smith. Did it when he was a little boy, before the war, and continued to do it. W. J. Currie testified for defendants that he had got timber off the land, and paid defendants for it. Never heard of the plaintiff's claim till the commencement of this action. Got pine timber off the land four or five years ago. Was agent for defendant Nancy. This was about all of the oral evidence in the case. The plaintiff requested the following special instructions: "That, if the jury believe from the evidence that the plaintiff, and those under whom he claims, have had actual possession, under color of title, for seven years or more by inclosing or in cultivating some of the land in space X, being actually seated on same, the defendant Smith, nor those under whom she claims, not being seated on the interference at all during this time, the possession of the whole lappage covered by both grants would be in the plaintiff exclusively, the possession of part included in both grants being possession of all of it, and plaintiff would have a good title to the whole, and would be entitled to recover, though his is the junior grant." The court declined to charge as requested, and the plaintiff excepted. The court instructed the jury that, if the plaintiff's ancestors entered upon the lap with the intent to claim against the defendant, Smith, who, the plaintiff admits, has and claims under an older grant, and occupied it for seven years under his grant, openly and notoriously so as he exposed himself to the action of defendant, or those under whom she claims, his title would be completed and perfect. But, if the ancestor of the plaintiff did not intend to set up a claim within the line of defendants' lands, his possession was not adverse, and plaintiff could not recover. Plaintiff excepted. The plaintiff claimed through his father, and defendant had the older grant. It appeared to the court that the testimony of the plaintiff did not show necessarily an adverse possession of the lappage by the plaintiff's ancestor, and that it was a proper case to leave it to the jury to say with what intent the ancestor placed his fence across the defendant's line at X. If the ancestor's possession was not adverse to defendant, the evidence did not show an adverse possession by the present plaintiff for seven years of any part of the lappage except that inclosed by his fence. He testified himself that his possession began in 1876, and that defendant's tenant, Henry McLean, went into possession of the lot at O in the year 1879. There was a verdict for defendants. Plaintiff moved for a new trial. Motion denied. Plaintiff appealed to the supreme court.

MERRIMON C.J., dissenting.

T. A. McNeill, for appellant.

William Black, for respondents.

AVERY, J., (after stating the facts substantially as above.)

It is settled that where the title deeds of two rival claimants to land lap upon each other, and neither is in the actual possession, of any of the land covered by both deeds, the law adjudges the possession of the lappage to be in him who has the better title; "but, if one be seated on the lappage, and the other not, the possession of the whole interference is in the former." Green v. Harman, 4 Dev. 158; Williams v. Miller, 7 Ired. 186; Scott v. Elkins, 83 N.C. 424; Dobbins v. Stephens, 1 Dev. & B. 5; Smith v. Ingram, 7 Ired. 175; Kitchen v. Wilson, 80 N.C. 191. But if both have actual possession of the lappage the possession of the true owner, by virtue of his older, title, extends to all not actually occupied by the other.

When the plaintiff's father, under whom he claims, inclosed 35 or 40 years before the trial, at the end of the parallelogram formed by the lapping lines of the two 100 acre deeds, one acre of the 3 3/8 acres embraced in the disputed territory, the presumption was that he entered in the assertion of a claim of right under his deeds which covered his possession as it is now, and was at the trial, and also, nothing more appearing than that he had inclosed and cultivated it in the ordinary course of husbandry, that his title to it had matured after seven years of such possession. Berryman v. Kelly, 13 Ired. 269; Williams v. Buchanan, 1 Ired. 535; Yates v. Yates, 76 N.C. 146; McCormick v. Munroe, 3 Jones, (N. C.) 332; Malone, Real Prop. Tr. 99; Kinney v. Vinson, 32 Tex. 125; French v. Pearce, 8 Conn. 443; Staton v. Mullis, 92 N.C. 623. His adverse possession under a deed with definite boundaries extended to all land covered by it. Davis v. Higgins, 91 N.C. 382. If every man who is induced, by an honest misunderstanding as to the sufficiency of a title that purports upon its face, to convey land, to enter into possession, were denied the benefit of his open, notorious, adverse occupancy till he should take the laboring oar, and satisfy a jury that he did not make a mistake, the difficulty of proving the actual intent entertained by one under whom claim is made in first entering on the land would often destroy titles acquired by possession, and universally recognized as good. Indeed, the doctrine of color of title is founded upon the idea of entering upon land in the reasonable belief that one is the true owner. Sedg. & W. Tr. Title Land, § 759. The defendant did not extend her fence across the lappage at O, in the other extreme corner, till 1879, when the previous possession of the plaintiff, if it was not equivocal, had already vested the title to the whole in the latter. Occasional entries on or before that time by the defendant, for the purpose only of cutting trees, or haulting light wood or pine straw off the land, would not constitute a possession on her part, and extend constructively, as was contended on the argument, to all of the interference except the actual possessio pedis of the plaintiff. Bartlett v. Simmons, 4 Jones, (N. C.) 295; Loftin v. Cobb, 1 Jones, (N. C.) 406; Everett v. Dockery, 7 Jones, (N. C.) 390; Morris v. Hayes, 2 Jones, (N. C.) 93. She must show that she continuously subjected the land to the only use that it was susceptible of, if she did not occupy a house upon it, or keep any portion of it inclosed, before she can limit the effect...