McMillan v. Gambill

• Decision Date: 15 April 1890
• Citation: 11 S.E. 273,106 N.C. 359
• Parties: McMILLAN v. GAMBILL.
• Court: North Carolina Supreme Court

11 S.E. 273

106 N.C. 359

McMILLAN v. GAMBILL.

Supreme Court of North Carolina

April 15, 1890

This was a civil action for recovery of land, tried before CLARK J., and a jury, at fall term, 1888, of Ashe superior court. Plaintiff introduced in support of his title, and to show title out of the state, a grant from the state to Martin Gambill for 900 acres of land in Wilkes county, entered in 1798, surveyed in 1799, and granted in January, 1801, which said grant described the land (following the description in the entry and survey) as lying in Wilkes county, from which Ashe was formed in 1800. It was in proof that said land covered the locus in quo within its boundaries. The defendant asked the court to exclude the grant as void. This was refused, and defendant excepted. Plaintiff then introduced a deed from Martin Gambill's administrator to plaintiff's father, James McMillan, in 1814, for the land in controversy. The plaintiff introduced evidence that his father and himself had been in sole and exclusive possession of said land under said deed at least 25 or 35 years, within knowledge of witnesses still living. The defendant introduced evidence that one Pugh, claiming to have bought orally the land from plaintiff's father, and being in possession of it, had submitted his claim and defendant's verbally to arbitration, and, it being awarded to defendant, Pugh had surrendered possession to defendant, who still holds it. No written instrument was offered to show title in Pugh, and defendant did not claim his possession was protected or ripened by lapse of time. It was admitted that plaintiff and defendant were both grandchildren and heirs at law of Martin Gambill. The defendant asked the court to charge that the deed made by Martin Gambill's administrator was void, and that plaintiff and defendant were tenants in common, and plaintiff could not recover, and if Pugh bought verbally from plaintiff's father defendant was entitled to a notice to quit. The court told the jury that the deed of Martin Gambill's administrator was color of title, and that if the plaintiff, and those under whom he claimed, had held the land solely, exclusively, and adversely to all others for more than 20 years consecutively, it would protect them against the claim of tenants in common, there being no suspension of statute by reason of coverture or infancy shown; that, in making out the 20 years, the time between May 20, 1861, and January 1, 1870, was not to be counted; that if plaintiffs had acquired title by 20 years' consecutive possession, it could only be divested by 20 years' adverse possession by defendant, or by 7 years' possession under color of title. Exception by defendant. Verdict for plaintiff;...