McQueen v. Graham
| Decision Date | 10 May 1922 |
| Docket Number | 288. |
| Citation | 111 S.E. 860,183 N.C. 491 |
| Parties | MCQUEEN v. GRAHAM. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cumberland County; Kerr, Judge.
Action by W. L. McQueen against R. J. Graham. Judgment for defendant, and plaintiff appeals. No error.
It is competent for a witness to state that a deed covers land in dispute when he is stating facts within his knowledge.
Averitt & Blackwell and Sinclair, Dye & Clark, all of Fayetteville for appellant.
Cook & Cook and Rose & Rose, all of Fayetteville, for appellee.
The plaintiff brought this suit against the defendant, claiming ownership of a tract of land of 100 acres in Cumberland county, and alleging that the defendant had committed a trespass on the land. The defendant admitted the ownership by the plaintiff of the land adjoining that of the defendant. He denied that he committed any trespass and alleged that he was the owner of the disputed land under the deed referred to in his answer. There was a survey ordered by the court, and the land was surveyed, when, as is alleged, the plaintiff was present with his deeds, and when the defendant was not present, but sufficient information was obtained by the surveyor to ascertain the location of the disputed land, and it appears from the testimony of the surveyor and from his plat that there was, as argued by defendant, a case of lappage of about 15 acres between the boundaries of the plaintiff's deed and the boundaries of the defendant's deed. It is true that the plaintiff showed a chain of paper title running back for some years, and there was evidence on the part of the plaintiff of possession. The defendant also introduced paper title running back for some years, and he asserts that the evidence of his possession of the 15 acres lappage was direct and plenary, showing that he had been in actual possession of the disputed territory since the date of his deed, in 1903. He had cut wood and timber on it, had worked the turpentine, and had actually cleared up and cultivated a portion of it.
The plaintiff contended that Long branch constitutes the defendant's boundary, and the defendant contended that it was the "McQueen line," which is some 10 or 12 chains east of the actual run of Long branch. One issue, as to the ownership and possession of the land, was submitted to a jury, and the verdict was in favor of the defendant. Judgment, and plaintiff appealed.
We will take up the exceptions in the order adopted by the plaintiff in his brief:
Assignment of error No. 6 is treated by counsel first, and it seems to be taken entirely to the contention made by the plaintiff that the defendant's deed covered no land east of Long branch, for the reason that the first call of the defendant's deed is as follows:
"Beginning at a black gum in Yarborough's corner and runs with his line * * * to McQueen's line; thence as said line."
If it had been ascertained definitely by the jury, or had been admitted that "McQueen's line" was in Long branch, the plaintiff might have reason to complain, but it will be noted:
(1) That the deed to the plaintiff does not call for the run of Long branch, but corners in "a log road at or near the east edge of Long branch; thence with the east edge of said branch," etc. Under this phraseology it can be reasonably contended that the line did not go to the run of the branch, but only skirted the edge of the swamp, "at or near the east edge of" the branch.
(2) Defendant contends that, if there were no other evidence than the deeds offered by the plaintiff as to the location of his western line, the plaintiff might successfully maintain his position, but there is evidence in the record to show that the "McQueen line," as generally recognized in the community, was a straight line on the edge of the hill and on the east side of Long branch. E. G. Blake stated that he was present when the land was surveyed, and the survey was made on the east edge of the swamp, and the line was a straight line. And the witness Yarboro testified that the "McQueen line" was a straight line along the east edge of Long branch, and that there were marks on the line below the point B as it appears on the blueprint. The witness D. S. Jackson stated that, when Mr. Jessup, the county surveyor, ran the original line, he was present, and that the division line called for a straight line. If this testimony was to be believed by the jury, and his honor properly submitted the question to them, they had the right, under the same, to answer the issue in the defendant's favor.
The authorities cited in plaintiff's brief do not apply to the facts of this case. There was no dispute as to the location of Long branch, but there was a dispute as to the location of what was known in the community as the "McQueen line," and there was evidence on the part of the defendant to the effect that the McQueens had never had possession of any of the property west of the straight line contended for by the defendant as being the "McQueen line." When the actual location of the McQueen line was in dispute, the court left the fact to be determined by the jury.
The defendant having introduced evidence of a deed covering the 15 acres lappage, if it did cover it, and an actual adverse possession, under that deed, since 1903, he was entitled to have the matter submitted to the jury under a proper charge from the court, so that they could pass upon the issue as to whether the land belonged to the plaintiff or to him. Even though the plaintiff may have shown a senior paper title, if the defendant could show that he was in the actual adverse possession of the lappage under a deed which covered the land in dispute, and the plaintiff could only show constructive possession, then the jury could answer the issue in the defendant's favor. Simmons v. Box Co., 153 N.C at page 261, 69 S.E. 146; Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581. In this case the court held as follows:
"We may therefore take it to be settled by this court by a long and unvarying line of decisions that, if the person who claims under the older title have no actual possession on the lappage, such possession, although of a part only, by him who has the junior title, if adverse and continued for seven years, will confer a valid title for the whole of the interference, the title being out of the state."
See, also, Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226; Asbury v. Fair, 111 N.C. 251, 16 S.E. 467; Howell v. McCracken, 87 N.C. 399; Kerr v. Elliott, 61 N.C. 601.
In the same case the court holds that, when there is a claim by a junior grantee of title by adverse possession, under color, of the lappage of certain lands, and his possession is of such character and so continuous and adverse as to indicate that he is claiming the land beyond the boundaries of the plaintiff's deed, upon competent evidence, the question is one for a jury, under proper instructions from the court as to the legal effect of the possession.
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Price v. Tomrich Corp., 33
...visible on the ground. Vance v. Guy, Supra at 413, 27 S.E.2d at 121; Georgia-Carolina Land & Timber Co. v. Potter, Supra; McQueen v. Graham, 183 N.C. 491, 111 S.E. 860; Currie v. Gilchrist, Supra at 652, 61 S.E. at 584; See Scott v. Elkins, 83 N.C. 424, 427--428. The claimant, however, must......