Midgett v. Midgett
| Decision Date | 10 September 1901 |
| Citation | 39 S.E. 722,129 N.C. 21 |
| Parties | MIDGETT v. MIDGETT. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Dare county; McNeill, Judge.
Action by W. W. Midgett against J. D. Midgett. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Where at the time the state issued a grant to land the title thereto was held by others, such grant conveys no title, and hence, it having been put in evidence in an action to determine the title to the land described therein, the court should so instruct the jury.
Where an action is brought to determine the title to land, and plaintiff's only evidence as to his ownership is a grant from the state, which ownership, as well as possession defendant denies, refusal to submit an issue as to title or possession, or to charge the jury as to the same, is error.
The following is the map referred to in the opinion:
E. F Aydlett and F. H. Busbee, for appellant.
W. M Bond and B. G. Crisp, for appellee.
This is a proceeding commenced before the clerk of Dare superior court under chapter 22, Laws 1893. This act seems to have been intended as a substitute for the old processioning act and it has been so many times held by this court that it settles nothing as to title that we are some what surprised to see that it should have been used in this proceeding instead of a civil action. Vandyke v. Farris, 126 N.C. 744, 36 S.E. 171; Williams v. Hughes, 124 N.C. 3, 32 S.E. 325; Wilson v. Alleghany Co., 124 N.C. 7, 32 S.E. 326. But, besides this, it appears to us from the case on appeal, the map exhibited, and the argument of the case that chapter 22, Laws 1893, has nothing to do with it. If the plaintiff has any right under his grant of 1899, it is in ejectment. There is no evidence tending to show that the plaintiff was the owner of the land he claimed, or that he was in possession except the grant of 1899. It was flatly denied by defendant that the plaintiff was the owner, or that he was in possession, and yet the court refused to submit an issue as to title or possession, or to charge the jury as to the same; but charged the jury "that it was purely a question of fact for them to say where the lines were, and after weighing all the evidence both for the plaintiff and defendant, and giving due weight to the same, it was for them to say how it was, and to answer the issues accordingly." This was error. But this appears to us to be a remarkable case. In 1858 Edward Mann made a will, in which he devised this land to his four sons, as tenants in common, to be equally divided among them, "share and share alike," designating the order in which they should take, commencing at Caroon's line. This will was probated in 1861, and the plaintiff is the purchaser from one of the four devisees. The defendant claims under a deed from Thomas R. Mann for his interest under the will of Edward Mann, dated in April, 1884. The plaintiff claims the interest of W. K. Mann under a deed from T. M. Gard, dated April, 1892, stating that it conveys W. K. Mann's interest under the will of Edward Mann, and calls for the line of the defendant as...
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