Pennell v. Brookshire

• Decision Date: 12 January 1927
• Docket Number: 492.
• Parties: PENNELL et al. v. BROOKSHIRE et al.
• Court: North Carolina Supreme Court

136 S.E. 257

193 N.C. 73

PENNELL et al. v. BROOKSHIRE et al.

No. 492.

Supreme Court of North Carolina

January 12, 1927

Appeal from Superior Court, Caldwell County; Lane, Judge.

Action to recover damages for trespass on lands by Thomas L Pennell, prosecuted by Lula Pennell and another on his death against Lester Brookshire and another. Judgment for plaintiffs, and defendants appeal. No error.

Failure to repeat instruction on burden of proof in succeeding instructions as to law on varying facts is not error.

W. C Newland and Lawrence Wakefield, both of Lenoir, for appellants.

Squires & Whisnant, of Lenoir, for appellees.

CONNOR J.

This action involves title to land situate in Caldwell county. Neither plaintiff nor defendants claim title under a grant from the state, nor do they claim from a common source. Both rely upon deeds offered in evidence, as color of title, and upon adverse possession thereunder for the time required by statute, to vest title, according to their respective contentions.

The jury found that plaintiff is the owner of the land described in the complaint, and that defendants have wrongfully trespassed thereon by cutting timber growing on said land. The damages which plaintiff is entitled to recover of defendants were assessed at $20. Defendants contend that there was error in the admission of evidence, to which they objected in apt time, and in instructions to the jury, to which they duly excepted.

Plaintiffs offered in evidence a grant from the state, which was not registered at the time the action was begun, but which appeared to have been duly registered prior to the trial. This grant was offered only for the purpose of showing title out of the state; plaintiff's counsel stated in open court, at the time same was offered, that they could not connect plaintiff's title with said grant, and that they did not claim under it. Plaintiff further offered evidence tending to sustain her contention that the land described in the grant was the same land as that described in the complaint, and that she and those under whom she claimed had been in the adverse possession thereof under color of title at the time the action was begun for the time required to vest title thereto in her.

Defendants objected to the introduction of the grant, for that same was not registered until after the action was begun, and for the further reason that plaintiff does not claim under said grant. The objection cannot be sustained upon either of the grounds stated at the trial as appears in the case on appeal. Defendants rely upon Morehead v. Hall, 132 N.C. 122, 43 S.E. 542. In that case plaintiff relied solely upon the grant, which was not registered on the date the action was begun, as the source of his title. He conceded that at the time the action was begun he had not acquired title by adverse possession, either with or without color of title. In the instant case, plaintiff offered the grant, not as the source of her title, but solely for the purpose of showing title out of the state. Although not registered at the commencement of the action, it was competent at least for that purpose. It has been held that registration of a grant from the state is not necessary to give it validity for the purpose of passing title. Dew v. Pyke, 145 N.C. 300, 59 S.E. 76; Janney v. Blackwell, 138 N.C. 437, 50 S.E. 857; C. S.§ 7579. As to registration of deeds of gift, see C. S. § 3315. Although a grant was not registered at the commencement of the action, if it is registered subsequent thereto, and prior to the trial, one who claims under the grant may connect himself therewith, and thereby show title in himself. Herbert v. Development Co., 170 N.C. 622, 87 S.E. 515. A deed unregistered at the time the action was begun, but registered at the time of the trial, may be offered in evidence to show title in one who claims thereunder at the beginning of the action. Brown v. Hutchinson, 155 N.C. 207, 71 S.E. 302; Burnett v. Lyman, 141 N.C. 501, 54 S.E. 412, 115 Am. St. Rep. 691.

The objection could not have been sustained upon the second ground assigned at the trial, to wit, that plaintiff did not claim under the grant. One of the various methods by which a plaintiff in an action to recover land may meet the requirement of the law that he must recover, if at all, on the strength of his own title, is that-

"He may show title out of the state by offering a grant to a stranger, without connecting himself with it, and then offer proof of open, notorious, continuous adverse possession, under color of title in himself, and those under whom he claims, for seven years before the action was brought." Moore v. Miller, 179 N.C. 396, 102 S.E. 627; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142.

In their brief filed in this court, defendants urge an additional reason why their objection to the introduction of the grant should have been sustained by the trial judge. It appears upon the face of the grant that it was not registered within two years after it was perfected. C. S. § 7579. Defendants contend that there was no statute in force at the time the grant was registered, to wit, December 3, 1924 extending the time for its registration. This was not assigned...