Pittman v. Weeks

• Citation: 43 S.E. 582,132 N.C. 81
• Parties: PITTMAN v. WEEKS.
• Decision Date: 10 March 1903
• Court: United States State Supreme Court of North Carolina

43 S.E. 582

132 N.C. 81

PITTMAN v. WEEKS.

Supreme Court of North Carolina

March 10, 1903

Appeal from superior court, Edgecombe county; Winston, Judge.

Action by W. M. Pittman against George W. Weeks. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

When in an instruction, the court in one place by mistake used the word "plaintiff" instead of "defendant," but the context clearly showed that it was a mistake, and the court expressly corrected the mistake in another part of the charge, the error was without prejudice.

G. M T. Fountain, for appellant.

John L Bridgers, for appellee.

WALKER J.

This is an action for the recovery of real property. In his complaint, which is in the usual form, the plaintiff alleges that he is the owner of 40 acres of land, it being part of a larger tract, and that the defendant is in the possession, and unlawfully and wrongfully withholds the possession from him. These allegations are denied by the defendant in his answer, and he pleads specially that the plaintiff did not commence his action within 20 years, nor within 7 years after the accrual of his right of action, and relies on the statute of limitations as a bar to his recovery. It was not necessary to plead the statute of limitations, because the defendant could have had the benefit of it under the general denial of the plaintiff's title and right of possession, as this court has often decided. Cheatham v. Young, 113 N.C. 161, 18 S.E. 92, 37 Am. St. Rep. 617.

It appears that on and prior to the 28th day of January, 1881, the defendant and one W. S. Weeks were tenants in common of a tract of land, a part of which is the land in controversy, and that on said day they divided the land equally between them, each receiving a deed from the other for his share, and on the same day W. S. Weeks conveyed his half to the plaintiff. In the said deeds the land allotted to each in the division was described by metes and bounds. These facts seem not to have been disputed.

There was evidence tending to show that the plaintiff did not know where the line dividing the two tracts was located, and that in the fall of 1881 the defendant told the plaintiff that the dividing line was where the defendant now claims it to be, and that the plaintiff, having confidence in the defendant, and believing the line to be at the place where the defendant had pointed it out to him, helped the defendant to mark the line. There was further evidence on the part of the plaintiff tending to show that this is not the true dividing line, as was afterwards shown by a survey made of the two tracts in accordance with the calls of the deeds, and that the plaintiff did not discover the mistake until a few months before bringing this action, when he found that the line pointed out by the defendant was five chains distant from the true line, and that it cut off a part of his land.

There was evidence on the part of the defendant tending to show that the line alleged to have been pointed out by him to the plaintiff is the true line, as located by the calls in the deeds, and that he has been in the open, notorious, and adverse possession of the locus in quo for more than 20 years, claiming it as his own; and while he alleges that his deed covers the disputed land, and that he is entitled for that reason to recover in this action, yet, if it does not, he insists that by said adverse possession he has acquired the title as against the plaintiff, and consequently that his possession is rightful.

The court without any objection, so far as appears from the record, submitted four issues to the jury, as follows: (1) Is the plaintiff the owner and entitled to the possession of the land described in the complaint? (2) Does the defendant wrongfully retain possession thereof from the plaintiff? (3) What damage, if any, has the plaintiff sustained? (4) Is the plaintiff's cause of action barred by the statute of limitations?

The exceptions of the plaintiff relate to the instructions of the court to the jury. The court substantially charged (1) that the plaintiff must recover, if at all, upon the strength of his own title, and therefore if he has failed to satisfy the jury by a preponderance of the evidence that the land claimed by him is covered by his deed they should answer the first issue, "No;" (2) if the jury find that the plaintiff's deed covers the land in dispute, they should answer the first issue, "Yes," unless the defendant has satisfied them by a preponderance of the evidence that he has been in the actual and adverse possession thereof, under known and visible boundaries, for 20 years next prior to the date of the commencement of this action, and the court fully explained to the jury the nature of the adverse possession required to confer or ripen title. The jury answered the first issue, "No," and thereby found as a fact, under the evidence and the instructions of the court, either that the plaintiff's deed did not cover the land, or that, if it did cover the land, the defendant had been in the adverse possession of it for 20 years prior to the 20th day of March, 1901, the date of the issuing of the summons.

The plaintiff assigns five errors, which we will consider in the order in which they are presented in the record:

1. The court, in giving the instructions requested in the defendant's third prayer, explained to the jury what is meant by "color of title and adverse possession thereunder sufficient to ripen the color into a good or perfect title," and then proceeded as follows: "By colorable title, the law means that the deed under which the plaintiff claims the land covers and includes it, and he had the title and possession spoken of, adverse, as I have and shall explain, seven years before March 20, 1901, the time when plaintiff brought his action, and if the jury find that he had such possession under colorable title for seven years they must answer the first issue, 'No."' It will be seen that, by inadvertence, the court used the word "plaintiff" for the word "defendant"; but, when we look at the context of the particular instruction, we do not see how the jury could fail to understand the meaning of the court, as it is perfectly plain...