Redmond v. Mullenax
| Decision Date | 12 December 1893 |
| Citation | 18 S.E. 708,113 N.C. 505 |
| Parties | REDMOND et al. v. MULLENAX. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Henderson county; J. D. McIver, Judge.
Action by William Redmond and Francis M. Scott against J. A Mullenax to recover land. Judgment for defendant. Plaintiffs appeal. Affirmed.
The case settled by the court below states the facts as follows:
The plaintiffs claimed title under a grant from the state of North Carolina to one Tench Cox, dated the 25th day of June 1796, and mesne conveyances down to themselves. The first call in the Tench Cox grant was: "Beginning at a poplar in the South Carolina boundary line, and runs north," etc. It was admitted that the poplar was the beginning corner. The last call but one was: "Thence south 106 chains to a stake in the South Carolina line." The last call: "Thence east with the South Carolina line to the beginning." The defendant claimed title under a grant from the state to one Kuykendall, dated the 2d day of February, 1882, and thence by mesne conveyances to himself. The grant recited that the money to secure the same was paid into the state treasury on the 31st day of December, 1881. The plaintiffs claimed that their southern boundary line was a direct line from the terminus of the last call but one "south 106 chains to the beginning," which would include the land in controversy. The defendant claimed that plaintiffs' southern boundary line was a line running due east from a point on the line of 106 chains to the poplar the beginning corner of the Cox grant, which would not include the land in controversy; that, even if plaintiffs' contention as to boundary was correct, he had been in possession of said land under color of title for more than seven years prior to the commencement of this action.
The plaintiffs tendered the following issues: Are the plaintiffs the owners of, and entitled to the possession of, the land described in the complaint? Where is the southern boundary of the plaintiffs' grant as described on the plat? Has defendant had such possession of the land by him as to ripen his color of title into a perfect title? Is defendant in the wrongful possession of any part of plaintiffs' land? What damage are plaintiffs entitled to recover? The court submitted the following issues: (1) Are the plaintiffs the owners, and entitled to the possession, of the land in controversy? Answer: "No." (2) Is the defendant in the unlawful possession of any part of said land? Answer "No." (3) What damage are plaintiffs entitled to recover? Answer: "None." The plaintiffs excepted to the issues submitted.
The plaintiffs introduced in evidence certain acts of the legislature of North Carolina from 1803 to 1814, for the purpose of showing that the South Carolina line was not established as contended at the time of the issuing of the Cox grant in 1796. There was evidence tending to show that the land in controversy was west of the termination of the line of 1772. There was also evidence tending to show that the South Carolina line, as it was understood to exist at the time of issuing of plaintiffs' grant, (Cox grant,) was a line west from the poplar to and beyond the line in plaintiffs' grant, and deeds running south 106 chains being next to the last call in said grant.
The plaintiffs requested numerous special instructions to the jury, all of which were given by the court, except the following: "If the plaintiffs, on the 15th day of January, 1889, applied to the clerk for a summons, and filed their prosecution bond, and the clerk issued the summons, even without signing the same, and docketed the case in January, 1889, as shown by the record, this action of the plaintiffs would be sufficient to arrest the running of the statute,"--which was refused by the court, because there was no evidence in support of the prayer asked; the evidence being that a blank summons was taken from the office of the clerk by Mr. Justice, agent for the plaintiffs, which was taken to the office of Mr. Smith, one of the attorneys for the plaintiffs, who filled out the summons and bond in his office; that the summons was never in fact issued or served. Plaintiffs excepted. The clerk stated that he did not know when the entry on his docket, "Issued January 15, 1889," was made; that his custom was to make such entry when the summons issued. There was evidence that defendant left the state, and went to South Carolina, 16th of January, for the purpose, as he testified, of putting up tombstones to his child's grave; that he knew nothing about the suit until after his return.
The defendant asked the court to submit to the jury sundry special instructions, all of which were refused except the following: "The original plat in doubtful questions of boundary is evidence of the true shape of the land and of the intent of the contracting parties as to the location of the lines, and such intent, in such cases, determines the true location." Plaintiffs excepted.
The defendant testified that he went into the possession of the land in controversy on the 8th day of January, 1879, and had been in the open and continuous possession since said time. There was no evidence to the contrary.
After the evidence was all in, the plaintiffs moved that the clerk be allowed to sign the summons of the 15th of January, 1889, which motion was refused, upon the ground that the court had no authority to allow the same, it not being an amendment to the process.
Upon the question of location the court charged the jury that the rule is, if the beginning is admitted or approved, and only courses and distances are given, the lines must be run by the course and distance; but if, in addition to course and distance, natural objects, marked trees, or lines of other tracts, are called for, these, when shown, will control; but if none such can be found, then course and distance must control in fixing the boundary line or lines. ...
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