Rogers v. Mabe

• Decision Date: 31 December 1833
• Citation: 15 N.C. 180
• Court: North Carolina Supreme Court
• Parties: Den ex dem. SAMUEL ROGERS and others v. WILLIAM MABE.

15 N.C. 180

Den ex dem. SAMUEL ROGERS and others

v.WILLIAM MABE.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1833.

1. From long and uninterrupted possession of land as owner, a grant will be presumed. This presumption is founded mainly upon the known inadequacy of human tribunals to ascertain the real truth of remote transactions, and does not depend upon a supposed correspondence between the fact and the presumption in each particular ease, and its character is determined by its origin. It is not merely a presumption of fact which a jury may make, nor is it a presumption of law which can not be rebutted; but it is a presumption which the law requires, and the Court should direct the jury to make, unless proof is offered which shows the fact to be otherwise.

2. To raise this presumption between individuals twenty years is sufficient, and (in cases not within the Act of 1826, c. 28), less than twenty years is not: as against the State, the precise period is not determined, but forty years is certainly enough.

3. This presumption extends not only to grants and deeds, but to everything necessary to support the title of the possessor.

4. When, however, one enters originally not as owner, but under the title of another, even a very long possession will not raise this species of presumption: there, time however long, has only its usual and natural effect, as the foundation for an inference of fact which the jury may draw or not, as they may, or may not believe the fact in the particular case to compare with inference.

5. A call in a grant from a pond or a river, "west up the river to a stake," is in law equivalent to "with the river," and the line must pursue the course of the stream; this sense of the words might possibly be controlled by a call for a line of marked trees, or a visible and permanent marked corner, and a meaning thereby given to them equivalent to "up" not "with the river," but by no call less certain can they be controlled.

6. Where A purchases under an execution against B, takes a deed and on the same day conveys to B, though the purchase and conveyance be at the request of B, and merely to give him a color of title, without any money paid or received—the conveyance to B is a sufficient colorable title within the statute of limitations.

7. It seems, that a sheriff's deed gives by relation, color of title from the sale.

8. One tenant in common can not in an action against his co-tenant, be examined as a witness to defend the possession.

This was an action of EJECTMENT, tried in Stokes Superior Court, before his Honor Judge Norwood, in which the plaintiff claimed, and sought to recover possession of the tract marked on the diagram "50 acres No. 1," also of the tract marked "50 acres disputed," and of the land lying south of the last named tract, and included between the lines S B, B O and the river, of which the defendant was in the possession. The declaration stated a joint demise, and contained but one count. An order appeared on the record, allowing the plaintiffs to amend thedeclaration, but no amendment appeared on the transcript to have been actually made. On the trial the plaintiff produced and gave in evidence a grant from the State to Thomas Rogers, as assignee of Alexander Martin, dated 5 November, 1795, for a tract of land, beginning "on the north bank of Dan River, a small distance below the mouth of Seven Island Creek, at Hill's northwest corner, running west, up the river, two hundred and twenty poles to a stake, north two hundred and ninety poles to a black oak, east three hundred and seventy poles to a stake, south two hundred and ninety poles to a stake in Hill's line, then west to the beginning."

The beginning of the grant was shown to be at A; the course and distance of the final line, terminated at B, of the second line at C, where an old black oak corner was found, but no marked trees appeared between A and B, or between B and C, or the river bank. The lines B C and B E exactly corresponded in length with the calls of the grant, but the line C D was six poles too long, and D E six poles too short. The grantee Thomas Rogers, was the father of the lessors of the plaintiff, who were his only children and heirs at law. It was insisted on the part of the plaintiff that the true construction of those grants in law, was, that disregarding the course and distance, the river from A to S was the boundary, and thence the lines

S C D E, it being alleged that the call "up the river" was in law, exactly equivalent to "with the various courses of the river," and the jury were bound so to locate it.

The defendant gave in evidence a grant from the State to Robert Mabe, his ancestor, date 16 July, 1795, and covering the tract of 50 acres, No. 1; and proved that Robert Mabe was in 1794 living in a house situate on the 50 acre tract, B N M O, and that his plantation then covered part of that tract of land, extended nearly to the river, and had the appearance of a very old settlement, and that he and the defendant, as his heir at law, had continued the possession ever since; that there were old marks from R to H, and an old marked beach tree at M. The defendant further proved that Robert Mabe came to that neighborhood sixty-eight or sixty-nine years before the time of the trial, and settled on the river, that he some time after removed to the ore bank, and then to the river again, and that he and his descendants have ever since continued in possession of the plantation on the river. The defendant then showed by a record of the County Court, that Robert Mabe on 25 June, 1778, made an entry of 150 acres, includinghis improvements, to which a caveat was put in by Alexander Martin, and at May Session 1779, withdrawn. And the defendant showed that at March Session, 1807, a judgment was recovered against Robert Mabe, an execution issued thereupon, and that under this execution the sheriff sold the land bounded by the lines R, H, G, P, B, O, and the river, to one Gibson, who on the same day on which he received the sheriff's deed, being 2 June, 1810, conveyed the land to Robert Mabe. It appeared in evidence, that Gibson bought the land at the request of the sheriff and Mabe, and that no money was paid or received by Gibson. Thomas Rogers, the father of the lessors of the plaintiffs, died in 1809, and at the commencement of this suit, in 1826, one of the said lessors was of the age of 32 years, another of the age of 30, another of the age 38, and the other under the age of 21; and it also appeared that Thomas Rogers, in his life, and the lessors of the plaintiff since his death, have been in posssssion, on a part of the land granted to him, but not within the boundaries of the tracts claimed by the defendant. The plaintiffs proved that Alexander Martin died in 1810, and before his death in a conversation with Robert Mabe, told him that he should not be interrupted in his possession during his life, and that afterwards Robert Mabe in a conversation with one James Martin, inquired of him, if he remembered the promise of Alexander Martin, stating as a reason for the inquiry, that Rogers threatened to sue him for the land.

Amongst other witnesses offered by the defendant, in proving his ease was one Shelton, who had intermarried with one of the daughters of Robert Mabe, but was not a party to this suit. The examination of this witness was objected to by the plaintiff's counsel on the ground of interest, but the objection was overruled by the Judge, and the witness was examined.

Amongst other grounds taken by the plaintiff's counsel it was insisted that the conveyance from Gibson to Mabe was fraudulent and inoperative, because Mabe pretendedto hold under Martin, and so holding, obtained the deed solely to give himself a colorable title, within the statute of limitations.

The Judge instructed the jury that it was their duty to ascertain where the lines were, which were made by the surveyor, and intended to be described in the grant; that in ascertaining these boundaries there were several rules relied on as guides to assist them, but those rules were not fixed principles of law conclusive of them, but if there was another guide equally certain, or more certain, they might found their judgment on it. That when a grant called for natural boundaries, these should govern notwithstanding any variance from the course and distance—and so of marked lines and corners made at the time of the survey; but that where neither natural objects nor marked trees were called for, the grant should be located by the course and distance specified. That in this case, as the river made a curve between 0 and R, the description "west up the river, to a stake, and then north," was uncertain, and it was for the jury to ascertain whether the first corner was at B, or on the line opposite to B at S, and that in determining this they were at liberty to take into consideration the distances as proved, and their accordance with the calls of the grant.

The Judge further intimated to the jury that if Robert Mabe and his heirs had been forty or fifty years in quiet and peaceable possession of the land in dispute, claiming and using it as their own, and his entry covered it, the jury might if they thought proper, presume that a grant had issued on the entry, and if they found it had issued before 5 November, 1795, they should find for the defendant; that in connection, with the length of possession they might take into consideration the preferable right of Robert Mabe, to make an entry including his improvements; that he had made such entry, prosecuted his right till in 1799, all obstruction to his obtaining a grant was removed.

The Judge further instructed the jury that there was no color of title until the deed from Gibson to Robert Mabe which

was a sufficient color of title although the jury should believe from the evidence that it was obtained for that very purpose. That in order to make the possession held under the deed operate to bar the...