Rumbough v. Sackett Et Ux

• Decision Date: 22 May 1906
• Citation: 141 N.C. 495,54 S.E. 421
• Court: North Carolina Supreme Court
• Parties: RUMBOUGH. v. SACKETT et ux.

54 S.E. 421

141 N.C. 495

RUMBOUGH.

v.SACKETT et ux.

Supreme Court of North Carolina.

May 22, 1906.

1. Ejectment—Title to Support Recovery.

Plaintiff in ejectment must, in order to recover, show a title good against all the world or against the defendant by estoppel.

[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Ejectment, § 58.]

2. Same—Location of Land—Instructions.

Where plaintiff in ejectment claimed under a deed describing the tract as "beginning at a white oak below the mouth of a branch opposite M. at the Upper Warm Springs on the east side of F. river, " a requested charge that if there was no white oak at the corner in question, the jury should locate the beginning corner at a point on the east side of the river directly opposite the spring, was properly refused, both because it was more indefinite than the description in the grant, and because, assuming that, if the tree was gone, there was no method of locating the point at which it had formerly stood.

Appeal from Superior Court, Madison County; W. R. Allen, Judge.

Action by J. C. Rumbough against J. H. Sackett and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

The plaintiff brought his action to recover a tract of land described as follows: "Beginning at a white oak below the mouth of a branch opposite William Nelson, Jr., at the Upper Warm Springs on the east side of French Broad river, and running up the river so as to include a small bottom, and with the meanders of said river 145 poles to a beech and large rock on the north east side of said river, then north 55 degrees east 60 poles to a stake, then north 32 degrees west 145 poles to a stake, then to the beginning, containing 50 acres." He claimed under a grant issued to William Brittain in December 1803, with which he connected himself by mesne conveyances. The defendant denied the plaintiff's title and right of possession, and especially denied that the Brittain grant covered the locus in quo. He also claimed under a grant issued to Thomas Gable, December 13, 1798. It was admitted by the plaintiff that if the beginning corner of the Brittain grant was not at A but at I, as shown by the map filed in the case, it does not embrace the land in dispute and he is not entitled to recover. The court submitted issues to the jury which with the answers thereto are as follows: "(1) Where is the beginning corner of the plaintiff's grant on the plat? A. At 1 on small plat. (2) Is the plaintiff the owner of the land in controversy? A. No. (3) If so, is the defendant in the wrongful possession thereof? No." Testimony was introduced by both parties to show the location of the grants. We deem it necessary, in order to present the material point in the case, to refer briefly to the testimony of two of the defendant's witnesses, R. B. Justice and C. T. Garrett, who testified as to the location at I of the stump and white oak tree pointed out to them by deceased persons as the corner of the Brittain patent. The witness, Justice, stated that "the Upper Spring was directly across the river from the point at I, " as shown on the map. He further said that "There is a pin oak at A; it is different from a white oak and has leaves like a chinquapin. It is different from the white oak that stood at I. Two sycamores stood near the stump in 1887, one of themhaving the mark of a pointer; I do not know the age of the marks." There was other evidence tending to show the location of the beginning corner of the Brittian grant at I, and also evidence tending to show the contrary. It is not necessary to set forth any more of the evidence, which was somewhat voluminous, as that already stated will suffice for our purpose, in the view taken here of the case. The plaintiff requested the court to charge the jury as follows: "(4) The court charges you that the beginning corner of said grant was a white oak, directly opposite what was known as the Upper Warm Springs at the date of the grant, and if you shall find from the evidence that the spring, as now located and described by the witnesses, is at the same place it was in 1803, and that there is no white oak now standing answering the description in said grant, then you will locate said beginning corner at a point on the east side of the river directly opposite the spring as now located." This instruction was refused, and the plaintiff excepted. There was judgment for the defendant on the verdict, and the plaintiff appealed.

P. A. McElroy, for appella...