Shaffer v. Gaynor
| Decision Date | 22 October 1895 |
| Citation | 23 S.E. 154,117 N.C. 15 |
| Parties | SHAFFER v. GAYNOR et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Beaufort county; Boykin, Judge.
Action of trespass quare clausum fregit by A. W. Shaffer against Bryan Gaynor and others. From a judgment for plaintiff defendants appeal. Affirmed.
In trespass, plaintiff claimed through C., who was dead, and who was a purchaser at sheriff's sale under execution against G.; and defendants claimed by mesne conveyances through G. The issue was as to the location of the line between the two tracts. It appeared that the description in C.'s deed was by course and distance and unambiguous, and that there was no description in G.'s deed of the disputed line, except by reference to C.'s line and the lines of adjacent tracts. Held, that defendants could not show the declarations of C made while he was in possession under his deed before G conveyed, in the course of a survey to determine the line between his and G.'s land, when he marked "a sweet gum" as a pointer to show where a stake called for as a corner was located.
Chas. F. Warren, for appellants.
W. B. Rodman and J. H. Small, for appellee.
In the discussion of the admissibility of evidence by reputation and of hearsay evidence, in Dobson v. Finley, 8 Jones (N. C.) 499, Chief Justice Pearson said: Harris v. Powell, 2 Hayw. (N. C.) 349; Hartzog v. Hubbard, 2 Dev. & B. 241. The rule that testimony by reputation was competent, under any circumstances, to locate the boundaries of land, was admitted to be a departure from the English doctrine, which is still adhered to in many of the states, notably by the court of Massachusetts; but the fact that the country had been recently settled, and was still but sparsely inhabited, and that consequently muniments of title could not be so well known or firmly established as in an older county, seems to have been ample justification for a modification, which adapted the rule to the reason. The fact that the courts of Tennessee and of Kentucky, where the conditions were similar, followed the ruling in this state, is additional evidence of the necessity for the change. Sasser v. Herring, 3 Dev. 342; Beard v. Talbot, 1 Cooke, 142; Smith v. Nowells, 2 Litt. (Ky.) 159; 1 Greenl. Ev. § 145, note on pages 194 and 195. The newly-adopted principle was subject, however, to the single restriction that it was not competent to show general reputation that the premises claimed were located within the limits of certain grants, without any evidence as to muniments of title, though the claimant was permitted to prove that particular landmarks, such as trees, streams, or lines constituted, according to the general report, parts of his boundary, or that he held possession with the acquiescence of others up to a known line. Mendenhall v. Cassells, 3 Dev. & B. 51. The exception, therefore, to the testimony of the witness Whitehurst that there was "a general reputation in the neighborhood that the sweet gum at 12 was Bond's corner" is without merit.
"Occasional acts of ownership, however clearly they may indicate a purpose to claim title and exercise dominion over land, do not constitute a possession that will mature title." Ruffin v. Overby, 105 N.C. 86, 11 S.E. 251; Asbury v. Fair, 111 N.C. 255, 16 S.E. 467; Hamilton v. Icard, 114 N.C. 536, 19 S.E. 607. A possession that ripens into title must be such as continually subjects some portion of the disputed land to the only use of which it is susceptible, or it must be an actual and continuous occupation of a house, or the cultivation of an inclosed field according to the usages of husbandry. McLean v. Smith, 106 N.C. 178, 11 S.E. 184; Bynum v. Carter, 4 Ired. 313; Tredwell v. Reddick, 1 Ired. 56; Cox v. Ward, 107 N.C. 512, 12 S.E. 379; Hamilton v. Icard, supra. The test is involved in the question whether the acts of ownership were such as to subject the claimant continually during the whole statutory period to an action for trespass in ejectment, instead of to one or several actions of trespass quare clausum fregit for damages. Id., 114 N.C. 536, 537, 19 S.E. 607; Osborne v. Johnston, 65 N.C. 26; McLean v. Smith, supra; State v. Suttle, 115 N.C. 788, 20 S.E. 725; Boomer v. Gibbs, 114 N.C. 85, 19 S.E. 226. The digging of ditches and constructing roads through swamps for the purpose of getting shingles, when it appeared affirmatively that the swamp lands were susceptible of no other use, was such an assertion of ownership as subjected the occupant to an action of possession, as was the continuous getting of turpentine on a pine barren, worthless for any other purpose. Tredwell v. Reddick, 1 Ired. 56; Bynum v. Carter, 4 Ired. 314, 315. And these two cases mark the extreme limit to which this court has gone. The testimony in this case was similar to that offered in Ruffin v. Overby and several others that we have cited. The acts of dominion consisted of cutting board timber some time during a particular year on a piece of woodland; but there was no evidence to show that they were continuous, or, if they were, that the land, though, while covered with timber, it was not susceptible to other use, might not have been cleared and cultivated, regardless of its capacity for profitable production. There was no error, therefore, in instructing the jury that such acts were not an assertion of the right that would mature title.
The sweet gum at 12 had, it seems, been marked by S. T. Carrow, as a pointer to show where a stake called for as a corner was located. The marking was done in the progress of a survey made by one S. T. Robeson, to determine the location of the line between Carrow's land and that of Noah W. Guilford. The plaintiff claimed through S. T. Carrow, to whom the sheriff of Beaufort county conveyed, by virtue of a sale under execution of the lands of Noah W. Guilford, on the 6th of January, 1872. Plaintiff exhibited mesne conveyances, including deed of trust from Carrow to John C. Blake, deed from Blake, trustee, to the First National Bank of Raleigh, and from the bank to the plaintiff, dated October 31, 1883. The defendant claimed under a deed from N.W.
Guilford to George W. Guilford, trustee for Graham A. Guilford, dated May 23, 1872. It was in evidence that this survey was made between the date of the deed of Satchwell, sheriff, to Carrow, and that of Noah W. Guilford to George Guilford trustee, and at some time in the spring of 1872. S. T. Carrow was at the time of the survey in possession under the sheriff's deed. A deed conveying land is a species of contract, in the enforcement of which the leading purpose of the courts, where the controversy involves a question of boundary, is to ascertain the precise lines and corners as to which the minds of grantor and grantee concurred. Parol proof, of course, is not, as a general rule, admissible to vary or contradict a plain written description, but it is always competent to show where the parties located the lines and corners by a contemporaneous survey in order to define more exactly what was intended to pass. Cherry v. Slade, 3 Murph. 82. The survey made under such circumstances is intended, in contemplation of law, to reduce to a certainty what the courts would have held sufficiently definite for enforcement as a contract without a survey, only when it appeared that, by running from an established point called for according to the description contained in the deed, a definite boundary would be embraced within the lines. Hence it is held competent to prove that a contemporaneous, but not a subsequent, survey, located a corner at a place different from that ascertained by following course and distance. The corner was located by means of the gum pointer, and the line was marked by Carrow, not contemporaneously or with a view to the subsequent execution of the conveyance by Noah W. Guilford to George Guilford, trustee; and...
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