Smith v. Bryan

• Decision Date: 31 December 1852
• Citation: 44 N.C. 180
• Court: North Carolina Supreme Court
• Parties: DOE ex dem. OF JOHN SMITH v. JOHN BRYAN.

44 N.C. 180

DOE ex dem. OF JOHN SMITH

v.JOHN BRYAN.

Supreme Court of North Carolina.

December Term, 1852.

Continued possession of land and acts of ownership, as by clearing, & c., for twenty-three years, will presume a conveyance thereof, so as to enable one thus having acquired title, to maintain ejectment against a stranger who enters--though the former has not had the possessio pedis of the particular part of the tract occupied by the latter.

(The case of Bynum v. Thompson, 3 Ire. 578, cited and approved.)

THIS was an action of EJECTMENT, tried before his Honor Judge CALDWELL, at Bladen on the last Fall circuit.

It appeared on the trial, that in 1765 the land in controversy was granted to one Richard Harrison, who died during the Revolution, when one Robert McRee entered thereon, and occupied the same until his death, which took place before the year 1795. Upon the death of Robert McRee, his son William entered and continued in possession, living thereon, and clearing and cultivating a part thereof, until his death in the year 1818. The boundaries of the land, and the facts of William McRee's claiming the same, and of clearing and cultivating a part of it, were established in evidence. After his death, the creditors of William McRee instituted proceedings to subject the same to the payment of his debts, and at a sale thereof by the sheriff in 1825, the plaintiff became the purchaser, and on the trial exhibited a judgment, execution, levy, &c., and the deed of the sheriff. It also appeared that the defendant entered upon the said land in the year 1846, and cultivated a part of it, and in 1847 cultivated other parts. It did not appear that the part cultivated by the defendant was the same as that actually cultivated by William McRee in his lifetime; and it was therefore insisted by the defendant, that as McRee had entered and occupied the said land without color of title, his possession was confined to his posessio pedis; and, as it did not appear that the defendant had cultivated any part of the possessio pedis, the plaintiff could not recover.

His Honor charged the jury, that if William McRee had lived on, and cleared and cultivated the land in question for upwards of twenty years, as testified to by the witness, they ought to presume a conveyance to him; it appearing that said land had been granted, and that William McRee had such an interest in it, as could be sold to pay his debts. There was a verdict for the plaintiff-- venire de novo moved for, and refused--judgment in accordance with the verdict--and the defendant appealed.

Strange, for the defendant .

Winston, contra .

NASH, C. J.

There is no error in the charge of his Honor, before whom the case was tried below; or none, of which the defendant had a right to complain.

William McRee, under whom the lessor of the plaintiff claimed, had lived on the land for upwards of twenty years, claiming and exercising acts of ownership, up to known and visible boundaries. The land had been granted to one Richard Harrison in 1765, and prior to 1795 was in the possession of Robert McRee, who died before that year, and was succeeded in the possession by his son William McRee, who continued the possession to his death in 1818. The land was subsequently sold under due process of law, to satisfy a creditor of William McRee, and the lessor of the plaintiff became the purchaser. The defendant entered on the land without any claim of title, was a mere trespasser, but not upon the part which had been cultivated by the McRees. His Honor instructed the jury, that as the land had been...