Stewart Et Ux v. Mccormick

• Decision Date: 26 March 1913
• Citation: 161 N.C. 625,77 S.E. 761
• Court: North Carolina Supreme Court
• Parties: STEWART et ux. v. McCORMICK et al.

77 S.E. 761

161 N.C. 625

STEWART et ux.

v.McCORMICK et al.

Supreme Court of North Carolina.

March 26, 1913.

1. Adverse Possession (§ 115^*)—Nonsuit-Evidence.

Where, in an action to recover land, plaintiff introduced in evidence as color of title certain deeds which described the land by metes and bounds, and there was evidence that plaintiffs and those under whom they claimed, had been in adverse possession under the deeds for more than 30 years, it was error to grant a nonsuit at the close of plaintiffs' testimony, though the evidence as to the boundaries of the land was not very satisfactory or convincing.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 691-701; Dec. Dig. § 115.*]

2. Adverse Possession (§ 109*)—Title Acquired.

Persons who have acquired title to land by adverse possession for more than 30 years under color of title are not required by Revisal 1905, § 383, providing what actions must be commenced within 20 years, to show seisin or possession of the premises for 20 years before the commencement of an action to recover the land; since seisin follows the title if there is no actual possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 629-635; Dec. Dig. § 109.*]

3. Adverse Possession (§ 112*)—Acquisition of Title—Burden of Proof.

The burden is on a person claiming adverse possession for seven years under color so as to bar the entry of the true owner to show open, continuous, uninterrupted adverse possession for seven years manifested by distinct and unequivocal acts of ownership.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 651-668; Dec. Dig. § 112.*]

4. Adverse Possession (§ 100*)—Title—Extent of Land.

Sole adverse possession of a part of a tract of land covered by a deed under which a person claims as color of title is extended by the law constructively to the external boundaries of the land.

[Ed: Note.—For other cases, see Adverse Possession, Cent Dig. 547-574; Dec. Dig. § 100.*]

5. Appeal and Error (§ 927*)—Nonsuit-Evidence.

On appeal from a nonsuit granted at the close of plaintiffs' testimony, the evidence must be construed most favorably to the plaintiffs, and all reasonable inferences be made therefrom in their favor.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 4024; Dec. Dig. § 927.*]

Appeal from Superior Court, Cumberland County; Brogaw, Judge.

Action by J. F. P. Stewart and wife against John B. McCormick and others. Plaintiffs were nonsuited at the close of their testimony, and they appeal. New trial.

Rose & Rose, of Fayetteville, for appellants.

Sinclair & Dye, Robinson & Lyon, and Shaw & McLean, all of Fayetteville, for appellees.

WALKER, J. This action was brought to recover a tract of land containing 250 acres. Plaintiffs were nonsuited at the close of their testimony.

The first ground of the nonsuit was, as agreed here, that they had not identified the land, of which they had the adverse possession, as that described in the complaint and deeds; the description in the complaint and deeds being the same. Plaintiff relied upon the deeds as color of title, and they described the land by metes and bounds. There was evidence, as we think, that plaintiffs and those under whom they claimed had been in adverse possession under the deeds for more than 30 years; one witness, Nick Bell, testifying that "old man John Wood, under whom plaintiffs claimed, had been in possession for 50 or 55 years, " and there was other testimony tending to show a possession of from 40 to 50 years by him.

In this connection, defendant's counsel contended that it was incumbent on plaintiffs to show a seisin or possession of the premises in question for 20 years before the commencement of the action, in order to maintain this action to recover the land under Revisal, § 383. But if plaintiffs had acquired the title by adverse possession of the land under color for more than 30 years, which was the evidence, then it follows, nothing else appearing, that they had at least constructive seisin or possession within 20 years before this suit was brought, which would satisfy the requirement of that section of the Revisal, as seisin follows the title, if there is no actual possession. Bland v. Beas-ley, 145 N. C. 168, 58 S. E. 993.

The adverse possession for seven years under color, which bars the entry of the true owner, must be open, continuous, uninterrupted, and manifested by distinct and unequivocal acts of ownership, the burden being upon him who asserts that he has thus acquired the title to show such actual adverse possession. Monk v. Wilmington, 137 N. C. 322, 49 S. E. 345; Bland v. Beasley, supra.

Sole adverse possession of a part of the land covered by the deeds under which plaintiffs claimed as color of title is extended by the law constructively to the outer or external boundaries of the land, or, as it is sometimes expressed, possession of a part is deemed to be of the whole. Currie v. Gilchrist, 147 N. C. 649, 61 S. E. 581; Simmons v. Box Co., 153 N. C. 261, 69 S. E. 146; Pheeny v. Hughes, 158 N. C. 463, 74 S. E. 321. There is no conflict...