Vanderbilt v. Chapman

• Decision Date: 23 December 1917
• Docket Number: 548.
• Citation: 94 S.E. 703,175 N.C. 11
• Parties: VANDERBILT v. CHAPMAN ET AL.
• Court: North Carolina Supreme Court

94 S.E. 703

175 N.C. 11

VANDERBILT v. CHAPMAN ET AL.

No. 548.

Supreme Court of North Carolina

December 23, 1917

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by Edith S. Vanderbilt against S. F. Chapman and others. From an order setting aside a verdict, defendants appeal. Affirmed.

In action to recover real property, erroneous instruction that plaintiff had burden of showing that defendants' possession was by mistake was not cured by charging that defendants had burden of proving adverse possession.

See also, 172 N.C. 809, 90 S.E. 993, L. R. A. 1917C, 143.

This is an action to recover land and to remove a cloud from title. The plaintiff alleges that she is the owner of 465 acres of land particularly described, and that the defendants are in possession of about 169 acres thereof, asserting a claim thereto. The defendants deny that the plaintiff is the owner of the land described in the complaint, on information and belief, and alleged that they are the owners of 169 acres thereof, which is particularly described.

The following issue was submitted to the jury:

1. Are the defendants the owners of the land described in the first paragraph of this answer or any part thereof? Answer: ______.

Upon the trial of the action the defendants made the following admission of record:

"It is admitted by the defendants that state grant No. 251 to David Allison, dated November 28, 1796, registered in book 2, page 458, containing 250,240 acres, covers the locus in quo, and that by connected mesne conveyances passing from the state to Allison and down to the plaintiff, that the plaintiff is the owner of all of the 465 acres described in the complaint, except so much thereof as the jury may find from the evidence that the defendants have acquired title to by adverse possession under color of title for seven years or longer."

The defendants own a tract of land known as the Clapp Place which adjoins the 169 acres, and they offered evidence tending to prove that they had cleared 5 or 6 acres beginning on the Clapp Place, and extending over on the 169 acres to the extent of about 2 acres, and that they had cultivated and were in possession of this 2 acres under color of title for more than seven years before the commencement of the action. The plaintiff offered evidence that the clearing on the 169 acres was small and not of sufficient size to attract attention; that it was made by mistake and not under a claim of right and with no intent upon the part of the defendants to claim beyond their boundary.

His honor charged the jury that the burden was on the defendants on the first issue, and he then instructed the jury as follows:

"That if the defendants or those under whom they claim entered upon the land described in said deed, or any part thereof, no matter how small, within the boundaries of the land claimed by the plaintiff, and remained in possession of said part of said land so entered upon openly, notoriously, and continuously for seven years, then the defendant's title ripened to the entire boundary of the 169 acres described in the deed, which is the land claimed by them in their answer, and it will be your duty to answer the first issue, 'Yes,' unless you shall find that such possession was made and held by defendants by mistake, and was so insignificant as to be insufficient to give notice of the possession. That the burden is upon the plaintiff in this case to satisfy the jury by the greater weight of the evidence that such possession was by mistake and not sufficient to give plaintiff notice."

The jury answered the first issue, "Yes," and his honor set aside the verdict for errors of law in the charge, and defendants excepted and appealed.

A. Hall Johnston, of Asheville, for appellants.

J. G. Merrimon and Harkins & Van Winkle, all of Asheville, for appellee.

ALLEN J.

The admission of the defendants that the plaintiff is the owner of the 465 acres described in the complaint, except so much thereof as defendants could show title to by seven years' adverse possession under color of title, placed the burden of proof on the defendants (Land Co. v. Floyd, 171 N.C. 544, 88 S.E. 862), and it was in recognition of this principle that the first issue was framed as it is. The real controversy then between the plaintiff and the defendants on the trial was as to the extent and character of the possession by the defendants of the small part of the land cleared on the 169-acre tract.

Possession which will ripen an imperfect into a perfect title must not only be actual, visible, exclusive, and continued for the necessary period of time, but it must be under a claim of right. "It is the occupation with an intent to claim against the true owner which renders the entry and possession adverse." Parker v. Banks, 79 N.C. 485; Snowden v. Bell, 159 N.C. 500, 75 S.E. 721. And if the possession is by mistake or is equivocal in character, and not with the intent to claim against the true owner, it is not adverse. Green v. Harman, 15 N.C. 163; King v. Wells, 94 N.C. 352; Land Co. v. Floyd, 171 N.C. 546, 88 S.E. 862. In the last case the court says:

"Plaintiff contends that the evidence shows that defendant occupied only a small strip of the land just across the line, and that possession of this small piece was not sufficient to extend the adverse possession by construction

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