Wallace v. Maxwell

• Citation: 7 Ired. 135,29 N.C. 135
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1846
• Parties: DEN EX DEM. MATTHEW WALLACE v. JOHN T. MAXWELL.

7 Ired. 135

29 N.C. 135

DEN EX DEM. MATTHEW WALLACE

v.JOHN T. MAXWELL.

Supreme Court of North Carolina.

December Term, 1846.

Where a person has been not only in the actual occupation of a part of a tract of land for 25 or 30 years, but has also claimed it and exercised acts of dominion and ownership over it, up to a well defined boundary, for that and a longer time, this is altogether evidence to be left to the jury, to presume a grant of the land to the person and of conveyances to those claiming under him, who so held the possession.

The cases of Fitzrandolph v. Norman, N. C. Term, Rep. 131, Harris v. Maxwell, 4 Dev. & Bat. 241, Carson v. Burnett, 1 Dev. & Bat. 546, Tate v. Southard, 1 Hawks 45, and Bynum v. Thompson, 3 Ired. 578, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Spring Term, 1846, his Honor Judge CALDWELL presiding.

The lessor of the plaintiff claimed title to the land in dispute, under a grant from the State, which issued on the 10th of May, 1842, for twenty-eight acres. The defendant showed no paper title, but claimed under one Black, as to whom none was offered in evidence, but it was alleged that he had had a long possession by actual cultivation, and that he claimed the land up to the boundaries by a hill, by which it was circumscribed; that he lived on an adjoining tract and had cut and used timber off of it up to the said boundaries.

Two witnesses introduced by the defendant testified, that the said land was circumscribed by the boundaries of other tracts; that they had known them for the last thirty-five years; that the said Black had claimed and cut timber occasionally up to those boundaries, and that, between twenty-five and thirty years ago, he had cleared and enclosed a small portion of the land in dispute, and had afterwards added to it by a further clearing, and had kept the same in constant cultivation till within the last ten years; that the said Black had cleared a field fifteen years ago on another part of it, which had been constantly occupied by cultivation, till the commencement of this suit.

The counsel for the defendant insisted, that, from the length of the possession, the jury ought to presume a grant. The Court was of opinion that Black and those claiming under him could not, in the absence of a paper title, by these declarations, make up a title up to the boundaries of the land, and that the length of possession was not sufficient to justify the jury in presuming a grant even for the part in actual cultivation. The jury returned a verdict for the plaintiff, and, the rule for a new trial being discharged, the defendant prayed an appeal to the Supreme Court.

Alexander and J. H. Bryan, for the plaintiff .

Osborne, for the defendant .

DANIEL, J.

Where any person, or the person under whom he claims, shall have been, or shall continue to be in possession of any lands whatever, under titles derived from sales made either by creditors, executors or administrators of any person deceased, or by husbands and their wives, or by endorsement of patents, or other colourable title, for the space of twenty one years, all such possessions of lands under such title, shall, and are...