Opinion
(June Term, 1830.)
1. In ejectment a continued possession of seven full years, with color of title, is absolutely necessary to bar the right of entry. The possession need not be continued from day to day without interruption; but it must be a continued possession consistent with the usages of agriculture.
2. Therefore, when a crop was planted at the beginning of the seventh year, and at midsummer possession was abandoned and never resumed — held that the right of entry was not barred.
3. A lease thirty years old is prima facie evidence of the time the lessee took possession and is admissible, although produced by the lessor in support of his title — especially where it is admitted that the lessee took possession about the time of its date.
EJECTMENT, trial on the fall circuit of 1828 before his Honor, Judge DANIEL. The only question in the Court below was whether one Greenlee, under whom the defendant claimed, had seven years' possession so as to perfect a defective paper title.
Seawell, for the plaintiff.
Gaston Badger, contra.
FROM BERTIE.
The witnesses for the defendant deposed that Greenlee's possession commenced in 1797; that one Elrod was a tenant of his, and occupied the land from January, 1800, to August, 1806, when he left the premises in dispute, but left a small crop of cotton growing on the land. The lessor of the plaintiff then introduced witnesses to prove that the land was unoccupied during 1800, and that Elrod's possession did not commence until December, in that year. It was admitted by the lessor of the plaintiff that Elrod was a tenant of Greenlee's. In this stage of (408) the case the counsel for the defendant produced a lease from Greenlee to Elrod for 1800, and offered to introduce it as evidence that Elrod's possession was taken in December, 1799. The counsel for the plaintiff objected to this testimony, because the fact of Elrod's tenancy was not disputed, and insisted that the offer to introduce the lease was nothing but an attempt to prove by Greenlee's written declaration the time when Elrod took possession under him. For these reasons his Honor rejected the testimony.
The counsel for the defendants moved the judge to charge the jury that if they should find against the plaintiff upon the evidence as to the continuance of Greenlee's possession for the space of seven years from 1797; yet if they believed that Elrod entered into possession in December, 1800, and continued that possession for six years and four months, and then kept up his crop until August, and afterwards gathered his cotton in the seventh year, that in law this was a possession during the whole of the seventh year, and the act of limitations perfected the defendant's title. But his Honor refused so to charge the jury, and instructed them that if Elrod took possession in December, 1800, his possession, in order to protect the defendant, must have continued until December, 1807. A verdict was returned for the plaintiff, and the defendant appealed.
We all agree with the judge below in his opinion respecting the statute of limitations. Nothing short of seven full years will satisfy the act of Assembly. We do not mean to say that the occupation must be daily or weekly shown. For, if a man has his field in crop, or under fence, as a part of his plantation, according to (409) the usages of agriculture, it will do. And so, if a landlord has a tenant on his land to make a crop every year, though it be not proved that one came in the day the other went out. But we mean that it will not be sufficient to plant a crop and abandon the farm in the middle of the year, and not have an occupation afterwards. If, for instance, Greenlee had put another tenant on the land in 1807, that would have constituted a continued possession by connecting him with Elrod. It would have proved the anamus revertendi, and evinced that Greenlee never abandoned the possession. But when he leaves the land in August of the sixth year and never afterwards enters, no such inference of occupation can be drawn.
We, however, think the Court erred in rejecting the lease as evidence. It must be admitted that the defendant did not treat the case quite fairly in waiting for its introduction to the critical moment, when it would be most powerful in supporting the credit of his witnesses, as to the time of Elrod's entry. It would have been most proper to have offereded [offered] it in the first instance as a part of his title; for such is possession under the statute. But it was evidence per se to the point to which it was offered under the circumstances. That was to show the time when Elrod took possession. We must take it for granted that its execution was, or could have been, duly proved, and that it was actually delivered to Elrod, and that he entered under it, because the defendant's counsel said he would prove that possession was taken in the pursuance thereto, and the Court rejected it because it was not evidence of the fact for which it was tendered, and not because it was not proved. Certainly, if it is found in Greenlee's pocket and depends upon his acknowledgment or handwriting, it is nothing. It must be traced to Elrod at the period of his tenancy. Taking that for granted, how does the case stand?
It is admitted on all hands that Elrod was Greenlee's tenant. Witnesses come in and say that he entered in 1799; others in December, 1800. Between this conflict of testimony, this document is (410) most material to show that one or the other set of witnesses is mistaken. Where a person is proved to have entered about a particular period, and that a remote one, the very time is not conclusively shown by the date of his deed, it is true; but there is a strong probability raised by it, because owners of land are not presumed to let it lie idle; and we will not suppose that one entered before he had title. If the conveyance be in fee, the presumption of an immediate entry is not so strong as if it be for a less estate. But if it be for years, and especially for one year, the presumption is violent that the tenant entered forthwith. It is in the nature of man that he should endeavor to make the most of his property, and it cannot be supposed that he who is paying rent and has but one year's estate should not enoy it. In such a case the probability of occupation is as great as that the date of a deed corresponds with the true time of its execution. The contrary may be shown, but by itself it imports the truth, because men usually put the real date. So a lease for a single year made thirty years ago creates a probability that the lessee entered that year; for we cannot suppose that he would forego the present enjoyment of property thus fleeting, especially when the actual occupation is proved aliunde to have been about that time.
It may be proper to add that this presumption might certainly be weakened by evidence that he paid a rent in part of the crop, instead of money, or other circumstances open to the other side. But of itself it is evidence as a circumstance, from which the time of possession may be collected.
PER CURIAM. New Trial.
Cited: Holdfast v. Shepard, 28 N.C. 366; Moblay v. Griffin, 104 N.C. 115.
(411)