Opinion
(Filed 12 September, 1905.)
Deeds — Descriptions — Adverse Possession — Privity of Estate — Instructions.
1. Where the call in a deed is for a certain distance to a known and fixed line of another tract, the distance will be disregarded and the line control, but the Court should instruct the jury, as a question of law, what the boundaries are, leaving to them the question where they are.
2. In an action of ejectment, an instruction that if the jury should find that plaintiff and those under whom he claimed had been in the exclusive, open, continuous and adverse possession of the land in controversy from 1880 to the bringing of the action, they should answer the issue for the plaintiff, is erroneous, where the plaintiff failed to show any privity in respect to the locus in quo between himself and those whose possession preceded his.
3. Possessions cannot be tacked to make out title by prescriptions when the deed under which the last occupant claims title does not include the land in dispute.
ACTION of ejectment by W. M. Jennings and wife against (23) W. H. White, heard by Jones, J., and a jury, at November Term, 1904, of PASQUOTANK.
Aydlett Ehringhaus for plaintiffs.
W. M. Bond and C. E. Thompson for defendant.
From a judgment for the plaintiffs, the defendant appealed.
Plaintiff alleged that he was the owner and in possession of a lot in Elizabeth City, on Road Street, beginning at the northeast corner of Scott's lot and running at a right angle with Road Street, along the fence of said Scott, 410 feet to Commander's (24) line, thence northwardly parallel with Road Street about 56 feet to W. K. Carter's line, thence eastwardly with Carter's line parallel with the first line to Road Street, thence with said street about 56 feet to the beginning. The defendant admitted that he was in possession of a part of said lot, denying plaintiff's alleged title thereto and alleged that he was the owner thereof. Plaintiff introduced several deeds executed prior to October, 1876, which defendant conceded covered the lot described in the complaint. Plaintiff introduced a deed from G. F. Steel to Sarah Gaskins, bearing date October 16, 1876, conveying a lot "beginning on Road Street at the northeast corner of Charles' lot, running thence with said street 56 feet to the colored Odd Fellow's lot at a large elm tree, thence north 82 1/2 degree's, west 410 feet to Thomas Commander's line,. thence south 4 degrees west 18 feet to W. F. Martin's line, thence south 82 1/2, degrees east along Martin's and Mrs. Dashiell's line 115 feet, thence south 11 degrees east 38 1/2 feet to said Dashiell's line, line and Charles' line south 82 1/2 degrees cast 295 feet to the beginning. thence her A deed from Sarah Gaskins to G. W. Cobb, dated September 1, 1887, conveying, by the same description, the lot conveyed to her. Cobb conveyed by the same description to plaintiff 8 July, 1889. It is contended by defendant that, for some reason, Steel, who it is conceded was the owner of the parallelogram described in the complaint, in conveying to Sarah Gaskins retained the southwestern corner of the lot. The plaintiff says that while it is true that the third call is "south 4 degrees west 18 feet" it is also to "Col. W. F. Martin's line," and that the last part of the call will control, by invoking the well settled principle that where the call is for a certain distance to a natural object or a known and fixed line of another tract, the distance will be disregarded and the natural object or line control. This principle is conceded. The Court was not requested to instruct the jury upon this view. His Honor simply (25) told the jury to inquire whether the deed under which plaintiff claimed covered the land in dispute. The Court should instruct the jury, as a question of law, what the boundaries are, leaving to them the question, where they are; under the description contained in the plaintiff's deed and those of Gaskins and Cobb, the third call could not exceed 18 feet unless the jury fixed "Col. W. F. Martin's line" at some other point, in which event they would extend the call to such line. His Honor inadvertently omitted to give the jury any guide by which they could be governed in answering the question submitted to them. No special instructions were asked and it may be that defendant is not in a position to avail himself of the failure to so instruct the jury. If the grantor in the deed to Sarah Gaskins intended to make the third line 56 feet instead of 18, he has made a break in the side line running into another lot 38 feet, which would prevent him from reaching the beginning point by the calls in the deed at the end of the line of 295 feet. It would seem difficult to reconcile the calls in the deed from Steel to Gaskins and those leading up to and including plaintiff's deed, so as to include all of the original lot, being a parallelogram, with two sides of 410 feet and two ends of 56 feet each. The plaintiff, however, contends that if it be conceded that the deeds under which he claims do not cover the locus in quo, that he and those under whom he claims have been in possession of the disputed portion for more than twenty years and have thereby acquired title. There is evidence tending to show that the original lot was enclosed by a fence and that it continued so until changed by defendant, who purchased the adjoining lot during the year 1903, and that the successive owners of the original lot occupied the locus in quo. His Honor instructed the jury that if they should find that plaintiff and those under whom he claimed had been in the exclusive, open, continuous and adverse possession of the land in controversy up to the said fence and that the possession had been continuous from 1880 to the bringing of the action, they should (26) answer the issue for the plaintiff. Defendant excepted.
The difficulty which the plaintiff encounters in sustaining this instruction is found in his failure to show any privity in respect to the locus in quo between himself and those whose possession preceded his. If the deed under which plaintiff claims had covered the disputed land, although his grantor may have had no title he could have tacked his possession with that of his grantor and built up title based upon a disseizin by his grantor. It cannot be that several disseizins having no privity can be tacked so as to vest title. The law in this respect is thus stated in 1 Cyc., 1007: "The general rule is that possessions cannot be tacked to make out title by prescription when the deed under which the last occupant claims title does not include the land in dispute. It must clearly appear in the deed that the particular premises were embraced in the deed or transfer in whatever form it may have been made." Of course if it be shown that there was a mistake in the deed, a different principle applies.
"To make a disseizin effectual to give title under it to a second disseizor, it must appear that the latter holds the estate under the first disseizor, so that the disseizin of one may be connected with that of the other. Separate successive disseizins do not aid one another, where several persons successively enter on land as disseizors, without any conveyance from one to another, or any privity of estate between them, other than that derived from the mere possession of the estate, their several consecutive possessions cannot be tacked so as to make a continuity of disseizin, of sufficient length of time to bar the true owners of their right of entry. To sustain separate successive disseizins as constituting a continuous possession, and conferring a title upon the last disseizor, there must have been a privity of estate between the several successive disseizors. To create such privity there must have existed as between the different disseizors, in regard to the estate of which (27) a title by disseizin is claimed, some such relation as that of ancestor and heir, grantor and grantee, or devisor and devisee. In such cases the title acquired by disseizin passes by descent, deed or devise. But if there is no such privity, upon the determination of the possession of each disseizor the seizin of the true owner revives and is revested, and a new distinct disseizin is made by each successive disseizor." Sawyer v. Kendall, 64 Mass. 241; Hollingsworth 1). Shearman, 81 Va. 681; Sherin v. Brackett, 3 Min., 152; Ward v. Bartholomew, 23 Mass. (6 Pick.), 409; Humes v. Bernstein, 72 Ala. 546; Atwell v. Shook, 133 N.C. 387. It does not very clearly appear in what manner Steel delivered the possession to Sarah Gaskins in 1876. If he put her in possession of the entire lot including the portion not included in the deed, she in respect to such portion, became his tenant at will. She certainly acquired no title to the portion not included in the deed-nor was there in that view of the case any disseizin. There is evidence on the part of the witness, Raper, that Mrs. Gaskins was in possession in 1880. If such possession was permissive the statute did not run. If it was adverse to Steel in whom the title remained, as we have seen it did not enure to the benefit of her grantee or the subsequent grantee, because it was not covered by any of the deeds made subsequent to the one from Steel to Gaskins. This Court held in Blackstock v. Cole, 51 N.C. 560, that the mere fact that one who had purchased a tract of land went into possession of another adjoining tract not covered by the deed is no evidence that he claimed such tract under the person from whom he purchased. In Bryan v. Spivey, 109 N.C. 67, cited by counsel for plaintiff, the plaintiff, by showing that possession of the land in controversy had been held for more than thirty years, availed himself of the presumption that a grant had issued from the State. To do this is was not necessary to show any connection between the successive (28) occupants. See cases cited by Shepherd, C. J., who says: "If the title was out of the State, the law would also presume that a deed had been executed by the true owner to the parties under whom the plaintiff claims, they having had continuous adverse possession of the same succeeding each other as privies for twenty years." The original possession being shown in Richard Dobbs Speight a continuous possession in those succeeding as his heirs at law was shown. The distinction between that case and the one before us is obvious. The same is true of Alexander v. Gibbon, 118 N.C. 796. The title was directly put in issue and the burden was upon the plaintiff to show title in himself. We are unable to say whether the jury were of opinion that the "Col. W. F. Martin line" was established and that disregarding the distance called for in the third call the plaintiff's deed and those to Gaskins and Cobb covered the disputed land or whether they were controlled by the contention that the plaintiff had acquired title by adverse possession upon the principle laid down by his Honor. For the reasons given, we are opinion that the charge in that respect was erroneous and for this the defendant is entitled to a New trial.
Cited: Campbell v. Everhart, post, 513.