Opinion
(June Term, 1829.)
1. The act of 1791 (Rev., ch. 346) making twenty-one years' possession, under visible boundaries, without a grant, conclusive against the State is founded upon the supposed loss of title papers setting forth those boundaries.
2. But possession for twenty-one years, up to a visible line, although it may be evidence in ascertaining the boundaries set forth in a deed, is not conclusive that the visible line is the true boundary.
3. An interest in the event of a suit acquired after the commencement does not render a witness incompetent, unless that interest was acquired from the party offering him.
EJECTMENT, tried on the last circuit, before NORWOOD, J. The lessor of the plaintiff and the defendant both claimed, under one Pollok, and the only question on the trial was the boundary of a lease made by Pollok to one Coart, in 1756, for the term of 75 years, under which the defendant held the premises in dispute.
Badger, for the lessor of the plaintiff.
Gaston, for the defendant.
FROM CRAVEN.
Upon the question of boundary the defendant offered the testimony of one Russell, which was objected to by the lessor of the plaintiff, upon the ground of interest. Upon his examination it appeared that he had purchased since the commencement of this action an interest in the residue of the term. His Honor, thinking that this purchase did not render the witness incompetent, as to facts within his knowledge before it was made, overruled the objection. This witness and others introduced by the defendant testified that soon after the lease made to Coart, (188) in 1756, another was also made by Pollok of the adjoining lands to one Pope; that the reversion had been assigned to the lessor of the plaintiff, and the lease had expired; that both Pope and Coart, and those claiming under them, had for more than 40 years cultivated up to the line contended for by the defendant, and had uniformly admitted it to be the boundary between the two leases.
The act of 1791 (Rev., ch. 346), entitled "An act for quieting ancient titles, and limiting the claim of the State," was read to the jury. His Honor, after instructing the jury as to the rules relative to boundaries of land, and the law of presumption and inference from facts in proof, informed them that if the line contended for by the defendant was a known and visible boundary, and there were other known and visible lines and boundaries, designating the land claimed by the defendant for 21 years before the commencement of the suit, the act of 1791 would protect the defendant during the residue of the term created by the lease, under which he claimed.
A verdict was returned for the defendant, and the lessor of the plaintiff appealed.
The defendant's counsel admits that this case does not fall directly within the operation of the act of 1791 (Rev., ch. 346), entitled "An act for quieting ancient titles, and limiting the claim of the State." In making this admission he is certainly correct; for that act relates exclusively to persons claiming under different titles, derived from the sovereign, and was made to supply the loss of grants and mesne conveyances, substituting for them a possession of 21 years by known and visible boundaries. This, I think, is quite evident, both from the preamble and enactment of the statute. But he alleges (189) that the statute was read to the jury, and commented on, to show the great weight attached by law to long possessions, under known and visible boundaries, and that by analogy only the statute had a bearing on the case. Had the statute been left to operate on the case in this manner only, there certainly would be no ground for complaint. But I collect from the charge of the presiding Judge that he understood the case differently, and so instructed the jury. For he states that he informed them that if the line claimed by the defendant was a known and visible boundary, up to which he had possessed for 21 years or more, and there were other known and visible boundaries designating the land claimed by the defendant 21 years or more before the commencement of this suit, the act of 1791 would protect the defendant during the residue of his term, created by the lease to Coart. From this charge I am compelled to understand the Judge as instructing the jury, not that the long possession up to this line was matter of evidence to be considered by them, as tending to prove the real boundaries of the lease to Coart, and liable to be repelled by higher and more satisfactory evidence of that fact, but that the fact of such possession entirely protected the defendant from the claim and action of the plaintiff during the residue of the term; thereby discharging the jury from the real question between the parties, to wit: the actual boundaries of the lease, and substituting for it 21 years' possession, under known and visible boundaries, however well satisfied they might be that such boundaries were not those of the leased lands. I think this was a misapprehension of the operation of the act of 1791, and that there should be a new trial.
As to the admission of the witness, Russell, the case in that particular is so imperfectly stated that no opinion can be formed thereon. It does not appear whether he purchased an interest in the lease from the defendant or from some other person. If he purchased (190) from the former, he was clearly inadmissible; for then the defendant participated in the act giving him an interest. If he purchased from a stranger, according to the modern rule, he is admissible.
PER CURIAM. New Trial.
Cited: Graham v. Houston, 15 N.C. 235; Hafner v. Irwin, 26 N.C. 534.