Opinion
(June Term, 1847.)
If two grants lap and one of the claimants be seated on the lapped part, and the other not, the possession of the whole interference is in the former exclusively — possession of part of the lands included in both deeds being possession of all of it.
APPEAL from STOKES Spring Term, 1847; Manly, J.
Ejectment. The plaintiff read in evidence a grant to Joseph Williams, the ancestor of the plaintiffs' lessors, bearing date in 1755, and proved the defendant to be in possession of part of the land covered thereby. In his defense the defendant read a grant to himself bearing date in 1761, and offered evidence to prove that it covered all the land of which he was in possession. If that was true, then there was a piece of land covered by both patents; and it appeared that the two patentees, and those claiming under them, had been in actual possession, respectively, for upwards of fifty years of those parts of their several tracts not included within the lap, as insisted on by the defendant. The defendant then further offered evidence that, twelve years before this suit was brought, he cleared a portion of the lapped land and had kept it inclosed and cultivated ever since. On the part of the plaintiff evidence was offered that the grant to the defendant was bounded by the lines of the grant to Joseph Williams, and that there was no interference of the two patents; and the plaintiff further proved that about three years before this suit the defendant enlarged his clearing and inclosure and took in another portion of the land within the lap, if the two patents did interfere, as the defendant contended.
(187) Upon this evidence the counsel for the plaintiff insisted before the jury that the line of the two tracts was the same, and that the grant to Miller did not cover so much of the land in the possession of the defendant as is covered by the grant to Williams, and, therefore, that the plaintiff had a right to recover. And upon that point the court instructed the jury that if they should find that the land in possession of the defendant, which was claimed by the plaintiff, was not covered by the grant to the defendant, then they should find for the plaintiff. The plaintiff further insisted that if the jury should believe that the defendant's patent did cover all the land in his possession, yet that would give him a title only to such part of the land, which was also covered by the grant to Williams, as the defendant had been in actual and continued possession of by inclosure for seven years, and, therefore, that the more recent enlargement of the defendant's field entitled the plaintiff to a verdict in this action. But the court instructed the jury that the possession of the defendant within the lapping of the patents for seven years (the lessors of the plaintiff having no possession therein) was a possession of the whole lap, and gave the defendant a good title thereto.
Upon the trial the plaintiff produced a witness who deposed that about fifty years ago Joseph Williams surveyed the line which the plaintiff now claims as that between him and the defendant, and then claimed it as the line of his patent; and the plaintiff offered further to prove by that witness that when the line was run, the surveyor began at a point on the Yadkin River which was some distance from the line, and that said Williams then stated "why it was necessary to begin at that point on the Yadkin in order to strike the line," but, being objected to by the defendant, the court excluded the evidence of those declarations.
There was a verdict for the defendant, and from the judgment the plaintiffs appealed.
No counsel for plaintiffs. (188)
Norwood for defendant.
The instructions of his Honor were undoubtedly correct. As the case stands upon the exception, it is to be assumed that the line of the Williams grant was where the plaintiff claimed, and where, indeed, the defendant admitted it to be; but it is to be assumed, also, that the line of the defendant's grant was where he claimed it to be, and where the plaintiff denied it to be; so that in point of fact there was, according to the expression that has come into common use, a lapping of the grants upon each other. In such a case the law has been held in many cases to be that if one of the claimants be seated on that part, and the other not, the possession of the whole interference is in the former exclusively — possession of part of the land included in both deeds being possession of all of it. Green v. Harman, 15 N.C. 158; Dobbins v. Stephens, 18 N.C. 5, Carson v. Burnett, 18 N.C. 546; Williams v. Buchanan, 23 N.C. 535. As the defendant thus had the possession for seven years of the whole of the land covered by both grants, he acquired a good title to the whole, though his was the junior grant.
The plaintiff cannot have a reversal of the judgment for the rejection of the declarations of Williams as to the reasons for beginning to survey not on any line of his tract, but at a place on the Yadkin at some distance from the land. In the first place, the plaintiff has not set forth in his exception, what the reasons declared were; and it is therefore impossible to determine whether they were relevant, or not, to any point in controversy. It is incumbent on the appellant to show the relevancy of the declarations, in order to establish an error in rejecting them. But the case is even stronger than that against the plaintiff, for, as far as the nature of the declarations can be conjectured from the circumstances, they must have been irrelevant or incompetent. (189) If the object was to show that Williams then claimed the line which the plaintiff now does as the line of his patent, the evidence was wholly immaterial, inasmuch as the defendant did not at all deny that to be William's line, but admitted it throughout, and put his case entirely upon the title gained under the statute of limitations by a possession of more than seven years under the color of his own grant. If the object was to prove by those declarations where the line of the defendant's patent was, they were manifestly incompetent for that purpose, for, upon a question of boundary, it cannot be competent for one claimant to prove by his own declarations at a former period what is the ambit of his adversary's deed. In every point of view, therefore, there does not appear to have been an error in ruling out those declarations.
PER CURIAM. No error.
Cited: McCormick v. Munroe, 48 N.C. 334; McLean v. Smith, 106 N.C. 176; S. v. Boyce, 109 N.C. 758; Boomer v. Gibbs, 114 N.C. 84; Currie v. Gilchrist, 147 N.C. 652.