Henderson, Judge, delivered his opinion. — I think the Circuit Judge erred in that part of his charge, wherein he directed the Jury, that the lines of the surrounding tracts of land, if not made for the lands claimed by the Defend *47 ant, did not satisfy the words of the act ’91, that is to say, “ known and visible boundaries,” unless they had been re-cognised as the boundaries of this tract by some grant or mesne conveyance thereof. Boundaries frequently exist in common reputation : and it is for that reason, that hearsay is evidence upon the question of boundary. It would, therefore, have been sufficient for the Defendant to have shewn, that it was the common reputation and understanding of the neighbourhood, that his land was bounded by the lines of those, surrounding tracts, although they were not originally made for it.' Another question obscurely appears upon the record, which does not seem to have been made at the- trial: It is, whether a title derived from a Sheriff’s sale without a deed from the Sheriff is a colorable title under the act of 1791. But the facts do not sufficiently appear to warrant the Court in going farther than barely to notice them. For it is not shewn, by what evidence the Defendant proved Greenlee to be a purchaser at Sheriff’s sale — whether-by parol or by the Sheriff’s return.
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TATEv. SOUTHARD,8 N.C. 45(1820)
DEN ON DEMISE OF TATE v. SOUTHARD.
Supreme Court of North Carolina
1. Under the act of 1791, c. 15, it is sufficient to show that, by common reputation, a tract of land has certain known and visible lines and boundaries, although those lines and boundaries belong to adjacent tracts and were not made for the land in dispute, nor, in any deed thereof, are recognized as the lines of such tract, for reputation and hearsay are of themselves evidence of boundary.
2. A verdict which finds a fact contrary to a legal presumption is repugnant and void.
3. It seems that the return of the sheriff upon afi. fa. is a colorable title under the act of '91, though no deed be made by the sheriff.
4. A new trial will be granted for misdirection, although the record does not show that the verdict ought to have been otherwise, if the court had directed otherwise.
THIS was an action of ejectment, from BURKE, in which the lessor of the plaintiff claimed title to the lands in dispute by a grant from the State bearing date 11 October, 1814. The defendant claimed the land under a sheriff's sale made to one JamesPage 26Greenlee, under a judgment and execution against one T. Kennedy in 1783; and that Greenlee and the defendant, who claimed under him, had a continued possession for upwards of twenty-nine years before this suit was brought, and defendant was then in possession. The defendant showed no grant to Kennedy or any other person for the land, nor any deed from the sheriff to Greenlee or from Greenlee to himself. He proved, however, that the land claimed by him was surrounded by other tracts, and that it was understood and believed by all the neighbors that the land thus enclosed by the lines of the surrounding tracts was Kennedy's at the time of the sale in 1783, and it had been called Greenlee's ever since; that although the witnesses had never known any lines run and marked for Kennedy's tract yet an old grant for adjoining land (which was produced) called for Kennedy's lines; that about thirty acres were cleared and fenced at the sale in 1783, and had continued to be enclosed and (46) cultivated ever since. It was also proved that many years ago a branch was shown to a witness by a person now dead as one of the dividing lines between Kennedy's and another tract; and another witness proved that he also had been told long ago, by a person now dead and who lived in the neighborhood, where another of Kennedy's lines crossed a certain road, and by those lines the defendant claimed now to be bounded. According to these facts the defendant insisted that under the act of Assembly of 1791, ch. 15, he had title to the land in dispute. The case was tried beforeMangum, J., who charged the jury that if the lines which surrounded the land in controversy were not originally run for that tract but belonged to the adjacent tracts, then the land in question was not included in such known and visible lines and boundaries as are required by the act of 1791, unless by some matter subsequent, as a grant ormesneconveyance of the land in dispute, those lines of the surrounding tracts had been recognized as the lines and boundaries of the land in question, and here no such deed was produced. The jury, under the charge of the court, found a verdict for the plaintiff, and also found the fact expressly that no grant from the State had ever issued to any person for the tract of land mentioned in the declaration until the one to the lessor of the plaintiff of 11 October, 1814.
A rule was obtained by the defendant for a new trial for misdirection of the court, which was discharged and judgment rendered against him, and he appealed to this Court.
Wilsonfor the plaintiff.Page 27
HENDERSON, J.
I think the circuit judge erred in that part of his charge wherein he directed the jury that the lines of the surrounding tracts of land, if not made for the lands claimed by the defendant, did not satisfy the words of the act 1791, that is to say,"known and visible boundaries,"(47) unless they had been recognized as the boundaries of this tract by some grant ormesneconveyance thereof. Boundaries frequently exist in common reputation, and it is for that reason that hearsay is evidence upon the question of boundary. It would, therefore, have been sufficient for the defendant to have shown that it was the common reputation and understanding of the neighborhood that his land was bounded by the lines of those surrounding tracts, although they were not originally made for it. Another question obscurely appears upon the record, which does not seem to have been made at the trial, it is whether a title derived from a sheriff's sale without a deed from the sheriff is acolorabletitle under the act of 1791. But the facts do not sufficiently appear to warrant the Court in going farther than barely to notice them; for it is not shown by what evidence the defendant proved Greenlee to be a purchaser at sheriff's sale — whether by parol or by the sheriff's return. As to the fact found by the jury that there never was a grant for the land before the one to the plaintiff's lessor; if a grant is necessary to be presumed to support the defendant's title, and he brings himself within the provisions of the act of 1791, the finding of the jury is against a legal presumption, which cannot be contradicted, and is therefore void. But at all events there must be a new trial for the misdirection upon the question of "known and visible boundary," although it does not distinctly appear that the defendant can show a colorable title as required by the act of assembly.
The Chief Justice and Judge HALL accorded, and a new trial was ordered.Cited: Atkinson v. Clarke,14 N.C. 175;Graham v. Houston,15 N.C. 235;Hartzog v. Hubbard,19 N.C. 243;Wallace v. Maxwell,29 N.C. 137;Dula v. McGhee,34 N.C. 333;Neal v. Nelson,117 N.C. 402;Hemphill v.Hemphill,138 N.C. 506;Bland v. Beasley,140 N.C. 631.Page 28
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