Opinion · Nclaw North Carolina

BAKER v. McDONALD, 47 N.C. 244 (1855)

DOE ON DEM. OF JOHN BAKER v. ANGUS McDONALD., 47 N.C. 244 (N.C. 1855)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1855-01-01
Topic: general

BAKER v. McDONALD, 47 N.C. 244 (1855) DOE ON DEM. OF JOHN BAKER vs. ANGUS McDONALD.Supreme Court of North Carolina June Term, 1855. From thirty years actual possession of land according to known metes and boundaries, the law presumes, not only a grant, but every thing else that is necessary to complete the title.

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BAKERv. McDONALD,47 N.C. 244(1855)

DOE ON DEM. OF JOHN BAKERvs. ANGUS McDONALD.

Supreme Court of North Carolina

June Term, 1855.

From thirty years actual possession of land according to known metes and boundaries, the law presumes, not only a grant, but every thing else that is necessary to complete the title.

Where neither of the proprietors of two interfering tracts of land, has actual possession of the part common to both titles, the law adjudges the right to him that has the elder.

ACTION of EJECTMENT, tried before his Honor Judge BAILEY, on the last circuit at Moore Superior Court.

The plaintiff introduced a grant from the State, dated in 1767, for the land in question, and a regular succession of conveyances for the same, down to the year 1785. On 27th of July, in that year, (1785) it was sold by the sheriff of Cumberland county, as the property of one Angus McDonald, and purchased by one Farquhar Campbell, who took a sheriff's deed, but no judgment and execution was produced or proven to authorise the sheriff's sale.

The lessor of the plaintiff then regularly deduced title from Farquhar Campbell to himself for the land contained in the sheriff's deed, and in the demise in the declaration, by aPage 245succession of mesne conveyances, and proved possession accompanying them, from that time till the present.

The defendant proceeded to show a grant, dated in the year 1787, for a tract of land, a part of which lapped on the land above described, (for which lappage this suit is brought) and showed a chain of title for the tract from Stephens, the grantee, to himself, of which these successive claimants had had possession of some part, from that date to the present, but no person had possession of the part common to both deeds, until the entry by the defendant, for which this suit was brought.

The defendant insisted that whether his title was good or not, the plaintiff could not recover in this suit, for that he had shown the title granted in 1767, to be in Angus McDonald, and had not shown it out of him, and prayed his Honor to instruct the jury that according to the case presented in the evidence, the title of Angus McDonald was still in him, or if he be dead, in his heirs, and that therefore the plaintiff could not recover.

The Court charged the jury that if the land, covered by the courses in the plaintiff's declaration, and claimed by him, was granted in the year 1767, and if they believed it had been in the continued possession of the plaintiff, and those through whom he claims, thirty, forty, or fifty years, under color of title, the original grantee and his heirs had lost their right of entry, and the plaintiff would be entitled to recover. The defendant excepted. Verdict for the plaintiff. Judgment and appeal.

KellyandStrange, for the plaintiff.

No counsel for the defendant.

NASH, C. J.

No error has been shown to exist in the charge of his Honor. The plaintiff claims under a grant issued in 1767, and by regular deeds down to 1785 from the grantee and those claiming under him: in that year one Scroggins, sheriff of Cumberland county, sold the land in controversy, as the property of one Angus McDonald, who was then the owner,Page 246(but no judgment and execution were shown) and Farquhar Campbell became the purchaser and received a deed from the sheriff, and immediately took possession. A regular train of conveyances from him to the lessor of the plaintiff was shown, and possession was continued from 1785, by Campbell and those claiming under him, to the time of bringing this action.

The defendant claimed under a grant from the State, dated in 1789. These two grants interlapped, neither the lessor of the plaintiff, nor the defendant was ever in the actual possession of the part so covered by the two grants, until the possession taken by the defendant just before the action was commenced, although each was in the actual possession of other parts of the land covered by their respective grants.

The presiding Judge instructed the jury, that if the land covered by the demise, and claimed by the lessor, was granted in 1767, and if they believed it had been in the continued possession of the plaintiff, and those through whom he claimed, thirty, forty, or fifty years, under color of title, then the original grantee and all those claiming under him, had lost their right of entry, and the plaintiff would be entitled to recover.

A long course of decisions in this Court has established the doctrine, that from thirty years continuous possession of land, the law presumes, not only a grant, but every thing else that is necessary to complete the title.Wallacev.Maxwell, 10 Ire. Rep. 110;Reedv.Earnhart, ibid 516, and others.

The question before the Court was, whether the lessor of the plaintiff had such a title to the land in question as would enable him to maintain the action?

It was admitted that the grant of 1767, covered the tract of land claimed by the lessor of the plaintiff, including the lappage, and if the title was not in him, it was in the grantee or in his heirs. But says his Honor, if the lessor of the plaintiff and those under whom he claims, have been in the continuous possession for thirty, forty or fifty years, the title cannot be in the grantee or in any one claiming under him, for they have lost their right of entry, and the lessor of the plaintiff by hisPage 247long continuous possession has acquired the title; because the law will presume from such possession every thing necessary to perfect his title: this is the substance of the charge. The plaintiff having title to the land covered by the grant of 1767, that title drew to it the possession, until the defendant, by taking actual possession of the lappage, gave him a right to bring this action.

PER CURIAM. Judgment affirmed.