WILLIAMS v. WALLACE. This action therefore can only be maintained upon the possession of the plaintiff. If he has failed to show an actual occupation by himself, the law adjudges the possession to be constructively with the title, that is, with the defendant Sallie Wallace, and those deriving title under her. When there is no actual occupation shown, the law carries the possession to the real title. So it is immaterial in this view whether the defendants had the actual possession .or not. The question then is, whether the plaintiff having only a defective title had been for seven years in the actual occupation of the premises at the commencement of the action. Cohoon v. Simmons, 7 Ire. 189; McCormick v. Monroe, 1 Jones 13. About this there can be no doubt. No witness proves that the plaintiff or those under whom he claims had been in the actual possession of the lands in dispute for a year, a month, or a week continuously, prior to the commencement of the action. From 1857, the date of the deed under which the plaintiff claims, to 1873, when the action was instituted, a period of 16 years, only a few single acts of trespass were proved, such as cutting ton timber at one time, fire wood at another, making rails at another, making bricks at still another, all occasional and at long intervals, unaccompanied by a continuous possession or public notoriety, such as the law requires to be given to the world that the plaintiff is not a mere trespasser, but claims title to the land against all mankind. A possession under color of title must be taken by a man himself, his servants, or tenants, and by him or them continued for seven years together. The acts constituting this possession should be such "as to admit of no other construction than this, that the possessor means to claim the land as his own. In order to make this notorious in the County, he must also continue in possession for seven years. Occasional entries upon the land DAVIS v. MCARTHUR. will not serve, for they may either be not observed, or if observed, may not be considered as the assertion of rights." Grant v. Winborne, 2 Hay. 56; Loftin v. Cobb, 1 Jones 406; Andrews v. Mulford, 1 Hay. 311; Bynum v. Carter, 4 Ire.. 310; Bartlett v. Simmons, 4 Jones 295. The plaintiff having wholly failed to establish such a possession as would entitle him to maintain the action, it is unnecessary to notice the title of the defendants. No error. PER CURIAM. Judgment affirmed. JAMES W. DAVIS and others v. THOMAS MCARTHUR. Action to Recover Land-Adverse Possession-Presumption of Grant 1. Where A enters into possession of land the property of B's wife under a deed from B alone, the possession of A is in law the possession of the wife and enures to her benefit. 2. From an adverse possession of land for thirty years, the law presumes a grant from the State and it is not necessary even that there should be a privity or connection among the successive tenants. 3. Where in an action to recover land the plaintiff showed a continuous adverse possession, under deeds defining the land by metes and bounds, from 1815 to 1848, by those successively under whom he derived title, the last nine years of which the possession was held under a deed sufficient in form to pass the estate in fee, and the defendant showed a grant from the State in 1848; Held, that plaintiff was entitled to recover. (Fitzrandolph v. Norman, N. C. Term Reports 127; Rogers v. Mabe, 4 Dev. 180; Wallace v. Maxwell, 10 Ire. 110; Reed v Earnhart, Ibid. 516; Simpson v. Hyatt, 1 Jones 517; Bullard v. Barksdale, 11 Ire.. 461; Taylor v. Gooch, 3 Jones 467, cited and approved.) CIVIL ACTION, to recover the Possession of Land, tried at Fall Term,1877,of RUTHERFORD Superior Court, before Kerr,J. This action was brought to recover a tract of land. DAVIS v. MCARTHUR. alleged to be in possession of the defendant and wrongfully withheld from the plaintiffs The defendant denies the plaintiffs' allegations and sets up title in himself. On the trial the following facts were in evidence: One R. M. Alexander, by deed dated the 12th of April, 1815, conveyed the land in dispute to Sally Crook, who afterwards intermarried with James Arthur and never had issue. In January, 1825, after the marriage, Arthur alone executed a deed to William Arthur, and therein undertook to convey the land to him. This was with the knowledge and consent of his wife, and William Arthur entered into possession and held the land. On the 10th of March, 1839, James Arthur and wife by their deed properly executed, conveyed the land to John Baber to whom William Arthur surrendered possession. These deeds were inartificially drawn, and none of them contain words of inheritance. On the 10th of May, 1839, John Baber by deed in proper form to pass an estate in fee,' conveyed to Toliver Davis, who died intestate, and the plaintiffs are his heirs at law. The defendant claims under a grant from the State which issued in 1848. The defendant insisted that the possession of William Arthur for fourteen years was adverse to Sally Arthur, and broke her continuity of possession, and asked an instruction to this effect to the jury. The Court refused so to charge, and told the jury that William Arthur having entered into possession of the land under the deed of James Arthur who had no title in himself, the possession of William Arthur was in law the possession of Sally Arthur and enured to her benefit. The Court further instructed the jury, that if there had been a continuous possession of the land from the year 1815 to the year when the grant issued, including the fourteen years occupancy by William Arthur, and the jury should so find, the effect would be to vest title in the plaintiffs, and they would be entitled to recover. To DAVIS v. MCARTHUR. this the defendant excepted. Verdict for plaintiffs. Judgment. Appeal by defendant. Messrs. W. J. Montgomery and W. H. Bailey, for plaintiffs. Mr. J. F. Hoke, for defendant. SMITH, C. J. (After stating the case as above.) Wethink the Court was correct in both rulings. The possession of William Arthur, being under James Arthur who acted for himself and wife, was but an extension of the possession of the rightful owner and for her benefit. And if this was not so, the result would not be changed. The case is simply this:-There has been a continuous adverse possession of the land for the space of thirty-three years from 1815 to 1348, under deeds defining the same by metes and boundaries, by those successively under whom the plaintiffs derive title, during the last nine years of which, the intestate Toliver Davis had possession under a deed in form sufficient to pass the estate in fee. These facts entitle the plaintiffs to recover. It has been settled by repeated adjudications in this State, that an adverse possession of lands for thirty years raises a presumption of a grant from the State, and it is not necessary even that there should be a privity or connexion among the successive tenants. We will only refer to some of the cases in support of the doctrine. Fitzrandolph v. Norman, Term Rep. 127; Rogers v. Mabe, 4 Dev. 180; Wallace v. Maxwell, 10 Ire. 110; Reed v. Earnhart, Ibid, 516. This presumption arises at common law and without the aid of the Act of 1791, and it is the duty of the Court to instruct the jury to act upon it as a rule of the law of evidence. Simpson v. Hyatt, 1 Jones 517. The grant is inferred, not because of a belief that one did in fact issue, "but because there is no proof that it did not, and in the nature of things it would seem that there can be no sufficient negative DAVIS v. MCARTHUR. proof of the kind supposed. Bullard v. Barksdale, 11 Ire. 461. Title being thus out of the State, it vested in Tolifer Davis by virtue of his nine years possession under the deed made to him in 1839, which professes, and in form is sufficient, to pass the estate in fee by virtue of the Act of Limitations. Rev. Stat. ch. 65 § 1. Taylor v. Gooch, 3 Jones 467. We do not deem it necessary to consider and decide the question discussed at the bar, whether possession under a deed which conveys a life estate only, can operate as color of title to vest a fee. We hold that the long possession presumes a grant from the State to some one, and the possession to Tolifer Davis under his deed vests title in him. The plaintiffs, his heirs at law, are therefore entitled to recover the land. No error. PER CURIAM. Judgment affirmed. |