Opinion
August Term, 1859.
The fact that one enters into possession of a tract of land immediately after another leaves it, claiming a part thereof under a deed from that person, is no evidence that he holds another tract, not included in the deed, under the same person.
EJECTMENT, tried before BAILEY, J., at a Special Term, (July, 1859,) of Buncombe Superior Court.
N.W. Woodfin and Merriman, for the plaintiff.
J. W. Woodfin, for the defendant.
The lessor of the plaintiff showed title to the land in controversy, by regular mesne conveyances from John Gray Blount, to whom it was granted by the State in the year 1796. The defendant offered in evidence, a grant for a part of the land conveyed to Blount, to one Jesse M. Roberts, dated in 1824, which embraced the land in question; also, a deed from Roberts to Wiley Hill, dated in 1829, which included all the lines of the said grant, except one, and in consequence of the omission of that one, the land in controversy was not conveyed from Roberts to Hill, but another portion was conveyed. The said Jesse M. Roberts, in 1831, took out a grant for another part of the land included in the Blount patent, which he conveyed to Wiley Hill by deed, dated in 1833. The defendant claimed title under Wiley Hill, and introduced evidence tending to show that Roberts, Hill, and himself, had been, together, in the adverse possession for more than twenty years.
It was in evidence that Roberts continued the possession of the land till 1829, and that Wiley Hill took possession immediately after Roberts left in that year.
It was contended for the plaintiff, that Wiley Hill, under whom the defendant claims, did not have color of title as to land not included in his deed, and that there was no evidence that he claimed under Roberts, who had a grant for it, and that without evidence to show that he held under Roberts, the right of the plaintiff's lessor was not tolled, and his Honor was called on so to instruct the jury, but he declined doing so, and left it to them to say how the fact was. Plaintiff's counsel excepted.
The defendant introduced one Moses Roberts, who swore, that finding the land in controversy vacant, he leased the same from the lessor of the plaintiff for two years, and took possession under his lease, that Mr. Cole, one of the persons under whom the defendant claimed, came to him and asked him why he had taken possession, stating that he, Cole, held under Hill, and that he would writ him if he did not leave. The witness replied that he held under a lease from Blackstock, and that he had made improvements. Cole agreed if witness would leave, he would pay him for his improvements, and would lift his lease from Blackstock. There was evidence that Cole afterwards said he had bought Roberts' lease. It was contended that Cole, and all claiming under him, including the defendant, were estopped to deny plaintiff's title. His Honor Honor left it to the jury to say whether Cole went in as a purchaser of Moses Roberts' lease, or whether he simply meant that he would indemnify him against harm if he would leave the premises. Plaintiff again excepted.
There was a verdict for the defendant. Judgment and appeal.
The lessor of the plaintiff having acquired the title from Blount, the first grantee, the plaintiff is entitled to recover, unless the right of entry was tolled by adverse possession.
The grant to Roberts embraces the land in controversy, but his deed to Hill does not, by reason of the omission of one line; so, Hill did not have color of title; and, in order to toll the entry, it was necessary to prove an uninterrupted adverse possession for twenty years, and to do so, it was necessary to connect the possession of Hill with that of Roberts. This could only be done by proving that Hill claimed under Roberts, and derived the possession from him. The question is: was there any evidence of that fact? We think there was not, and his Honor erred in allowing the jury to find it without evidence. As the deed from Roberts to Hill did not cover the land in controversy, it could not have the effect of connecting the possession in respect to that part of the tract. So, the only matter that can be suggested, as making a connection, is the circumstance that he took a deed from Roberts for the other part of the tract, and went into possession of the part in controversy "immediately after Roberts left." But, non constat, that he did so, claiming under him. On the contrary, as the deed did not cover it, the inference would seem to be that he did so independently, and on his own account, so as to hold adversely against Roberts, as well as all other persons. For this error, the judgment will be reversed, and a venire de novo awarded.
It is unnecessary to enter into the question made, as to the estoppel. Indeed, it is cut off by the verdict, provided his Honor submitted the matter to the jury upon all of the evidence, and did not restrict the enquiry to the testimony of the witness, Roberts.
PER CURIAM, Judgment reversed.