Opinion
(December Term, 1860.)
Where one rented a plantation for a year, and having joined the fences of another plantation, owned by him, to the fences of the rented place, and then at the end of the year quit without removing the fence placed there, and after five years entered again, it was Held, that he was not entitled to notice to quit before bringing suit against him.
EJECTMENT tried before Bailey, J., at Fall Term, 1860, of CARTERET.
Hubbard and Green for plaintiff.
Haughton, J. W. Bryan, and Henry C. Jones for defendant.
The land in dispute is comprised within the lines E, C, D, F, on the west side of Rocky Run. See diagram. The defendant had purchased from Barclay Borden a tract of land called the Deer Neck Plantation A, B, E, G, which he for a while contended ran across Rocky Run and embraced the disputed land; but afterwards, he, in 1852, (295)
, SEE 53 N.C. 225.]
rent the land E, C, D, F, from the guardian of the plaintiff's lessor, Lucretia, the heir-at-law of the said Barclay Borden. While in this occupation, he extended the fences of the Deer Neck tract across Rocky Run, and joined them to the fences of the disputed land. He quitted the possession of the land in question, at the end of 1852, but left the fences, as above stated, extending across the run, in which situation they remained until 1858, when he took possession again, and held it until he was sued by the plaintiff in that year. The plaintiff's title to the land in question was established, and the question was whether there was such a tenancy of the disputed land, as entitled the defendant to a notice to quit, before a suit could be brought. The Court charged the jury, that there was not, and defendant excepted.
(296) Verdict and judgment for plaintiff. Appeal by defendant.
The only question which seems to be presented by this record is, whether there was a tenancy of the disputed land, on the part of the defendant, which entitled him to notice before suit. We concur with the court below that there was not.
It seems the land was rented to defendant in 1852. After that it does not appear whether it was occupied until 1858, when it was taken possession of by the defendant. The defendant's fence, in 1852, extended across Rocky Run upon the land in dispute and joined the fence on that side, and so continued from that time to 1858.
From the facts stated we assume that the land in dispute was not occupied from 1852 to 1858 by any tenant, but the defendant's fence was left extended across the run as in the former year, and the question is, What effect had this fence upon the relations and rights of the parties? We do not perceive that it had any. The superior title being in the plaintiff's lessor, she was in constructive possession of the land and fence until 1858, when defendant again entered and exposed himself to an action. There was no tenancy of the land by defendant after 1852, and the court properly declined giving any instructions upon that supposition.
PER CURIAM. No error.
(297)