Opinion
(June Term, 1863.)
Where a tract of land had marked trees all around it, demarking 300 acres, and one held a small isolated parcel within these bounds for five years, and there was no evidence to connect him with the marked trees or the grant under which the marks were made, it was held that he had not prima facie evidence of title to the land according to these bounds under the act of 1850.
EJECTMENT, tried before Howard, J.; at Fall Term, 1861, of MONTGOMERY.
The plaintiffs offered in evidence a grant to one James Noll, 1799, for the land in dispute, and proved that in 1831 one Burrage built a small house on it and occupied the same, cultivating a field around the house, and while there hunted and dug for gold on the land by the permission of Delamotte (as he stated); that there were marked trees all around the tract; that in 1832 one Ferrill occupied the house; that it was then vacant until December, 1834, when Ferrill returned and took possession, telling the witness that he had a house at last where he felt settled; that he had been put there by Delamotte. Ferrill continued to live on the land from December, 1834, to August, 1845, when he was ejected at the instance of the lessors of the plaintiff. The plaintiffs are the devisees of the land under the will of Delamotte, which was duly proved. He died in 1838. These facts, and others not material to the point considered by the Court, were submitted to his Honor. The question raised by the counsel was whether the possession of Ferrill, as tenant for Delamotte for five years, was prima facie evidence of title under the act of 1850.
Judgment for the defendant, and the plaintiffs appealed.
Ashe for plaintiffs.
Strange for defendant.
An objection presents itself in limine, which is fatal to the plaintiff's case. There is no evidence that Delamotte ever had a deed, or in any manner claimed to derive title under Noll. So there is nothing to show that he held or claimed according to the boundaries of the grant to Noll, or to connect his title with the marked trees around that grant. He may have claimed up to some line, including a fourth or a half, or any indefinite part of the land covered by the Noll grant, or his claim may have extended outside of that grant to any other lines or boundaries. In other words, there is no evidence to fix the boundaries according to which Delamotte claimed.
The fact that, in 1799, a grant issued to one James Noll for 300 acres of land, and that there were marked trees all around it, and that in 1834 Delamotte put one Ferrill in possession of a piece of land inside of these marked trees, and Ferrill lived there as Delamotte's tenant for more than five years and cleared a few acres of land, is no evidence of the allegation that Delamotte held and claimed according to the lines which had been marked for the grant to Noll, in the absence of any proof whatever to connect his title with the grant or to show that he had ever seen or heard of it, or knew anything about the marked trees around it.
The evidence does not bring the plaintiff's case within the provisions of the statute relied on, chapter 68, section 12, Laws 1850, which is in these words: "Peaceable possession of land, although no color of title be shown, for five years, shall be prima facie evidence of title, where persons may hold or claim under known and visible metes and bounds." There is no evidence that Delamotte did hold or claim under known and visible metes or bounds, and there is nothing to show the extent of his claim. There is no error.
PER CURIAM. Affirmed.
Cited: Smith v. Kron, 96 N.C. 396.
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