Opinion
(August Term, 1851.)
An entry under a deed into a part of a tract of land shall, as against a mere wrongdoer, be considered an entry into the whole, it not appearing that any one else has possession of any part.
APPEAL from Battle, J., at WILKES Spring Term 1851.
Quare clausum fregit, and plea, not guilty. On the trial the plaintiff gave in evidence a deed to himself covering the locus in quo. He also gave in evidence a grant to another person, which likewise covered the locus in quo, but he was unable to deduce title from the grantee to his bargainor. Upon taking his deed the plaintiff went to reside in a house situate on the land and cultivated a field that was enclosed, and soon afterwards the defendant committed the alleged trespass on an unenclosed part of the woodland included in the plaintiff's deed.
The counsel for the defendant moved the court to instruct the jury that the action could not be maintained because the plaintiff had not shown himself to be in possession of the locus in quo by having it enclosed, or otherwise in his actual occupation, or by having a title for it against all the world; but the court refused to give the instruction and directed the jury that the plaintiff's actual entry under his deed into a part of the land covered by the deed was prima facie sufficient to maintain trespass against the defendant, who set up no claim to the locus in quo, and was a mere wrongdoer, no other person appearing to be in possession of another part of the land under a conveyance, also covering the locus in quo.
(374) Guion for plaintiff.
Boyden for defendant.
Although as between two persons claiming under deeds which interfere, the possession be with the better title unless the other party have an actual possession within the disputed part, yet, as applied to the case of a mere wrongdoer, the instructions conform to our adjudications, and seem, indeed, to follow from the doctrine of constructive possession, which is indispensable, in the present state of the country, to the protection of peaceable possessors and claimants against lawless intrusions. Wyrick v. Bishop, 8 N.C. 485, is in point, and gives very satisfactory reasons why an entry under a deed into a part of a tract of land should, as against a mere wrongdoer, be considered an entry into the whole, it not appearing that any one else has possession of any part.
PER CURIAM. No error. Cited: McCormick v. Munroe, 48 N.C. 334; Lamb v. Swain, id., 372; Aycock v. R. R., 89 N.C. 324; Thornton v. R. R., 150 N.C. 693; Simmons v. Box Co., 153 N.C. 261; Ray v. Anders, 164 N.C. 314.
(375)