Opinion
(Fall Riding, 1797.)
1. Where, upon a contract for the purchase of land, the purchaser takes possession before he obtains his deed, this possession shall not be considered adverse to the owner.
2. A plaintiff in ejectment need not have been in actual possession seven years before action brought. If he has a title by grant or deed, he has a constructive possession by operation of law, which preserves his right of entry until it be destroyed by an actual adverse possession, continued for seven years together under color of title.
EJECTMENT. The land in question was granted by the King to Solomon and James Ogden on February 20, 1735; they conveyed to Clark in 1737, and he to Gabriel Johnson in 1738. Johnson devised, in 1751, that his executors should sell; his widow, being his executrix, intermarried with Rutherford, and they conveyed to Orme in 1754, who in the same year reconveyed to Rutherford, who in 1763 conveyed to Duncan, and he in the same year reconveyed them. Rutherford in 1773, pursuant to a decree of the court of chancey, conveyed (10) to Murray, and in 1774 Murray conveyed to Young, who died, leaving the plaintiff his heir; but before the decree Rutherford contracted for a sum of money to sell to Irwin, and to convey when he should have paid the consideration money. Irwin in 1757 made his will and died. He left Rutherford his executor, and it was proven that Rutherford wrote his will: he directed money to be raised out of his personal estate to discharge the debt due for the land, and then devised it to his sons, John and James; he died in possession, which he took pursuant to the contract. Some time in 1753 Rutherford, as executor, took the whole personal estate, to a much larger value than the debt in question, but said he had expended it in the payment of debts. What was the precise amount, either of the personal estate or debts of the deceased, did not appear.
Taylor for plaintiff.
The legal title has been regularly deduced from the original proprietor to the lessor of the plaintiff, and he is entitled to recover in this action unless barred by the act of limitations, or by Rutherford's sale, or the joint operation of both.
With respect to the contract to sell and the taking possession in consequence thereof, by the permission of the vendor: If that be considered independent of any concomitant or subsequent circumstances, it can give no title whatsoever. The land could not pass nor any estate in it upon the making of the contract and taking possession pursuant to it by the vendor's consent. A deed properly executed and registered is at least required to pass an estate of inheritance in this country; and this to avoid the danger of claiming estates as passed from the owner's verbal testimony, and of turning men out of their estate and possessions by corrupt witnesses. When a purchaser in a case like the present takes possession, he takes it by consent of the owner, and may continue it until he fails in payment, and then is liable at law to be turned out. He does not take a tortious possession and gain a tortious fee, as has been contended. If he is not, strictly speaking, a tenant at will, his possession is that of the owner, and not a distinct independent possession opposed to his. If he is ousted of possession by a stranger, he cannot regain it by an action in his own name, but only in an action which sets up and affirms the vendor's title. Such possession of the purchaser is, therefore, not an adverse possession to the vendor; and if by the act of limitations an adverse possession is necessary to bar the plaintiff's title, such an one as has been in the present case will not answer that description. Under the act of limitations, it is very true the English law books require the plaintiff in ejectment to prove himself to have been in possession within twenty years; but by our law he need not be in actual possession within seven years. If he has a title by deed or grant, he has a constructive possession by operation of law, which preserves his right of entry until it be destroyed by an actual adverse possession, continued for seven years together. If he has never seen his land — if he has not entered upon it for fifty years — his title may be good, if his adversary hath not been in possession for seven years continually during the whole time, with a color of title. The act of (12) limitations operates between individuals having different grants of the same lands, or claiming by mesne conveyances under them, where there were two such claimants. The Legislature, in 1715, when this country was a wilderness and the great object was to procure settlers, thought it more politic to prefer a patentee or a grantee under him who had actually settled upon his land and continued in possession for seven years than another who had not settled upon the land, though he had a prior grant or deed; but it did not mean to give any preference to an usurper who settled upon the King's or proprietor's land without obtaining a title at all or paying for it; or who settled upon the lands of an individual proprietor, knowing he was a trespasser in doing so, which he must have known if he had no colorable title. It is argued that the will of old Irwin was a color of title in his devisees. In some cases, perhaps, a will may be so considered. It cannot, however, in the present case, because this will expressly takes notice that the title was in Rutherford, and provided for the obtaining a title by payment of the money. So here is neither an adverse possession nor color of title, both which are necessary to accompany a seven years possession, in order to give a title to the defendant.
Verdict and judgment for the plaintiff.
NOTE. — On the first point, see Jones v. Taylor, 12 N.C. 434; Walton v. File, 18 N.C. 567. As to the second, see the note to Strudwick v. Shaw, 1 N.C. 34; S. c., 2 N.C. 5.
Cited: Hinson v. Kerr, 178 N.C. 539.