Opinion
(July Term, 1817.)
1. A grant may be presumed from great length of possession, although no privity can be traced between the successive tenants. And in such a case a color of title for the land, as to part of the time, may be offered to the jury as a circumstance.
2. The possession of a part of a tract of land is possession of the whole claimed by a deed, where there is no adverse possession or superior title.
3. The act of 1791 (1 Rev. Stat., ch. 65, sec. 2) making certain possessions valid against the State does not affect the common-law principle of presuming a grant.
THE lessor of the plaintiff claimed under a grant from the State for 640 acres of land, bearing date 22 September, 1815.
I. Wright for plaintiff.
Henry for defendant.
The defendants relied upon length of possession, which they proved, as to part of the land, from 1780 and 1782. From the former period, claiming under a will; from the latter, under a deed, calling for 1,008 acres, but which proved, on a late survey, to be only 906 acres. They also proved that various persons were in possession of part of the land from 1769, but without any color of title; between whom, however, and the defendants, and those under whom they claim, no connection or privity appeared to have existed.
It was given in evidence that a large building had formerly been erected on the land; that there are yet the ruins of a palace and the appearances of a former general cultivation.
A deed to one Baker, bearing date in 1754, and a patent to Rowan, granted in 1735, called for BROMPTON, the name of the place in dispute. The defendants' deed calls for Baker's line. The defendants rested no part of their defense upon the act of 1791 for quieting ancient possessions.
It was further proved that the clerk's office of Bladen, the county in which the land lies, was destroyed by fire in 1768 or 1769; that (565) the defendants' deed when written was drawn from an old paper-writing, but whether with or without a seal, was not known.
The cause was tried in Bladen, Superior Court, before HALL, J., who instructed the jury that the length of possession, according to the evidence, warranted the presumption of a grant. The jury found a verdict for the defendant, and the plaintiff, upon his motion for a new trial being overruled, appealed to this court. The questions referred here for decision are:
1. Was it competent for the defendants to go into evidence of possession prior to 1780 and 1782, the commencement of the only paper titles they exhibited?
2. As the defendants did not claim under, or bring themselves within the act of 1791, ought the possession of part to be considered as the possession of the whole?
3. Was the length of possession proved sufficient to warrant the presumption of a grant?
4. Was it proper to set up a color of title without having shown that the land had been granted, except under the act of 1791?
There is so much natural justice in the (571) common-law principle which is now brought into dispute, it is so well adapted to meet the exigencies of men and to provide for the contingencies which might affect their property, that I think it would be a public misfortune if we felt ourselves bound to decide that it was not in force in this State. It certainly would shake a very large proportion of the titles in this country, and render it almost impossible for people hereafter to establish their rights, under the continual subdivision of lands which our law of descent produces. After a great lapse of time the law ought to supply that proof which, according to all probability, once had existence, and might have been produced if the subject had been litigated at an earlier period. The loss of papers, the destruction of records, the death of witnesses, are events some of which may and others must happen. But the rights which they established ought not thereby to be affected. It is, therefore, a very rational distinction made by the law between length of time operating as a positive bar and that which is only used by way of evidence. The first is made, by act of limitation, conclusive upon courts and juries. But when length of time is relied upon as evidence, the jury will believe it or not, according to the attendant circumstances. After a seven years possession under a color of title, they are bound to decide in favor of the defendants; after a long continued naked possession, the jury will consider how far it goes to convince them that a grant had originally issued. It is an application of the common principle that where the fact itself cannot be proved, you may give evidence of such circumstances as, in all probability, never would have existed without it.
The design of the act of 1791 was to give that protection to individuals against the State which the act of 1715 had afforded them against the claims of each other. In other words, to render a certain length of possession a positive bar, which no former law had done. Before any act of limitation had been made to extend to the crown in England, many cases had established the position that long possession in the party might be given in evidence to a jury that it had originally commenced (572) by a grant, notwithstanding the maxim of Nullum Tempus; and since those statutes have been passed, 21 Jac. I., ch. 2 and 9 Geo. III., many possessions have been quieted against the crown by presuming a grant. Yet the argument there is equally applicable, that those statutes had repealed the common law; but it never was advanced. It is observable, too, that some of those decisions were made at a time when the prerogative maxim received a full portion of respect. In truth, it has never been called into practice but by arbitrary princes and unprincipled ministers, and has been considered by the best judges and writers as repugnant to natural equity and the maxims of a free government.
The principle of presuming a grant has been carried to a great extent in Eldridge v. Knott, Cow., 315, where Lord Mansfield says, "It is not that in such cases the court really thinks that a grant has been made; because it is not probable a grant should have existed without its being upon record; but they presume that fact for the purpose and from a principle of quieting the possession."
Upon the first question, therefore, I am of opinion that the evidence of possession prior to 1780 and 1781 was properly received.
As to the second question, I think that the possession of the defendants was coextensive with their title. When that is established, either by the production of a grant, which was not done, or by evidence to enable the jury to presume a grant, which was given the possession, in contemplation of law, extends to the boundaries of the title; consequently, a possession of part is a possession of the whole.
The length of possession was quite sufficient to warrant the finding of the jury. The other circumstances in the case added much to its weight, such as the destruction of the clerk's office, a patent of 1735, calling for Brompton by name, and the place being noted as the residence of the Governor. Another circumstance, though not appearing in the case, must have been well known to the jury as a historical fact, viz., that in that part of the country great changes of property had been occasioned by the Revolution. Many of the inhabitants joined the (573) enemy and never returned to their homes, and valuable estates are now held solely under the petitioning law. All these circumstances must greatly contribute to the difficulty of deducing a title, and especially call for the application of legal rules which promote quiet and repose.
The color of title was, I think, properly set up, under all the circumstances. And my opinion, upon all the questions, is that there ought not to be a new trial.
The motion for a new trial is grounded upon a supposed misdirection of the judge below in directing the jury that they were warranted in presuming a grant from the circumstances given in evidence and from the admission of improper evidence to the jury. There were other points made in the case, but they have become unnecessary to be decided. The last of the points stated I will consider first. And upon this I am clearly of opinion the judge did right in leaving the facts of the possession in 1768 and 1769 to the jury, though there even was no connection proven between such possession and that under whom the defendant claimed; for, as against the State, it was a circumstance from which it might be inferred that the State had parted with its right, as well as if those in possession had been successive claimants from one another. The evidence offered in such a case was not to make a title in the defendants, but to oust the claim of the State. These possessions were circumstances, and nothing more, and entitled only to their weight with the jury. The possession, then from 1780 to 1814, with color of title and by a successive chain of conveyances, was also, for the same reason, proper evidence; and if the jury believed them, there was nothing in law which hindered them from presuming a grant; and this I understand to be the exposition of their being warranted in presuming a grant. The State, then, being stripped of all its claim, it consequently could convey nothing to the lessor of the plaintiff. The case being examined not on the improper ground of the finding of the jury, but for mistake in the court, it is not necessary to advert to all the circumstances which might have led them to the determination they made. But it has been insisted that although the land in question (574) were held by deeds ever since 1780, which, according to the boundaries called for, comprehended them, yet, as these boundaries were not known and visible, the possession under them can only be extended to actual occupancy or cultivation. But as to that, I hold the principle clear that the possession of every individual shall be deemed and held according to the extent of his deed, unless there be an actual adverse possession to countervail this presumption, or unless where it is rendered inefficient by the superior title; in which last case the law presumes him to be possessor who has the title. From this state of things it frequently happens that persons owning adjoining tracts, which lap upon each other, where neither is in the actual possession of the part covered by both conveyances, will be deemed in possession according to the title. The possession of the part, therefore, under these conveyances, was in law, as much a possession of the whole as in a case where the boundaries were known and visible.
It is true, the Legislature has not thought proper to pronounce such a case as this a legal bar against the State, as they have done where the boundaries were known and visible, but have left it, as before the act, to depend upon its own circumstances. I cannot, therefore, assent to the proposition contended for, that this act is to be considered as a repeal of the common law.
I shall state the points and then give the answers on each question submitted to this Court.
1st Question: was it lawful for the defendants to give evidence of possession prior to 1780 and 1782, the commencement of the only title they exhibited?
Answer: The defendants rested their defense upon length of possession, connected with a chain of circumstances, as evidence to presume a grant had once issued. And it was quite immaterial whether the grant issued to that person under whom they immediately claimed, or whether it issued to any person or persons no way connected with them. It is a principle of law, too well settled to be now disputed, that the State (575) has no power to grant lands which have once been granted. Whether the defendants or those under whom they claim, had invaded the right or title of any citizen or citizens is not the inquiry before the Court. Nor will the determination affect the rights of any third persons. All the defendants had to do was to show that the State was barred, on the ground that it had at some former period made a grant of these very lands to some other person. A great length of possession has been held prima facie evidence of a grant, both in England and many of the states, and the court did right in suffering the defendants to prove it as far back as possible. Badle v. Beard, 12 Rep., 5; Cowp. Rep. 102; 3 Term, 158; 7 Term, 492; 11 East, 488; 4 Bur; 1963; 3 East, 298, 302. Archer v. Sadler, 2 Hen. Mun., 370; Hanks v. Tucker, 1 N.C.; Alston v. Saunders, 1 Bay., 26; Phillips, 119, 120.
2d Question: was the possession of a part, in this case, to be considered as the possession of the whole, as the defendants did not claim under nor bring themselves within the act of 1791, entitled "An act for quieting ancient possession"?
Answer: It has ever been considered a well settled principle in this State that possession of a part of a tract of land was, in law, a possession of the whole, if this legal or constructive possession which was beyond a party's fields or enclosures, and within the limits of his title deeds, should not be resisted by an actual possession. Larkins v. Miller, 3 N.C. 345. Although in the present case there are no "known or visible lines or boundaries," still the defendants were at liberty to locate the land and fix its boundaries, by any of those ways which the law permits, in the absence of known lines and boundaries. The declarations of old men who knew the land and are now dead, the deeds of neighboring tracts of land, calling for the Brompton tract, etc., id certum est, quod potest reddi certum.
3d Question: Was the length of possession, as set up and proved, sufficient to warrant the presumption of a grant?
Answer: It appears from the case that some person or other (576) has kept up a continued possession of a part of this land for forty-six years. It also appears that the defendants and those under whom they claim have been in possession about thirty-five years, under color of title. I think the jury were authorized to find, as they did, under his length of possession, connected with the circumstances of a place once having stood on the land, where some one of the old colonial governors formerly resided; Rowan's patent, dated in 1735, and Barker's deed in 1754, calling for this tract; the clerk's office having been burnt as early as 1768 or 1769, at that time containing the records of land titles.
The law does not fix any definite time to govern a jury in their presuming a grant once to have existed. In England the judges of the court of common pleas said they would send a cause down to be tried, and that it should be left to the jury to presume a grant (if they thought proper) from the crown, after twenty years undisturbed possession of a market. 3 East, 302, 303. In Hanks v. Tucker, 3 N.C. 147, the party had been in possession forty years. It is prima facie evidence for a jury; and I cannot think a new trial should be granted because the jury found a verdict against evidence on this point of the case.
4th Question: Was it lawful to introduce or set up any color of title, without having first shown that the premises had been granted, except under the act of 1791?
Answer: The color of title set up by the defendants was only introduced as one among many circumstances for the jury to presume a grant; and with that object in view, it was properly submitted.
It is stated by the Court, 2 N.C. 468-9, that before the act of 1791 "persons whose lands had been actually surveyed and marked, and who had obtained patents which had been lost, and no registration of them to be found, were liable to be turned out of possession, and in some instances had actually lost their lands, by persons who entered claims for them as vacant lands, though there was every reason to suppose, from (577) the length of possession and from the visible boundaries claimed, that the lands had been once appropriated."
The preamble to the act of 1791 sets forth nearly the same reasons for the interference of the Legislature. If the judges of this State ever decided before 1791, as the above quotations induce us to believe they did, I can only say that, according to the authorities which I have cited on the first point in this case, they decided wrong. I admit that many tracts of land were held in this State under what is vulgarly called "axe entries," and no patents were ever obtained. Yet these are facts open to proof, and, when established, would most assuredly ascertain that prima facie or presumptive evidence of a grant which would and in justice should arise in such cases as those mentioned in the authority quoted and in the preamble of the act of 1791. Well might the Legislature think itself bound to do something. It passed an act remedying the most glaring part of the evil — or, I might, perhaps with more propriety, say the blunder — and left the law in statu quo ante as to all the other cases not mentioned. This act was made for the causes I have mentioned. It was not intended to repeal the law of presumptions, but to establish it, at least in one case. It has no repealing clause annexed to it. I am, therefore, of opinion this case is not to be governed by it.
RUFFIN, J., concurred, for the reasons given by SEAWELL, J.
Motion for new trial overruled.
NOTE. — Upon the question of presuming a grant from length of possession, see Dudley v. Strange, 3 N.C. 12; Sullivant v. Alston ibid., 128; Hanks v. Tucker, ibid., 147; Rogers v. Mabe, 15 N.C. 180. As to possession of part being possession of the whole of a tract of land under certain circumstances, see Larkins v. Miller, 3 N.C. 345.
Cited: Graham v. Houston, 15 N.C. 235; Carson v. Burnett, 18 N.C. 553; Harris v. Maxwell, 20 N.C. 384; Candler v. Lunsford, ib., 544; Wallace v. Maxwell, 29 N.C. 137; S. c., 32 N.C. 112; Reed v. Earnhardt, ib., 528; Taylor v. Gooch, 48 N.C. 469; Davis v. McArthur, 78 N.C. 359; Price v. Jackson, 91 N.C. 14; Dills v. Hampton, 92 N.C. 570; Bryan v. Spivey, 109 N.C. 66; Walden v. Ray, 121 N.C. 238.
(578)