Opinion
(June Term, 1856.)
If two grants lap, and one of the claimants be seated on the lapped part, and the other not, the possession of the whole interference is in him who is thus seated.
One who has possession of the locus in quo, by reason of the lappage of his grant with an older adversary grant, may maintain trespass against one who enters under a grant younger than his.
ACTION OF TRESPASS, Q. C. F., tried before CALDWELL, J., at the Special Term (Feb. 1856,) of Cumberland Superior Court.
Strange, Shepherd, Kelly, and C. G. Wright, for plaintiff.
W. A. Wright, for defendant.
The plaintiff offered in evidence a grant from the State to himself, for 500 acres of land, issued on the 15th of December, 1845, described in the annexed plat by the letters A, B, C, D, E, F, G, H, P, Q, R, S, and proved that the defendant had committed a trespass within these boundaries in the winter of 1853-4, by cutting and hauling therefrom a quantity of pine timber. It was proved that plaintiff took possession of the north part of this tract in 1850, and had continued the same to the commencement of this suit, but such possession had not actually extended south of the line D, Q.
, SEE 48 N.C. 333.]
The defendant offered in evidence a grant to John G. Blount, issued in December, 1792, represented in the above diagram by the figures 1, 2, 3, 4, and proved that it covered the locus in quo, but showed no connection by title or otherwise between himself and the grantee.
The defendant next offered in evidence a State grant to himself, dated in the year 1848, for a part of the land embraced in the plaintiff's 500 acre grant, which part is indicated by the letters D, E, F, G, H, P, Q, and insisted that plaintiff had no such possession as would entitle him to sustain the action of trespass.
The plaintiff contended that the defendant was a mere wrong-doer, and that therefore he was, as to him, in possession and could maintain the action.
He also insisted that he was in possession, as to Blount, and that put him in possession of every part of his land which was lapped on by Blount's grant, which included the locus in quo.
His Honor charged the jury that, according to the above state of facts, the plaintiff was entitled to recover. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal.
If the defendant were a mere wrong-doer, the entry of the plaintiff into the land covered by his grant, would have put him into possession of the whole of it, as against the defendant, notwithstanding the outstanding title of Blount's heirs; Osborne v. Ballew, 12 Ire. Rep. 373; Myrick v. Bishop, 1 Hawks' Rep. 485. Whether the entry of the defendant claiming title under a junior grant will make any difference, it is unnecessary to decide, since there is another well established rule which shows that the plaintiff was in possession, as against Blount's heirs. The rule is this: if two grants lap, and one of the claimants be seated on the lapped part, and the other not, the possession of the whole interference is in the former exclusively; possession of a part of the land included in both deeds being possession of all of it. See Williams v. Miller, 7 Ire. Rep. 186, and the cases there referred to. In the present case the grant to Blount covered the whole of the land included within the plaintiff's grants, and there was, therefore, a lappage co-extensive with the whole of the land granted to the plaintiff. Blount's heirs were not in the actual possession of any part of the land included within their ancestor's grant, while the plaintiff was actually settled on a part of his. His possession of a part was, therefore, as against Blount's heirs, a possession of the whole; and, we think, it follows as a corollary, that he had possession of the whole of the land within the boundaries of his grant, as against every person entering into any part of it under a junior grant, as well as against a mere wrong-doer. The judgment of the Court below, being in accordance with this principle, is correct and must be affirmed.
PER CURIAM. Judgment affirmed.