Action to Recover Land — Adverse Possession — Color of Title — Grant — Survey — Entry — Verbal Conveyance.
1. An entry was made in the entry-taker's office in Wilkes County in 1798, of lands, and they were surveyed, by virtue of a warrant issuing therefrom, in 1799. The county of Ashe, embracing the lands in question, was formed in 1800. A grant was issued in 1801 for these lands upon the said survey and entry: Held, such grant was not void, and was admissible in evidence to show title out of the State.
2. A., the plaintiff in an action to recover land from B., the defendant, both being heirs at law of one M., claimed under a deed from M.'s administrator to his father, and showed exclusive possession in himself and father for twenty-five or thirty years. The defendant claimed under one P., who bought, orally, of plaintiff's father, and went into possession under verbal arbitration, and that plaintiff and defendant were tenants in common: Held, (1) that the deed from the administrator was color of title; (2) that twenty years adverse and exclusive possession would protect against claims of tenants in common; (3) that the time between 20 May, 1861, and 1 January, 1870, should not be counted.
3. The defendant will not be allowed, for the first time in this Court, to raise questions as to whether plaintiff offered sufficient evidence to go to the jury to show the sufficiency of his possession.
AVERY, J., after stating the facts:
The formation of the county of Ashe, in the year 1800, did not destroy the validity of an entry covering land within the boundaries of said county, but made in the entry-taker's office of Wilkes County in 1798, and surveyed by virtue of a warrant issuing from said office in 1799; nor is a grant that issued for said land upon said survey and entry in January, 1801, void. The grant was admissible, and was sufficient, if located so as to include within its boundaries the disputed land (as to which there was no controversy), to show the title out of the State.
His Honor refused to charge the jury that a deed made by the administrator of Martin Gambill was void for all purposes, and, upon his refusal, rests the only remaining exception. Being a deed in form, it purported to pass the fee, and was unquestionably color of title. Ellington v. Ellington, 103 N.C. 54; Avent v. Arrington, 105 N.C. 377. The jury were properly instructed that, (362) though it was shown that the State had issued a grant to Martin Gambill for the land in controversy, the plaintiff must have shown continuous adverse possession, exclusive of the time elapsing between 20 May, 1861, and 1 January, 1870, under the deed from the administrator, in order to entitle him to recover the land against the defendant, who was tenant in common with him. Page v. Branch, 97 N.C. 97; Breeden v. McLaurin, 98 N.C. 307: The exception raises only the question whether the deed was available as color of title to ripen the plaintiff's possession, if undisturbed, open, continuous and adverse for twenty years.
His Honor was not put on notice to send up all of the testimony bearing upon the length of the occupancy by plaintiff under his deed, and the defendant will not be allowed, under the rules, and the construction given to the law by this Court, to raise the question here for the first time, that there was not sufficient evidence to go to the jury to prove such possession. McKinnon v. Morrison, 104 N.C. 354.
There is no error.
Affirmed.
Cited: Long v. Rankin, 108 N.C. 337; S. v. Harris, 120 N.C. 578; Wyman v. Taylor, 124 N.C. 432.