Ruffin v. . Overby

Avery, J. after stating the facts: The Judge below thought that, in the aspect of the evidence most favorable to the plaintiffs, they had failed,'when they rested, to make a prima facie case, and hence if they have indicated any combination of facts, to which the different fitnesses testified, that would, if true, entitle them to recover, the judgment of nonsuit must be set aside and a new trial granted. The plaintiffs offered testimony tending to show that the land in controversy was granted to Gotlieb Shober in 1795, and then offered, as color of title, a deed from Charles Banner, Sheriff, to A. D. Murphy, covering the land in dispute, dated December 13th, 1815, with which they connected themselves by the mesne conveyances introduced. Assuming, therefore, that the title was shown to be out of the State, it was only necessary, before resting their case, that they should introduce testimony tending to show that they and those under whom they claim had acquired title by continuous open adverse possession of the land in controversy during the period elapsing between the execution of the conveyance by the Sheriff (December 13th, 1815) and the commencement of the action. Mobley v. Griffin, 104 N. C., 112. In proving such continuous possession, nothing must be left to conjecture. The testimony must, if believed, show the continuity of the possession for the full statutory period in plain terms, or by necessary implication. Hinton Holland testified that one Rowe lived at a certain house on the land for two or three years, and when he left Archie Ruffin moved immediately into the same house and occupied it for three years, thus showing possession positively for only five, possibly for six, years. The witness, at a later stage in the delivery of his evidence, says: “ Amburn lived on the land (he does not say how long, when or where), and owed rents, and in a con *84 troversy between him and Ruffin’s agent, King, I was one of the commissioners to assess the rents, which we assessed at twenty dollars per year, going back three years.” It does not appear whether Amburn occupied a different house and at the same time when Ruffin or Rowe lived successively at the Bennett house, or whether he occupied the same house before or after their residence, and if the same, whether any interval elapsed between the surrender by the one tenant and the entry of his successor. But counsel attempted to gather the necessary inferences by comparing the testimony of different witnesses as follows: Dr: Swain King was fifty years old at the time of trial, and was fifteen when Judge Ruffin went upon the land, and therefore he must have gone there in the year 1849. Miss Maria Ruffin, in her deposition, fixes the time of Archie Ruffin’s entry in 1852 or 1853, and says that he remained a portion of three years. We are asked to conjecture, then, (there being no positive evidence) that one Isham Bennett (who, as William King testified, paid rent to his brother Alexander, as agent of Judge Ruffin) occupied for. at least a year the house into which Rowe moved as soon as Bennett left, and thus add one year preceding Rowe’s entry. We find from the deposition of Miss Maria Ruffin, that while her father lived on the land, Hinton Holland, Joe Amburn, and three men named Bennett, were his nearest neighbors. Her father moved to the house formerly occupied by Rowe as stated by Holland. She testified that Isham Bennett had previously been ejected from the land. Her father moved to the Benneit house, but we are left to conjecture whether i-t was called the “Bennett house” because some other member of that prolific family had once occupied it, or whether Isham had been the tenant, and if Isham Bennett gave his name to the place, whether, on his expulsion, there was a break in the continuity of the possession, which would be fatal to the claim of plaintiff. *85 Another suggestion was that possibly the necessary seven years might be made out by supposing that Alexander King rented from Ruffin for a year after he surrendered possession in 1849 of that portion of the land sold by Banner to him two years previously and adding to that year of supposititious possession the previous occupancy for ■ two years under a sale made by Banner, whom Judge Ruffin repudiated as his agent in that transaction. If it be conceded that Alexander King was holding the land sold by Banner without authority, not adversely, but in subordination to Ruffin’s title, the insuperable difficulty remains that he was claiming during that period only a definite boundary, not as a tenant, but as a grantee. He stood, at best, in the same relation to the ancestor of the plaintiff as those claiming under Glidewell Sizemore, to whom Charles Banner conveyed fifty acres inside of the boundaries of the tax ■title in the year 1830, his act, as agent, being in this instance authorized or subsequently ratified. It is a settled principle that one entering upon land under a deed or color of title that definitely describes the metes and bounds of the land conveyed, or purporting to be passed to him, is presumed to prefer claim to all of the land covered by the paper-title under which he holds, and no further. Hence, the possession of Sizemore and his successors, like that of King under the deed from Banner, not being in the name of the whole Murphy tract, did not enure to the benefit of Ruffin. Davis v. Higgins, 91 N. C., 382; Lenoir v. South, 10 Ired., 237; McCormick v. Munroe, 3 Jones, 332; Staton v. Mullis, 92 N. C. 623. On the other hand, when one enters upon land as a lessee of a definite portion of the territory covered by the deed under which his lessor claims, the possession of the former enures to the benefit of his landlord to the outside limits of the latter’s deed. Scott v. Elkins, 83 N. C., 424; Lenoir v. South, supra. In our case, Rowe and Archie Ruffin, as *86 tenants, represented the ancestor of the plaintiffs, and if continuous possession had been shown by them for seven years it would have matured his title as effectually as if the house had been occupied by him or his servant. In Williams v. Wallace, 78 N. C., 354, Bynum, Justice, delivering the opinion, says* “A possession under color of title must be taken by a man himself, his servants, or tenants) and by him or them continued for seven years together.” The fact that King & Ruffin, as partners, sank a shaft for mining purposes, or built a house for laborers who were working in a mine on the land, would not be sufficient to show title in Ruffin unless it had appeared also that the house had been continuously occupied or the mine regularly worked for seven years. Occasional acts of ownership, however clearly they may indicate a purpose to claim title and exercise dominion over the land, do not constitute a possession that will mature title. Loftin v. Cobb, 1 Jones, 406; Bartlett v. Simmons, 4 Jones, 295; Williams v. Wallace, 78 N. C., 354; McLean v. Smith (decided at this term). Whatever doubt may have been formerly entertained as to the competency of the tax-lists in cases like that before us, it is now settled that proof of listing land for taxation is admissible, as an act done in pursuance of law, and under claim of ownership, though of very slight import as evidence of title. Austin v. King, 97 N. C., 339; Faulcon v. Johnston, 102 N. C., 269; Ellis v. Harris (decided at this term). The' Court erred in sustaining the objection to the introduction of the record of property returned for taxation. But if the testimony offered had been admitted, it would still have been the duty of the trial judge to instruct the jury that the plaintiffs were not entitled to recover, in any view of the testimony, and it is not the duty of this Court, because of that error, to set aside the judgment of nonsuit and grant a new trial, when it is apparent that the plaintiffs have not *87 been injured by the error of the Court, because they would have been in no better plight after than before the introduction of the excluded evidence. The judgment is affirmed. Affirmed.