Cowles v. . Hall

Ashe, J. The statement of the case on appeal does not show that there was any evidence offered on. the trial to show that there was any interruption of three years in the possession of the *333 defendant, anti those who preceded him in the occupation of the land in controversy, except what may be inferred from the instruction asked of the court upon that point. But taking it for granted that there was such evidence, the instruction given by His Honor in response to the enquiry submitted by the jury is so obscure that it is difficult to surmise what he meant. If, when he told the jury that “an abandonment of the possession for three years within the thirty years wmuld not be such an interrupted possession as would ripen into title,” he meant to convey the idea that thirty years’ possession with an interruption of three years would not ripen into title, the instruction was erroneous. Candler v. Lunsford, 4 Dev. & Bat., 407. But although erroneous, there was no ground for complaint on the part of the plaintiffs, for the instruction so understood was favorable to them. And where an error in the charge of the judge is favorable to the party excepting, this court will not order a venire de novo. Ray v. Lipscomb, 3 Jones, 185; Reynolds v. Magness, 2 Ired., 26. But viewing that portion of His Honor’s instruction to the jury, in connection with the entire charge, we must presume there was a ellipsis in the sentence above quoted, and what he did say was, that an abandonment of the possession for three years would not be such an interrupted possession as would prevent a ripening into title. If this is what he did say, or intended to say, there was no error. For in the ease of Candler v. Lunsford, supra, it vras held that a longer time than three years would not be such a breach in the continuity of the possession'as to rebut the presumption of a grant. Without any errors in the charge of His Honor being pointed out in the “bill of exceptions” (here the “statement of the case”), we are left entirely to conjecture as to what were the alleged errors to which exception was taken by the plaintiffs. If there was any other besides that above disposed of, it may possibly have been to that part of the charge where His Honor told the jury, that without any writing or paper title, thirty *334 years’ actual possession by different occupants, before the grant of James D. Cowles, would presume a grant from the state, though the defendant may not have satisfied them that the party in the actual occupation had not claimed under his predecessors in the occupation. If that be a ground of exception, there was no error in the instruction. It has been too repeatedly decided by this court to admit now of controversy, that when thirty years’ actual possession of land is relied upon to presume a grant from the státe, it is not necessary to show that there was any connection between the successive occupants of the land during the period. Melvin v. Waddell, 75 N. C., 361; Davis v. McArthur, 78 N. C., 357 ; Candler v. Lunsford, supra. Finding no error, tve affirm the judgment of the superior court. No error. Affirmed.