Shuler v. Burnhardt Lumber Co.

Walker, J., after stating the case: The first question presented is, ‘Did the judgment in favor of A. T. Davidson, entered November, 1895, estop the defendants there (plaintiffs here) from acquiring title by adverse possession? We are of the opinion that the following cases are clear authority against this position: Wilson v. Brown, 134 N. C., 400; Reynolds v. Cathens, 50 N. C., 438; Eddleman v. Carpenter, 52 N. C., 617, Scarboro v. Scarboro, 122 N. C., 234. The Court, in Reynolds v. Cathens, supra, held that the possession of a grantor in a deed, who" holds over, after his deed was delivered, may be adverse. Judge *650 Pearson in bis opinion, said: “In respect to tbe possession of Sarab Wilkie tbe vendor, under whom botb parties claim, we are unable to see any principle of law wbicb prevents it from being adverse to tbe lessor of tbe plaintiff. Sbe was not bis tenant for years, at will or at sufferance, nor did sbe enter under or obtain possession from bim. As far as tbe case disclosed, sbe continued in possession without any understanding or permission on tbe part of tbe plaintiff’s lessor, notwithstanding tbe deed sbe bad executed, tbe legal effect of wbicb was to give plaintiff’s lessor right of possession, but in defiance of wbicb sbe maintained and continued her possession. It would, consequently, seem that this possession was adverse.” In Johnston v. Farlow, 35 N. C., 84, it was held that tbe old deed was not color, but that case recognizes that tbe possession can be adverse even after tbe deed was made. Of course, if after tbe execution of a deed with covenants a man can acquire title by adverse possession, be certainly can after a judgment wbicb gives tbe right to a writ of possession. It was held in Wilson v. Brown, supra, that tbe possession of a person, wbicb continues after bis land is sold under execution and deed made to tbe purchaser, is adverse to tbe purchaser, but tbe original deed to bim is not color of title after tbe sale. These plaintiffs claim title by adverse possession under known and visible lines and bounds for twenty years, 'since tbe rendition of tbe Davidson judgment. Bev., 384. Tbe second question is, Was tbe evidence of tbe plaintiffs, taken in its strongest light for them, sufficient to justify a finding by tbe jury that they bad held open, notorious, continuous, and adverse possession, under known and visible lines and bounds, for twenty years, since tbe date of tbe judgment, November, 1895? An examination of tbe testimony of James Crisp, surveyor, shows that this tract of land is a well marked tract. Tbe evidence of James Crisp, Ed. Shuler, and James Shuler all shows that these plaintiffs bad used these lands for tbe purposes to wbicb they were adopted, from tbe date of tbe judgment down to tbe bringing of tbe action on 15 January, 1920. Some of tbe acres bad been cleared and cultivated every year, rail timber, board timber, locust pins, and tan bark bad been taken from tbe land all these years. It is admitted in defendants’ brief that there was evidence to establish tbe contentions of plaintiffs, as to adverse possession, and we are of tbe opinion that there was sufficient evidence to fairly raise a controverted question for tbe jury, and therefore it was error to grant tbe nonsuit. Pláintiffs were claiming 20 years adverse possession, and not under color. New trial.