Tilghman v. . Hancock

Bbogden, J. Tbe plaintiff offered in evidence a deed from bis father and mother to himself, dated 21 April, 1920, and duly recorded 15 May, 1920, purporting to cover tbe land in controversy. This action was *781 brought about 21 April, 1925. A map referred to in tbe deed was also offered in evidence. Tbe court instructed tbe jury tbat tbe deed was “not in itself evidence of title, but is allowed to be considered in connection witb other evidence.” Tbe defendant objected to tbe introduction of this evidence. It is apparent tbat neither tbe map nor tbe deed was offered as substantive evidence. Tbe plaintiff did not claim tbat tbe deed was color' of title as contemplated by tbe law, but asserted tbat tbe deed was a circumstance tending to show tbe good faith of bis claim. There is no presumption of law tbat a purchaser takes possession under a deed. Prevatt v. Harrelson, 132 N. C., 250, 43 S. E., 800. Therefore, tbe deed of itself was not sufficient evidence of possession. As tbe deed was made before tbe controversy arose, tbe execution and recording thereof would be a relevant fact in connection witb other sufficient evidence tending to show a claim of title and adverse possession. Though not sufficient of itself for tbat purpose, under tbe circumstances the deed would be analogous in probative weight to tbe .listing of land and tbe payment of taxes thereon. Austin v. King, 97 N. C., 339, 2 S. E., 678; R. R. v. Land Co., 137 N. C., 330; 49 S. E., 350; Christman v. Hilliard, 167 N. C., 4, 82 S. E., 949. Tbe general rule witb respect to tbe character of possession in such cases is thus stated in Gross v. R. R., 172 N. C., 119, 90 S. E., 14: “This possession need not be unceasing, but tbe evidence should be such as to warrant tbe inference tbat tbe actual use and occupation have extended over tbe required period, and tbat during it tbe claimant has from time to time continuously subjected some portion of tbe disputed land to tbe only use of which it was susceptible.” Tbe plaintiff offered sufficient evidence to bring tbe case within tbe rule. Tbe defendants offered evidence to tbe contrary, but tbe weight of tbe evidence was for tbe jury. Exception was taken by tbe defendants to certain testimony of a surveyor, but tbe record discloses tbat testimony of tbe same nature as tbat objected to was given by tbe witness without objection in other portions of tbe testimony. Hence this exception cannot be sustained. There are other exceptions in tbe record, but we do not think any of them warrant a new trial. Upon tbe whole, tbe case presents disputed facts, and tbe jury has found those facts in favor of tbe plaintiff. No error.