EJECTMENT. The premises in question consist of a small parcel of land comprised in a grant to Skippen, dated in 1725, and also in a grant to the father of the lessor of the plaintiff, dated in 1762, which latter grant lapped over upon the former. It is admitted the former patentee once had title to it; but it is contended that there has been such a possession in the latter patentee and those claiming under him as *Page 74 has destroyed that title, and acquired one for the lessor of the plaintiff. As to the nature of the possession that is calculated to have this operation, it is to be collected from a recurrence to the time of passing the act of limitations, and the then circumstances of this country. The act was passed in 1715, when this country was but thinly inhabited, and it was the policy of the Legislature to encourage its population. In many instances the same land was covered by two or more (57) grants, and frequently when a latter patentee or those claiming under him had settled upon the land comprised in his grant, and had cleared and improved it, he was turned out of possession by the exhibition of a prior grant. This tended to discourage the making of settlements, and of course repressed population. The Legislature, therefore, provided the act of limitations to obviate these mischiefs; and it was the intent of the act that where a man settled upon and improved lands upon supposition that they were his own, and continued in the occupation for seven years, he should not be subject to be turned out of possession. Hence arises the necessity for a color of title; for if he has no such color or pretense of title, he cannot suppose the lands are his own, and he settles upon them in his own wrong. The law has fixed the term of seven years both for the benefit of the prior patentee and the settler, that the latter might not be disturbed after that time, and in that time the prior patentee might obtain notice of the adverse claim and assert him own right. Hence arises the necessity that the possession should be notorious and public, and, in order to make it so, that the adverse claimant should either possess it in person or by his slaves, servants or tenants; for the feeding of cattle or hogs, or building hog-pens or cutting wood from off the land, may be done so secretly as that the neighborhood may not take notice of it; and if they should, such facts do not prove an adverse claim, as all these are but acts of trespass. Whereas, when a settlement is made upon the land, houses erected, lands cleared and cultivated, and the party openly continues in possession, such acts admit of no other construction than this, that the possessor means to claim the land as his own. In order to make this notorious in the country, he must also continue the possession for seven years; occasional entries upon the land will not serve; for they may be either not observed or, if observed, may not be considered as the assertion of rights. And from this view of the subject arises the following definition of possession which is calculated to give a title: A possession under color of title, taken by a man himself, his servants, slaves or tenants, and by him or them continued with interruption for seven years together.
Verdict for the plaintiff. *Page 75
NOTE. — See Strudwick v. Shaw, 1 N.C. 5; S. c., 2 N.C. 5, and the cases cited in the note to that case.
Cited: Burton v. Carruth, 18 N.C. 3; Loftin v. Cobb, 46 N.C. 410,411; Morris v. Hayes, 47 N.C. 90; McConnell v. McConnell, 64 N.C. 343;Williams v. Wallace, 78 N.C. 357; Greenleaf v. Bartlett, 146 N.C. 499;Haddock v. Leary, 148 N.C. 382; Holloway v. Durham, 176 N.C. 550.