We think the court was correct in both rulings. The possession of William Arthur, being under James Arthur, who acted for himself and wife, was but an extension of the possession of the rightful owner and for her benefit. And if this was not so, the result would not be changed. The case is simply this: There has been a continuous adverse possession of the land for the space of thirty-three years from 1815 to 1848, under deeds defining the same by metes and boundaries, by those successively under whom the plaintiffs derive title, during the last nine years of which the intestate, Toliver Davis, had possession under a deed in form sufficient to pass the estate in fee. These facts entitle the plaintiffs to recover.
It has been settled by repeated adjudications in this State that an adverse possession of lands for thirty years raises a presumption of a grant from the State, and it is not necessary even that there should be a privity or connection among the successive tenants. We will only refer to some of the cases in support of the doctrine. Fitzrandolph v. Norman,4 N.C. 564; Rogers v. Mabe, 15 N.C. 180; Wallace v. Maxwell,32 N.C. 110; Reed v. Earnhart, ibid., 516. This presumption arises at common law and without the aid of the act of 1791, and it is the duty of the court to instruct the jury to act upon it as a rule of the law of evidence. Simpson v. Hyatt, 46 N.C. 517. The grant is inferred, not because of a belief that one did in fact issue, "but because there is no proof that it did not, and in the nature of things it would seem thatthere can be no sufficient negative proof of the kind supposed. Bullard v. Barksdale, 33 N.C. 461.
(360) Title being thus out of the State, it vested in Toliver Davis by virtue of his nine years possession under the deed made to him in 1839, which professes, and in form is sufficient, to pass the estate in fee by virtue of the act of limitations. Rev. Stat., ch. 65, sec. 1.Taylor v. Gooch, 48 N.C. 467.
We do not deem it necessary to consider and decide the question discussed at the bar, whether possession under a deed which conveys a life estate only can operate as color of title to vest a fee. We hold that the *Page 241 long possession presumes a grant from the State to some one, and the possession of Toliver Davis under his deed vests title in him. The plaintiffs, his heirs at law, are therefore entitled to recover the land.
PER CURIAM. No error.
Cited: Hill v. Overton, 81 N.C. 395; Freeman v. Sprague, 82 N.C. 368;Scott v. Elkins, 83 N.C. 427; Osborne v. Anderson, 89 N.C. 262;Cowles v. Hall, 90 N.C. 334; Phipps v. Pierce, 94 N.C. 518; Davidson v.Arledge, 97 N.C. 184; Pearson v. Simmons, 98 N.C. 283; Bryan v. Spivey,109 N.C. 66; Hamilton v. Icard, 114 N.C. 536; Walden v. Ray, 121 N.C. 238;May v. Mfg. Co., 164 N.C. 265.
(361)