The elder title to the land in dispute was in the plaintiff; and the land was a lappage between his southern line (D S E) and the northern line (N O) of the defendant. In 1842 one Orr, who then claimed the tract now owned by the defendant, conveyed it to one Frazier by a deed which covered the lappage; and on 11 December, 1848, the defendant purchased the tract (with the same extent) of Frazier, taking at first a bond for the title, and in 1852 a conveyance.
On the plats [used in the trial below] immediately north of D S E. were dots representing a narrow space of cleared ground adjoining D S E. The two witnesses who were called for the defendant testified that they were not certain, to their own knowledge, of the location of the line D S E, but that the defendant as soon as he purchased, viz., in December, 1848, took possession immediately north of the cleared ground; that this possession was continued and extended north to and along the line N O before the commencement of this suit.
The court instructed the jury that if the evidence of these witnesses was believed by them, the defendant was entitled to a verdict; and there was a verdict accordingly.
Rule for a new trial "on the ground that the two witnesses did not know with certainty the location of the said line D S E, and that their evidence did not with sufficient certainty locate the commencement of the defendant's possession." (602)
Rule discharged; judgment, and appeal by the plaintiff. The survey shows that the cleared ground as indicated by "the dots" was north and inside of the line of the defendant D S E, and that the defendant, as soon as he purchased, in December, 1848, took possession immediately north of the cleared ground, and this possession, according to the evidence, was continued and extended from time to time, north to the line N O. *Page 452
So the defendant ever since December, 1848, has had a possession inside of the lappage which exposed him to an action; and consequently ripened his title after seven years adverse possession under the deed. The fact that he from time to time extended his possession, that is took in more land, does not at all affect the question; and the matter is too plain to admit of discussion.
There is no error.
PER CURIAM. Judgment affirmed.
Cited: Currie v. Gilchrist, 147 N.C. 64; McQueen v. Graham, 183 N.C. 494.
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