The defendant insisted, against the right set up by the plaintiff, *Page 33 that although he claimed the premises under a title commencing subsequent to that of the plaintiff's lessor, he was protected by a seven years possession under color of title. The color relied on was the will of Angus Gilchrist, conveying the land in question to his wife and two children, James and John; and the possession relied on was that of one Samuel Glover, who entered in 1842 upon the land, but it was doubtful as to the character and extent of his possession. There was evidence going to show that he went in under a contract to purchase 75 acres, which was laid off to him and marked, and that he claimed no further than to these marks from that time till 1852, when he gave John Gilchrist the following paper-writing:
On the first day of January next, I promise to pay John Gilchrist, or order, 25 cents for rent of land on which I entered as his tenant in the year 1842, and have cultivated as tenant since that time, this 24 February, 1852. SAMUEL GLOVER.
Witness: J. W. BRYAN.
The defendant offered this paper as evidence of their holding under Angus Gilchrist ever since 1842; but it was objected to as being only the declaration of the defendants Glover and Gilchrist, and, therefore, incompetent for any purpose; but his Honor held that it (42) was evidence to prove that in 1852, the date of the instrument, Glover held as the tenant of Gilchrist; but that it was not evidence of a tenancy running back to 1842, or for any length of time. Defendant's counsel excepted.
As to two of the defendants, Brown and McPhall, it did not appear when or under whom they entered or claimed, or at what time their possessions began, but it did appear that they were not in possession of any part of the 75 acres marked off to Glover.
The court charged the jury that the will of Gilchrist was color of title; that if it covered the 75 acres marked off to Glover, they should find a verdict in his favor.
The counsel for the defendants then moved the court to charge that if the jury should find a verdict in favor of Glover, they ought also to find in favor of the other defendants, Brown and McPhall. The court refused the instruction as asked, and told the jury that, according to the testimony, the possession of Brown and McPhall was not within the 75 acres laid off to Glover; that if they were satisfied that previously to 1852 Glover entered and held the 75 acres, under a contract of purchase, and that he claimed to the lines made to designate that tract and no further, the other defendants could take no benefit from his possession, and were not entitled on that account to their verdict. The defendants again excepted. *Page 34
The jury found a general verdict for the plaintiff against all the defendants.
On a rule for a new trial in the court below it was objected that the verdict, being general, was wrong, for that the jury ought to have found specially. But the court overruled the objection, and gave judgment according to the verdict, from which the defendants appealed. In respect to the question of evidence, growing out of the instrument of writing executed by Glover in 1852, we concur with his Honor. The instrument was competent evidence of a tenancy at that time, but it could not be extended and act so as to cover past time back to 1842. Such declarations, whether written or verbal, are admitted on the principle of the res gestae, as explanatory of the act of possession, and, of course, must be confined to the present, and cannot be extended either to past or future time; in respect to which such declarations are "naked," that is, unaccompanied by any act of which they make a part.
The instruction that if the jury should find in favor of Glover, they should also find in favor of the other defendants, Brown and McPhall, was refused, for the reason that, according to the testimony, their possession was not within the seventy-five acres laid off to Glover, and in respect to which it was supposed in the previous instruction the title of Gilchrist had ripened, and if the possession of Glover, prior to 1852, was confined to the 75 acres, a verdict for him in respect to that could not avail them. This, we think, supports his Honor's conclusion. But the point seems to be cut off by a general verdict against Glover as well as the other two defendants.
On the motion for a new trial defendants' counsel objected that the verdict, being general, was wrong, for that the jury ought to have found specially. It is well settled that if a plaintiff succeeds in showing title to any part of the land contained in the demise, of which the defendant is in possession, the jury may return a general verdict, although, as to the other part, the plaintiff failed to show title. The court may, in its discretion, direct the jury to find specially, so as to run the line between the plaintiff and defendant; but the usual course is not to complicate the inquiry, and to allow a general verdict if the plaintiff makes out his case as to any part of the land held by the defendant, and the plaintiff then takes out a writ of possession at his peril. There is
PER CURIAM. No error. *Page 35 Cited: Springs v. Schenck, 99 N.C. 556; Janney v. Robbins, 141 N.C. 407.
Distinguished: Cowles v. Ferguson, 90 N.C. 312.
(44)