{
  "id": 11255069,
  "name": "FRANK WALDO et al. v. W. L. WILSON",
  "name_abbreviation": "Waldo v. Wilson",
  "decision_date": "1917-11-28",
  "docket_number": "",
  "first_page": "626",
  "last_page": "628",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "32 N. C., 241",
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      "cite": "84 N. C., 271",
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      "cite": "41 N. C., 334",
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      "cite": "162 N. C., 424",
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        11271547
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      "case_paths": [
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    {
      "cite": "169 N. C., 193",
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  "last_updated": "2023-07-14T18:13:24.898604+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "FRANK WALDO et al. v. W. L. WILSON."
    ],
    "opinions": [
      {
        "text": "Brown, J.\n\"When this appeal was first before this Court we said that the plaintiffs make two contentions:\n1. That the grant under which defendant claims is void.\n2. That plaintiffs have been in adverse possession under color for seven years prior to the commencement of the action.\nWe adhere to our former opinion upon the first contention, for the reasons and upon tbe authorities therein given.\nWe are, however, of opinion, upon a careful reexamination of the record, that our conclusion reached upon the review of the second contention is erroneous. We were advertent to errors in the charge upon this branch of the case; but taking the charge as a whole, we thought the jury were probably not misled and the plaintiffs not seriously prejudiced.\nAfter a more critical examination of the charge, and further reflection, we are now of opinion that the errors in it were serious and very likely to mislead the jury, to plaintiff\u2019s detriment.\nThe court charged the jury that plaintiffs must show by the greater weight of the evidence that they have been in adverse poss\u00e9ssion under known and visible lines and boundaries \u201cfor more than seven years next preceding the commencement of the action.\u201d This charge is erroneous. The possession need not be next preceding the commencement of the action, and it need not continue for more than seven years continuously. This error was repealed during the charge, although in reference to this the court also charged correctly.\nAmid these conflicting instructions upon a vital matter, we think it likely the jury were confused. We are unable to tell by which rule they were governed (Raines v. R. R., 169 N. C., 193), and we cannot with certainty know that they were not influenced by the error. Horton v. R. R., 162 N. C., 424.\nAnother assignment of error is to the charge: \u201cThat an adverse possession sufficient to divest title is where one enters on land intending to usurp possession and to oust another of his freehold; and to constitute an actual disseizin, or one in fact, there must be a tortious entry and actual expulsion. A disseizin and adverse possession is an actual, visible, and exclusive appropriation of land, commenced and continued under a claim of right; the claim must be adverse and accompanied by such an invasion of the rights, of the opposite party as to give him a cause of action. It is the occupation with an intent to claim against the true owners which renders the entry and possession adverse. And if the plaintiffs have failed to satisfy you by the preponderance or greater weight of the evidence that they have had seven years\u2019 continuous adverse possession of 6317, or a part thereof, of the kind and character described, it would be your duty to answer the first issue No.\u2019 \u201d\nAs observed by the learned counsel for plaintiff in his brief, \u201cThis charge contains abstract questions that have no application.\u201d\nA freeholder can be disseized of his seizin by dispossession, aided by the law which takes away his right of entry. Tyson v. Harrington, 41 N. C., 334; London v. Bear, 84 N. C., 271.\nIn this State, under the statute, a dispossession and continued adverse possession for seven years amounts to a disseizin. The charge that the burden was imposed upon the plaintiffs to sbow at the outset that they bad disseized the defendant by a \"tortious entry and actual expulsion\u201d was erroneous and misleading. \u00a5e find that there was no attempt to correct this error. Tbe jury might well have concluded that there must have been an actual expulsion of defendant from the land before plaintiff could acquire an adverse possession. It is now insisted by defendant that there is no sufficient evidence of adverse possession, and that therefore these errors are harmless. As the point was not before us, we did not pass on it.\nThere is a brief statement of most of the evidence in the former opinion. There is evidence of an actual occupancy, possessio pedis, of a very small part of 6817 which defendant undertakes to explain, but that is a question for the jury. The adverse and unexplained possession of so small part may not give title to the whole tract, but, coupled with all the other evidence in the record, we think, under our decisions, that, taken as a whole, the evidence is sufficient to go to the jury that they may, under a correct charge, draw their own conclusions from it. Locklear v. Savage, 149 N. C., 236; McLean v. Smith, 106 N. C., 172; Hamilton v. Icard, 114 N. C., 538; Bryan v. Spivey, 109 N. C., 67; Osborne v. Johnson, 65 N. C., 26; Lenoir v. South, 32 N. C., 241; Christman v. Hilliard, 167 N. C., 7.\nTbe petition to rehear is allowed and a new trial ordered.\nPetition allowed.",
        "type": "majority",
        "author": "Brown, J."
      }
    ],
    "attorneys": [
      "James H. Merrimon and Merrimon, Adams & Johnson for plaintiff. Martin, Rollins & Wright for defendant."
    ],
    "corrections": "",
    "head_matter": "FRANK WALDO et al. v. W. L. WILSON.\n(Filed 28 November, 1917.)\n1. Appeal and Error \u2014 Instructions\u2014Adverse Possession \u2014 \u201cColor.\u201d\nTlie adverse possession to ripen title to land under \u201ccolor\u201d by known and visible lines and boundaries is not required to be for \u201cmore than seven years next preceding the commencement of the action\u201d; and where the court several times has repeated this error in his charge, with correct instructions in other parts thereof, so that it may not be seen which exposition of the law the jury has accepted, it will be held for prejudicial and reversible error. \u25a0\n2. Same \u2014 Limitation of Actions \u25a0\u2014 Evidence \u2014 Disseizin\u2014Entry\u2014Burden of Proof \u2014 Trials.\nA dispossession and continued adverse possession of lands for seven years under color amounts to a disseizin, and an instruction that the burden of proof is upon the party thus claiming to show \u201ca tortious entry and actual expulsion\u201d is reversible error.\n3. Limitation of Actions \u2014 Adverse Possession \u2014 Deeds and Conveyances \u2014 Outer Boundaries \u2014 Constructive Possession.\n\u25a0 Where, in an action to recover lands, the defendant introduces evidence tending to show actual occupancy and possession of a small part of the lands claimed under color of a sufficient instrument, giving metes and bounds, with evidence that the possession extended to the outer boundaries given, the question is one for the jury, under a correct charge from the trial judge.\nPbtitioN to rehear the above entitled case, reported 173 N. C., p. 689.\nJames H. Merrimon and Merrimon, Adams & Johnson for plaintiff. Martin, Rollins & Wright for defendant."
  },
  "file_name": "0626-01",
  "first_page_order": 682,
  "last_page_order": 684
}