Chandler v. Holland.

liver the corn to the plaintiff, but placed it in the crib that he and the woman might settle the claim to it between themselves. Two military orders were also offered, and admitted in evidence. Jenkins died shortly before the alleged


The court instructed the jury that the woman was emancipated by the military proclamation in April 1865, and was therefore entitled to be paid for her labor from that period; but that neither she nor the plaintiff acquired any property in the corn in dispute until a particular portion of it had been separated from the bulk of the crop, and had been set apart to one of them; that if the evidence satisfied them that Jenkins had chosen to set the corn in question apart for the plaintiff, and had delivered it to him, and that the defendants afterwards had converted it to their own use, the plaintiff was entitled to recover, otherwise not. Also, that the military orders in evidence were no bar to that right.

Verdict for the plaintiff; Rule for a New Trial discharged; Judgment, and appeal.

Bynum, for the appellants.
Merrimon, contra.

READE J. His Honor's charge, that the plaintiff must show a right of property and a right of possession in himself, and a conversion by the defendants, was all that the defendants could ask for upon that part of the case.

The defence, that the woman whose services for the year 1865 were the consideration for the contract between the plaintiff and Jenkins, was emancipated during the year, might have been a proper subject for consideration if Jenkins were insisting upon it. But he made no such objection, but on the contrary set apart one-fourth of the corn as he had agreed, and delivered it to the plaintiff,-and the defendants


Chandler v. Holland

thereupon took it out of his possession. It is true that they say that they bought it of the negro woman, and that she, having been emancipated during the year, was entitled to the product of her own labor. Suppose this to be true, still his Honor gave them all the benefit of it, by stating in his charge that she was entitled to be paid for her services after her emancipation. The question, From whom was she so entitled to receive pay, remains to be answered! Not from the plaintiff, because she had not served him; but from Jenkins, whom she had served. If she was entitled to a part of the crop, her claim was upon Jenkins; and she had no claim upon that one-fourth part which had been allotted to the plaintiff. Therefore if the defendants had any claim upon the crop on account of her share, it was upon Jenkins, and not upon the plain.tift.

And so the military orders, if they had any operation at all, (of which we know nothing as they are not set out; supposing them however as was suggested, to have been orders to Jenkins to pay to the woman a part of the crop) do not vary the case. If the plaintiff had taken all of the crop, there might have been some show of right in the defendants. But three-fourths of the crop were left; and the plaintiff, to show that he was not acting unconscientiously, offered evidence that he had supported two of the woman's children, after her emancipation.

There is no error.

Judgment affirmed.

Kerr v. Elliott.

Doe on dem. of JAMES M. KERR v. R. W. ELLIOTT.

If the person who claims under the elder title, have no actual possession of a lappage, such possession, although for a part only, by him who has the junior title continued for seven years, will confer a valid title for the whole.

EJECTMENT, tried before Mitchell, J., at December (Special) Term 1867 of the Superior Court of MECKLENBURG.

The elder title to the land in dispute was in the plaintiff; and the land was a lappage between his southern line (DS 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 the 11th of 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 DS E. Two witnesses who were called for the defendant testified that they were not certain, to their own knowledge, of the location of the line DS 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 DS E, and that their evidence did not with sufficient

Kerr v. Elliott.

certainty locate the commencement of the defendant's possession." Rule discharged; Judgment, and Appeal by the plaintiff.

Osborne and Boyden, for the appellant.
J. H. Wilson, contra.

PEARSON, C. J. The survey shows that the cleared ground as indicated by "the dots" was north and inside of the line. of the defendant DS 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.


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.

Judgment affirmed.

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