State v. Allison.


It is not necessary for proceedings in Bastardy to show affirmatively that the mother of the child was a single woman.

(State v. Pettaway, 3 Hawks, 623, State v. Wilson, 10 Ire., 131, State v. Herman, 13 Ire., 502, cited and approved.)

MOTION in proceedings in bastardy, before Gilliam, J., at Spring Term, 1867, of the Superior Court of IREDELL.

The proceedings before the justice of the peace were returned to the County Court of Iredell, and it not appearing on the face of the proceedings that the mother of the child was a single woman, the defendant's counsel moved to quash. The motion was overruled and the defendant appealed to the Superior Court. Upon renewal of the motion. in the Superior Court his Honor refused to quash, and the defendant appealed to this court.

No counsel for the appellant.
Attorney General, for the State.

BATTLE, J. It is clearly settled in this State that a man may be charged, under the act of 1741, Rev. Code, c. 12, s. 1, with the maintenance of a bastard child begotten upon a married, as well as upon a single, woman. State v. Pettaway, 3 Hawks, 623; State v. Wilson, 10 Ire., 131. Hence it must be unnecessary for the proceedings to show affirmatively that the mother of the child was a single woman, it being sufficient for it to appear from such proceedings that the child was adjudged by the justice to be a bastard. If the mother be a married woman, the reputed father may prove the fact before the justice, and insist that the child was born in wedlock, and therefore not a bastard, and the justice must so find unless it be proved to his satisfaction that the child was born under such circumstances as to show that he or

State v. Allison.

she could not have been begotten by the husband. So if the woman state in her examination before the justice that she is a married woman, the question will be raised, and must be decided by him, whether the child was a bastard or not; but if it be not stated by the mother, or proved by the reputed father, that she is a married woman, the adjudication that the child was a bastard will be a matter of course. In the case of the State v. Herman, 3 Ire., 502, the warrant did not show whether the woman was married or single; but in her examination before the justice she stated that she was then a married woman. The proceedings were afterwards quashed by the County Court, because it appeared that, though she swore that she had been delivered of a bastard child, of which the defendant was the father, and that when the child was begotten she was a single woman but had afterwards married, she did not state whether the child was born before or after her marriage. This order to quash was reversed by the Superior Court, but affirmed by this court, and in giving the reason for so doing not a word· of objection is urged against the sufficiency of the warrant because of its omission to state whether the woman was married or single.

There is no presumption of law that a woman is married rather than single, and when the proceedings in bastardy before a justice show that a child has been adjudged to be a bastard, the reputed father cannot be in any way prejudiced by its being assumed that the mother is a single woman, until it is made to appear by her statements or his proof that she is married.

There is no error in the judgment of the Superior Court and it must be affirmed.


Judgment affirmed.

Hedrick v. Gobble.


The rule that, in controversies between titles of different dates which lap, actual possession of the lappage is required to perfect the color of title of the junior claimant, applies to controversies between the State and citizens who claim under mesne conveyances which extend the boundaries of the original grant.

(Smith v. Ingram, 7 Ire., 175, cited and approved.)

TRESPASS Q. C. F., tried at Spring Term, 1867, of the Superior Court of RANDOLPH, before Warren, J.

The plaintiff claimed under a grant from the State made in 1858.

The defendant claimed under a deed from his father made in 1830, and the latter under a deed from one Millsaps made in 1805; and Millsaps had received a grant from the State in 1783. Whether the locus in quo was covered by the grant of 1783 was not clear, but it was covered by the deeds. of 1805 and 1830, (which extended the boundaries of that grant,) and also by the grant of 1858. The defendant had long been in actual possession of the land clearly covered by the grant of 1783, but of the lappage he had had possession only for a short time before this suit was brought.

In one aspect of the case his Honor instructed the jury, that if they found that the mesne conveyances covered the land in controversy with known and visible boundaries, (though the grant of 1783 might not,) and that from 1805 until 1858 (the date of the last grant) the defendant and his father had had continued actual possession of a part of the land, claiming the whole up to said boundaries, although such part was common to both the mesne conveyances and the Millsaps grant, the plaintiff was not entitled to recover. Verdict for the defendant; rule for a new trial; rule discharged; judgment and appeal by the plaintiff.

Hedrick v. Gobble.

T. J. Wilson, for the appellant.

Gorrell, contra.

The defendant never had such a possession of the locus in quo as exposed him to an action by the State, and therefore the lapse of time has not divested its title. Williams v. Buchanan, 1 Ire., 535; Fitzrandolph v. Norman, N. C. T. R., 131; Graham v. Houston, 4 Dev., 232; Pace v. Shelton, 4 Ire., 32.

BATTLE, J. The defendant seeks to justify the trespass alleged in the declaration, upon the ground that he had acquired title to the locus in quo under the act.of 1791, Rev. Code, c. 65, s. 2. That act makes a possession of twentyone years under a color of title, under known and visible lines or boundaries, a bar to the State. All the cases show that the possession spoken of must be constituted by such acts as would expose the party to a suit by the State, or by some person claiming under the State; for it is the forbearance to sue that raises such a presumption of right as induced the Legislature to ratify the apparent title. The same rule holds with regard to the possession for seven years under color of title, which bars the claims of an individual-Revised Code, c. 65, s. 1. It is for this reason that if two grants or deeds lap, the adverse possession for seven years of the junior grantee or bargainee, who has not taken actual possession of the lapped part of the land, cannot give him any right to that part against the elder grantee or bargainee; See Smith v. Ingram, 7 Ired. 175, and other cases in Battles Digest under the title of EjectmentOf the title necessary to support the action. Analogous to this is the case of the State before it has made any grant, and a person who has taken a deed for a parcel of vacant land from another person, but has not entered into possession. The opposing claims of the State and the bargainee may be said to lap, but the possession will be that of

Hogwood . Edwards.

the State, until the bargainee makes an actual entry and takes possession of the land; until he does that, the State cannot sue him, and, therefore, no length of time, though there may be visible lines or boundaries, can give him a title against the State.

In the present case, the defendant held a rightful possession under the title derived from the grant to Millsaps, but he never took possession of any part of the land outside of the bounds of that grant and within those of the deed from Millsaps to his father, and, therefore, the possession of the State to such part was never divested before it made the grant to the plaintiff.

Upon the facts proved, the plaintiff was, in our opinion, entitled to recover, and his Honor erred in not so instructing the jury.


Judgment reversed and venire de novo.



Where a ditch formed the boundary between the lands of the plaintiff and those of A. B., and an obstruction had been placed therein by the plaintiff, with the consent of A. B., in order to prevent sand from being carried down and choking a ditch of his own; held that Trespass was not the proper form of action to redress an injury (the choking of the plaintiff's ditch) caused by the defendant's removing so much of such obstruction as was upon A. B.'s half of the boundary ditch-the latter having consented to such removal.

(Kelly v. Lett, 13 Ire., 50, cited, distinguished, and approved.)

TRESPASS, tried at Spring Term, 1867, of the Superior Court of FRANKLIN, before Barnes, J.

The evidence showed that there was a boundary ditch

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