Austin v. . Hopkins

43 S.E.2d 849, 227 N.C. 638, 1947 N.C. LEXIS 489

Opinion

Denny, J.

The sole question presented on this appeal is: Bid his Honor commit error in failing to charge the jury on the question of adverse possession? The answer is No.

The defendant cannot assert title to the disputed area by adverse possession in the face of the stipulation entered into by him. Matthews v. Myatt, 172 N. C., 230, 90 S. E., 150, the case upon which the appellant is relying, is not applicable to the facts herein. In that case the plaintiff claimed the disputed area upon two grounds: (1) That it was covered by his record title; and (2) that if the disputed area was not covered by the deeds in his chain of title, he had acquired title thereto by the adverse possession of himself and those under whom he claimed. In the instant case, in view of the stipulation entered into by the parties, evidence of adverse possession could be considered by the jury only as tending to show the location of 'the true boundary line, and not for the purpose of establishing title to tbe disputed area by reason of sueb adverse possession. Tbe defendant’s evidence as to bis possession, cultivation and use of tbe area to tbe line contended for by bim was submitted to tbe jury. Tbis Avas all tbe charge, be was entitled to on tbe question of adverse possession. See Thomas v. Hipp, 223 N. C., 515, 27 S. E. (2d), 528, and Clark v. Dill, 208 N. C., 421, 181 S. E., 281.

In tbe trial beloAv, Ave find

No error.