UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where the defendant in ejectment for lands in North Carolina has been in possession under title in himself and those under whom he claimed for a period of seven years or upwards, such possession is, by the statute of limitations of North Carolina, a conclusive legal bar against the action by an adverse claimant unless such claimant brings himself by positive proof within some of the disabilities provided for by that statute. In the absence of such proof, the title shown by the party in possession is so complete as to prove, in an action upon a covenant against encumbrances, that a recovery obtained by the adverse claimant was not by a paramount legal title.

Quaere whether in an action upon a covenant against encumbrances, the plaintiff is bound to show that the adverse claimant recovered, in the suit by which the plaintiff is evicted, by title paramount, or whether the recovery itself is prima facie evidence of that fact.

This was an action of covenant, brought in the Circuit Court of North Carolina by the executors of John Somerville the younger against John Hamilton on the following covenants in a deed of land in North Carolina from Hamilton to John Somerville the elder dated April 15, 1772.

The grantor covenanted clubjuris

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with the grantee, his heirs and assigns, that the premises

"then were, and so forever thereafter should remain free and clear of and from all former and other gifts, bargains, sales, dower, right and title of dower, judgments, executions, title, troubles, charges and encumbrances whatsoever done, committed, or suffered by the said John Hamilton or any other person or persons whatsoever, the quit-rent afterwards to grow due to Earl Grenville, his heirs, &c., only excepted."

There was also a covenant for a general warranty.

Hamilton claimed the lands under a deed dated 4 October, 1771, from one Stewart, who was then in possession and who delivered possession to Hamilton. John Somerville the elder conveyed the same to his son, John Somerville the younger, by deed dated 8 September, 1777, and Somerville the younger conveyed to one Whitmill Hill by deed dated 9 October, 1795. W. Hill died on 13 October, 1797, having by his last will devised the lands to his son Thomas B. Hill. The latter having entered under the devise, an action of ejectment was brought against him in the Superior Court of the State of North Carolina for Halifax District on 7 June, 1804, for 250 acres, parcel of the said lands, by one Benjamin Sherrod, who, at the April term, 1805, of the said court, obtained a verdict and judgment for the possession of the said 250 acres of land and was put in possession of the same. On 2 September, 1804, Hamilton had notice from Somerville the younger of the institution of this suit, but did not aid in the defense. From the date of Stewart's deed to Hamilton clubjuris

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(October 4th, 1771) to the commencement of this suit by Sherrod against Hill on 7 June, 1804, the land in controversy was in the possession of Hamilton and of Somerville and the Hills, claiming under Hamilton. On 6 November, 1806, Somerville the younger died, leaving the plaintiffs executors of his last will and testament. The above facts were found by a special verdict in the circuit court, and the case came before that court upon the special verdict, at November term, 1816, when the judges differed in opinion upon the following questions:

1. Whether the plaintiffs were bound to show that Benjamin Sherrod recovered against Thomas B. Hill by title paramount to that derived from Hamilton, or the recovery itself was prima facie evidence of that fact?

2. Whether the title shown by Thomas B. Hill under Hamilton was not so complete as to prove that Sherrod's recovery could not have been by title paramount? Which questions were thereupon certified to this Court for decision. clubjuris

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