Alexander v. Richmond Cedar Works

• Decision Date: 19 February 1919
• Docket Number: 10.
• Parties: ALEXANDER ET AL. v. RICHMOND CEDAR WORKS.
• Court: North Carolina Supreme Court

98 S.E. 312

177 N.C. 137

ALEXANDER ET AL. v. RICHMOND CEDAR WORKS.

No. 10.

Supreme Court of North Carolina

February 19, 1919

Appeal from Superior Court, Tyrrell County; Bond, Judge.

Suit by J. E. Alexander and others against the Richmond Cedar Works. Judgment on the verdict for defendant, and plaintiffs appeal. No error.

A remark of the court in asking the views of counsel made to them alone, though in the presence and hearing of the jury as to the legal phase of the testimony in an adverse possession suit, is not an expression of opinion on the facts, within the statute.

Plaintiffs alleged, and offered evidence tending to show, that this land lay within the boundaries of the grant to Josiah Collins, and that a chain of title connected said Collins with Solomon Hassell, that Solomon Hassell conveyed this land to Jesse Alexander in 1813, and that Jesse Alexander died leaving five children: (1) Abner Alexander, who died intestate without issue; (2) Joseph Alexander, ancestor in blood of some of the plaintiffs; (3) Martha Spruill, ancestor in blood of the remaining plaintiffs; (4) Geo. Alexander, who conveyed his right in the land in controversy to Thos. Alexander; (5) Thomas Alexander, who conveyed his right and the right acquired from his brother, George, to one William Cahoon whose title, plaintiffs alleged, had been acquired by defendant.

Plaintiffs further alleged that their interests together equaled one half, and that the defendant owned the other half; that the land could not be actually divided, and that a sale for partition was necessary.

Defendant admitted that it had acquired the title of William Cahoon but pleaded sole seizin, and averred that it had acquired a good title for the entire tract by adverse possession.

Upon the trial is developed that there lay within the outer boundaries of the tract of land described in the complaint several other tracts of land, referred to upon the trial and in the first issue and in the judgment rendered as: (1) A. C Sawyer to F. C. Patrick; (2) Allen Cahoon Nos. 1 and 2; (3) Armstrong tract No. 1; (4) Kemp No. 1; (5) Kemp No. 2; (6) Armstrong No. 2 swamp; (7) Armstrong (3, 4, and 5). These tracts are the ones named in red ink on the blueprints, and the correctness of their location in relation to the boundaries of the tract of land described in the petition was conceded by plaintiffs.

In order to show title in itself for these several tracts, the defendant offered grants prior to the Josiah Collins grant aforesaid, and deeds to itself foreign to the title under which the plaintiffs claimed, and evidence of possession of each of said tracts by it and its ancestors in title.

Plaintiffs finally, at the conclusion of the testimony, in open court, disclaimed title to any of the tracts referred to in the first issue, and admitted that they could not and did not claim title to any of said tracts, and thereupon this phase was eliminated from the case. The court, with the consent of plaintiffs, framed two issues, the first of which involved the tracts of land above described, which the court answered in accordance with plaintiffs' admission that they had no title thereto, the second of which issues involved the title to the remainder of the land described in the petition outside of the boundaries of the above tracts.

For the purpose of showing sole title in itself for the lands referred to in the second issue (that is, that portion of the land described in the petition outside of the tracts referred to in the first issue), the defendant offered: (1) Deed from Geo. H. Alexander to Thos. H. Alexander. (2) Deed from Thos. Alexander to William Cahoon, in 1833, which purported to convey in fee, with warranty, the entire tract of land described in the petition. (3) Deed from Wm. Cahoon to Jas. S. Cahoon, in 1839, which purported to convey in fee, with warranty, a tract of land which included within its boundaries the tract described in the petition. (4) Petition filed by Jordan L. Jones, administrator of Jas. S. Cahoon, in 1849, in court of pleas and quarter sessions, asking for a sale of his intestate's lands to make assets, with evidence of the clerk of the court that a diligent search of his office did not show any other papers in his office relative to said proceeding. (6) Certain entries on the appearance docket for January term, 1849, of court of pleas and quarter sessions of Tyrrell county. (7) An account of the lands of Jordan L. Jones sold by his administrator. (8) Deed from Jordan L. Jones, Adm'r, to Chas. McCleese, which purported to convey in fee the entire tract of land described in the petition. This deed recites that it was made pursuant to a sale by virtue of a petition filed by grantor at January term, 1849. (10) Partition proceeding of Martha Sawyer et al. v. C. E. Tamem et al. The pleadings alleged that the parties to this proceeding were the owners in fee simple of the entire tract of land in controversy, and the court ordered the sale of the said tract, and appointed M. Majette, commissioner. The sale was made and duly confirmed, and Majette, commissioner, was ordered to make deed to C. R. Johnson, the purchaser. (11) Evidence tending to show that the parties to said proceeding were all the heirs at law of Chas. McCleese. (12) Deed from M. Majette, commissioner, to C. R. Johnson (general manager of the Richmond Cedar Works in North Carolina), in 1893, made pursuant to the last-mentioned special proceeding, and purporting to convey in fee several tracts of land, the second of which included the land now in controversy. (13) Deed from C. R. Johnson and wife to Richmond Cedar Works, in 1905, which purported to convey in fee several tracts of land, the third of which included the land now in controversy. This deed recites that this tract and one other were bought and held by said Johnson for the Richmond Cedar Works. (14) Evidence of adverse possession set out in the record.

The principal contentions of appellants at the trial in the lower court were: (1) That they and defendant, and its ancestors in title, were tenants in common, and that therefore 7 years' adverse possession was not sufficient to bar their rights; and (2) that if 7 years' possession was sufficient, there was no evidence of such possession fit to be considered by the jury.

Defendant, appellee, contends: First, that it is now settled that adverse possession by defendant, or those under whom it claimed, for 7 years is a complete and perfect defense to plaintiffs' action. Assuming, as it further says, for the sake of argument, that some 80 years ago, when Jesse Alexander died, his children became tenants in common of the land in controversy, and that the effect of the conveyance from George H. Alexander to Thomas H. Alexander was only to convey an undivided one-fourth interest in the locus in quo, and that the effect of the conveyance from Thomas Alexander to William Cahoon and from Wm. Cahoon to Jas. S. Cahoon, although they purported to convey the entire interest, was only to convey a one-half interest to James S. Cahoon and to create him a tenant in common with the other heirs of Jesse Alexander, yet when the court, upon the petition of the administrators of Jas. S. Cahoon, ordered the sale of the entire land, and it was sold to Charles McCleese and deed was made to him, and when the court later, in the partition proceeding brought by the heirs at law of Charles McCleese, purported to order the sale of the entire tract, and, upon the sale being reported to it, entered an order of confirmation, and directed deed to be made to the purchaser, who paid the purchase money, either or both of these judicial proceedings and the deeds made under either or both of them were equivalent to an actual ouster of any other tenants in common, constituted color of title to the whole tract, and 7 years' adverse possession thereafter was sufficient to bar the entry of any of the plaintiffs, even admitting them to have been tenants in common.

There were exceptions to the charge of the court which will be noticed hereafter. The verdict was as follows:

"(1) What interest, if any, do the plaintiffs, J. E. Alexander and others, own in that portion of the lands described in the complaint or petition in this cause covered by the various tracts platted on map used in this trial, marked: First, A. C. Sawyer to F. C. Patrick; second, marked Allen Cahoon, Nos. 1 and 2; third, marked Armstrong tract No. 1; fourth, tract marked Kemp No. 1; fifth, tract marked Kemp No. 2; sixth, marked Armstrong No. 2 swamp; seventh, tract marked Armstrong Nos. 3, 4, and 5? Answer: None (by consent of plaintiffs).

(2) What interest, if any, do the plaintiffs, J. E. Alexander and others, own in that portion of land described in complaint or petition in this cause outside of tracts platted on map used in this trial, and referred to in issue 1 by numbers first, second, third, fourth, fifth, sixth, and seventh? Answer: None."

Judgment upon the verdict, and plaintiffs appealed.

W. L. Whitley, of Plymouth, and Aydlett, Simpson & Sawyer, of Elizabeth City, for appellants.

J. Crawford Biggs, of Raleigh, and Thompson & Wilson, of Elizabeth City, for appellee.

WALKER, J. (after stating the facts as above).

We held in Roper Lumber Co. v. Richmond Cedar Works, 165 N.C. 83, 80 S.E. 982, that there is color of title, not where a deed is executed by one tenant in common, which purports to convey the entire interest, the grantor having less than an entirety, but where a deed is executed under a judicial proceeding which purports to sell and convey an entirety, and where some of the tenants in common had been made parties to the proceeding under which the court ordered the sale. Discussing this point, we said:

"This court has held that a

...