Atwell v. Shook

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Atwell v. Shook, 133 N.C. 387, 45 S.E. 777 (N.C. 1903)
• Decision Date: 17 November 1903
• Parties: ATWELL v. SHOOK.

45 S.E. 777

133 N.C. 387

ATWELL v. SHOOK.

Supreme Court of North Carolina

November 17, 1903

Appeal from Superior Court, Iredell County; W. R. Allen, Judge.

Action by J. D. Atwell against J. M. Shook. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Where deceased occupied certain land adversely at the time of his death, the allotment of the land to his widow as her homestead conferred no title on her, nor did such allotment affect the rights of the holder of the legal title.

Furches Coble & Nicholson and J. B. Connelly, for appellant.

L. C Caldwell and H. P. Grier, for appellee.

CONNOR J.

This is an action for the recovery of real estate. The land in controversy is shown on the map, being the 3-acre tract included within the boundaries set forth in the complaint also a strip on the southern border of the 150-acre tract. It is admitted that the title is out of the state. The plaintiff claims title under a deed made on the 14th of May, 1890, by W. M. Robbins, commissioner, pursuant to a decree made in a proceeding brought by the heirs of J. M. Harden for a sale for partition. Robbins conveyed the land to the plaintiff and another. By mesne conveyances such title as his deed conveyed to the entire tract is now in the plaintiff. The plaintiff introduced a deed dated February 4, 1848, from Margaret G Kirkpatrick to J. M. Harden, for the 150-acre tract. He showed no paper title in J. M. Harden to the 3-acre tract. J. M. Harden died in 1869. There was evidence tending to show that he had been in possession of the 3-acre tract from 1853 or 1854 to the time of his death. In 1869, after the death of J. M. Harden, his widow, Mrs. M. A. Harden, applied for and had allotted to her the 150-acre tract, and the 3-acre tract as a homestead. In 1890 Mrs. Harden made a deed to J. M. Shook, the defendant, for the 3-acre tract, including the land in controversy on the south border of the 150-acre tract. This deed was registered in 1901. The defendant introduced evidence tending to show that he went into possession of that part of the 150-acre tract in controversy in 1873 or 1874, and that he is still in possession thereof. He also introduced evidence tending to show that he went into possession of the 3-acre tract in 1890, and is still in possession thereof. The plaintiff introduced evidence tending to show that Mrs. M. A. Harden went into possession in 1869, and remained therein until her death, a year or two before this action was brought.

The court instructed the jury, in respect to the 3-acre tract, that the allotment of a homestead to Mrs. Harden did not confer title, and is only material in determining the nature and extent of her possession; that, if her husband was in possession prior to his death, and she continued his possession, and made application for the allotment of a homestead in his land, and the allotment was made, and she continued her possession, claiming the right to such possession under the allotment, her possession would not be adverse to the heirs of her husband or those claiming under them. To this instruction the defendant excepted.

The court further charged the jury: "If you find by the greater weight of evidence that J. M. Harden was in possession of the three-acre tract prior to his death, claiming it as his own; that after his death Mrs. Harden continued in possession as his widow, and applied for a homestead in his land, and upon her application the three acres were allotted as a part of her homestead, and she continued in possession under the allotment--then her possession would not be adverse to the heirs of J. M. Harden, but would inure to their benefit and to the benefit of the plaintiff, who claims under him; and if this possession was open and notorious, and under claim of right, for twenty years, then the plaintiff, without deed, would be the owner, and if you so find you will answer the first issue 'Yes." D' The defendant excepted.

The court also charged the jury: "If you find by a greater weight of evidence that J. M. Harden was in possession of the three acres prior to his death, claiming it as his own; that after his death Mrs. Harden continued in possession as his widow, and applied for a homestead in his land; that upon her application the three acres were allotted as a part of her homestead, and she continued in possession under the allotment--then her possession would not be adverse to the heirs of J. M. Harden, but would inure to their benefit, and to the benefit of the plaintiff, who claims under him, and if this possession was open and notorious and under color of title for seven years, then the plaintiff would be the owner, and you will answer the first issue 'Yes." D' The defendant excepted. The court charged the jury that the deed from Robbins, commissioner, was color of title.

The defendant requested the court to give the following special instructions: ""That the assignment of a homestead conveys no title to the homesteader. It only protects the homesteader against execution creditors; and a homestead laid off on land not belonging to the homesteader, or covering land that did not belong to the homesteader, would give the homesteader no right of possession. Nor would it prevent the rightful owner from recovering possession of such land at any time. If the homestead laid off to Mrs. Harden covered land that did not belong to her husband, it gave her no right to the possession of such land as her husband did not own; nor would such homestead be color of title to land not owned by Harden." The court gave the following part of such instruction, and refused to give the remainder: "That the assignment of a homestead conveys no title to the homesteader. It only protects the homesteader against execution creditors. Nor would such homestead be color of title to land not owned by Harden." The defendant excepted.

We concur with his honor that the allotment of the homestead to Mrs. Harden conferred no title upon her, nor did it in any manner or any degree affect the question of title as against the defendant. The case, however, in respect to the three-acre tract, does not turn or depend upon the allotment of the homestead as affecting the title to the land. Keener v. Goodson, 89 N.C. 273; Littlejohn v Egerton, 77 N.C. 379; Joyner v. Sugg, 132 N.C. 580, 44 S.E. 122. The charge, as construed by us, does not controvert this proposition. It is based upon the principle that if one goes into possession without color of title, and remains therein, either by himself or those claiming under him, for 20 years, it thereby bars the entry of the true owner, unless under disability. Code, § 144. J. M. Harden having entered into possession of the land in 1853, and remained continuously therein until his death, in 1869, such possession being continued by his widow until her death, completes the 20 years required to bar the action. The defendant, however, insists that the possession of the widow under the homestead allotment does not inure to the benefit of the heirs, and that from the death of Harden to the death of his widow neither they nor any one claiming under them were in possession, and that, therefore, Harden's possession having continued only 16 years, the plaintiff, never having been in possession under his deed, is not entitled to maintain the action. In Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748, 54 Am. St. Rep. 757, Mr. Justice Furches says: "The plaintiffs may establish their title in any way they might do if this had originally been commenced as an action of ejectment, by showing an unbroken line of conveyances from the state to them, or to Joseph M. Alexander, their father, and that he is dead, or by showing possession in Joseph M. Alexander and those under whom he claimed to the time of his death, and the possession of his heirs at law since his death for a sufficient length of time to establish or to ripen their title into a perfect title." Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. It is clear that the possession of the heir may be added to the possession of the ancestor to complete the 20 years which will bar the action. We do not understand this to be controverted, but the defendant says that the possession of the widow was not the possession of the heirs, but was adverse to them. This is the point in the case. We agree with his honor that the question is not whether the widow took any title by the allotment of the homestead, but whether she claimed under the heirs, thereby making her possession their possession. Certainly, her possession could not be adverse to the heirs, and this is so without regard to the question, discussed before us, as to the effect of the allotment of the homestead. If, instead of taking a homestead, she had taken dower in her husband's land, and in the allotment the three acres to which he had no paper title were included therein, and she remained in possession, certainly such possession would inure to the benefit of the heirs, being an elongation of the husband's title or estate. This would not be upon the principle that she acquired any new or independent right by the allotment of the dower, but that she claimed under the husband, and thereby her possession inured to the benefit of the heirs. In Williams v. Bennett, 26 N.C. 122, Ruffin, C.J., says: "The question, then, is whether the...