Bell v. Adams

• Decision Date: 30 June 1879
• Citation: 81 N.C. 118
• Court: North Carolina Supreme Court
• Parties: H. BELL and others v. LYNN ADAMS.

81 N.C. 118

H. BELL and others

v.LYNN ADAMS.

Supreme Court of North Carolina.

June Term, 1879.

SPECIAL PROCEEDING for Partition of Land commenced in the probate court, and tried upon issues joined, at January Special Term, 1879, of WAKE Superior Court, before Seymour, J.

The opinion contains the facts. Judgment for plaintiffs, appeal by defendant.

Messrs. J. H. Flemming and D. G. Fowle, for plaintiffs .

Messrs. W. H. Pace and Battle & Mordecai, for defendant .

SMITH, C. J.

Zadock Bell was in possession of a lot of land in the city of Raleigh of which that described in the complaint forms a part, for more than fifteen years previous to his death in November, 1826, using it as his own, and devised it to his children. The testator had six children, of whom Jeremiah died in April of the same year, and the others survived him. Jeremiah left a widow and six children whose heirs-at-law are plaintiffs in the action, except such as have sold their shares and whose estate is vested in the defendant. In the year 1829 Lavinia, the widow, entered into possession of the lot, on behalf of her children and claiming it for them, and held adversely against all others, under a single enclosure until her death in 1852, a period of twenty-three years.

The plaintiffs allege that they are tenants in common with the defendant of that portion of the land proposed to be divided, and entitled to nineteen thirtieths thereof, and the defendant to the remaining eleven thirtieths. The defendant asserts a sole seizin in himself by virtue of a deed executed in June, 1862, by William Bell to W. W. Johnson and a subsequent conveyance from the latter to himself.

It was proved on the direct examination of a witness of the defendant, that Lavinia Bell while in possession had frequently been heard to say, that the land belonged to her children who had bought the place and let her live there. The defendant further proposed to show that in 1831 William Bell, at his own expense, had caused the lot to be enclosed with a fence; and also to give in evidence declarations of Lavinia during her occupancy, to the following effect:

1. That the northern part of the lot outside of that in controversy belonged to her daughter, Nancy, mother of the plaintiff, Julia Thompson.

2. That a stake driven into the ground in 1831 by one Brazier, a surveyor, was then pointed out by her as the place “where Nancy's line came to.”

3. That the lot whereon she was living belonged to William and Nancy, and the latter owned the northern part.

4. That her children had bought the land at a sale at the court house door, and sold to William.

The evidence is offered to prove changes in the title of the tenants, presumed from the adverse and exclusive occupation for more than twenty years by the mother for all her children, whereby a sale and separate estate in one part of the lot has vested in Nancy, and in the other in William Bell. For such purpose the evidence was incompetent and was properly refused. The title to land cannot be divested out of one living person by his declarations or admissions, not amounting to an estoppel, nor be transferred to another except by judicial decree under the statute, or deed duly proved and registered, or the presumption arising from long adverse occupancy. No other proof can supply the want of these. Still less are the declarations of one in possession receivable to show changes in the title of those for whom he holds. “No reason is perceived,” says Mr. GREENLEAF, “why every declaration accompanying the act of possession, whether in disparagement of the declarant's title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestæ.'DD' 1 Greenl. Ev., § 109. “It is to be observed,” says the author in the next section, “that when declarations, offered in evidence, are merely narrative of a past occurrence they cannot be received as proof of the existence of such occurrence.” Ibid., § 110.

Neither what was said by Lavinia about a dividing line between her children Nancy and William, nor the...