Bond v. Beverly

• Decision Date: 02 March 1910
• Court: North Carolina Supreme Court
• Parties: BOND et al. v. BEVERLY et al.

67 S.E. 55

152 N.C. 56

BOND et al.

v.BEVERLY et al.

Supreme Court of North Carolina.

March 2, 1910.

1. Adverse Possession (§ 77^*)—Executor's Deed—Color of Title.

Where a person at his death had no title to certain land, it having been sold on execution sale, and his executors conveyed it as his property by a deed sufficient in form to pass the title, the deed was color of title in the grantee.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 455-457; Dec. Dig. § 77.*]

2. Adverse Possession (§ 70*)—"Color of Title."

"Color of title" may be defined to be a writing upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or the defective mode of conveyance which is used, and it would seem that it must not be so obviously defective that no man of ordinary capacity could be misled by it.

[Ed. Note.—For other cases, see Adverse Possession, • Cent. Dig. §§ 394-414; Dec. Dig. § 70.*

For other definitions, see Words and Phrases, vol. 2, pp. 1264-1273; vol. 8, p. 7600.]

3. Vendor and Purchaser (§ 190*)—Title of Vendor—Estoppel of Purchaser.

Where a person is let into possession of land under a contract of sale, he is a tenant at will of the vendor, and the principle that a lessee cannot dispute the lessor's title extends to him.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 384-392; Dec. Dig. § 190.*]

4. Adverse Possession (§ 70*)—Color of Title — Deed Establishing Priority Between Grantor and Grantee.

In an action to recover the possession of land, where defendant's ancestor was put into possession of the land under a deed from H., who had color of title, and the conveyance by H. was void as a deed, it clearly established the privity between H. and defendant's ancestor, so that defendants can rely on the color of title in H. to perfect their own title; and where their ancestor's possession was adverse to plaintiff and all others except as to H., and was continuous and notorious for seven years, it inured to the benefit of H.'s title, and matured that into a good title.

[Ed. Note.—For other cases, see Adverse Possession, Dec. Dig. § 70.*]

5. Husband and Wife (§ 09y₂*)—Disability op Coverture—Repeal.

Revisal 19115, § 303, which declares that in any action in which the defense of adverse possession is relied on the time computed shall not include possession had against a feme covert during coverture prior to February 13, 1899, repealed the disability of coverture since that date.

[Ed. Note.—For other cases, see Husband and and Wife, Dec. Dig. § 69^.*]

Appeal from Superior Court, Hertford County; Peebles, Judge.

Action by J. S. Bond and others against Lucy Beverly and others. Judgment for plaintiffs, and defendants appeal. Reversed.

This is a civil action. The case was presented to his honor below upon the following agreed facts:

"That on the 6th day of February, 1869, H. B. Knox commenced a civil action in the superior court of Hertford county, N. C, against Lawrence Askew, Mills Sumner, and Geo. H. Mitchell. The summons was served February 11, 1809, on the defendants. At October term, 1809, of said court, the plaintiff recovered judgment in said action against the defendants Lawrence Askew and Geo. II. Mitchell for $1,954.24 and for $18.35 cost, with interest on $1,654.50 from October 18, 1809, until paid. That said judgment was recovered on a bond executed October 11, 1866, by Lawrence Askew, Mills Sumner, and Geo. H. Mitchell, payable to the order of John W. Harrell, administrator of William Montgomery, for $1,654.50, payable six months after date, with interest from date. That execution was issued on said judgment to the sheriff of Hertford county, who on the 3d day of January, 1870, sold thereunder the 'Powell Tract' at the courthouse door, as required by law, as the property of Lawrence Askew, and John A. Vann, became the purchaser and received a deed from said sheriff therefor dated April 5, 1870. The locus in quo is embraced in the boundaries of said Powell tract. That on the 1st day of November, 1871, said John A. Vann convey-ed the said Powell tract to the plaintiffs heirs at law of Julia A. Newsome, who were grandchildren of said Lawrence Askew and also his heirs. That said Lawrence Askew died about the year 1SS4, domiciled in Hertford county, leaving a last will and testament which was duly admitted to probate in said county, in which he appointed J. B. Slaughter and Blount Willoughby his executors, and who were duly qualified as such. That the will of said Lawrence Askew contains the following item: T leave all my land not otherwise disposed of to be sold, the Brantley and Reynolds land both containing about one hundred acres, the Rasbery land, fifty acres, adjoining W. H. Godwin and all other lands not otherwise mentioned, the piece of land on which the gin house stands contains one hundred yards square, and the money arising from said sale shall be assets in the hands of my executors.' That the Powell tract is not mentioned by name or description in said will. That on the 12th day of October, 18S5, said executors, under the above item in the will of said Askew, sold the right, title, and interest of said Lawrence Askew in the Powell tract, and S. S. Harrell became the purchaser and received a deed from said executors for said right, title, and interest in the said Powell tract. See Exhibit A. That on the 23d day of December, 1890, said S. S. Harrell executed to Benj. Beverly a deed or paper writing, a copy of which is hereto annexed, marked 'Exhibit B, ' as a part of these facts. Said Beverly, after getting said paper writing or deed from S. S. Harrell, settled upon and occupied the western portion of the Powell tract of land, which includes within its boundaries the locus in quo. That said Benj. Beverly died intestate on the —— day of March, 1902, leaving the defendants as his widow and heir at law. That either side may use as a part of these facts any deed or paper writing in their respective chain of title. This action was begun on the 17th day of December, 1908. The plaintiff Bettie J. Newsome married J. S. Bond July 12, 1882, and has since her said marriage been under coverture. Levinia R. married first Hosea Baker September 29, 1886. Baker died in 1897, and she married W. R. Hughes July 7, 1899. On the 22d day of December, 1890, said S. S. Harrell executed the deed hereto attached, marked 'Exhibit C, ' to Whitmel Young, who, after getting said deed, settled upon and occupied the eastern portion of said Powell tract of land, and that after December 22, 1890, said Beverly and said Young divided the Powell tract between themselves, and continued to live and occupy said Powell tract of land up to known and visible lines and boundaries up to the beginning of this action. See Exhibit D. The Powell tract of land described in the complaint and the deeds aforesaid is the same tract of land."

The Exhibit A referred to in the agreed facts is the deed from the executors of Lawrence Askew to S. S. Harrell and his heirs, dated June 7, 1886, conveying "one certain tract or parcel of land, lying and being in Hertford county aforesaid, and known and described as follows: The tract of land known as the Powell or Stallings tract of land, owned by Lawrence Askew, and bounded on the north by White Oak swamp, on the east by other lands of said Askew, on the west by t lie lands of W. H. Godwin, J. B. Chamblee, Jr., and Thos. Eiley, on the south by the Slaughter lands, containing 131 acres, be it the same more or less." Exhibit B is the deed from S. S. Harrell to Benj. Beverly, ancestor of defendants, dated December 22, 1890, and contains the following granting clause: "Has granted, bargained and sold and by these presents do grant, bargain and sell and convey to said Benj. Beverly, his heirs and assigns forever, his interest in about one-half of a piece of land, as per survey of recent date, known, " etc., describing it as the Powell land and referring to the deed to him by the executors of Lawrence Askew. The deed to Whitmel Young referred to is made by S. S. Harrell on December 22, 1890, same day as the deed to Beverly, and contains a granting clause and description in the same language.

The defendant denied that the plaintiffs were the owners of the land in controversy, and pleaded the seven-year statute of limitations and adverse possession thereunder. The agreement between Beverly and Young, establishing the dividing line between them, was in writing duly signed and dated March 30, 1901. The possession of Beverly and his heirs of the western half to the agreed dividing line has been adverse, open, notorious, and exclusive since then; in like manner has been the possession of Young of the eastern half. Upon the agreed facts, his honor rendered judgment that plaintiffs were the owners of, and entitled to the possession of, the land, and adjudged the costs against the defendants, and ordered the writ of possession to issue. The defendants appealed to this court.

R. C. Bridger and John E. Vann, for appellants.

Winborne & Winborne, for appellees.

MANNING, J. The title in fee to the land in controversy was undoubtedly at one time vested in Lawrence Askew. It was divested by a deed of the sheriff of Hertford county to John A. Vann on April 5, 1870; this deed being made pursuant to a sale by the sheriff under an execution issued on a judgment against Askew. On November 1, 1871, John A. Vann conveyed the lands to the plaintiffs. Thus they became the owners of it in fee simple; and, as the legal title draws to it the possession, the plaintiffs, nothing else appearing, would be entitled to recover the land from the defendants. The defendants, how-ever, to avoid a recovery by the plaintiffs, show: (1) The death of Lawrence Askew in 1884, his will appointing Slaughter and Willoughby executors, directing them to sell certain named tracts of land and all other lands not otherwise mentioned. (2) A public sale by the executors of the...