Bonds v. Smith

• Court: North Carolina Supreme Court
• Writing for the Court: AVERY, J., (after stating the facts as above.)
• Citation: Bonds v. Smith, 106 N. C. 553, 11 S. E. 322 (N.C. 1890)
• Decision Date: 07 April 1890
• Parties: BONDS v. SMITH.

11 S.E. 322

106 N.C. 553

BONDS v. SMITH.

Supreme Court of North Carolina

April 7, 1890

Syllabus by the Court.

1. Where B. bought a 100-acre tract of land, and left the state after putting his father, G., in possession, and entering into an agreement with G. to pay the tax on the land in consideration of the rent, and in the absence of B. the land being sold for taxes, and S. bought it at sheriff's sale and, though G. repaid the amount of tax, with 25 per centum thereon, to S. within 12 months after the sale, S fraudulently procured the sheriff to make a deed to himself and thereupon G. brought an action against S. for the recovery of the land, which was compromised by a conveyance to G. of 49 1/2 acres of the tract, which B. had verbally promised to give to G. on his return, held: (1) That, where one enters into possession of land as the tenant of another not only the tenant, but his sublessees, are estopped from denying the title of his landlord, or those holding the fee through the lessor, until the possession is surrendered to the landlord, and an entry is made under some other title. (2) That where one acquired a pretended title or possession or both, by collusion or a fraudulent compromise with another, whom he knows to be holding as the agent or tenant, the former is considered in privity with the latter and with his landlord, and estopped, just as the agent or tenant would have been, from denying the title of the principal or landlord till after a surrender of the possession, and an entry in some other right. (3) That in this case the recovery of B. against S. was not barred by the possession of the latter for seven years, because it was not adverse to B. (4) That the statement of the foregoing facts was a sufficient allegation of fraud in a complaint; but, if it were not sufficient, the defendant had in his answer denied that he procured the deed or the possession by fraud or collusion, and the doctrine of aider would apply. (5) That it was not error to submit an issue involving title and another involving the fraud; the appellant having failed to show that he was deprived of the opportunity to present to the jury any view of the law arising out of the evidence. (6) That the equivocal denial of the allegation as to the nature of the deed is an admission of its truth; and, apart from that principle, it is a universal rule that, where a deed is attacked for fraud, recitations contained in it may be shown to be false, or it may be proven that others which should have been inserted were omitted, if such evidence tends in any way to establish the alleged fraud. (7) That it is within the sound discretion of the judge who tries a case to determine what is sufficient proof of the loss or destruction of an original paper to make evidence of its contents competent; and where nothing appears to the contrary the appellate court will assume that the judge below admitted the secondary evidence after hearing plenary proof of the loss or destruction of the original.

2. A plaintiff is required, generally, to show title good against the world, while a defendant can ordinarily prevent his recovery by showing a better outstanding title in any person; but it is a well-established rule, adopted originally for convenience in the trial of actions of ejectment, that, where both parties claim under the same person, neither will be allowed to deny that such person had title, and a defendant, in such cases, cannot show a superior title without connecting himself with it.

3. Where the plaintiff shows from the deeds offered, or the admissions in the pleadings, that both claim from a common source, he is required only to exhibit a better title in himself, derived from it, than that of the defendant, in order to establish prima facie his right of recovery.

This was a civil action, for the possession of land, tried before MACRAE, J., and a jury, at the December special term, 1889, of the superior court of Cumberland county.

The action was begun by the issuing of a summons against Raiford Smith and Jack Inman, April 10, 1886. Inman, who held as tenant of Smith, was not served. The following issues were submitted to the jury: "Is the plaintiff the owner, and entitled to the possession, of the land described in the complaint? Did the defendant fraudulently procure the sheriff of Cumberland to make him a deed for the land described in the complaint? (The defendant objected to this issue as not raised by the pleadings, as irrelevant, as unnecessary, and as calculated to mislead the jury. Objection overruled. Defendant excepted.) Does the defendant wrongfully withhold possession of the forty-nine and one-half acres described in the complaint? What damage, if any, has the plaintiff sustained?" The plaintiff offered in evidence a deed from Jane D. Burnes and others to Oren Bonds for 100 acres more or less, dated 19th March, 1872. The courses and distances were the same as those set out in the complaint, and plaintiff testified that the land described in said deed was the land in dispute. The plaintiff offered in evidence the record of an action and judgment in the case of Granville Burnes against the defendant. Defendant objected; but, upon the plaintiff's counsel stating that it was offered for the purpose of showing the fraud as charged in the complaint, the objection was overruled, and the plaintiff excepted. R. W. Hardie, a witness for the plaintiff, testified that he was sheriff of Cumberland and tax collector in 1876, and produced the tax-book kept as a record in the office and from which the tax-list was made out. The land described in the complaint is in Gray's Creek township, but was in Rockfish township in 1876. This land is not on the tax-list, but the tax-list in witness' hands as sheriff was constantly added to. Witness identified a paper offered as a deed which witness made to defendant, (R. W. Hardie, sheriff, to Raiford Smith,) with plat attached, for 99 acres containing the same description as the land described in the complaint, less one acre, dated November 28, 1878. Plaintiff's counsel stated that this deed was offered for the purpose of attacking and for the purpose of estopping the defendant. Oren Bonds, the plaintiff, testified in his own behalf that he bought the land in controversy from J. D. Burnes and others, as appeared from the deed which was already in evidence; that he (plaintiff) was in possession of the land three months before he bought it, and remained in possession until 1875, when he left his father, Granville Bonds or Burnes, in possession for him, and went to South Carolina, and was absent from North Carolina for 10 years, and returned in 1885, about a year after the death of Granville Burnes, and upon his return to North Carolina, in 1885, plaintiff first heard of the sale of the land for taxes. Witness had paid for the land, and had promised to give his father, Granville, one-half of it, when witness came back, but had given him no writings about it. The father was to hold the balance of the land for witness. He (Granville) lived and died on the upper end of the land. Defendant is in the possession of the lower end. R. W. Hardie, being recalled for the plaintiff, produced a book which, he testified, was marked, "Official Copy of the Tax-List for Rockfish Township for 1876," showing thereon, under the head of "Unlisted:" Oren Bonds, 100 acres valued at $200, and other taxables; tax due, $2.35. (Objected to by defendant. Objection overruled. Defendant excepted.) No property is listed for Granville Burnes. Witness looks at his deed to defendant, and says, further, that he cannot tell what land he sold for taxes; that there was no other land, listed or unlisted, for Burnes or Bonds, on the tax-list of 1876. Witness has not looked on the tax-list for 1875. Witness had a judgment of condemnation of the land sold. Oren Bonds, the plaintiff, further testified: "There was no other Oren Bonds or Owen Bonds besides witness in that township." Witness signs his name "Oren." Witness does not know any "Owen Bonds" in the world. Green Bonds testified for the plaintiff that he knew the land; that his brother Oren went to South Carolina, and witness sent him word about this suit (Raiford Smith v. Granville Bonds) in 1885. He came back in 1885; while he was gone, his father, Granville Burnes, lived on the land. Andrew Gaddy testified for the plaintiff that witness' mother married Granville Burnes while Oren was in South Carolina. Granville was living on the land in dispute. He died four or five years ago, before this suit was brought. Witness did not attend the sale of the land for taxes, or see the money paid to defendant. Witness heard defendant say that he had got his money which he charged Granville Burnes for the taxes, and 25 per cent. interest on it, and he did intend to give Granville a deed for one-half of the land, but Oren's part he intended to hold. He said he had got what he asked Granville,--the money paid for the taxes, and the 25 per cent. additional. Witness had the receipts given by the defendant, and gave them to Mr. Rose when he went to him to enter suit against Mr. Smith. Witness can read some. Will know the the receipts when he sees them. There were three of them. George M. Rose testified for the plaintiff that he was counsel for Granville Burnes in his suit against Raiford Smith. Granville, his step-son, and his wife came to witness' office, and brought witness some receipts in an envelope. Witness has searched for them, and cannot find them. His impression is that he gave them back to Granville, but he is not positive. Witness only knows that they were receipts from Raiford Smith to Granville Burnes, to cover the amount paid for taxes by him, (Smith,) and the 25 per cent. additional. Witness is not positive, but...