Bost v. Setzer

• Decision Date: 31 October 1882
• Citation: 87 N.C. 187
• Court: North Carolina Supreme Court
• Parties: T. J. BOST and others v. DANIEL SETZER and others.

87 N.C. 187

T. J. BOST and others

v.DANIEL SETZER and others.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

EJECTMENT tried at Fall Term, 1882, of CATAWBA Superior Court, before Avery, J.

The following issues were submitted to the jury:

1. Did Jonathan Bost sign, seal and deliver the paper writing offered in evidence, and under which the plaintiffs claim.

2. Did the defendant, Daniel Setzer, have notice of the execution of said deed, and the claims of the heirs of Miles W. A. Bost, when the said Jonathan Bost conveyed the land in controversy to said Daniel Setzer?

3. Did Daniel Setzer pay a fair price for the land in controversy?

4. What is the annual rental value of the land in controversy?

The plaintiffs in support of their title introduced a deed from their grand-father, Jonathan Bost, for the land in controversy, for the consideration of love and affection, bearing date the 12th of June, 1858, and then offered evidence tending to establish the following facts:

That the deed to the plaintiffs, who at the time of its execution were infants and the children of Miles W. A. Bost, a son of the donor, was delivered in 1858 by the donor to their mother for the benefit of the plaintiffs. Miles Bost, the father of the plaintiffs, had moved upon the land before the execution of the deed to his children--and he and his family continued to occupy it until 1863, when his wife with the children abandoned the possession, in consequence of the absence of Miles in the army. Whilst Miles was in possession, he cleared and cultivated about an acre of the land, erected a house thereon, and planted an orchard; and the defendant, Daniel Setzer, lived about a mile from the land, and during the time of its occupancy by the parents of the plaintiffs, interchanged frequent visits with them. About the beginning of the war, while Miles and his family were living on the land, Jonathan Bost called for the deed which he had given the plaintiffs, saying he wished to make some alterations in it because the children might otherwise turn out their father; the deed was surrendered to him and never returned. Miles Bost had claimed the land as his own, and paid the taxes one year, while he occupied it, and the taxes were paid by Jonathan Bost the other years. The annual rental was worth twenty-five dollars per annum, and five hundred dollars was a fair price for the land.

The defendants offered in evidence a deed from Jonathan Bost to the defendant, Daniel Setzer, for the consideration of five hundred dollars, dated March 8th, 1867, which embraced in its boundaries the land covered by the deed to the plaintiffs, and some other land in addition; and Daniel testified that he paid at the rate of seven dollars and fifty cents per acre for the land in dispute, and five hundred dollars for the whole, which was a fair price; that he had been in possession since 1867, had cleared and cultivated since then a portion of the land, and had never heard of the deed to the plaintiffs, nor had he heard that plaintiffs claimed the land until about the time this action was brought.

The plaintiffs' counsel asked the court to instruct the jury, “that if the possession of Miles and his wife was taken or held under said deed to the plaintiffs, the possession constituted notice in law of the claim of plaintiffs, and not simply evidence of notice.”

The court declined giving this instruction and charged the jury, “that unless the said Miles and his wife had possession, claiming the land in 1867, when the defendants bought, the possession at a time anterior to his purchase, would not constitute constructive notice of the claim of the plaintiffs, and...