Caldwell v. Black

• Court: North Carolina Supreme Court
• Writing for the Court: RUFFIN
• Citation: Caldwell v. Black, 5 Ired. 463, 27 N.C. 463 (N.C. 1845)
• Decision Date: 30 June 1845
• Parties: DEN ON DEMISE OF DAVID T. CALDWELL AND WIFE v. JAMES M. BLACK.

5 Ired. 463

27 N.C. 463

DEN ON DEMISE OF DAVID T. CALDWELL AND WIFE

v.JAMES M. BLACK.

Supreme Court of North Carolina.

June Term, 1845.

The court below should not present to this court for its determination points, which did not arise from facts proved on the trial, but from alleged facts made the foundation of a motion for a new trial.

Where one, who was seized in fee of lands, which she took by descent from her father, died before the passage of the act of 1808, (Rev. St. ch. 38, s. 1) intestate, leaving no issue, nor brothers nor sisters, but a mother and paternal uncles-- Held, that the mother took no estate in this land, but that it descended immediately to the uncles.

Held, further, that, upon the subsequent birth of half sisters of the propositus, the estate of the uncles was divested, and became vested in such half sisters, as the heirs of the propositus.

Held, further, that, although a half brother was born subsequently to the passage of the act of 1808, yet, as his sisters were born before that period, and the estate of the uncles had thereby become divested, the last born son was equally entitled with his sisters to a share of the inheritance. If the estate of the uncles had not been divested by the birth of the sisters before the act of 1808, it would not have been divested by the birth of the son subsequent to the passage of that act, which altered the course of descent as regards the half blood.

Although the statute of limitations in such a case, might have run so as to bar the first heir who took, yet this shall not affect the preferable heir, who comes in subsequently, for the latter does come in under the first heir, but above him, and defeats his estate, and therefore is not bound by his acts.

A person suing in ejectment, who was under a disability, which prevented the statute from running against him, is entitled to recover his share, although there are tenants in common with him, whose right of action is barred by the statute.

An action of ejectment by husband and wife is not barred by the statute of limitations, although the defendant may have been seven years in possession under color of title, the possession having commenced during the disability of the wife.

The cases of Cutlar v. Cutlar, 2 Hawks, 324. Trustees of the University v. Holstead, 2 Law Rep. 406. Ballard v. Hill, 3 Murph. 410. Bell v. Dozier, 1 Dev. 333. McRee v. Alexander, 1 Dev. 321. Gentry v. Wagstaff, 3 Dev. 270. Allen v. Gentry, 2 Law Rep. 609, and Davis v. Cooke, 3 Hawks, 608, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg county, at the Special Term in May, 1845, his Honor Judge PEARSON presiding.

Ejectment for 749 acres of land in Mecklenburg; and upon the evidence the case was this; Thomas Davidson was seized of the premises, and devised them to his only child and heir, Mary L. Davidson, in fee simple, and died in 1801. The said devisee entered and died in 1802, intestate and without leaving issue, or brother or sister, or the issue of such, and leaving her mother surviving her. Just before her death, her mother intermarried with William Davidson, and by that marriage she had issue four children: Margaret, born in 1803 (and eleven months after the death of Mary L. Davidson) and married to one Blake in 1822: Sarah, born in 1804, married one Johnson in 1824, and divorced a vinculo matrimonii in 1830: Harriet, one of the lessors of the plaintiff, married in 1825 David T. Caldwell, the other lessor of the plaintiff, by whom she has issue living: and William F. Davidson, born in 1810.

Upon the death of Mary L. Davidson, William Davidson entered into the premises, claiming them in right of his wife, as having decended to her from her deceased daughter. Mrs. Davidson, the mother, died in 1812. But William Davidson continued in possession of the premises up to the year 1823; when he sold and conveyed them by deed of bargain and sale in fee to John Black, who immediately entered thereupon and continued in possession until his death, and then the defendant entered, claiming as the son and heir of said Black, and has been in possession ever since. In May 1833 Blake and his wife, Sarah Davidson, and William F. Davidson, by a deed of bargain and sale (purporting to be made by those persons, and by David T. Caldwell and his wife Harriet of the first part, but which was never executed by Caldwell and his wife,) conveyed the premises in fee to the said Black, then in possession. William Davidson is still living. This action was brought on the 29th of August, 1844.

Thereupon, the counsel for the defendant insisted, that the land descended from Mary L. Davidson to her mother in fee, whereby her husband, William Davidson, became entitled as tenant by the curtesy, and that the plaintiff cannot recover during the life of the said William. But the Court instructed the jury, that although the premises might have descended from Mary L. Davidson, immediately on her death, to her mother, yet upon the subsequent births of the lessor of the plaintiff, Harriet, and her sisters and brother, they took as the preferable heirs, to the exclusion of their mother; and, therefore, that William Davidson never was tenant by the curtesy of the premises.

The defendant's counsel further insisted, that, although the lessor of the plaintiff, Harriet, would have three years after the coverture ended to enter or bring her action for the premises, yet the present action, upon the demise of David T. Caldwell and his wife, could not be sustained, because the husband was under no disability and he had suffered the defendant to continue in possession for more than seven years since his intermarriage. But the Court refused so to instruct the jury; and instructed them, that the plaintiff was entitled to recover, notwithstanding such lapse of seven years.

The counsel for the defendant insisted thirdly, that the right of entry of the lessors of the plaintiff was barred, because two of the co-heirs were barred by the adverse possession of the defendant and his father, for more than seven years after their disability ceased; namely, Sarah who was divorced in 1830, and William F. who came to full age in 1831. But the Court refused to give that instruction to the jury; and instructed them, that, admitting the legal position taken for the defendant to be correct, yet by taking the deed in 1833 from Blake and wife, Sarah, and William F. Davidson, the defendant made himself tenant in common with the lessor of the plaintiff, Harriet, and his possession ceased to be adverse to her.

Under the foregoing instructions the jury found for the plaintiff. To the exceptions taken to the opinions of the Court upon the foregoing points, is added this further statement: That the defendant moved for a new trial, and thereupon made it appear, that Mary L. Davidson left, surviving her, two paternal uncles and the issue of a third, who was then dead; and thereupon it was insisted, that Mary L. Davidson came to the land by descent from her father, and that upon her death it descended to her said uncles and cousins in fee, subject to a life estate therein of her mother; and, therefore, that the possession of William Davidson and of his alienees was adverse to those persons, and that the statute of limitations began to run against them, and, so, continued to run against the sisters and brother of Mary L. Davidson, even if they, as they came in esse, succeeded to the inheritance in the place of the uncles and cousins. But the Court was of opinion, that it was not material in this case, whether the estate descended to Mary L. Davidson or not, for if it did, as she had no paternal brother or sister of the whole or half blood, her maternal brethren would take in preference to the more remote collateral relations on the part of the father; and, that, although the uncles and cousins, if they had continued to be the heirs, might have been barred by the adverse possession against them, yet the possession could not operate against the preferable heirs, who were afterwards born; and, as the brother, William F. Davidson, was not born until 1810, he succeeded to no part of the premises, but the whole belonged to the three sisters. The Court therefore refused to disturb the verdict; but, being willing that every question that could be raised, should be presented for the decision of the Supreme Court, his Honor consented to annex this matter to the exception. From the judgment the defendant appealed.

Alexander & J. H. Bryan, for the plaintiff .

Boyden & Osborne, for the defendant .

RUFFIN, C. J.

The Court must protest against all attempts to raise points for decision here, which did not occur on the trial of the cause. The rights of the parties are to be determined on the facts proved, and not on any supposed or suggestted on a motion for a new trial. Such is the state of this case; for after the verdict, no further evidence, properly speaking, could be heard, and therefore the Court could not judicially know, that Mary L. Davidson left uncles and cousins. That fact, might, it is true have been brought forward as a reason for a new trial; but that would be on the ground of surprise or oversight of counsel, and would be exclusively for the determination of the presiding Judge. If, then, there was any force in the last point made, this Court could not act on it, but would, notwithstanding, be obliged to affirm the judgment. As we think, indeed, there is nothing in it, we have no objection in this case to express our opinion on it, as it may prevent further litigation.

We think all the points taken for the defendant extremely plain.

First, with respect to the title of the feme lessor of the plaintiff. It is immaterial, whether the propositus took by purchase or descent; for that could only affect the right of succession of the mother and the parental relations, as between themselves; and in either case, that is to say, whether upon the death of M. L....