Caldwell v. Neely

• Decision Date: 30 June 1879
• Court: North Carolina Supreme Court
• Parties: J. L. CALDWELL v. J. S. NEELY.

81 N.C. 114

J. L. CALDWELL

v.J. S. NEELY.

Supreme Court of North Carolina.

June Term, 1879.

CIVIL ACTION to recover Land tried at Fall Term, 1878, of MECKLENBURG Superior Court, before Schenck, J.

The facts appear in the opinion. The question before the jury was, whether thirty years adverse possession was proved so as to take the title out of the state, and the court charged if the jury were satisfied of this, they should find for the plaintiff; and declined to charge that both parties claimed under James Neely, and that therefore the defendant could not deny the plaintiff's right to recover the one-half as tenant by the courtesy of his wife's interest. There was a verdict for defendant, judgment, appeal by plaintiff.

Messrs. Jones & Johnston and A. Burwell, for plaintiff .

Messrs. Wilson & Son and Shipp & Bailey, for defendant .

SMITH, C. J.

The plaintiff claims an estate for his own life in an undivided moiety of the lands described in his complaint, held by himself and the defendant as tenants in common. He derives title under one John Neely, who died intestate leaving an only child, James Neely, to whom, as his heir-at-law, the same descended. James Neely also died intestate, in the year 1834, leaving two daughters, one of whom married the plaintiff, had issue, and died. The other daughter married one R. B. Caldwell, and they by deed, in the year 1856, undertook to convey the whole tract and a full estate therein to the defendant. The defendant has been in possession since that date, and claims to be absolute owner.

To show title in John Neely, the plaintiff relied on his possession of thirty years, and to determine the boundaries up to which the possession extended, offered in evidence certain declarations of his deceased wife, made soon after their marriage, in which she pointed out a certain hickory and stone corner as the boundaries of her father's land. The declarations were not received, because they proceeded from a party then interested in and claiming the lands; and this ruling is fully warranted by the cases of Sasser v. Herring, 3 Dev. 340, and Hedrick v. Gobble, 63 N. C. 48. In the latter, it was proposed to prove by the son that his deceased father under whom he claimed, “while in possession showed him certain marked lines as the boundary lines of the tract,” and the court say: “An exception to the general rule is that in regard to boundary, hearsay evidence of a deceased person is admissible, but the person whose declaration is offered in evidence must have been disinterested at the time he made the declaration.”

2. Another ex ception taken by the plaintiff is to the refusal of the court to charge the jury that, both parties to the action claiming under James Neely, the defendant, is not allowed to deny the descent from him to the daughters, from one of whom the plaintiff, and from the other, the defendant deduces title to a moiety of the land. While it is not expressly so stated, we must infer that such instruction was asked from the fact that “the court declined” so to charge, and hence the exception is presented in the appeal. We think if the land was identified, the estoppel did ascend beyond the conveyance to the defendant, to the source from which the feme bargainor derived her estate, the ancestor of the sisters and the common origin of both estates. It was not necessary to pursue the inquiry as to title beyond James Neely, and we see no reason why it should be arrested at an intermediate point. When the adversary parties to an action for the recovery of real estate derive their claims from one and the same person, neither is at liberty to dispute his title or to assert a superior and better title in another, unless he has acquired that title, or in some way...