Callender v. Sherman

• Decision Date: 30 June 1845
• Citation: 5 Ired. 711,27 N.C. 711
• Parties: DOE EX DEM. H. B. CALLENDER et al. v. BRADFORD SHERMAN et al.
• Court: North Carolina Supreme Court

5 Ired. 711

27 N.C. 711

DOE EX DEM. H. B. CALLENDER et al.

v.BRADFORD SHERMAN et al.

Supreme Court of North Carolina.

June Term, 1845.

Neither the tenant of land, nor any person claiming title by or through him, can dispute the right of the landlord to recover the premises in ejectment, after the expiration of the lease, upon the ground of a defect of title in the landlord.

A paper, purporting to be a will of lands, which has but one subscribing witness, and which has never been proved as a will, is not such a color of title as will ripen a seven years' possession under it into a good title.

No length of possession of lands will in law amount to a presumption of title, when the origin of the possession is shewn; but such possession, with its attendant circumstances, must be left to the jury as a matter of fact, from which they may or may not infer that a legal conveyance of title had been made to the person claiming under the possession.

At any rate, the original consistency of relation, between the possession and the opposite title, must have been clearly dissolved and turned into an adverse possession for many years before suit, in order to make it available as a ground of presumption of title.

Appeal from the Superior Court of Law of New Hanover County, at the Spring Term, 1845, his Honor Judge PEARSON presiding.

This was an action of ejectment for a lot in the town of Wilmington. The defendants admitted themselves in possession, and claimed to hold for St. John's Lodge, No. 1.

It was proved that the lot belonged to one Joseph Dean, who, previous to the year 1803, had rented it to a Mrs. Cook. Mrs. Cook went out of possession in the year 1802, and Dean rented the premises, consisting of a tavern and boarding house and outbuildings and lot, for the years 1803 and 1804, to a Mrs. Smith, at a yearly rent of $250. Dean died sometime in the year 1804, while on a trip to the West Indies. He was a native of the State of Massachusetts, but had his domicil in the town of Wilmington, in this State, at the time of his death, and had resided there for many years. It was proved that the lessors of the plaintiffs were the heirs at law of Dean.

The defendants claimed to derive title for the Lodge under the said Dean; and for this purpose read in evidence certain paper writings, purporting to be the last will and testament of the said Dean, and to devise the premises to the Lodge. These papers were proved to be all in the handwriting of Dean, but there was only one attesting witness, and it was not shewn that they had been placed in the hands of any person for safe keeping, or that they were found among the valuable papers or effects of the deceased. The defendants proved, that, soon after the death of Dean, the Lodge set up claim to the premises, under the papers purporting to be the last will and testament of Dean, and, after the lease to Mrs. Smith for the year 1804, had expired, to wit, in the year 1805, the Lodge, with the consent of the gentleman appointed executor of Dean, caused the premises to be put up at auction to rent for the term of one year, when Mrs. Smith, who had not moved out of the house, but who did not object to the premises being thus exposed for rent at auction by the Lodge, became the last and highest bidder, and accordingly gave her note for the rent of the year 1805, to the Lodge. The premises were thus exposed to rent for one year, for each and every year afterwards, until the houses were burnt down in the year 1830, and Mrs. Smith thus rented the premises each and every year during that time, and paid the rent to the Lodge. After the fire the lot was not occupied for some two or three months, but another building was then erected, and the defendant Sherman went into possession, as the tenant of the Lodge, and has so occupied it ever since. The defendants also proved that the Lodge had paid the taxes upon the lot from the year 1805, up to this time, and for a good portion of the time had paid for the insurance of the premises. It was proved that the lessors of the plaintiffs were inhabitants of the State of Massachusetts, and it did not appear that either of them had ever been in this State. It was also proved that the Lodge always claimed the lot under the supposed will of Dean, and never alleged or asserted title in any other way.

The defendants' counsel insisted that the papers, offered as a will, constituted a devise of the said lots to the Lodge, and that the age of the papers and the possession consequent thereon superseded the necessity of any further proof of the execution of the papers as a devise. Secondly, That the papers were color of title, which was ripened into a good title by the possession of the defendant, Sherman, as tenant, from 1830 to to 1839. Thirdly, That, as the Lodge had been in possession for thirty years, from 1805 to 1839, claiming the lots as its property, a presumption of property was raised, or the jury should be instructed by the judge to presume a title in the Lodge.

The plaintiffs counsel insisted, first, that the papers, offered as a will, were not color of title: secondly, that the possession of Mrs. Smith was not the possession of the Lodge, as she held over after the death of Dean, but possession for the heirs at law of Dean, the lessors of the plaintiffs; that at least it was not such a possession, as would raise a presumption of title in the Lodge from the lapse of time, as she had never surrendered possession to the heirs, nor had she gone out of possession and left the premises vacant, nor had the heirs at law been notified, or otherwise informed, of her consent to become the tenant of the Lodge; thirdly, that if the possession of Mrs. Smith was otherwise, yet, upon the facts proved, the presumption of title in the Lodge, against the heirs at law, was not an imperative one; but the facts, as proved, might be sufficient to justify the jury in refusing to make the presumption.

The court charged that the paper...