Campbell v. Everhart

• Decision Date: 15 November 1905
• Citation: 52 S.E. 201,139 N.C. 503
• Parties: CAMPBELL et al. v. EVERHART et al.
• Court: North Carolina Supreme Court

52 S.E. 201

139 N.C. 503

CAMPBELL et al. v. EVERHART et al.

Supreme Court of North Carolina

November 15, 1905

Appeal from Superior Court, Davidson County; Bryan, Judge.

Action by R. G. Campbell and others against Chas. Everhart and another. From a judgment for plaintiffs, defendants appeal. Reversed.

The testimony of a witness interested in the event of an action of ejectment as to transactions with a decedent from whom defendant derived title is incompetent against him, without reference to the extent of the interest.

This is an action for the recovery of real property, a parcel of land in Lexington township. Plaintiffs, in support of their claim to title, put in evidence a deed dated November 22, 1870 from Susan Humphreys "to the lawful heirs of B. F Hilliard and their heirs." Hilliard was the son of Susan Humphreys, and the plaintiffs are the grandchildren of said Hilliard, and claim under the deed for the reason that their mothers (who are now dead) were the children of Hilliard, and therefore answer to the description in the deed of the persons who were intended to take thereunder. There was no proof of title in Susan Humphreys, but there was testimony which plaintiff insists tended to show that Hilliard either entered upon the land originally, or continued in possession after the date of the deed to his heirs (November 22, 1870) by her permission, and is therefore estopped to deny her title. It is unnecessary to set out this testimony in order to an understanding of the point upon which the case is decided. There was testimony to the effect that Hilliard had occupied the land for 12 years prior to the date of the deed of Mrs. Humphreys in 1870, and that he continued in possession until his death in 1898 with brief interruptions his children living there with him most of the time during their minority and after they became of age, and that he had conveyed a part of the land to his wife and other portions to Darr and Leonard.

The court charged the jury, among other things not necessary to be stated, as follows: "(1) The burden of the issue is upon the plaintiffs. They must recover upon the strength of their own title, and not the weakness of the defendants. They must show title in themselves, and that they were entitled to the possession at the commencement of the action. (2) The court instructs the jury that the deed introduced by the plaintiffs in this action is sufficient to vest in them the legal title to the land described in the complaint, and to authorize them to take possession of the same; nothing else appearing." Defendants excepted. And in response to prayers from the plaintiffs the jury were instructed as follows: "(1) There is no evidence of exclusive, continuous, and adverse possession under color of title on the part of the defendants for seven years, and, unless you find from the evidence that the defendants have had adverse and exclusive possession for the period of 20 years under known and visible metes and bounds, you will answer the first issue 'Yes." D' Defendants excepted. "(2) The court charges you that there is no evidence that the defendants have had adverse and exclusive possession under known and visible metes and bounds for the period of 20 years, and you should answer the first issue 'Yes." D' Defendants excepted. "(3) The court charges you that the deed of 1870 from Susan Humphreys to the lawful heirs of B. F. Hilliard was the same in law as if it had been made to the children of B. F. Hilliard, and conveyed a valid title from Susan Humphreys to the children of B. F. Hilliard then living, and if you find, from the evidence, that Margaret Leonora Wood was born in April thereafter, she would in law be included as one of the children then living, and would be within the description of the grantees in the deed." Given. Defendants excepted.

The court refused the following prayers of the defendants: "(1) The court charges you that the deed from Susan Humphreys to the lawful heirs of B. F. Hilliard is invalid and null and void for want of grantees, and the jury should answer the first issue 'No.' (2) That there is no evidence to go to the jury that Susan Humphreys, at the time of the execution of the deed, owned said land or was in possession thereof, or had any right to convey the same, and the jury should answer the first issue 'No.' (3) That if the jury shall find, from the evidence, that prior to the execution of the deed from Susan Humphreys to the lawful heirs of B. F. Hilliard said B. F. Hilliard was in the open, notorious, adverse, and exclusive possession of the land in controversy, and continued to so hold the same up to his death, and that after his death his widow, V. A. Hilliard, held the same under him by deed from B. F. Hilliard introduced in evidence, and her grantees so continued to hold adverse possession thereof up to the commencement of this action, then the plaintiffs would not be entitled to recover, and the jury should answer the first issue 'No.' (4) That in passing upon the question of adverse possession the jury should consider the fact, if they find such to be the fact, that B. F. Hilliard, from a time prior to the year 1870 and up to his death, was in receipt of the rents and profits of said land, paid taxes thereon, lived on the same for a large part of the time, conveyed a large portion of the tract by deed to his wife, and other portions thereof by deed to Darr and Leonard, witnesses for defendants, and that Jane Campbell and Lenora Wood, plaintiffs' ancestors, never made any claim to said land, if the jury find they made no claim thereto, and if upon the whole evidence the jury shall find that defendants and those under whom they claim have held continuous, adverse, and exclusive possession thereof for the years succeeding the year 1870, then the jury shall answer the first issue 'No.' (5) The fact that Jane Campbell and Lenora Wood, ancestors of the plaintiffs, lived with their father a part of the time on the land in controversy as members of the family, as children live with their parents, would not put them in possession of the land under their own right, nor interrupt their father's adverse possession. If the jury shall find his possession was adverse until they made some claim to own the same, and if the jury shall find from the evidence that the children so lived with their father as members of his household, and not under any claim or right of their own, and if the jury shall further find that defendants and those under whom they claim have been in the continuous, exclusive, adverse possession thereof from the year 1870 and prior thereto, then the plaintiffs are not entitled to recover, and the jury shall answer the first issue 'No.' (6) That Fred Hilliard, a son of B. F. Hilliard, born in lawful wedlock, though begotten after the execution of the deed from Susan Humphreys to the lawful heirs of B. F. Hilliard, would share in said land, and under the same there are four children to take the same, viz., Sallie Hilliard, Jane Campbell, Lenora Wood, and Fred Hilliard, or the heirs of such of them who are dead, and in no event can plaintiffs claim more than one-half of the land, and the jury should answer the issue accordingly."

There was a verdict and judgment for the plaintiffs, and defendants, having duly excepted to the rulings of the court, appealed.

McCrary & Ruark and E. E. Raper, for appellants.

Watson, Buxton & Watson, Walser & Walser, and King & Kimball, for appellees.

WALKER, J. (after stating the case).

The first question raised in this case calls for a construction of the deed from Mrs. Humphreys to her son, B. F. Hilliard and also involves its validity. We have no doubt as to either proposition thus presented. At common law a conveyance could not be made directly to the heirs of a living person, simply because a living person could have no heirs in praesenti. The rule of the law then was, "Nemo est haeres viventis." This maxim was originally and generally applied to both wills and deeds, and its proper translation was that "no one can be heir during the life of his ancestor." And though a party may be heir apparent or heir presumptive, yet he is not heir, living the ancestor, and therefore, when an estate was limited to one as a purchaser under the denomination of "heir," "heir of the body," "heir male," or the like, the party could not take as purchaser, unless by the death of the ancestor he has, at the time when the estate is to vest, become the very heir. But this rule was relaxed by the courts, and an exception engrafted on it, and, if there was sufficient on the face of a will to show that by the word "heir" the testator meant heir apparent, it should be so construed, and in such case the popular sense was allowed to prevail against the technical. In other words, it appears to have been established by the authorities that prima facie the word "heir" should be taken in its strict legal sense, but, if there was a plain demonstration in the will that the testator used it in a different sense, the court would assign that meaning to it; what was sufficient to show that the testator did not intend that it should have its technical construction depending largely upon the language employed in connection with it and the circumstances under which the word was used. Broom's Legal Maxims (8th Ed.) p. 521 (marg. p. 523). It was likewise held in the case of a will that the rule had no place, if the testator knew of the existence of the parent and intended his devise to take effect during his life. Broom, p. 524. One reason for the relaxation of the rule in the case of wills was that the testator might have been inops consilii, and the instrument therefore was construed so as to effectuate his intention. But the maxim was also extended to...