Charles S. Riley & Co. v. Carter & Pratt

• Decision Date: 15 April 1914
• Citation: 81 S.E. 414,165 N.C. 334
• Parties: CHARLES S. RILEY & CO. v. CARTER & PRATT ET AL.
• Court: North Carolina Supreme Court

81 S.E. 414

165 N.C. 334

CHARLES S. RILEY & CO. v. CARTER & PRATT ET AL.

Supreme Court of North Carolina

April 15, 1914

Appeal from Superior Court, Pender County; Rountree, Judge.

Action by Charles S. Riley & Co. against Carter & Pratt and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The action was brought for the purpose of recovering certain standing timber conveyed by S.W. Raynor to Peregoy-Jenkins Company, which executed a deed of trust thereto under which plaintiffs claim. The fifth exception was to the admission of the record of the proceedings in a suit by the administrator of S.W. Raynor to sell the land on which the timber stood for the payment of debts.

Where the evidence is undisputed it is proper to take the question from the jury.

E. K Bryan and R. G. Grady, both of Wilmington, for appellants.

Bland & Bland, of Burgaw, Herbert McClammy, and John D. Bellamy & Son, all of Wilmington, for appellees.

CLARK C.J.

As to assignments of error 1 and 9, the Peregoy Company was a lumber plant operating much machinery, and under article 23 of the deed of trust the plant was required to be maintained and kept in operation. On foreclosure under article 4, a sale being made, all the estate of the company was to vest in the purchaser "whether said trustee be in possession thereof or not, and whether the same be now owned or shall be hereafter acquired." Article 9 vests in the trustee all the legal and equitable rights to all property then owned by the company, "and all property and rights of any kind whatever acquired or owned during a period of three years" from its date. The deed, therefore, should be construed to convey all the property that was owned then or acquired within three years.

As to the second assignment of error, while certified copies of records are admitted in evidence, the originals are not thereby made incompetent. Iron Co. v. Abernathy, 94 N.C. 545; State v. Voight, 90 N.C. 741; State v Hunter, 94 N.C. 829. These papers were not offered in evidence for the purpose of establishing a link in plaintiffs' title, but to show Bryan's authority, as commissioner, to make the deed and the knowledge which he possessed of this conveyance to Stewart when later seeking to acquire for himself this same property.

Assignment 2. The deed from Ricaud, receiver, to Grady, though void and conveying no title, was competent to show the source of defendants' claim of title and to create an estoppel by connecting both parties with a common source. Bond v Beverly, 152 N.C. 56, 67 S.E. 55. A void deed is color of title for the purpose of creating an estoppel. 1 Cyc. 1085; McNeill v. Fuller, 121 N.C. 212, 28 S.E. 299; Williams v. Council, 49 N.C. 207; Wilson v. Land Co., 77 N.C. 445; 16 Cyc. 688, § 18; Bigelow, Estoppel, 356.

Exception 5. The admission of the record and proceedings may not have been necsary, but was harmless. The plaintiffs' claim was to the timber, and not to the land.

Exception 6. This is to the refusal of a nonsuit, and cannot be sustained. The plaintiff had introduced evidence to show title from a common source by estoppel. Revisal § 808, provides that when there is "a bona fide contention on both sides based upon evidence constituting a prima facie title, no order shall be made pending such action, permitting either party to cut said timber trees, except by consent, until the title to said land or timber trees shall be finally determined in such action," with a proviso that "the time within which such timber or trees may be cut or removed by the party claiming the same, and all other rights required in connection therewith, shall not be affected or abridged, but the running of the term shall be suspended during the pendency of such action."

In Moore v. Fowle, 139 N.C. 52, 51 S.E. 796, it was held that where the court finds that the plaintiffs' claim is bona fide, the injunction...