Chatham v. Lonsford

• Decision Date: 09 December 1908
• Citation: 149 N.C. 363,63 S.E. 81
• Parties: CHATHAM et al. v. LONSFORD et al.
• Court: North Carolina Supreme Court

63 S.E. 81

(149 N.C. 363)

CHATHAM et al.

v.LONSFORD et al.

Supreme Court of North Carolina.

Dec. 9, 1908.

1. Estoppel (§ 38^*) — By Deed — Afteb-Ac-quibed Title—Advebse Possession.

One by giving a warranty deed is not estopped to thereafter acquire title by adverse possession against his grantee; so that such title does not inure to the benefit of such grantee.

[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 99; Dec. Dig. § 38.*]

2. Adverse Possession (§ 71*)—"Color of Title."

A deed which one, who has given a warranty deed of the property, thereafter takes from a third person, is color of title, and, when accompanied by adverse possession for the legal period, ripens into actual title against any one, including his prior grantee.

[Ed. Note.—For other cases, see Adverse Possession, Dec. Dig. § 71.*

For other definitions, see Words and Phrases, vol. 2, pp. 1264-1273; vol. 8, p. 7606.]

3. Adverse Possession (§ 85*)—Adverse Entry—Presumption.

One who, having given a warranty deed, thereafter takes a deed of the property from another and then enters on the land, will be presumed to have entered under and by virtue of the deed to him.

[Ed. Note.—For other cases, see Adverse Possession, Dec. Dig. § 85.*]

4. Adverse Possession (§ 42*)—Adverse Entry—Ouster.

Entry by one on land, claiming under a deed he had received from a third person, constitutes an ouster of the person to whom he had given a warranty deed thereof, and his adverse possession runs from then.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. § 207; Dec. Dig. §. 42.*]

Appeal from Superior Court, Wilkes County; Ferguson, Judge.

Action by Nancy J. Chatham and others against L. W. Lonsford and' others. From an adverse judgment, plaintiffs appeal. Affirmed.

This is an action in ejectment for the recovery of a tract of land tried at special term. At the close of the testimony, upon an intimation from the judge as to how he would charge the jury upon a matter vital to the plaintiffs' cause of action, they submitted to a nonsuit and appealed.

O. C. Dancy, R. Z. Linney, and J. B. Connelly, for appellants.

W. W. Barber and Finley & Hendren, for appellees.

BROWN, J. The plaintiffs claim under a deed from Noah Brown to Clarey Bicknell, dated February 5, 1869, and by descent from her. The defendants claim under a deed executed by Larkin J. Bicknell to Noah Brown, dated July 16, 1870. There is evidence tending to prove that Noah Brown went into possession of the land in controversy in 1870, under his deed from Larkin J. Bicknell, and remained in possession up to the time of his death, about 1886; that his widow then continued in possession, under the will of Noah Brown, devising to her a life estate, or an estate during her widowhood, up to the time of her death, some few years ago; that Lindsay Jarvis, administrator c. t. a. of Noah Brown, went into possession upon the death of the widow and remained in possession until he sold it as administrator to the defendant, who has been in actual possession ever since, claiming it as his property. At the close of the testimony, his honor stated that he would charge the jury that "if they should find from the evidence that in 1870 Noah Brown took a deed of conveyance from Larkin J. Bicknell, and on receipt of the deed went into possession of the lands under the deed, and remained in possession until the time of his death, and further find that Noah Brown by his will devised the lands to his widow during her widowhood, and she remained in possession under the will until her death, and after her death Lindsay Jarvis, as administrator with the will annexed, took charge and possession of the land, and sold it to the defendant, and the defendant has been in possession to the commencement of this action, he would instruct the jury to answer the first issue 'No.' " Upon this intimation from the courtthe plaintiff submitted to a nonsuit, and appealed.

It is contended that Noah Brown, having executed a deed with covenants of warranty to plaintiff's ancestress Clarey Bicknell, is estopped from setting up his after-acquired title, and that those claiming under him are likewise estopped. This contention, we think, is based upon a misconception of the character of the title the defendants claim under. Notwithstanding his prior deed with warranty, Noah Brown could acquire title to this land by purchase from Clarey Bicknell or from those claiming under her, or he could after such conveyance acquire title against her and those...