Christenbury v. King
| Decision Date | 31 October 1881 |
| Citation | 85 N.C. 229 |
| Court | North Carolina Supreme Court |
| Parties | S. B. CHRISTENBURY v. C. C. KING. |
CIVIL ACTION to recover land tried at Spring Term, 1881. of MECKLENBURG Superior Court, before Eure, J.
The plaintiff claimed under a deed from Levi Spencer, William Foster and wife Mary Ann, and Rufus Nicholson and wife Annabella, dated March 15, 1870, to one John Davidson, (as to the execution of which deed, the femes covert were privily examined according to law) and a deed from John Davidson to the plaintiff. In order to estop the defendant from questioning Spencer's title, the plaintiff introduced a deed from said Spencer dated......day of......... 18......, to one Schenck, and a deed from Schenck to defendant, conveying the premises in dispute, and it was admitted by defendant that he claimed the land under Spencer. The plaintiff also introduced a deed for the land, dated in 1854, from W. F. Strange to Minta Prim (or Spencer), and proved that Mary Ann Foster and Annabella Nicholson were the only children and heirs at law of said Minta, and that at the time of the execution of the deed by Strange to Minta, she was a free woman of color, and Levi Spencer was a slave, and that they were living together as man and wife and continued to live as such up to March, 1866, when Minta died. Mary Ann was a child of Minta by said Spencer. It was further in evidence that at the time of the purchase, Minta took possession of the land, and with said Levi Spencer lived upon it until her death. It was in evidence that this property was in possession of the North Carolina gold mining company in the year 1830 with deed, by known and visible boundaries, and different persons claiming under said company to 1849, when one Boyd was in possession, and that said Strange was in possession of it in 1849, and the possession has been in him and those claiming under him up to the present time. There was no evidence of any connection between Boyd and Strange.
The defendant offered evidence tending to show that the deed from Spencer and the others had never been delivered as a deed, but as an escrow, and that Davidson had obtained it by unfair means; but on the other hand, proof was offered to show that the deed had been delivered and was bona fide. The defendant also introduced testimony to show that the money paid by Minta to Strange for the land, had been furnished by Levi Spencer who was then a slave, and also that he had a life estate in the land as tenant by the curtesy.
The following issues were submitted to the jury:
1. Is the plaintiff the owner of and entitled to the possession of the property? Ans. Yes.
2. Does defendant withhold possession? Admitted.
3. What damage has plaintiff sustained? Ans. $100.
4. Was the deed from Spencer, Foster and wife, and Nicholson and wife, delivered to John Davidson? Ans. ____.
5. Did Spencer pay the purchase money and have the deed made to Minta his wife? Ans. ____.
6. Was there a marriage between Levi Spencer and Minta Prim? Ans. ____.
The defendant requested the court to charge the jury, “that for the plaintiff to make out his title through Strange by length of possession, the title being proved out of the state, it was necessary for him to prove twenty years' continuous adverse possession, under known and visible boundaries, in the plaintiff and those under whom he claims; and in order for plaintiff to make out his title under the deed from Minta, as color of title, it was necessary that he and those under whom he claims should have had possession of the land continuously for seven years next preceding the commencement of the action.” The court refused this instruction, and charged the jury that if they should find from the evidence that Spencer (and the others) made and delivered the deed to John Davidson, not as an escrow, but as a deed, then they must find the first issue in the affirmative, that is, in favor of plaintiff, and in that event they need not consider any of the other issues, except the third as to damages; but if they should find that the deed was not made and delivered to Davidson by all of said parties, but was delivered as an escrow by Spencer or either of the other parties, then they should find the other issues according to the preponderance of the evidence, and that as the defendant claims through Spencer and Strange, he was estopped to deny title in them. Defendant excepted.
The jury found the first and third issues in favor of plaintiff. Judgment, appeal by defendant.
Messrs. J. E. Brown and C. Dowd, for plaintiff .
Messrs. Jones & Johnston, for defendant .
The instructions asked by the defendant were properly refused. The first instruction asked could not have been given, as there were other grounds disclosed in the evidence upon which the plaintiff was entitled to a verdict; and it would...
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