Conkey v. John L. Roper Lumber Co.

Decision Date15 May 1900
PartiesCONKEY v. JOHN L. ROPER LUMBER CO.
CourtNorth Carolina Supreme Court

Appeal from superior court, Gates county; Starbuck, Judge.

Action by Helen Conkey, as executrix, against the John L. Roper Lumber Company. From a judgment in favor of plaintiff defendant appeals. Affirmed.

Possession of premises by one of two tenants in common thereof, not having been adverse for 20 years, is deemed the possession of both tenants.

L. L Smith and Shepherd & Shepherd, for appellant.

W. M Bond and Battle & Mordecai, for appellee.

MONTGOMERY J.

This action was before this court at February term, 1899, on appeal of the plaintiff, and is reported in 124 N.C. 42, 32 S.E. 389; the plaintiff at that time being Jane E. Roscoe. Since that time she has died, and in the court below Helen Conkey was made the present plaintiff, as sole devisee of all of the lands of Jane E. Roscoe. By leave of the court, when the case was called for trial the plaintiff was allowed to strike out of sections 3 and 4 of the complaint all the lands described therein, except the Hill tract and the Mills Riddick tract. It was agreed by both sides that the damages which the plaintiff might be entitled to recover should be assessed after the issue of title had been settled. There was no change in the pleadings on the part of the newly-made plaintiff, and she adopted those which had been filed by the original plaintiff. The claim of the plaintiff is that she is the owner, as tenant in common with the defendants, of a one undivided half interest in the Hill tract and the Mills Riddick tract. In support of her claim she introduced in evidence a properly certified copy, from the book of wills of Gates county superior court, of the wills of H. E. Roscoe, in which was devised to his widow, Jane E. Roscoe (the former plaintiff) all of his property, personal, real, and mixed also, from the same book of wills, a certified copy of the will of Jane E. Roscoe, in which was devised all of her real estate in fee simple to her sister Helen Conkey, the plaintiff. The plaintiff then introduced sections 3 and 5 of the complaint, in which the plaintiff alleged that on the 1st day of January, 1853, J. R. Riddick conveyed by deed in fee simple to H. E. Roscoe and S.W. Worrell, as tenants in common, the said Hill tract and Mills Riddick tract of land, and that under deeds from Worrell and others the defendants have become, and are now, the owners of an undivided one-half interest in the lands described in the complaint; and she also introduced sections 5 and 8 of defendants' answer, in which they admitted the executions of the deeds specified; but they averred that in those deeds the whole estate and interest in and to the lands were conveyed to them, and not one-half only, and that the defendants are the owners of all the lands, and have entered upon the lands conveyed to them in the aforementioned deed, and have cut, and are cutting, timber from them. The plaintiff further introduced the deed from Riddick to H. E. Roscoe and S.W. Worrell as tenants in common; then the deed from S.W. Worrell purporting to convey the entire estate in the lands to Brady, Bond, Roberts, and Willey, in fee simple; and then subsequent conveyances to the defendant company. The plaintiff then introduced testimony going to show that the lands embraced in the deeds included within its boundaries the Hill tract and the Mills Riddick tract. The defendants in the answer had made an averment that many years before the commencement of this action H. E. Roscoe had conveyed the land described in the complaint to S.W. Worrell, and that the deed, after its execution and delivery, had been lost, and never...

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