Cox v. Ward

• Decision Date: 08 December 1890
• Citation: 12 S.E. 379,107 N.C. 507
• Parties: COX v. WARD.
• Court: North Carolina Supreme Court

12 S.E. 379

107 N.C. 507

COX v. WARD.

Supreme Court of North Carolina

December 8, 1890

Appeal from superior court, Alleghany county; McCORKLE, Judge.

This was a petition for partition of the land in controversy, the plaintiff claiming, as tenant in common with defendant, one undivided half. The defendant asked the court to give the following instructions: "(1) If the defendant entered the land under his contract with Alexander Osborne, and with the consent and by directions of said Osborne, under the quitclaim deed from P. C. Phipps to him, and has held the same adversely under said color of title for seven years, his title would be complete as against said Alexander Osborne and those claiming under him. (2) That if the jury find that all the tenants in common set apart this land to the defendant as his interest in the Moses Dixon land, and put him in possession, and he, the defendant, has held the same for seven years adversely under said color of title, they should find for the defendant. (3) That if the mother of Alexander Osborne died before the testator, Moses Dixon, then the legacy to her lapsed, and Alexander Osborne took no title to the land as heir at law of his mother. (4) That under the will of Moses Dixon the land devised to be sold became personalty, and that the devisees took no estate in the land that would descend to their heirs, and that plaintiff acquired no title by his purchase from the legatees. (5) That if Alexander Osborne sold, or contracted to sell, his interest in the said land to the defendant in 1869, and gave him a receipt in full for the purchase money, specifying it to be for the purchase money for that land, this would be sufficient to prevent the plaintiff's recovering. (6) That if Alexander Osborne contracted by parol to convey to defendant before he executed a deed to plaintiff, and the defendant paid the purchase price therefor, and went into possession, the plaintiff cannot recover till he refunds the said purchase money with its interest. (7) If defendant was in possession, and plaintiff took his deed, this was sufficient notice of defendant's equity." The court declined to give these instructions as asked for, and instructed the jury as follows: "The plaintiff claims title to one-half of the land, and admits that the defendant owns the other half. Defendant contends that he owns it all,--sole seised. The plaintiff and defendant claim under the will of Moses Dixon. The land in controversy was willed to the four daughters of Moses Dixon,--Lydia, the mother of Alexander Osborne; Nancy, the wife of Mr. Phipps; Drucy, the wife of Felix Center, (or her children;) and Jane, the wife of Preston Phipps. The plaintiff claims Drucy Center's interest; her children's--P. C. Phipps and Jane Phipps--interest, and Alexander Osborne's interest, and shows title for these interest down to himself. Nothing else appearing, he would be entitled to three-fourths of the land but only claims one-half, and can only recover that much of the land in controversy, if that much. The defendant says he claims Alexander Osborne's interest, and that he bought all the land from Osborne by parol eighteen or twenty years ago; that afterwards, about six or seven years ago,--may be ten years,--P. C. Phipps made him a deed, mentioned before as a 'quitclaim deed,' who claimed the Center children's interest. The court charges you that if under the will of Moses Dixon it was agreed by all the heirs and the executor of Moses Dixon that this property should be treated as land, and they sold the land, and the executor assented to it, and they have never attempted to execute the will or trust, and will not do so, then this legacy or devise is land, and the heirs or devisees conveying it away the purchaser would get a good title, and the executors are stopped to deny it; that, although Alexander Osborne did sell by parol contract would be good, unless when called upon for the title he pleads the statute of frauds, or if he conveys it to a third person, and the purchaser attempts to set up the parol contract, then the second purchaser would have a right to set up the statute, and parol contract would be void. An ouster of one tenant in common will not be presumed from an exclusive use of the common property, and the appropriation of its profits for a less period than twenty years, and the result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract or interest therein in the land in controversy. It is admitted by the plaintiff that P. C. Phipps had some interest in the land in controversy. At common law when by a legacy as under the statute of wills, an interest was given to a parent, and the parent died before the testator, then the legacy, or devise, would lapse; but under the act of 1816, if the parent dies before the testator, then, instead of lapsing, the legacy so devised goes to the child or children of the decedent. So the devise to the mother of Alexander Osborne, he being a grandchild, did not lapse, but went to her son, Alexander. If you find that the defendant bought the land and took a receipt for the purchase money, and the receipt describes the land sold, then the defendant would have an equitable title for his interest, though said receipt would not be a deed or color of title, and holding under it would not be holding under color of title adversely, so as to ripen his title to the whole of the land in controversy. Nor would the deed from P. C. Phipps, made six or seven or ten years since, ripen his title to the whole of the land, the said Phipps, made six or seven or ten years since, ripen his title to the whole of the land, the said Phipps being a tenant in common. In order to hold adversely, it is necessary to have a deed and be in possession--actual possession, open and successive for seven successive years, not occasionally but continuously--such notorious possession as the owner of the land may know against whom to bring the suit. The defendant says he has a receipt for the land which he bought, but the receipt has never been registered, and the plaintiff says he bought the land and had no notice of it when he bought in 1888; that the defendant did not live on the land; had a still-house on it, under the ground, and had a patch cleared and stayed there a short time; that no person was in actual possession at this time; he bought from Alexander Osborne; that he paid Osborne a valuable consideration for the land, and has Osborne's title. This being so, the title of Osborne would be in plaintiff, and for the same reason the title of P. C. Phipps. It would be different if the defendant had bought of some one not in privity with the plaintiff; then, if he had color of title for seven years, it would bar the plaintiff, not being under any disability. The receipt or the deed from P. C. Phipps was registered for the defendant till after a sale to the plaintiff of Osborne's and P. C. Phipps' interest, and if the defendant was not in actual possession of the land at the time these deeds were executed to the plaintiff, and the plaintiff paid a valuable consideration for the land, then the plaintiff would get the title of Osborne and Phipps, under our registration laws. There is no evidence that the receipt was ever registered." Defendant excepts to the charge, and to the refusal to charge as requested. Verdict for plaintiff for one-half the land, and judgment accordingly. Defendant appeals.

A devise to a child dying before testator does not lapse, but goes to the issue of such deceased child.

A. E. Holton and Q. F. Neal, for appellant.

R. A. Doughton, for appellee.

AVERY J., (after stating the facts as above.)

The plaintiff claimed title to one undivided half of the land in controversy, while the defendant denied that plaintiff owned any interest, and set up sole seisin in himself. Both parties claim title through Moses Dixon, who died in 1857, having devised the land to Wesley Dixon and Preston Phipps "to be...