Crews v. Crews, (No. 365.)

• Docket Nº: (No. 365.)
• Citation: 135 S.E. 784
• Case Date: December 08, 1926
• Court: United States State Supreme Court of North Carolina

135 S.E. 784
(192 N.C. 679)

CREWS et al.
v.
CREWS et al.

(No. 365.)

Supreme Court of North Carolina.

Dec. 8, 1926.

Appeal from Superior Court, Rockingham County; Webb, Judge.

Action by S. F. Crews and others against T. W. Crews and others. Judgment for plaintiffs, and defendants appeal. Judgment reversed, verdict set aside, and case remanded.

Plaintiffs pray judgment in this action that they be declared tenants in common with defendants of the land described in the complaint; and that they be let into possession by defendants, who are now in possession of the land; that certain of plaintiffs be permitted to redeem said land from a mortgage executed by those under whom they claim in part to the father of defendants, now dead, by paying the amount due on the bond secured by said mortgage; and that they recover of defendants, heirs at law of the mortgagee, rents and profits which they have received from said land.

Defendants deny that plaintiffs have any right, title, or interest in or to said land. They plead the statutes of limitations (C. S. § 430, and C. S. § 437 [4]) in bar of the action of plaintiffs either for redemption or for recovery of any interest in said land.

The issues, answered by the jury, were as follows:

"(1) Are the plaintiffs and defendants the owners in fee as tenants in common of the land described in the complaint? Answer: Yes.

"(2) Is the plaintiff's cause of action barred by the statute of limitations, as alleged in the answer? Answer: No.

"(3) Did the plaintiffs on or about April 25,

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1924, tender the money ($124.43) in cash to T. W. Crews, administrator of George E. Crews' estate in payment of the note and mortgage referred to in the complaint, as alleged therein? Answer: Yes.

"(4) What amount, if any, are the plaintiffs entitled to recover of the defendants, for rents and profits? Answer: $195."

From judgment upon the verdict, defendants appealed to the Supreme Court.

P. W. Glidewell, of Reidsville, J. L. Roberts, of Madison, and Humphreys & Gwyn, of Reidsville, for appellants.

J. M. Sharp and W. R. Dalton, both of Reidsville, for appellees.

CONNOR, J. In 1858 Nathaniel Aernon conveyed the land described in the complaint to three brothers, John Crews, Joseph Crews, and William Crews. They entered and remained in possession of said land as tenants in common until April, 1885. On April 23, 1885, John Crews and Joseph Crews by deed conveyed the land to their brother, George E. Crews. This deed contains the following clause:

"Provided, nevertheless, that said John S. Crews and Joseph Crews of first part, their heirs, executors and administrators shall well and truly pay or cause to be paid to the said George E. Crews, party of the second part, his heirs, executors, administrators and assigns, the sum of thirty dollars and twenty cents, according to the condition of a certain bond payable on the 25th day of December, 1885, bearing date herewith, then this deed to be null and void; otherwise to remain in full force and effect. But if default shall be made in the payment of said sum of money or the interest of any part thereof at the time hereinbefore specified for the payment thereof the said parties of the first part do agree that the said party of the second part shall quietly remain on said premises and possess all legal power over the same till said debt is fully settled, the second party to have usual notice of renters when he has to leave said premises."

George E. Crews went into the actual possession of said land on April 23, 1885, and remained continuously in such possession until his death in 1922. Defendants, as his heirs at law, continued, and are now, in possession of said land. The bond referred to in said deed from John Crews and Joseph Crews to George E. Crews, and payable to George E. Crews was not paid at its maturity on December 25, 1S85. No sum has since been paid on said bond. It is now in the possession of the defendant administrator of George E. Crews. Summons in this action was issued on May 31, 1924.

John Crews, Joseph Crews, and William Crews, grantees in the deed from Nathaniel Vernon, dated 1858, are dead. Certain of plaintiffs are heirs at law of John Crews and of Joseph Crews. William Crews died in 1891. He left no lineal descendants. His brothers and sister were his heirs at law. They are all dead. Plaintiffs and defendants, children of such deceased brothers and sister, are now the representatives of their deceased parents.

Plaintiffs, who are heirs at law of John Crews and of Joseph Crews, contend that they have the right now to redeem the two-thirds undivided interest in said land, which was conveyed by the mortgage deed of John Crews and Joseph Crews to George E. Crews, and that they are the owners of said two-thirds undivided interest, subject to said mortgage deed. Plaintiffs further contend that as representatives of all the heirs at law of William Crews, except George E. Crews, father of defendants, they are tenants in common of an undivided one-third interest in said land with defendants, who are the representatives of said George E. Crews. They demand that they be let in possession with defendants, according to their respective interests in the land, as set out in the complaint.

Defendants contend that plaintiffs are not entitled to recover in this action, first, for that the action to redeem is barred by the statute of limitations (C. S. § 437 [4]); second, for that the action by plaintiffs to recover possession as tenants in common, claiming under William Crews, is also barred by the statute of limitations (C. S. § 430). Defendants contend that, by virtue of said statute, they are the owners of the one-third undivided interest in said land formerly owned by William Crews as well as of the two-thirds undivided interest therein conveyed by John Crews and Joseph Crews to their father, George E. Crews, by the deed dated April 23, 1885.

The court was of opinion that, although the deed from John Crews and Joseph Crews to George E. Crews, dated April 23, 1885, was a mortgage, the action of plaintiffs, heirs of the mortgagors, to redeem the land from the mortgage, was not barred by the statute of limitations, because of the stipulation in the defeasance clause with respect to the mortgagee's possession. Defendants excepted to an instruction to the jury in accordance with this opinion, and assign same as error. This assignment of error must be sustained.

The stipulation in the clause of defeasance, continued in the mortgage deed, with respect to the mortgagee's possession of the land, conferred upon him no rights which he he did not have by virtue of his title to the land as mortgagee. He had the right, certainly, with the consent of the mortgagors, to enter into possession of the land prior to default in the payment of the bond secured by the mortgage. He had the right to remain in possession after such default. The effect of the stipulation was merely to recognize this right, and, at most, to give the consent of the mortgagors to its exercise by the mortgagee. It gave him no other or further

[135 S.E. 786]

right which he thereafter enjoyed than the law gave him by virtue of his legal title to the land as mortgagee. It is true that, by virtue of the stipulation, if the debt had been paid, he would have been entitled to notice from the mortgagors as provided therein before he was required to surrender possession. But the debt was not paid, and, upon the admissions in the pleadings and upon all the evidence, he went into and remained in possession as mortgagee. Notwithstanding the terms of the stipulation, the mortgagee in possession was accountable to the...