Cross v. Seaboard Air Line Ry. Co.

• Decision Date: 04 October 1916
• Docket Number: 121.
• Citation: 90 S.E. 14,172 N.C. 119
• Parties: CROSS v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

90 S.E. 14

172 N.C. 119

CROSS v. SEABOARD AIR LINE RY. CO.

No. 121.

Supreme Court of North Carolina

October 4, 1916

Appeal from Superior Court, Lee County; Lyon, Judge.

Action by Mamie W. Cross and others against the Seaboard Air Line Railway Company. Judgment for plaintiffs, and defendant appeals. New trial.

The testimony of a witness may, perhaps, be disregarded sometimes, if it clearly appears to be without any substantial basis, but the province of the jury to pass upon the facts must not be invaded.

W. H Neal, of Laurinburg, and Hoyle & Hoyle, of Sanford, for appellant.

Williams & Williams and Seawell & Milliken, all of Sanford, for appellee.

WALKER J.

The action was brought to recover a parcel of land in the town of Sanford outside of the defendant's right of way, and designated on the map filed in this court with the record by the figures 1, 3, 4, and 5. It seems that the parties claimed from a common source of title, John W. Scott and defendant also claimed the land by adverse possession for 20 years, and upon this branch of the case the court charged the jury as follows:

"Adverse possession must be continuous. There must not be any break at all, no moment of time when the land is not occupied but it must be an intention to take possession, and the possession must be such as to notify the public generally and the owners themselves who claim title, that there is an adverse possession; and, if you find that the defendant has had such possession as this, it would be your duty to answer the first issue 'No' and the second issue 'Yes.' "

This instruction was erroneous, as we have often decided that the possession may be adverse for the required period without being unceasing. Referring to adverse possession in Berry v. McPherson, 153 N.C. 4, 68 S.E. 892, Justice Brown says:

"This possession need not be unceasing, but the evidence should be such as to warrant the inference that the actual use and occupation have extended over the required period, and that during it the claimant has, from time to time, continuously subjected some portion of the disputed land to the only use of which it was susceptible. Ruffin v. Overby, 105 N.C. 83 ; McLean v. Smith, 106 N.C. 172 ; Hamilton v. Icard, 114 N.C. 538 . While the evidence offered is not necessarily conclusive, if taken to be true, as to the fact of possession, we think it sufficient to be submitted to the jury, under appropriate instructions, that they may draw such inference as they see proper, bearing in mind that the burden of proof is on the plaintiff to establish the fact of possession for the statutory period by a preponderance in the proof."

This statement of the law has been approved in McLean v. Smith, 106 N.C. 172, 11 S.E. 184; Coxe v. Carpenter, 157 N.C. 561, 73 S.E. 113; Locklear v. Savage, 159 N.C. 239, 74 S.E. 347.

But the plaintiff contends that this error is harmless, as the defendant cannot acquire title to land by adverse possession, and if it can do so, there is not evidence of such possession for 20 years by defendant and those under whom it claims. The position, in our opinion, is not tenable. The defendant could acquire title by grant or deed, and why not by adverse possession for 20 years, which tolled the entry originally, because there arose therefrom the presumption of a grant or deed.

If the land had been conveyed to the defendant and the act of acquiring and holding it was ultra vires, no one but the state could complain, and a private person would not be heard to attack the title on that ground. This question is learnedly discussed by Justice Ashe in Mallett v. Simpson, 94 N.C. 37, 41, 55 Am. Rep. 595, which was an action, as here, to recover land. In that case it appeared that the land had been purchased by the railroad company for the purpose of getting cross-ties, and firewood for fuel, and it was held that it might be bought for that purpose, even under its charter powers, and sold when no longer needed. But the court took another view of the subject, which it said was fatal to the plaintiff's contention that the company could not acquire land save for railroad purposes and under the powers contained in its charter, considering, it was said, that the company had not purchased the land in question, nor used it for purposes contemplated by its charter, the deed to it from the grantor vested the legal title, and its right to purchase and hold the land cannot be collaterally assailed. No one but the state can take advantage of the defect that the purchase was ultra vires. This principle is fully sustained by the authorities. Like an alien who is forbidden by the local law to acquire real estate, he may take and hold title until "office found." Fairfax v. Hunter, 7 Cranch, 604, 3 L.Ed. 453. At common law, corporations generally have the legal capacity to take a title in fee to real property. They were prohibited in England by the statutes of mortmain, but these statutes have never been adopted in this state, so that the common-law right to take an estate in fee, incident to a corporation (at common law), is unlimited, except by its charter and by statute. But the authorities go to the extent that, even when the right to acquire real property is limited by the charter, and the corporation transcends its power in that respect, and for that reason is incompetent to take title to real estate, a conveyance to it is not void, but only the sovereign (here the state) can object. It is valid until assailed in a direct proceeding instituted by the sovereign for that purpose. Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313; Goundie v. Northampton Water Co., 7 Pa. 233; Bank v. Whiting, 103 U.S. 99; Angel & Ames on Corporations,§§ 152-777; Runyon v. Coster, 14 Pet. 122, 10 L.Ed. 382; Banks v. Poitiaux, 3 Rand. (Va.) 136, 15 Am. Dec. 706. In the Leazure Case, the corporation had been restricted by its charter from purchasing land except for certain purposes, which it had transcended, and the title was assailed upon the ground that the purchase was void, but the court held:

"The corporation might take independent of a provision in the act of incorporation, and that the title of the corporation, like that of an alien, would be defeasible only by the state. No one can take advantage of the defect [[of title] but the state."

In another case it was held:

"When a corporation was authorized by its charter to purchase real estate for certain purposes, but for no other, a deed executed to it, by one having capacity to convey, vested the title in the corporation, and such title could be assailed on the ground that the purchase was ultra vires, only by the state, or by a stockholder." Hough v. Land Co., 73 Ill. 23, 24 Am. Rep. 230.

This court, in Mallett v. Simpson, supra, drew the following deduction from the authorities that:

"If the corporation acquired the land for any of the purposes authorized by the charter, its purchase and sale was valid; and if on the other hand, it transcends the authority conferred by the charter, its purchase and sale would still be valid against everybody except the state, and its title could not be collaterally assailed, as was attempted in this case."

The same doctrine is stated as the prevailing one in Womack's Law of Corporations, pp. 76, 77, where cases decided by this court are collected. The same question is fully discussed in Barcello v. Hapgood, 118 N.C. 717, 24 S.E. 124, and Bass v. Navigation Co., 111 N.C. 439, 16 S.E. 402, 19 L. R. A. 247, by Justice Avery, and the principle we have cited was approved. A textwriter says:

"Where a corporation, having the power to acquire and hold land for certain purposes only, takes a conveyance of land for a purpose not authorized, or takes more land than it is authorized to hold, the conveyance is not absolutely void. The state may proceed directly against it for exceeding the powers conferred upon it, but the question is solely between it and the state. Neither the grantor nor any other private individual can attack the conveyance in a suit by or

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