Edwards v. Tipton

• Decision Date: 31 October 1881
• Citation: 85 N.C. 479
• Court: North Carolina Supreme Court
• Parties: O. B. EDWARDS v. JOHN TIPTON and others.

85 N.C. 479

O. B. EDWARDS

v.JOHN TIPTON and others.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION to recover land, tried at Spring Term, 1880, of MITCHELL Superior Court, before Gilmer, J.

Verdict and judgment for the defendants, appeal by plaintiff.

Messrs. W. H. Malone and Gilliam & Gatling, for plaintiff .

Mr. J. M. Gudger, for defendants .

SMITH, C. J.

The land in controversy belonged to William Edwards, who, on May 8th, 1841, executed a deed of mortgage therefor to Samuel Flemming, and the latter on the same day made a lease of the premises for five years to the morgagor. Near the expiration of that time he made a second lease for the same term to the said Edwards and his son John. The land was also sold under execution against the mortgagor and by the coroner's deed executed in October, 1856, conveyed to the said Flemming, and the defendants claim under Flemming.

The plaintiff's title is by virtue of a deed for the premises executed to them by the said Edwards on January 24th, 1861. The court ruled against the claim of title under the execution sale and the alleged continuous possession in its support, for the reason that exclusive of the time during which the statute of limitations was suspended, seven years had not elapsed before the suit was brought.

As to the deficiency of the title derived through the mortgage deed, the court was requested by the plaintiff's counsel to charge “that the mortgage to Flemming, being an unexecuted trust and its conditions not complied with or performed, gave no color of title to Flemming and those claiming under him.” The court refused to give the instruction, and directed the jury that although a mortgage with unexecuted trusts would not be color of title, so as to give effect to a seven years' continued adverse possession under it, yet considered in connection with the leases of 1841 and 1846, if William Edwards thereby became tenant to the mortgagee, abandoning his right as mortgagor, attorning to Flemming and acknowledging him as owner, the mortgage deed would be color of title and perfect it after such possession, and the plaintiffs could not recover.

The appellants present in the record an exception to some playful and harmless remarks indulged in by counsel, to correct which the interference of the court was not asked and no objection made until after the rendition of the verdict; and also to the sufficiency of the descriptive words employed to identify the land...