Gaylord v. Respass

• Decision Date: 28 February 1885
• Citation: 92 N.C. 553
• Parties: E. W. GAYLORD v. JAMES T. RESPASS, et al.
• Court: North Carolina Supreme Court

92 N.C. 553

E. W. GAYLORD

v.JAMES T. RESPASS, et al.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION for the recovery of land, heard before Gudger, Judge, and a jury, at Spring Term, 1884, of BEAUFORT Superior Court.

The land, the title to a part of which is drawn in question in this suit, in 1809 belonged to John Gaylord, and both parties claim under him. He died soon after, leaving a widow Lucretia, and having made a will, that was admitted to probate the following year, wherein said land is devised to his six children by name, the plaintiff being one of them. Subsequently the plaintiff obtained two other shares. In January, 1811, Lucretia Gaylord, assuming to act in the capacity of executrix of the testator, entered into a written agreement with Richard Respass, the elder of that name, and the paternal grandfather of the defendant James T. Respass, in the operative words of which she undertakes to “acquit to and with the said Respass to take the grist-mill and saw-mill, and he to repair the saw-mill, and to put the dam in such places as he may think proper in the same, and to repair the road and bridges as soon as possible.” For this service Respass is to “have the use of said saw-mill and timber on the lands adjoining the mill, until he is satisfied for his services, and for tending the grist-mill he, the said Respass, is to have the one-half of all the toll that she may take in.” The other provisions relate to repairs, which in some events are to be made at the expense of Respass, and in others at the expense of the testator's estate, and when the latter have been paid, the executrix is to “have one-third of all that he may saw at said mill, and Respass to have the refusal of the renting of the mill.”

On the 25th day of February, 1813, the sheriff of Hyde made a deed to Richard Respass, Sr., for two-thirds of the mill and lands on Broad Creek, conveyed by John Gray Blount to John Gaylord, in which he recites several executions issued to him on judgments recovered by said Respass, and by others against the said John Gaylord, under and by virtue of which he sold the same to Respass for five hundred and twenty-five pounds.

On April 25th, 1819, an arrangement was made between Lucretia Gaylord and said Respass, in pursuance of which the former, for the recited consideration of a deed being executed to her six children “for one-half of Broad Creek saw and grist-mill, with one-half of the mill land, whereon I, the said Lucretia Gaylord, now live, with the exception of Lucretia Gaylord's life-estate, to enjoy said land and mill during her life,” undertakes to convey by deed to him “all my (her) right and title in my dowry land laid off to me,” &c., “in the half of mills and half of lands where said Richard Respass now lives, being the half of mills and lands owned by said Respass, that I convey my right of dower of, and no other.”

In executing his part of the agreement, Respass, on the same day, for the sum of five hundred dollars, stated as the value of the consideration received, executed his deed to the said six children, designating each by name, for “one-half of the Broad Creek saw and grist-mills, with one-half of the lands purchased with said mills by John Gaylord from John Gray Blount, of the town of Washington, with the exception of the life-estate of Lucretia Gaylord in said mills and lands, the land being the half whereon the said Lucretia now lives, being one hundred and fifty acres more or less.” In 1825, under an order of the County Court of Beaufort, issued upon the application of those of the alleged owners of the lands derived from John Gaylord, partition was made by commissioners appointed for that purpose, and the land divided into six equal shares, one allotted to each of the testator's said children, and report made thereof. The land divided lies wholly south of what is known as the divisional line between the Gaylord and Respass lands, no portion of which is in controversy between the parties in this action.

Richard Respass died in August 1836, leaving a will wherein he devises the lands in dispute to his son Richard Respass, Junior, who died in 1845, and the defendant is his son and heir-at-law.

Lucretia Gaylord died in the latter part of the year 1840.

It was shown by various witnesses, and the fact not contested by the plaintiff, that the defendants and their ancestors had been in possession of the land north of the division line, and they claim none south of it, for sixty or seventy years.

Sophia, a daughter of John Gaylord, married John Adams, by whom she had five children, one of whom, John, married the widow of John Respass, Junior, and had issue, a son John F. Adams, who is still living, and another who died without issue. Upon the death of John Adams his widow married the defendant Jones, who, with her, continued to reside on the land, and with whom John F. Adams lived from infancy up, his step-father becoming his guardian.

On December 1st, 1871, John F. Adams conveyed his interest in the lands in controversy to the plaintiff. Upon the trial, and under the instructions of the Court, a verdict was rendered in favor of the defendants, from the judgment on which the plaintiff appeals.

Messrs. Rodman & Son, for the plaintiff .

Messrs. G. H. Brown, Jr., and H. A. Gilliam & Son, for the defendants .

SMITH, C. J. (after stating the facts as above).

The only exception taken, and not abandoned on the hearing in this Court, during the examination of the witnesses, was to the introduction of the deed from Respass, Senior, to the plaintiff and the other children of John Gaylord, made in April, 1819, on the ground of incompetency and irrelevancy, and for the further reason that the plaintiff, if not others, was then an infant.

Any properly registered deed, or certified copy from the registry, is competent, when pertinent to the issue,...