Gilchrist v. Middleton

• Decision Date: 27 October 1890
• Citation: 12 S.E. 85,107 N.C. 663
• Parties: GILCHRIST v. MIDDLETON. [1]
• Court: North Carolina Supreme Court

12 S.E. 85

107 N.C. 663

GILCHRIST v. MIDDLETON. ^[1]

Supreme Court of North Carolina

October 27, 1890

This was an action to recover land, tried by BYNUM, J., at the February term, 1890, of the superior court of Richmond county. The plaintiff introduced: (1) A grant from the state to Duncan McFarland, dated 13th January, 1847, on an entry dated July 4, 1801. (2) A deed from John McKay to J. B Buchanan, dated September 25, 1863. (3) A mortgage from Buchanan to Lilly Bros., dated April 20, 1875. (4) A decree for the sale of mortgaged land at spring term, 1880, of the superior court of Richmond county. (5) A sale by a commissioner, J. D. Shaw, appointed to sell to E. Lilly, and a decree confirming the sale at fall term, 1880. (6) A deed from Shaw, commissioner, to E. Lilly, April 25, 1881. (7) A deed from E. Lilly to plaintiff, May 2, 1881. It was admitted that the grant to McFarland and the deeds and mortgages above set out covered the locus in quo, and that the proceedings for the foreclosure of the Lilly Bros. mortgage were all regular. Plaintiff then introduced as a witness Ed. Buchanan who testified: He was a brother of J. B. Buchanan, who purchased the land from John McKay; that he knew the disputed land; that J. B. Buchanan went into possession of it in 1863 cleared a part of it, got fire-wood on a part of it, and continued in possession, clearing and cultivating, until he died in 1882; that he cleared in all at different times, and was cultivating 12 or 15 acres; that he rented it the last year he lived there from Lilly Bros. as he understood. Upon cross-examination testified: Buchanan went in possession as far back as he could recollect, about 1863; that witness was born in 1855; that he cut firewood on it every year, as he needed it. That he did not live on the land, but about 100 yards from the line, and sometimes got fire-wood on the land he lived on. It was admitted that the locus in quo was 100 acres. Plaintiff testified in his own behalf that he found J B. Buchanan in possession when he purchased from Lilly, and that he rented to him until he died. That for the year 1881 he was to pay to plaintiff $200 rent.

The defendant claimed title under the grant to McFarland, introduced by the plaintiff, and, for the purpose of connecting himself with that grant, introduced: (1) The record of a petition for partition between Duncan McFarland and others against William Cooper McFarland and others, who were the heirs at law of Duncan McFarland, the grantee. This record showed the petition to have been filed at July term, 1847, of the court of pleas and quarter sessions of Richmond county, and the decree ordering partition; the appointment of commissioners, and the report, and the confirmation of the report, of the commissioners, at July term, 1849; the registration of the report, etc.,--all of which is admitted to be regular, and it is admitted that in the land assigned Tryon McFarland in severalty is located the "locus in quo." (2) A petition for partition between John G. Pearson and wife and Duncan McFarland, as heirs at law of Tryon McFarland, which record is admitted to be regular, and which sets apart to John G. Pearson and his son, Tryon, the portion of land which covers the "locus in quo;" the decree being granted at April term, 1852, of the court of pleas and quarter sessions of Richmond county. It was admitted that Pearson married Mary Little McFarland, a daughter of Tryon McFarland, who died before the decree of partition at April term, 1852, and had by her one son, Tryon Pearson, who died in February, 1872. (3) A deed from Buchanan, sheriff of Richmond county, to Duncan McCall, dated January 17, 1854, conveying to him the interest of J. G. Pearson in the land assigned to him and his son, Tryon Pearson; it being admitted that the interest of John G. Pearson was that of a life-estate as tenant by the curtesy. (4) A deed from Duncan McCall to Ferdinand McLeod, dated September 24, 1857, conveying to him the life-estate of J. G. Pearson in the land purchased by him at the execution sale by Buchanan, sheriff. (5) A deed from John G. Pearson to Addison Stevens, dated April 17, 1875, conveying to him a fee-simple in the land set apart to him and his son, Tryon Pearson, in the partition proceedings. It was admitted that Tryon Pearson, the son of John G. Pearson, died unmarried, and without brothers or sisters, and that his father, John G. Pearson, inherited from him. (6) A deed from A. H. Stevens and wife to Mary A. McCall, dated 7th January, 1878, which conveyed the land purchased from Pearson by Stevens. (7) A deed from A. D. McCall and wife, Mary A. McCall, to defendant, dated 31st March, 1879, conveying to him the same land. Defendant next introduced a grant to Duncan McLaurin, dated March 31, 1842, on an entry made in 1841, which it was admitted covered the "locus in quo;" next, a deed from Duncan McLaurin to Ferdinand McLeod, (admitted to be the same Ferdinand McLeod to whom Duncan McCall conveyed on September 24, 1857;) next, a deed from Ferdinand McLeod to John L. Fairley, dated 16th April, 1858; next letters of administration de bonis non on the estate of John L. Fairley, granted to defendant on 7th day of May, 1876; next, the record of the application of the defendant as administrator d. b. n., to sell land for assets, decree of sale, and order of confirmation,--all admitted to be regular, the summons being issued July 10, 1878; next, a deed from defendant as administrator d. b. n. of John L. Fairley to William H. McLaurin, dated 17th March, 1879; then a deed from William H. McLaurin to defendant, dated 18th March, 1879. It is admitted all these deeds cover the "locus in quo."

For the purpose of this appeal, it was admitted that the estate of John L. Fairley descended to five children, three of whose claims to the land are not barred by the statute of limitations, and two of whose claims are barred by the statute. Robert Leak, a witness for the defendant, testified that he had a conversation with John B. Buchanan in 1874 or 1875 about the land in dispute; that Buchanan told witness he wanted him to cut all the largest timber he could, as he (Buchanan) did not know how long he would own it. There was evidence tending to show that John G. Pearson died during the pending of this action. The defendant then introduced the following entries from the minute docket of the court of pleas and quarter sessions of Richmond county: "Minute docket, April term, 1852. John G. Pearson et al. vs. D. B. McFarland et al. This cause coming on to be heard on the petition, answers, exhibits, and report of the commissioners, it is considered by the court that the parties are tenants in common, as set forth in the said petition, and entitled to partition, so that each may hold his own in severalty; and, it appearing to the satisfaction of the court that partition of the said land has been made in manner and form as the law requires, it is therefore adjudged by the court that the proceedings and appropriations in this case made and had be in all respects confirmed, and that the appropriations with this decree be certified by the clerk, and enrolled in his office, and registered in the office of said county, as evidence of the return and appropriations being binding and valid in and among the said parties forever, and that the cost of said proceeding be paid by all equally. And it is further adjudged by the court, Duncan B. McFarland, to whom is appropriated lot No. 1, (the more valuable,) pay to John C. Gully and wife, to whom the less valuable lot, No. 2, was appropriated, the sum of one hundred and seventy-two dollars and fifty cents. Judgment accordingly." This was introduced for the purpose of showing a judgment against John G. Pearson, under which defendant claims the land of said Pearson was sold by the sheriff.

The plaintiff then introduced the following entries from the minute docket of court of pleas and quarter session of Richmond county at January term, 1854: "January term, 1854. Minute docket, state of North Carolina. At a court of pleas and quarter session begun and held for Richmond county at the court-house in Rockingham on the 16th day of January, being the third Monday of said month in the year of our Lord one thousand eight hundred and fifty-four, and in the 79th year of American independence; the following justices being present and presiding, to wit: W. F. LEAK, GEORGE NORTHAM, and ELISHA I. LONG. Minutes, Thursday, January 17th, 1854. John G. Pearson et al. vs. Duncan B. McFarland et al., or the Clerk's Office vs. John G. Pearson and Son. In this cause John G. Pearson and son, by their attorney, come into open court, and move the court to set aside the execution, or that v. e. execution issued against him in this case, returnable to the present term of this court, for the reason that said execution is not sustained by any judgment, which motion is sustained by the court; and it is ordered that the execution be set aside for the reason aforesaid. Whereupon said Pearson and son pay the sheriff the amount due on said execution or v. e. execution." Also the following entries at July term, 1853. It was admitted that the minute docket of said court for the October term, 1853, did not show any record of an order to issue an execution returnable to January term, 1854, of the court. The defendant was then permitted by the court to offer the following execution, with all the indorsements, and inspection of the execution shows that the return of the sheriff is erased on said execution:

"State of North Carolina. To the sheriff of Richmond county, greeting: Whereas, we, by our writ fieri facias to you directed, did command you that, of the goods and chattels, lands and tenements, of John G. Pearson and son, Tryon Pearson, you should

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