Howell v. McCracken
| Decision Date | 31 October 1882 |
| Citation | 87 N.C. 399 |
| Court | North Carolina Supreme Court |
| Parties | NELSON HOWELL v. MCCRACKEN & HOWELL. |
OPINION TEXT STARTS HERE
CIVIL ACTION tried at Spring Term, 1882, of HAYWOOD Superior Court, before Gilliam, J.
The defendants appealed from the judgment of the court below.
Mr. George A. Shuford, for plaintiff .
Mr. James H. Merrimon, for defendants .
On the 10th day of October, 1876, a contract was entered into between one Mark Howell and the defendant for the sale and purchase of a tract of land of the former, pursuant to which the vendor in a title-bond covenanted to convey an estate in fee therein on payment of the purchase money, retaining the same as a security therefor, and the defendant vendee executed and delivered his three several notes under seal in the sums of $250, $300 and $325; parts of the deferred payment, bearing interest from date and due at one, two and three years. The notes were duly and for value endorsed by the payee to the plaintiff, who on April 11th, 1878, brought his action against the defendant on the note then matured, and on September 6th, 1880, on the two other notes, to recover the moneys due on them.
These two actions pending in the superior court, were consolidated by a consent order and tried as one suit.
The defence set up was that the vendor had not title to a part of the land embraced in the contract, of about ten acres in extent, and there should be an abatement of the sum contracted to be paid, corresponding with the value of that to which the vendor was unable to make title; and further, that the action was misconceived as to the last maturing notes, and should have been for money paid by the endorser for the use of the principal debtor on the implied contract of surety-ship.
Three issues were submitted to the jury, the first and material one of which is in these words:
Did Mark Howell, and others under whom he claims, hold continuous exclusive adverse possession of the lappage, up to the Russell McCracken fence, for seven years before June 11, 1877? to which the jury responded, “yes.”
The other issues were as to the value of the entire lappage, and of the part enclosed and under fence.
On the trial it appeared in evidence that Mark Howell, the vendor, had, previous to his assignment to the plaintiff, endorsed the notes maturing in 1878 and 1879, after maturity to one E. Sluder who brought suit thereon in said court against the defendant and the endorser, and having entered a nol. pros. (miscalled a non-suit in the record) as to the principal debtor, recovered judgment against the endorser at spring term, 1880. On May 10th thereafter, the said Mark Howell satisfied the judgment rendered against himself by payment to Sluder who at the same time re-assigned and delivered the notes to said Howell, and he thereafter transferred them to the present plaintiff.
It further appeared that the vendor held the land described in the contract, and of which the ten acres in dispute forms a part, under a grant from the state issued in 1851, while the adversary claim was derived under a deed executed in 1858 to one W. C. Hill, and possession thereunder for more than seven years.
The disputed territory is within the boundaries of both deeds, and the said Hill, it is admitted, has been in actual possession of about three-fourths of an acre of the lappage enclosed under fence, so as to divest the title to so much of it out of the grantee and transfer it to said Hill. The residue of the ten acres outside of the enclosure was wood-land, and while it is not stated that Hill at any time entered thereon or exercised any act of ownership, the grantee (Howell) did continuously during the interval enter upon the wood-land and get and remove fire-wood, rails and boards from the growing timber at his pleasure.
The defendants' contention was that the occupation of the enclosed part was a constructive possession, extending to the boundaries of the land described in the deed to Hill, and perfected his title to the whole lappage.
The court ruled that the action was properly brought, and submitted to the jury as evidence, to be considered by them...
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Berry v. Coppersmith
... ... whole of the interference, the title being out of the state ... Kerr v. Elliott, 61 N.C. 601; Howell v ... McCracken, 87 N.C. 399; Asbury v. Fair, 111 ... N.C. 251, 16 S.E. 467; Boomer v. Gibbs, 114 N.C. 76, 19 S.E ... 226." Simmons v. Box Co., ... ...
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Currie v. Gilchrist
... ... Tysor, 124 N.C. 229, 32 S.E. 557; Flanner v ... Butler, 131 N.C. 151, 42 S.E. 557, 92 Am. St. Rep. 773; ... Drake v. Howell, 133 N.C. 162, 45 S.E. 539. But even ... if the defendant has what is sometimes called the junior ... paper title, and he can avail himself of the ... whole of the interference, the title being out of the state ... Kerr v. Elliott, 61 N.C. 601; Howell v ... McCracken, 87 N.C. 399; Asbury v. Fair, 111 ... N.C. 251, 16 S.E. 467; Boomer v. Gibbs, 114 N.C. 76, ... 19 S.E. 226. If each of the parties is in possession ... ...
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Powers Mercantile Company v. Blethen
...up the note at its maturity is upon the note itself and not for money paid to the maker's use. Fenn v. Dugdale, 31 Mo. 580; Howell v. McCracken, 87 N.C. 399; Kennedy v. Carpenter, 2 Whart. An action on the first cause of action set out in the complaint arose against the defendant in Washing......
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McQueen v. Graham
...title being out of the state." See, also, Boomer v. Gibbs, 114 N.C. 76, 19 S.E. 226; Asbury v. Fair, 111 N.C. 251, 16 S.E. 467; Howell v. McCracken, 87 N.C. 399; Kerr Elliott, 61 N.C. 601. In the same case the court holds that, when there is a claim by a junior grantee of title by adverse p......