Janney v. Robbins
| Citation | 53 S.E. 863,141 N.C. 400 |
| Parties | JANNEY et al. v. ROBBINS. |
| Decision Date | 16 May 1906 |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Caldwell County; O. H. Allen, Judge.
Action by J. W. Janney and others, as trustees, against T. C Robbins. From a judgment for the plaintiffs, defendant appeals. Reversed and remanded.
A power of attorney authorizing the appointee to sell and convey "all our land in the state of North Carolina" is sufficiently definite in its description of the land to be admissible, together with a deed executed pursuant to the power, as evidence of title.
Civil action to restrain defendant from unlawfully cutting timber on land of plaintiffs. Defendant, admitting the cutting of timber on certain land referred to in the complaint, denied plaintiffs' title to the land in controversy, averring that no wrongful cutting or other trespass had been committed by defend ant. Issues submitted: (1) As to plaintiffs' ownership and right to immediate possession of the land sued for. (2) As to damage done by wrongfully cutting timber on said land.
Plaintiff first put in evidence a grant from the state to W. D Sprague, being grant No. 918, dated 1875, for 640 acres, and offered evidence to show that the grant covered the land in controversy, and also a deed from W. D. Sprague to Louisa W Bond, dated 1876, covering the land in the above grant. To show title from this source in plaintiff, it became necessary for plaintiff to avail himself of a power of attorney from L W. Bond to J. McDowell Tate, dated January 6, 1887, to sell said land, and a deed by said Tate pursuant to the power. The descriptive words of the power of attorney from L. W. Bond were to "negotiate to sell and convey, by proper deeds of conveyance, any and all of our real estate in the state of North Carolina." Defendant objected to the power of attorney because of the ""vague and indefinite description of the land authorized to be conveyed." Objection overruled and defendant excepted. The papers in this line of title seem to have been all registered by January 7, 1890. Defendant then offered in evidence a grant from the state to J. L. Hawkins, dated December 3, 1891, a deed from J. L. Hawkins to A. M. Church and wife, dated 1895, and a deed from Church and wife to defendant in 1903. The grant and deeds in this chain of title were all registered in the year 1903. Defendant offered evidence to show that these deeds covered the land in dispute, and further offered evidence to show that defendant and those under whom he claimed had been in the adverse continuous possession of the land for more than seven years prior to the institution of this suit under and by virtue of the grant to Hawkins and the deeds to Church and to the defendant--the deeds being necessary to give color of title for the requisite length of time. Plaintiff objected to any evidence tending to show title by adverse possession by reason of any occupation of the property which antedated the registration of the deeds under which defendant claims. Objection sustained, and defendant excepted. Plaintiff in reply then offered a deed from J. L. Hawkins to W. L. Bryan, dated March 29, 1892, for 83 acres of land covered by the grant to Hawkins of date December 3, 1891, and a deed in fee from W. L. Bryan to plaintiff, dated May 7, 1892, for this same 83 acres of land bought of J. L. Hawkins; these deeds being registered, respectively, May 9, 1892, and May 12, 1892, and it was admitted that the 83 acres of land contained in these deeds was a part of the land trespassed upon. The plaintiff further offered evidence to show that, under a correct and proper location of the deeds to and from A. M. Church, under which defendant claims, they would not cover any of the lands in controversy, and so defendant was entirely without color of title to any part of the land. The court charged the jury, if they believed the testimony, to answer the first issue "Yes," and, under further and proper instructions, referred to the jury the question of damages. Verdict for plaintiff, and from the judgment thereon defendant appealed.
W. H. Bower and M. N. Harshaw, for appellant.
Edmund Jones, for appellees
HOKE, J (after stating the case).
Defendant rests his claim to a new trial on two exceptions: First, that the description in the power of attorney is too vague and indefinite to authorize the conveyance of any land; and, second, that the court ruled out the testimony offered with a view of showing title in defendant by adverse occupation. On the first point, the authorities in this state are against the defendant's position. Conceding that a power of attorney to sell and convey real estate must contain on its face sufficient data to permit parol testimony to fit the description to the property, or it must refer for description to some deed or written paper which does contain such data, the language of this power of attorney, "all of our land in the state of North Carolina," expresses a description sufficiently definite to permit evidence aliunde, and would authorize a conveyance of all the land the person owned in the state at the time of the execution of the instrument. Carson v. Ray, 52 N.C. 609, 78 Am. Dec. 267; Farmer v. Batts, 83 N.C. 387; Perry v. Scott, 109 N.C. 374, 14 S.E. 294.
On the second point raised by defendant's exceptions, we are of opinion that there was error which entitles the defendant to a new trial. In developing their case before the jury plaintiffs had put in evidence a grant from the state to W. D. Sprague, bearing date in 1875, and connected themselves with this grant by a line of deeds registered on or before 1890. In answer, the defendant had put in evidence a grant from one J. L. Hawkins, bearing date December 1891, and connected himself with the grant by a line of deeds, the first in order being a deed from Hawkins to A. M. Church in 1895. This grant and these deeds were not registered till 1903. Defendant then offered evidence tending to show continuous and adverse occupation of all the land in controversy under these deeds for seven years next before action brought, contending that such occupation under them would mature his title as against the Sprague title, the only one then presented by plaintiff. The evidence was excluded, and defendant excepted. This ruling was predicated upon the idea that, under our present registration laws, an unregistered deed can never be used as color of title and was no doubt caused by the headnote in Austin v. Staten, 126 N.C. 783, 36 S.E. 338, in which it is declared to be the decision of the court "that an unregistered deed does not now constitute color of title." An examination of this case, however, will disclose that the headnote is too broadly stated, and goes entirely beyond the scope and effect of the decision. The portion of our present registration law (ordinarily spoken of as the "Connor Act," Revisal 1905, § 980) was not designed to interfere with the doctrine of maturing title by adverse occupation and does not do so except to the extent as limited and defined in the decision referred to. There is a decided intimation to this effect in Collins v. Davis, 132 N. C., at page 111, 43 S.E. 579. The law was enacted in order to establish and declare the rights of persons who claim under the same title, intended to be the true title, or the one presumably the true title, because both parties claim under a common grantor, and undertook to do this by simply applying to deeds, and contracts concerning realty and leases of land of over three years duration, the same provisions that had long prevailed as to mortgages, to-wit, that no such instruments...
To continue reading
Request your trial