Johnson v. Eversole Lumber Co.

• Decision Date: 27 May 1907
• Citation: 57 S.E. 518,144 N.C. 717
• Parties: JOHNSON et al. v. EVERSOLE LUMBER CO.
• Court: North Carolina Supreme Court

57 S.E. 518

144 N.C. 717

JOHNSON et al. v. EVERSOLE LUMBER CO.

Supreme Court of North Carolina

May 27, 1907

Appeal from Superior Court, Swain County; McNeill, Judge.

Action by A. T. S. Johnson and others against the Eversole Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Davidson Bourne & Parker and A. M. Fry, for appellant.

Shepherd & Shepherd and Geo. H. Smathers, for appellees.

CLARK C.J.

Action for damages for cutting and removal of timber trees from two tracts of land described in the complaint. The plaintiffs derive title by mesne conveyances from J. T. Foster, to whom state grants 150 and 151, issued April 20, 1855, for 640 acres each upon entries made by him November 5, 1853, and surveyed April, 1854. These grants were registered June 27 1856. The defendant derives title by mesne conveyances from Allison & Welch under state grant 408, for 5,000 acres (embracing the locus in quo), issued December 26, 1857, upon an entry made March 23, 1853, and surveyed October 17 and 18 1853. This was registered July 27, 1858. The defendant asks that the plaintiffs be decreed trustees for its benefit and to convey whatever title, if any, they may have. The plaintiffs' replication pleads the bar of the 10-year statute of limitations.

If the statute of limitations is a bar to the equity set up by the defendant, it is unnecessary to consider whether the equity alleged is otherwise valid or not. In McAden v. Palmer, 140 N.C. 258, 52 S.E. 1034, where the defendants claiming as here under a grant junior to plaintiff's grant, but issued upon an entry prior to his, asked to have the plaintiff declared trustee of the legal title for their benefit, the court sustained the plaintiff's plea of the statute of limitations. The defendant's cause of action in this case accrued upon the registration June 27, 1856, of the grant to Foster, under which the plaintiffs claim. The matter is so fully and clearly discussed by Mr. Justice Brown in Palmer v. McAden, supra, that it is sufficient to refer to the opinion in that case without repeating what is there so well said. The plea of the 10-year statute upon the same state of facts was also sustained in Ritchie v. Fowler, 132 N.C. 790, 44 S.E. 616. "The legal title vesting in the first grantee drew the constructive possession which continued until there was an ouster." Janney v. Blackwell, 138 N.C. 442, 50 S.E. 857. Here there is no evidence of possession of the lands within the bounds covered by grants 150 and 151 by the defendant or those under whom it claims after the registration of the grant to Foster in April, 1855, and its registration in June, 1856, till the cutting of timber by the defendant in 1900 or 1901, for which this action was begun July 31, 1902. Indeed, neither party was in possession nor paid taxes. The latter is probably a not uncommon circumstance as to wild lands, and may well call for the closer attention of officers charged with the duty of collecting state and county taxes.

The defendant contends, however, that the statute does not run in favor of plaintiffs because Foster, the original grantee left the state in 1860, and he and those under whom the plaintiffs claim have been nonresidents ever since, relying upon Rev. Code, § 162, now Revisal 1905, § 366. But that section by its terms did not apply to causes of action accrued prior to August 24, 1868. Blue v. Gilchrist, 84 N.C. 239. It is true that this claim having accrued June 27, 1856, was governed by the 10-year statute of presumptions (Rev. Code, c. 65, § 19; Campbell v. Brown, 86 N.C. 376, 41 Am. Rep. 464), and that Rev. Code, § 136, provided that the limitations in the Code should not apply to causes of actions accrued prior to August 24, 1868, and section 137 suspended the statutes of limitations and presumptions from May 20, 1861, to January 1, 1870. The 10-year statute of presumptions expired therefore (eliminating 8 years, 7 months, 10 days) on March 9, 1875, and there was no evidence to rebut the presumption. Chapter 113, p. 102, Laws 1891, repealed sections 136 and 137; i. e., it repealed the exemption of actions accruing before August 24, 1868, from statute of limitations, and...