Jones v. Coffey

• Decision Date: 15 December 1891
• Citation: 14 S.E. 84,109 N.C. 515
• Parties: JONES v. COFFEY.
• Court: North Carolina Supreme Court

14 S.E. 84

109 N.C. 515

JONES v. COFFEY.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Watauga county; HOKE, Judge.

Action by W. C. Jones against T. J. Coffey to recover land. Judgment for plaintiff, and defendant appeals. Reversed in part.

The other facts fully appear in the following statement by AVERY J.:

The plaintiff offered as evidence of title (1) grant from the state to Samuel Patten, dated December 10, 1852, for the land in controversy; (2) a deed from Levi Hefner and wife, Mary and D.E. Kaylor and wife, Sarah, bearing date January 12 1882. Evidence was offered to show that the only heirs at law of said Samuel Patten were said Mary Hefner and Sarah Kaylor his daughters, who were infants when their father died, and were both married before arriving at the age of 21 years, and are living with their husbands still. There was evidence offered by plaintiff tending to show that Samuel Patten died in 1853, while the defendant offered testimony to show that he died in 1850. The defendant offered evidence to show that one Towns-end executed a deed for thelocus in quo in March of the year 1854 to one Wiley Gaither, who immediately took possession, and occupied the land until May, 1861, or perhaps till 1863. Defendant requested the court to charge the jury "(1) If the feme grantors married and had issue born alive during the coverture, their husbands became tenants by the curtesy initiate; and adverse possession of the land by the defendant, and those under whom he claims, for seven years continuously, would take away the title of the husband, and plaintiff could not recover. (2) Upon the marriage the husband became seised of an estate in the land during the coverture, and, after issue born alive, they were seised of an estate for their own lives, which is derived from the reversion; and an adverse possession for seven years would toll the estate of the husband, through it would not affect the reversion. (3) The burden is on the plaintiff to show that the grantee, Patten, was the ancestor of the feme grantors. It is a latent ambiguity, and plaintiff must remove it. He must show a good title against the world." The court declined to give the first and second instructions prayed for, and gave the third. The court, after reciting the different positions contended for by the different parties, and adverting to the evidence in each, among other things not excepted to charged the jury as follows: "(1) That the burden of the issues was on the plaintiff, and he must satisfy the jury by a preponderance of the evidence that the grantee of the state, Samuel Patten, was the father of plaintiff's feme grantors, Mary Hefner and Susan Kaylor, and that said Samuel Patten died before the adverse entry and occupation by Gaither, and his title descended to his children, who were infants, and continued such during all the time said adverse occupation continued. Then the adverse claim and possession by Gaither, under the circumstances, would have no effect on that title," etc. "(2) That, as to the first and second prayers for instructions by plaintiff, if there was evidence on which to predicate them, the position would not avail defendant, because the plaintiff claimed and offered a deed conveying to him the right and interest of the wives. (3) On the question of damages, plaintiff could recover a fair rental value for the property, and any spoil or injury done same during the adverse occupation by the defendant, and as far back as the beginning of the plaintiff's title, on January 12, 1882, provided defendant had occupied and possessed the land from the commencement of such title in 1882, and from such time down to the time of trial." Defendant excepted to the refusal of the court to give the first and second prayers for instructions, and also to the charge of the court on the question of damages, for that the plaintiff was permitted to recover damages for more than three years before action brought. There was verdict and judgment for plaintiff. Appeal taken by defendant. The summons was issued March 18, 1889.

The statute of limitations does not run in favor of one who enters into adverse possession of land belonging to an infant, who marries before her majority, since she is continuously under disability, and since, under Act March 1,...