Jordan v. Simmons

• Decision Date: 15 May 1918
• Docket Number: 479.
• Citation: 95 S.E. 919,175 N.C. 537
• Parties: JORDAN ET AL. v. SIMMONS.
• Court: North Carolina Supreme Court

95 S.E. 919

175 N.C. 537

JORDAN ET AL. v. SIMMONS.

No. 479.

Supreme Court of North Carolina

May 15, 1918

Appeal from Superior Court, Montgomery County; Cline, Judge.

Action by Mary Jordan and others against James A. Simmons. Judgment of nonsuit, and plaintiffs appeal. Affirmed.

W. A Cochran and R. T. Poole, both of Troy, for appellants.

Jerome & Scales, of Greensboro, for appellee.

BROWN J.

This case was before this court at a former term, and is reported in 169 N.C. 140, 85 S.E. 214. That report is referred to for a statement of the case.

The land in controversy was claimed by Allen Jordan, who was in possession of it on May 2, 1898, when it was sold for his taxes and bid off by G. S. Beaman, who assigned his bid to Mary Jordan, the wife of Allen Jordan. The sheriff's deed to Mary Jordan is dated May 6, 1899. This action was commenced on May 6, 1903, by Mary Jordan and her husband Allen Jordan, to recover the land. They died pending the action, and their heirs at law, I. M. Deaton and wife, Mollie O. Deaton, have been made parties plaintiff, claiming the land under Mary Jordan.

It is claimed that Mary Jordan was not a party plaintiff when the action was instituted, but became so in 1905. In our view that is immaterial. In our former opinion the statute is cited, which enacts that no action for the recovery of real property sold for the nonpayment of taxes shall lie, unless the same is brought within three years after the sheriff's deed is made. It appears in the evidence offered by plaintiff and upon the record that this action was not instituted until four years from date of the sheriff's deed, and therefore it cannot be maintained unless there is something to take it out from the bar of the statute. Plaintiff claims that after the land was sold Mary Jordan entered into possession, and has remained in possession until ousted, and therefore no action was necessary.

There is no evidence that Mary Jordan ever was in possession of the land in her own right. The land belonged to her husband, Allen Jordan, so far as this record discloses, when sold for taxes. There is no evidence that Mary Jordan asserted any dominion over the land after she received the sheriff's deed other than she did prior thereto. There is no evidence that her husband yielded up possession to her, or that she committed any acts tending to prove that she had taken possession and was asserting her rights as owner. On the contrary, plaintiff's witness Russell testified that he and his father rented the land in 1899 and 1900 from Allen Jordan, and that the latter took out claim and delivery proceedings in his own name in 1900 for the rent. Plaintiff's witness Howell testifies:

"Well, about as far back as I remember the land was being tended by old Col. Jordan, and was in his possession up until, well, ever since he purchased it until Mr. Simmons got into law and got in possession."

We are unable to find any evidence in the record that prevents the bar of the statute.

The learned counsel for plaintiffs earnestly contends that the court erred in excluding the following question asked witness Saunders: "What acts of possession did Mrs. Jordan exercise over this land?" This question was competent and relevant, and should have been allowed, and we would grant a new trial, but for the fact that, although it was excluded, the witness stated, "I know only what I have heard her and Col. Jordan say." Their declarations were not asked for, and are not set out in record, and whether competent or not, is a matter not before us.

Affirmed.

CLARK C.J. (concurring).

The fact, however, should not pass without notice that though this action is for the recovery of land sold in May, 1898, for taxes in arrears for 1896, and was begun on May 6, 1903, it is now here for decision in May, 1918, 20 years after the sale of the land and the purchase whose validity is in question.

There is widespread complaint in this state, as well as elsewhere, at the congestion and delays in the courts. There has been no congestion at any time in this court, but counsel recently stated in an argument here that on an average appeals did not get to this court from his district under 3 1/2 to 4 years after the suit was begun. It may be safely said that the same average will apply doubtless to the whole state. Not infrequently appeals are heard here in cases which have been in the courts over 10 years, and sometimes even 20 years. In Taylor v. Gooch, 110 N.C. 387, 15 S.E. 2, the action was brought in 1852, and the final appeal was heard at this court in 1892, after a lapse of 40 years. The cause of action originated in the purchase of land under a judgment obtained in 1806. Charles Dickens in his description of the chancery suit of Jarndyce v. Jarndyce in "Bleak House" rendered an invaluable service to the legal profession and to the public by describing the evils, and the infinite wrongs, inflicted by needless delays in the courts. In Taylor v. Gooch this court said:

"This is the fifth time this matter, which has been in litigation more

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