Joyner v. Futrell
| Decision Date | 25 October 1904 |
| Citation | 48 S.E. 649,136 N.C. 301 |
| Parties | JOYNER v. FUTRELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Northampton County; Councill, Judge.
Action by M. F. Joyner against Cornelius Futrell. Judgment for plaintiff, and defendant appeals. Affirmed.
The possession of the tenant for life or those claiming under him cannot be hostile to the remainderman or reversioner, and limitations do not begin to run against them until the death of the tenant for life.
Winborne & Lawrence and W. E. Daniel, for appellant.
Peebles & Harris and Gay & Midyette, for appellee.
This is an action to recover real property. Both parties claim either mediately or immediately under the will of James McDaniel. The land in controversy, known as the "eastern portion of the Marsh tract," was devised in the first item of the will to A. J. Harrell, trustee for Rebecca Blythe during her life, and at her death it was devised to James Bryant and the other portion of the tract was devised in the second item to M. F. Joyner, the plaintiff. In the third item it is provided that if Bryant or M. F. Joyner, the plaintiff should die without heirs of his body, the survivor should have the share of the one so dying. Bryant died without heirs of his body, and Rebecca Blythe died afterwards, and about four years before this action commenced. The defendant claims the land by virtue of a sale made under an order of the court, in a proceeding brought in the late county court by A J. Harrell, executor of James McDaniel, against the devisees and heirs at law, for the sale of the land for assets, and mesne conveyances connecting him with the title of the purchaser at that sale, and he contends that the said proceeding and sale divested the plaintiff of the title he acquired under the will, which was passed to the purchaser at the sale, and which has been vested in the defendant by the mesne conveyances. So that the plaintiff is entitled to recover the possession of the land in this case, unless that proceeding and the sale were valid and must have the effect of defeating his title, and consequently his right of possession.
The evidence in regard to the proceeding to sell the land for assets is very meager. It consists of (1) an order of sale by which license is given to the executor to sell the real estate of his testator to pay the debts of the estate; (2) a report showing that he had sold the land to James Bolton for $125, and taken bond and security for the purchase money, as required to do by the order of the court; (3) an entry on the docket of the court as follows: " (4) a deed from the executor to Godwin M. Powell for the and, in which it is recited that it was sold under an order of the court and that Powell became the purchaser. There is no affirmative proof that the plaintiff was made a party to the proceeding by the service of process, nor is there any evidence that the sale was ever confirmed by the court. It also appeared from the documentary evidence that the executor of McDaniel had filed his petition at December term, 1867, of the county court in a proceeding against McDaniel's heirs and devisees for a final settlement of his executorship, and his final account showed that he had received as executor a certain gross sum, but it did not appear (unless by inference) that the purchase money of the land was a part of that sum. In that proceeding the executor's final account was approved and confirmed.
It was admitted that the defendant and those under whom he claims have been in the adverse possession of the land since 1867, claiming the same by virtue of the said sale and deed of the executor. The adverse possession of the defendants under color cannot avail them for the purpose of ripening their title. It is an elementary principle that the statute of limitation does not run against any person until his right of action has accrued, and in this case it did not accrue to the plaintiffs, as against the defendants, until the death of the life tenant, Rebecca Blythe, which occurred on May 15, 1900. So long as she lived, they had no right of possession upon which to base a suit for the recovery of the land. Everett v. Newton, 118 N.C. 919, 23 S.E. 961; Woodlief v. Wester (at this term) 48 S.E. 578.
The only other question which we need consider--that is, as to the validity of the deed of the executor and its sufficiency to pass the title without any confirmation of the sale by the court--is equally well settled. This court, and all courts we believe, having jurisdiction to pass upon judicial proceedings for the sale of land, have uniformly held that it is necessary that the sale be reported to the court, and that it be confirmed before the commissioner or other person...
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Harris v. Bennett
... ... by the statute of limitations until after the expiration of ... the life estate (Joyner v. Futrell, 136 N.C. 301, ... 48 S.E. 649; Hallyburton v. Slagle, 130 N.C. 482, 41 ... S.E. 877; Woodlief v. Wester, 136 N.C. 162, 48 S.E ... ...
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Stephens v. Clark
...infringement on the possession of the trustee who was holding for the purpose of carrying out the directions of the will. Joyner v. Futrell, 136 N.C. 301, 48 S.E. 649; Woodlief v. Wester, 136 N.C. 162, 48 S.E. Cole v. Oxford Sav. Bank & Trust Co., 186 N.C. 514, 120 S.E. 54; Chinnis v. Cobb,......
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Crocker v. Vann
...upon the payment of the purchase money. Upchurch v. Upchurch, 173 N.C. 91, 91 S.E. 702; Farmer v. Daniel, 82 N.C. 152; Joyner v. Futrell, 136 N.C. 301, 48 S.E. 649. Therefore, if a deed had been made to William Jordan and I. Parker and Martha W. Parker, that A. I. Parker and Martha W. Parke......
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Dixon v. Osborne
...title as of that time. Farmer v. Daniel, 82 N.C. 152; McArtan v. McLaughlin, 88 N.C. 391; Vass v. Arrington, 89 N.C. 10; Joyner v. Futrell, 136 N.C. 301, 48 S.E. 649." Vass Arrington, supra, was an action brought to foreclose a mortgage as in the present, the court said, at page 14, of 89 N......