Justice v. Baxter

• Decision Date: 31 October 1885
• Citation: 93 N.C. 405
• Court: North Carolina Supreme Court
• Parties: B. T. JUSTICE et als. v. J. O. BAXTER.

93 N.C. 405

B. T. JUSTICE et als.

v.J. O. BAXTER.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION tried at the Special Term held in February, 1885, of the Superior Court of CRAVEN county, before Shipp, Judge.

There was judgment for the plaintiffs, from which the defendant appealed.

The facts are stated in the opinion of the Court.

Messrs. Green & Stevenson, for plaintiffs .

Messrs. Simmons & Manly, for defendant .

SMITH, C. J.

This action, instituted to establish the plaintiffs' title to the land described in the complaint and to recover the possession, terminated at Spring Term, 1882, of Lenoir Superior Court, in a judgment for the plaintiffs in the following form:

“This action coming on to be heard, it is ordered and adjudged, with the consent of all the parties thereto, given in open Court, that the plaintiffs were entitled to the lands, in the pleadings mentioned, in fee simple absolute, at the commencement of the action, and up to the last Term of the Court, since which time the plaintiff B. T. Justice has conveyed his undivided one-third interest to the defendants, Alice Ferrebee, W. W. Ferrebee, J. W. Dawson and wife, S. E. Dawson, W. T. Caho, Israel Boomer, J. L. Bryan, J. W. Brabble, John H. Nichols, J. O. Baxter, and Jas. S. Lane:

And it is further ordered and adjudged, consent being given in manner aforesaid, that the plaintiffs do recover of the defendants aforesaid, the possession of the said lands, the execution to be suspended until the question of betterments can be determined according to law--provided that the defendants do proceed, without delay, and provided further, that the value of the use and occupation of the said lands by the defendants, shall be determined in said proceedings in respect to betterments.”

Thereupon the defendant J. O. Baxter applied to the Court, by petition, wherein he alleges, that holding the premises under the deed purporting to convey the fee, and believed by him to pass the title, he has made permanent improvements upon the land, and prays that he may be allowed for the same over and above the value of the use and occupation of the land under the provisions of the statute. The Code, §473.

The plaintiffs answer and contest the claim, and upon an issue submitted to the jury, they find that the petitioner is not entitled to the betterments. From the judgment rendered against the petitioner, and directing execution to issue for the recovery of possession, the petitioner appeals to this Court.

The facts connected with the trial as stated in the case on appeal, so far as necessary to elucidate the rulings of the Court intended to be reviewed are as follows:

The petitioner offered in evidence a deed purporting to convey the premises executed on May 26th, 1855, by Jno. H. Hampton to Willoughby D. Ferrebee, and a deed for the same land, executed on July 16th, 1870, by the latter and his wife Alice, to the petitioner, both of which had been duly proved and registered. The petitioner, examined on his own behalf, testified, that in the year 1866, the date of the deed of Ferrebee to him, he went into possession of the land set forth in his petition,--being the same described in the conveyance from Ferrebee to him--under said deed which was believed by him to be good, and without any actual notice or knowledge whatever of any defect in his title or that of his grantor. That under said deed and title, believed by him to be good and without defect, he made lasting and permanent improvements on said land. That the land was woodland, none of it being cleared. That he cleared all or most of it, fenced, ditched and put it in a fair state of cultivation. That he built thereon a dwelling house, barn, stables and other necessary out-houses. That the enhanced value of the land by reason of the permanent improvements placed thereon is two thousand two hundred and fifty dollars.

That the land at the time he went into possession of it was worth two hundred dollars. That the value now, including all improvements, is two thousand five hundred dollars. That the value of the land now without the buildings placed thereon by defendant, is about sixteen to eighteen hundred dollars. That a fair annual rental of the land since the year 1879 including improvements is one hundred dollars--a fair annual rental of the land in the condition when defendant entered on the land was about twenty-five dollars.

W. T. Caho testifies to the same thing in substance.

It was admitted that Mary B. Justice owned said land and that, while an infant, she married Alexander Justice on the 19th day of March, 1846, and that she became of age on the 26th day of May,...