Layden v. Layden

• Decision Date: 08 October 1947
• Docket Number: No. 17.,17.
• Citation: 228 N.C. 5,44 S.E.2d 340
• Court: North Carolina Supreme Court
• Parties: LAYDEN et al. v. LAYDEN et al.

44 S.E.2d 340

228 N.C. 5

LAYDEN et al.

v.LAYDEN et al.

No. 17.

Supreme Court of North. Carolina.

Oct. 8, 1947.

Appeal from Superior Court, Perquimans County; Chester Morris, Judge.

Civil action to remove cloud on title by Amanda F. Layden, unmarried, and others against R. L. Layden. From the judgment, plaintiffs appeal.

Reversed.

Civil action to remove cloud upon title, instituted 12 September, 1946.

Amanda M. F. Layden was the owner of the two tracts of land involved in this action. She devised both tracts to her son, Charles T. Layden, for life and then to his heirs. Her will was duly probated in Perquimans County in 1901. She had only two children, Charles T. and Columbus. Charles T. never married, but Columbus married and had children, who are the plaintiffs in this action and claim said lands as the only heirs at law of Charles T. Layden.

The defendants are the children of R. T. Layden, who died in 1945, and claim the lands under a Trustee's deed to R. T. Layden and by adverse possession.

It is admitted that the plaintiffs and the defendants claim from a common source, to wit: Amanda M. F. Layden.

The additional facts pertinent to this appeal are as follows:

1. On October 1, 1919, Charles T. Layden executed a deed of trust on four tracts of land, including the two tracts involved herein, and designated as tracts 3 and 4, to W. F. C. Edwards, Trustee, to secure the payment of a series of notes aggregating $3,000, payable to R. T. Layden, the last note maturing October 1, 1925.

2. In August, 1920, Charles T. Layden tonveyed tract No. 1, described in the aforesaid deed of trust, to C. C. Colson. Colson executed a mortgage deed to Charles T. Layden securing notes aggregating $5,500. R. T. Layden purported to release the land conveyed from the deed of trust and in lieu thereof accepted an assignment of the notes and mortgage deed. Thereafter, on March 22, 1922, Colson conveyed the land back to Charles T. Layden, subject to the aforesaid mortgage deed. Charles T. Layden died January 22, 1926.

3. R. T. Layden qualified as administrator of the estate of Charles T. Layden, January 28, 1926. The administrator advertised and foreclosed the Colson mortgage deed and had W. F. C. Edwards, Trustee, in the deed of trust, to advertise for sale the property described therein. Roth sales were held on May 15, 1926. The property described in the mortgage deed was purchased by L. N. Hollowell for $2,700, and only tract No. 2 was sold by the Trustee, which tract was bought by L. N. Hollowell for $600. Reports were duly filed showing a total of $3,117.65 was credited on the notes of Charles T. Layden.

4. On January 17, 1927, R. T. Layden filed for registration the deed from R. T. Layden, administrator of Charles T. Layden, to L. N. Hollowell, the deed from W. F. C. Edwards, Trustee, to L. N. Hollowell, together with a deed from L. N. Hollowell and wife to R. T. Layden, conveying both the foreclosed tracts. Hollowell testified in the trial below that he bought both tracts of land for R. T. Layden at his request. These tracts are not involved in this action.

5. R. T. Layden as administrator of Charles T. Layden, filed his final account as such administrator on January 28, 1928.

6. W. F. C. Edwards, Trustee, purports to have advertised a second time under the power of sale contained in the deed of trust, executed October 1, 1919, tracts of land three and four, as described therein, being the lands now in controversy, for sale on April 7, 1928, when and where R. T. Layden is purported to have become the last and highest bidder for said lands in the sum of $1,000. According to the evidence, no report was made of the sale and the purchase money was not paid to the Trustee, there is no evidence showing the purchase money was ever paid, and the deed for the property was not executed and delivered to R. T. Layden by the Trustee until February 1, 1943.

7. The defendants plead the possession of R. T. Layden, as mortgagee for more than 10 years prior to the institution of this action, as a bar to the action, as provided in G.S. § 1-47(4). They also plead possession since the foreclosure sale in 1928, and adverse possession under the foreclosure sale for more than seven years, under color of title, as a bar to the action, as provided in G.S. § 1-38.

The defendants moved for judgment as of nonsuit at the close of plaintiffs' evidence, the motion was denied. The motion was renewed at the close of all the evidence and allowed. The plaintiffs appeal, assigning error.

W. A. Worth, of Elizabeth City, for plaintiffs.

W. H. Oakey, of Hertford, and Wilson & Wilson, of Elizabeth City, for defendants.

DENNY, Justice.

The plaintiffs and the defendants are claiming title from a common source. The plaintiffs having introduced evidence tending to show title in themselves, and having offered evidence tending to show that the purported deed to the locus in quo, held by the defendants is void, they were entitled to go to the jury on the issues raised by the pleadings. Hence, the judgment as of nonsuit was erroneously entered.

The defendants' sole claim of title to the lands involved herein, is based on the following grounds: (1) R. T. Layden was in possession of the premises for more than 10 years prior to the institution of this action as mortgagee, and that such possession is a bar to plaintiffs' action under the provisions of G.S. § 1-47(4); and (2) That these defendants and R. T. Layden, under whom they claim, have been in possession of these lands since the foreclosure salein 1928; and that such possession has been adverse and under color of title for more than seven years prior to the institution of this action. G.S. § 1-38.

The appellees concede in their brief that prior to the enactment of Section 1, Chap. 16, of 1943 Session Laws, now a part of G.S. § 45-26, unless a mortgagee was in possession, the foreclosure sale and the execution and delivery of the deed pursuant thereto, in order to be valid, must have been completed within 10 years from...