Mcculloh v. Daniel
| Decision Date | 09 April 1889 |
| Citation | 9 S.E. 413,102 N.C. 529 |
| Court | North Carolina Supreme Court |
| Parties | McCulloh et al. v. Daniel. |
Tenancy in Common—Adverse Possession.
Where an order of sale of the land of a decedent to pay debts is made without service of any process on certain of the devisees, and the sale thereunder purports to be of the entire interest in the land, the deed is color of title against all the devisees. The doctrine of tenancy in common cannot be applied to the purchaser in such case.
T. B. Bailey and A. E. Holton, for appellants. E. L. Qaither, for appellee.
Davis, J. Civil action tried before Clark, J., at spring term, 1888, of the superior court of Davie county. The plaintiffs alleged that they were the owners of two undivided fifths of the land in controversy, as devisees of Alfred McCulloh, deceased, and that the defendant is the owner of the other three-fifths, as tenant in common with plaintiffs, and is in possession, and wrongfully withholds the same, and they demand j udg-ment that they be "let into possession, " etc. The defendant answers at much length, averring several grounds of defense, and among them, in substance, that the land in question was sold publicly by James M. Johnson, executor of Alfred McCulloh, deceased, on the 1st day of May, 1869, in obedience to a decree of the superior court of Davie county, at which sale the defendant became purchaser; that the sale of the land was confirmed, the purchase money paid, and a deed under a decree of the court executed to him therefor, and that he has held the same ever since adversely to all persons under the said deed; that the purchase was " with the full knowledge and without objection on the partof the plaintiffs, and that by their acts and conduct he was encouraged to buy" said land. There are also averments of fact showing possession adverse to the plaintiffs, and the recognition by them of the sole ownership of the defendant; and he relies upon his purchase and deed, and adverse possession thereunder, and the statute of limitations. After referring to the complaint and answer, to be taken as a part thereof, the following is the statement of the case on appeal: The testator died, and James M. Johnson duly qualified as his executor prior to the 11th day of September, 1867, at which time said executor filed his petition for the sale of the land in controversy for assets to pay the debts of said Alfred McCulloh. An order of sale was granted, and the land was sold at public auction, at the court-house in Mocksville, when and where defendant bought. The...
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Alexander v. Works
...by him under the deed will bar the cotenants who were not parties." Amis v. Stephens, 111 N. C. 172, 16 S. E. 467; McCulloh v. Daniel, 102 N. C. 529, 9 S. E. 413; Johnson v. Parker, 79 N. C. 475. "It will be found in the case first cited that there were tenants who were not made parties to ......
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...by him under the deed will bar the cotenants who were not parties." Amis v. Stephens, 111 N.C. 172, 16 S.E. 467; McCulloh v. Daniel, 102 N.C. 529, 9 S.E. 413; Johnson v. Parker, 79 N.C. "It will be found in the case first cited that there were tenants who were not made parties to the procee......
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