Miller v. Bumgardner

• Decision Date: 08 December 1891
• Parties: Miller v. Bumgardner et al.
• Court: North Carolina Supreme Court

13 S.E. 935

109 N.C. 412

Miller v. Bumgardner et al.

Supreme Court of North Carolina

December 8, 1891

Appeal from superior court, Ashe county; W. A. Hoke, Judge. Affirmed.

Action by Betsy Jane Miller against David Bumgardner et al. to recover possession of land. From a judgment for defendants plaintiff appeals.

Plaintiff took possession of land under a deed from a married woman who was not privily examined, and held the same until it was sold under execution to defendant's grantor. On the second marriage of plaintiff's grantor, subsequent to said sale under execution, she joined her husband in another conveyance to plaintiff. Plaintiff sought to prove that her grantor was an infant during her widowhood, and that consequently, being under the disability of either marriage or infancy during the possession of defendant and his grantor, such adverse possession was not a defense. Held that, if plaintiff's grantor became of age during her widowhood, the statute thereupon began to run, and it was not interrupted by her second marriage.

Geo W Bower, for appellees.

Avery J.

It was admitted that prior to the year 1876 one Mollie Cox was the owner of the land in dispute, and that she married one Denton Williams, and during coverture, in September, 1876, a deed signed by her husband, Denton Williams, and herself, was delivered to the plaintiff, Betsy Jane Miller, but the feme covert was not privily examined as to its execution. The defendant, relying on this deed or paper, delivered to the plaintiff as color of title, offered evidence tending to show that Betsey Jane Miller, the plaintiff, took possession under it at the date of its execution in September, 1876, and remained in possession continuously till January 3, 1883 when Williams Miller, under whom the defendant Bumgardner holds, was placed in possession by the sheriff by virtue of a writ of possession issued in an action brought by him, claiming title and possession of said land against the plaintiff. It was in evidence also that the said Williams Miller prior to the institution of said suit had purchased a note, given by plaintiff to said Mollie Williams for the purchase money, recovered judgment on the same against plaintiff, bought at sale under execution issued on said judgment, and recovered in said action on the sheriff's deed. Avoiding the estoppel growing out of that action, the plaintiff, Betsy Jane Miller, offered as evidence of title a deed executed by Mollie Robertson, (who was first Mollie Cox, then married Denton Williams, and after his death married Robertson,) in which her husband joined, dated July 28, 1888, which was duly proven. As both parties to the action acknowledged in the pleadings that the title was in Mollie Robertson, (née Mollie Cox,) this deed offered by the plaintiff was prima facie proof that the title had passed from Mollie Robertson, and was in the plaintiff at the time when the action was brought, and, nothing more appearing, the plaintiff was entitled to recover upon it, the possession by defendants being admitted. To meet this apparently sufficient title and defendants offered testimony tending to show the continuous possession by Betsy Jane Miller, the plaintiff in this action, for over six years, between dates already given, under the paper purporting to be a deed from Denton Williams and his wife, Mollie, to her, and to connect with that occupancy by her that of Williams Miller, under whom defendants claim, and who took possession in 1883 as the purchaser of her interest at execution sale. Williams Miller and those claiming under him were clearly in privity with her as to her claim of title by virtue of the occupancy under the paper purporting to have been executed by Williams and wife; and, while the plaintiff was not estopped from setting up the subsequent deed as evidence of title, she was a stranger and adverse to, while the defendants were...