Murray v. Shanklin
| Decision Date | 30 June 1839 |
| Citation | 20 N.C. 431 |
| Parties | DEN ON DEM. OF DANIEL MURRAY ET AL. v. ANDREW SHANKLIN. |
| Court | North Carolina Supreme Court |
1. The possession of a vendee, taken under a deed from an infant, whether that deed is to be considered as void or voidable only, is adverse to the infant (and much more is such the case where the deed has been executed by the infant jointly with others); and the infant cannot, after he comes of age, convey a valid title to the land while such adverse possession continues.
2. Where an infant executed a deed for land by signing, sealing and delivering it, and after he came of age endorsed on it, "I have signed the within deed for the expressed purposes; and with the desire to ratify the same I hereunto affix my hand and seal," and after signing and sealing the endorsement, delivered the instrument to the vendee again: It was held, that if the deed were absolutely void in the first instance, it was rendered valid by the re-delivery, and if only voidable, the endorsement, under the hand and seal of the vendor, was a proper act of confirmation.
3. Adverse possession is constituted by an actual, exclusive possession, taken or held with the intent to put or keep out all others. The title which the party has, is not, therefore, decisive of the character of the possession; for frequently that is to be inferred more from the title which the deed under which he claims purports to convey, than from that which it really does convey.
EJECTMENT, tried before his Honor, Judge Saunders, at Hyde,on the Spring circuit of 1838.
Peter Sermon died seized in fee of a tract of land situate on Mattamuskeet Lake, in Hyde County, and the same descended to his heirs-at-law, of whom Reuben Berry, John Berry, Rachel Berry, and Levisa Berry were part, to whom, as representing a deceased parent, one undivided fourth part of the Sermon tract of land belonged. Such proceedings were had by the heirs of Sermon that partition of the descended land was made between them by the judgment of the County Court, in which one-fourth part of the whole tract was laid off and allotted as the share of the said Reuben, John, Rachel, and Levisa, together, and they entered into the said share or lot, containing sixty-six acres, as tenants with each other of that lot in fee. Being thus in possession the said Reuben, John, Rachel, and Levisa Berry, on 5 March, 1831, sold for the sum of $1,000, and conveyed jointly, by their deed of bargain and sale, to the defendant, Andrew Shanklin, the said lot, and one-fourth part of the said tract of land in fee simple, with general warranty. Thereupon the defendant took possession and placed a tenant on the land, who has exclusively occupied it ever since.
When the deed to the defendant was executed Levisa Berry, one of the bargainors, was an infant. She attained full age on 28 November, 1834,
and on 1 December, 1834, she, in consideration of $200, executed a deed of bargain and sale to Daniel Murray, for one undivided fourth part of the said lot of land, containing sixty-six acres, in fee. On 28 November, 1834, the defendant caused to be written on the back of the deed made to him and bearing date 5 March, 1831, an instrument in the following words, to wit: "I do acknowledge that I have signed, by making my mark, the within deed for the expressed purposes; and with the desire to ratify the same I hereunto affix my hand and seal," which instrument she, the said Levisa, in January, 1835, executed by signing and sealing; and after being duly attested she delivered both of the said instruments to the said Shanklin again.
Afterwards the said Levisa Berry filed against Andrew Shanklin her petition for partition, in which she claimed one-fourth part of the said tract of sixty-six acres, and prayed to have it-laid off to her in severalty. In that suit the defendant pleaded that the petitioner was not tenant in common with him, but that he was in the actual adverse possession of the whole tract, and had the sole seizin thereof. The Court stayed the proceedings therein until the petitioner could bring an ejectment to establish her right to the possession, and thereupon the present action was brought in May, 1837, upon the several demises of Levisa Berry and Daniel Murray.
On the trial the defendant contended that the plaintiff could not recover on the demise of Murray because the deed to him was void by reason of the adverse possession under the defendant, when that deed was executed. The defendant also contended that the plaintiff could not recover on the demise of Levisa Berry, because her title was divested by her two deeds to the defendant.
There was a verdict for the lessors of the plaintiff, subject to the opinion of the Court on the two points stated,...
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Clifford Stanley Spencer v. Lyman Falls Power Co.
... ... defendants' occupation of the premises. Their possession ... under the deed of a minor was adverse to their grantor ... Den ex dem. of Murray v. Shanklin , 20 N.C ... 431. That it was under claim of right may fairly be inferred ... from the fact that it was notorious, visible, ... ...
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Spencer v. Lyman Falls Power Co., 460.
...of the defendant's occupation of the premises. Their possession under the deed of a minor was adverse to their grantor. Den ex dem. Murray v. Shanklin, 20 N.C. 431. That it was under claim of right may fairly be inferred from the fact that it was notorious, visible, exclusive, and continuou......
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