New Hanover Shingle Mills, Inc. v. John L. Roper Lumber Co.

• Decision Date: 26 April 1916
• Docket Number: 216.
• Citation: 88 S.E. 633,171 N.C. 410
• Parties: NEW HANOVER SHINGLE MILLS, INC., ET AL. v. JOHN L. ROPER LUMBER CO. ET AL.
• Court: North Carolina Supreme Court

88 S.E. 633

171 N.C. 410

NEW HANOVER SHINGLE MILLS, INC., ET AL. v. JOHN L. ROPER LUMBER CO. ET AL.

No. 216.

Supreme Court of North Carolina

April 26, 1916

Appeal from Superior Court, Onslow County; Connor, Judge.

Action by the New Hanover Shingle Mills, Incorporated, and others against the John L. Roper Lumber Company and another. From judgment for defendants, plaintiffs appeal. Affirmed.

Where plaintiffs admitted, when motion for nonsuit was made at the close of their evidence, that unless all the deeds offered in evidence by them were admitted in evidence they could not recover, and the motion for nonsuit was granted on such admission, the court on appeal cannot consider the sufficiency of any other source of title.

Rountree Davis & Carr, of Wilmington, G. V. Cowper, of Kinston, C. D Weeks, of Wilmington, and E. M. Koonce, of Jacksonville, for appellants.

Moore & Dunn, of Newbern, for appellee lumber company.

Rodolph Duffy and Frank Thompson, both of Jacksonville, Herbert McClammy, of Wilmington, and McLean, Varser & McLean, of Lumberton, for appellee Foster.

BROWN J.

In the case on appeal it is stated that, when the motion for nonsuit was made at the close of the plaintiffs' evidence "the plaintiffs admitted that unless all the deeds offered in evidence by them were admitted in evidence they could not recover." This is an admission of record made in the superior court upon the consideration by his honor of the motion to nonsuit. It was acted upon by his honor, and the motion granted. Such admission is binding upon the plaintiffs in this court.

It would be unfair to the defendants, as well as unjust to his honor, if we should disregard such an admission solemnly made and recorded in the case on appeal. This precludes us from considering any other source of title than that based upon the validity of the deeds offered in evidence by the plaintiffs. It obviates the necessity of considering the sufficiency of any evidence of possession under color of title.

One of the deeds in the plaintiffs' chain of title is a deed dated December 22, 1902, from C. M. Carrier to Ralph E Carrier. This deed was probated in the city of Buffalo, state of New York, before E. A. Kingston, "commissioner of deeds in and for Buffalo, N. Y." Attached to it is certificate by John H. Price, clerk of the courts of Erie county, the same being courts of record certifying that the said E. A. Kingston was at the time...