This
was an action in ejectment for the recovery of the possession
of certain real estate described in the complaint as 130 Pine
Street, Asheville, N. C. It was commenced by the issuance of
summons on the 17th day of July, 1940, which was personally
served upon the defendants on the 27th day of July, 1940, and
was heard before his honor, Frank M. Armstrong, and a jury
at the September term, 1940, of the Superior Court of
Buncombe County. The defendants entered a plea of adverse
possession under color of title and pleaded sole seizin, and
set up as a defense to the action the seven-year statute of
limitations.
The
facts: Counsel for both plaintiff and defendants stipulated
that title to the land involved in this action was vested in
B. J. Alexander under a trustee's deed dated January 8
1897, recorded in Book 104, at page 119, in the office of the
Register of Deeds, and that this is a common source of title.
All the
conveyances offered in evidence by defendants were duly
recorded. Plaintiff offered in evidence: (1) Deed dated
September 24, 1901, from B. J. Alexander (unmarried) to
Arthur Rogers and Greenlee Nichols for the land in
controversy. (2) Deed from Arthur Rogers and wife to Greenlee
Nichols, dated October 3, 1903 for one-half interest in all
lands embraced
in the aforesaid Alexander deed. (3) Deed from Greenlee
Nichols and wife, Belle Nichols, to Arthur Rogers, dated
October 3, 1903, conveying all the land embraced in the
Alexander deed except the lot of land embraced in this
controversy designed as 130 Pine Street in the City of
Asheville, N. C.
Greenlee
Nichols, plaintiff, testified, in part: "I am 62 years
old. I was born in Madison County; I married Belle Ponder. I
bought the property from Mr. Alexander one day and moved into
it with my wife and family the next day; I occupied the
property as my home until 1913 when I went to Chattanooga
Tennessee, to work; I left my wife and children in possession
of my property occupying it as our home; two of my sons were
under age but old enough to work and I let their earnings go
towards the support of the family; I sent money from time to
time to pay taxes, doctors' bills for the children and
other expenses. My wife and I never separated; we were never
divorced; she continued in the possession of the property
until her death in January, 1934. She and my youngest
daughter Gertrude Whitesides occupied the home after the
other children left and until my wife's death; Gertrude
married Whitesides and she and her husband lived in the home
with my wife and continued to occupy it after her death. I
never signed any papers about the property; never owed
anybody anything on it and my wife and family were never
disturbed during my wife's lifetime and not until Mr
York claimed the property last April or May. When I heard of
his claim, I came to Asheville with Mr. Dixon, my attorney
from Chattanooga, and met Mr. James S. Howell in Mr.
Rector's office and signed the lease which you hand me.
(Plaintiff introduces lease dated May 11, 1940, signed by
himself as lessor and Hattie Robinson as lessee for the
premises at No. 130 Pine Street in the City of Asheville, to
take effect on June 1, 1940, and end on May 31, 1941, at the
rate of $2.50 per week, with privilege of renewal for another
year at the rate of $3 per week.) (Cross-examination) I left
here in 1913, and went to Chattanooga. I came home every two
weeks during the first three years, and then didn't come
back any more. The last time I was in Asheville before this
suit arose was in 1916. That was 24 years ago. I did not
attend my wife's funeral when she died and was buried in
Asheville. I think I was sick. This lease agreement offered
in evidence by my lawyers was signed by a colored woman named
Hattie Robinson. At the time I signed it she wasn't here.
She was in Ohio. I had not seen her in 26 years. My lawyer
told me I would have to get somebody in possession and I told
Mr. Rector to write Hattie up in Ohio. The last time I had
seen her was in 1914. The lease I offered in evidence was
signed by a woman living in Ohio whom I had not seen for 26
years. I know Mr. J. E. Rector. This deed from him and his
wife, Nelle Rector, to my daughter, Gertrude Whitesides,
described this land by metes and bounds. Yes, the deed is
dated January 12, 1927. I don't recollect now whether I
authorized Mr. Rector to make a deed to her for this
property. Q. Did you authorize him to convey this property to
your daughter by this deed dated January 12, 1927? Ans: I
said I wanted it made to my daughter. Q. If you told Mr.
Rector that you wanted it made to your daughter, then you
knew that the title passed from you to your daughter? Ans: If
he got it straightened out. The Belle Nichols who made one of
the deeds for this property to my daughter, Gertrude Nichols
Whitesides, was my wife. Alphonso Nichols, Joseph Nichols,
William Nichols and Leita Nichols Fuller are my other
children. I don't know whether Sylvia Nichols is the wife
of my son Joseph Nichols. I didn't know he was married.
The childrens' names that you have read and my wife were
the only members of my family. I don't know about their
wives. I didn't come back from Tennessee any more after
1916. I married while I was down there. I heard my daughter
say she borrowed money on the property. The house that is on
the property now is not the house that was there when I left
North Carolina in 1913. It is a different house. I don't
know anything about my daughter losing the house by the
foreclosure of a mortgage which she gave on it. I have not
lived in North Carolina since 1913, but I have a little
common judgment about rents as I was born and raised here,
and I think the rent of this house is worth about $2.50 per
week. The lease which I signed to Hattie Robinson was written
up by Mr. Rector and I signed it in his office. Hattie was up
in Ohio at that time and I hadn't talked to her in 26
years. I left it with Mr. Rector and told him to get somebody
in the house. (Re-direct examination) I never heard of any
claim by S. A. Lynch or J. E. Rector to my property; never
heard of any adverse claim by anybody until a short time ago,
about March
or April of this year. I did not marry until after my wife
died."
Gertrude
Whitesides, a witness for plaintiff, testified, in part
"Greenlee Nichols is my father; I was born at 130 Pine
Street and lived there until Mr. York put me out in June,
1940. My mother lived in the house and occupied it as her
home continuously until her death on January 7, 1934; nobody
ever disturbed her possession; she and my father were not
separated; they were never divorced; my father visited us a
few times after he went to Chattanooga; we heard from him
from time to time; he sent us money. I married and my husband
lived with me and my mother at 130 Pine Street; I went into
possession as one of my father's children and a member of
his family; and I occupied the place with my mother until her
death and I continued in possession until Mr. York put me
out. (Cross-examination) I am familiar with the various deeds
which were made to me and which were read to the jury a few
minutes ago while you were examining my father. I got a deed
from my mother and another deed from Mr. Rector and wife and
another from my brothers and sister. At that time my father
had been gone from North Carolina so long that we all thought
he was dead. All of the family was putting the title in me. I
went to a concern in the Medical Building and borrowed
$1,500.00 on the property, and I made payments for a while
and I couldn't make the payments and they foreclosed the
property. Then I rented it from the Consolidated. I knew the
Consolidated bought it and afterwards I leased it from them.
The paper you hand me and which is marked
'Defendant's Exhibit No. 1' for identification is
my signature to one of the leases. The other marked
'Exhibit No. 2' is also my signature. Mr. Connor, the
Welfare Officer of Buncome County, signed one of the leases
for me and he paid the rent for me for awhile. After Mr. York
bought the property I paid him rent. Finally suit was brought
to put me out. It was before Mr. Bramlett, Justice of the
Peace. Mr. Rector was my attorney in that suit. A judgment
was rendered to put me out of possession. When I gave the
mortgage on the property I represented that it was my
property. My father had been gone so long that I thought he
was dead and after getting the deeds from Mr. Rector and my
brothers and sister and my mother, who is now dead, I gave
the mortgage on the property. The amount of the loan was
$1,500.00. We remodeled the house. The photograph you show me
is a picture of the new house. I couldn't say how long we
got support from the Welfare Department. My mother died on
the 6th day of January, 1934. I know that my husband and I
made affidavits that our father was dead at the time we got
the loan from the Mortgage Company and the Company granted
the loan after they got the affidavits and deeds from
everybody. After the Consolidated bought the property at
foreclosure sale, they brought a suit against me and got
judgment and Officer John Garrison put me out then. They let
me go back because I was sick. After I got back in I signed a
new lease. The loan which I got through the Federal Mortgage
was to pay Mr. Thompson, the Contractor, for remodeling the
house. Thompson was paid after we got the loan. That is what
the loan was made for. Yes, I have a suit against Mr. York
and his wife for $6,000 to recover damages because I was put
out of the house under execution. It is here on the docket
awaiting the outcome of this case. When I leased this
property from Mr. York he gave me a copy of the lease...
