Owen v. Needham
| Decision Date | 13 November 1912 |
| Parties | OWEN v. NEEDHAM et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Montgomery County; Allen, Judge.
Action by Matilda Owen against Elijah Needham and others. From a judgment of nonsuit, plaintiff appeals. Affirmed.
Where those joining in a petition in partition alleged that a decedent died seised of the land described, and where the land was allotted to one of the parties, another of them and a third person claiming under him held estopped from relying on a subsequent title under a grant from the state.
This is an action to recover possession of land. The plaintiff claims under a deed from Alexander Jordon, who procured grants from the state for the land in controversy in 1850, 1851, and 1854. The defendant claims as the heir of Sarah Jordon, who was the first wife of Alexander Jordon, and specially pleads that the plaintiff is estopped to claim title to said land. The plaintiff introduced evidence tending to establish her title, and relied on said grants to Alexander Jordon as a necessary part of her title. The defendant then introduced a partition proceeding of date 1849, in which the land in controversy was allotted to Sarah Jordon, and it was admitted that the defendant was her heir. Alexander Jordon and Sarah Jordon were parties to said partition proceeding, and they alleged in their petition that George Allen died in 1847 seised and possessed of certain lands, and that Sarah Jordon and others named were his children and heirs, and as such tenants in common of said land, and partition was made in accordance with the petition. His honor then intimated that he would instruct the jury that the plaintiff was estopped if it was found as a fact that Alexander Jordon was a party to the partition proceeding, and that the land in controversy was therein allotted to Sarah Jordon, and in deference thereto the plaintiff submitted to judgment of nonsuit, and appealed.
Howell & Hurley, of Troy, and John T. Brittian, of Ashboro, for appellant.
J. A Spence, of Ashboro, and Jerome & Price, of Salisbury, for appellees.
The case of Carter v. White, 134 N.C. 466, 46 S.E. 983 101 Am. St. Rep. 853, is not decisive of this controversy because no land was allotted in the partition proceeding to Alexander Jordon, under whom the plaintiff claims, and she does not derive her title through that proceeding, but there is another principle which is conclusive against the plaintiff. Alexander Jordon was a party and joined in the petition, which alleged that George Allen died in 1847, seised and possessed of the land described, and that the petitioners were tenants in common of the same as his heirs, which was equivalent to an allegation of an estate of inheritance in George Allen in 1847, and following the petition there was an adjudication of title accordingly in 1849. This, according to all authorities, estops all parties to the proceeding, including the grantor of the plaintiff, to deny that in 1847 George Allen was the owner of the land described (Armfield v. Moore, 44 N.C. 161; Coltrane v. Laughlin, 157 N.C. 287, 72 S.E. 961); and, if so, it was not vacant and unappropriated land, which alone is the subject of entry and grant, and the adjudication of necessity passed on this precise point, and the plaintiff is now seeking to establish that the land was vacant and unappropriated land in 1849, and that the state did not part with title until 1850, 1851, and 1854.
The two positions are irreconcilable, and, if we give any effect to the adjudication, we must hold that Alexander Jordon is estopped to allege that the title to the land in controversy was in the state at the time his grants were issued, and that the plaintiff, being a privy in estate, is bound by the estoppel. Green v. Bennett, 120 N.C. 394, 27 S.E 142. In the Armfield Case Chief Justice...
To continue reading
Request your trial