Reid v. Reid

• Decision Date: 28 February 1934
• Docket Number: 559.
• Citation: 173 S.E. 10,206 N.C. 1
• Parties: REID et al. v. REID et al.
• Court: North Carolina Supreme Court

173 S.E. 10

206 N.C. 1

REID et al. v. REID et al.

No. 559.

Supreme Court of North Carolina

February 28, 1934

Appeal from Superior Court, Forsyth County; Sink, Judge.

Action by Walter H. Reid and wife and others against Wesley Reid and wife and others. From the judgment, defendants appeal.

No error.

This was an action brought by plaintiffs against defendants to partition certain land containing about 130 acres known as the "Wesley Fry Tract." John A. Reid died in December, 1928, leaving a last will and testament, dated February 2, 1926, which was duly probated, in which he left "one share to be divided equal between all of my other children and my wife, Dora, her receive a child's part all of my property," et cetera. John A. Reid had nine children--three by his first wife, the defendants being his heirs at law by his first wife and six by his second wife the plaintiffs being his heirs at law by his second wife. The defendants in their answer succinctly plead sole seizin.

The judgment of the court below is as follows:

"This cause coming on to be heard and being heard before His Honor, H. Hoyle Sink, Judge Presiding, and a jury, and issues being submitted to the jury and answered by the jury as follows: (1) Was the land described in the petition purchased by John A. Reid, as alleged in the petition and the amendments to the petition? Answer: Yes. (2) Did John A. Reid enter into the possession of and hold said land as trustee for defendants, J. C. Wesley Reid, R. R. Reid and P. C. Reid, as alleged in the answer? Answer: Yes. (3) Did the defendants assert any claim to the title and ownership of the property described in the petition within ten years after their right of action accrued? Answer: No. (4) Did the said John A. Reid hold undisputed possession of the lands described in the petition under known and visible lines and boundaries adverse to all other persons, for 20 years prior to the time of his death? Answer: Yes. (5) Are the plaintiffs tenants in common with the defendants Wesley Reid, P. C. Reid and R. R. Reid, of the lands described in paragraph 1 of the petition, as alleged in the petition and amendments to the petition? Answer: Yes. It further appearing to the Court that subsequent to the bringing of this action and prior to the trial of this action Dora Reid, the widow of John A. Reid, died, but no Administrator was appointed or has been appointed, and as this action was determined in her favor and not against her interest, it is agreed by the parties hereto, without prejudice to the rights of the defendants to appeal, that the interest of the said Dora Reid might be awarded to her Administrator hereafter to be appointed by the Clerk of the Court in the same manner and with the same force and effect as if the said Administrator had been a party to this action.

It further appearing to the Court that the plaintiffs in this action are all of the lawful heirs of Dora Reid; that all necessary parties save and except the Administrator of Dora Reid are parties to this action. It is therefore, Ordered Adjudged and Decreed that the plaintiffs, Walter H. Reid, McKinley Reid, Geneva Weavil, Sallie Motsinger, Alverta Yokeley, Conrad Reid and Clarice Reid, and the defendants, Wesley Reid, P. C. Reid and Robah Reid, are tenants in common of the lands described in the petition.

It is further Ordered, Adjudged and Decreed that the plaintiffs hereinbefore named are tenants in common to the extent of their pro rata interest in the one-eighth interest of Dora Reid, deceased, subject, however to the said interest being divested by the rights of the creditors of Dora Reid, deceased.

It is further Ordered, Adjudged and Decreed that this case is remanded to the Clerk of the Superior Court of Forsyth County to be partitioned under the partition petition according to the terms of the will of John A. Reid and according to law.

It is further Ordered, Adjudged and Decreed that the costs of this action from the time of the filing of the answer by the defendants and transfer of the same to the Civil Issue Docket to determine the ownership of the said property to this time be taxed against the defendants; all other costs of the partition proceedings to be taxed by the Clerk according to law.

This the 16th day of June, 1933.

H. Hoyle Sink, Judge Presiding."

Numerous exceptions and assignments of error were made by the defendants, who appealed to the Supreme Court. The material ones and the necessary facts will be considered in the opinion.

Where one issue decisive of appellant's right to recover has been found against him by jury, Supreme Court will not consider exceptions respecting other issues arising on trial.

Elledge & Wells, of Winston-Salem, for appellants.

S. E. Hall, J. F. Motsinger, and E. M. Whitman, all of Winston-Salem, for appellees.

CLARKSON Justice.

At the close of plaintiffs' evidence and at the close of all the evidence, defendants made motions in the court below for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we can see no error. For a determination of this controversy, we do not think it necessary to consider any except the fourth issue: "Did the said John A. Reid hold undisputed possession of the lands described in the Petition under known and visible lines and boundaries, adverse to all other persons, for 20 years prior to the time of his death? Answer: Yes."

It is well settled in this jurisdiction that this court will not consider exceptions and assignments of error arising upon the trial of other issues when one issue decisive of the appellant's right to recover has been found against him by the jury. Ginsberg v. Leach, 111 N.C. 15, 15 S.E. 882; Sams v. Cochran, 188 N.C. 731, 734, 125 S.E. 626; Lilley v. Cooperage Co., 194 N.C. 250, 254, 139 S.E. 369.

We think there was sufficient evidence to be submitted to the jury on this issue. C. S. § 430 is as follows: "No action for the recovery or possession of real property, or the issues and profits thereof, shall be maintained when the person in possession thereof, or defendant in the action, or those under whom he claims, has possessed the property under known and visible lines and boundaries adversely to all other persons for twenty years; and such possession so held gives a title in fee to the possessor, in such property, against all persons not under disability." C. S. § 429.

In Locklear v. Savage, 159 N.C. 236-238, 74 S.E. 347, 348, speaking to the subject: "What is 'adverse possession' within the meaning of the law has been well settled by our decisions. It consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner." Citing numerous authorities. Johnson v. Fry, 195 N.C. 832, 143 S.E. 857; Gault v. Lake Waccamaw, 200 N.C. 593, 602, 158 S.E. 104.

On this aspect the court below charged the jury.

"The law says that where one holds undisputed possession of any lands under known and visible boundaries, adversely to all other parties and claimants, that...