Rhea v. Craig
| Decision Date | 25 May 1906 |
| Citation | 54 S.E. 408,141 N.C. 602 |
| Parties | RHEA v. CRAIG et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Moore, Judge.
Action by H. E. Rhea against J. C. Craig and others. From a judgment for defendants, plaintiff appeals. No error.
In an action for partition, a requested instruction that if all of the tenants in common of the land have been in the continuous, open, and notorious possession of some part of the land, then the statute of limitations has not run in favor of either, but the possession of each is presumed to have been in the interest of all and in support of the common title, was properly refused.
A requested instruction as to what would constitute a break in the continuity of possession, which did not state whether such possession alleged to constitute a break was adverse, or merely by permission, or its nature, or how long it lasted was also properly refused.
The proceeding was for the partition of a large body of land which descended to the parties from their ancestor, James Craig. The defendants admit that they and the plaintiff had formerly been tenants in common of the land, but pleaded that on April 6, 1868, they had entered into a written agreement which was signed by all of them, and thereby appointed three arbitrators or referees, Patton, Hemphill, and Davidson, to meet upon the premises and divide the land among the tenants in common, allotting to each of the parties his or her portion of the same; that the referees did meet upon the land, and caused it to be surveyed and platted by T. C Westhall, a surveyor, and the lines to be marked, and allotted by parol to each of the parties one of the lots or parcels, as indicated on the map; that immediately thereafter the several parties went into possession of the land, each of the parts so allotted to him or her, which has been held ever since--that is, for 30 years, openly and adversely to the others and to all the world up to known and visible lines and boundaries; and that by reason thereof the plaintiff and defendants are not tenants in common of the land, but are each sole seised of the portion so allotted to him or her and so held by adverse possession since the allotment. The court ruled that, as the defendants had admitted that a tenancy in common once existed, the burden was upon them to show that it did not now exist, but had been severed, as alleged in their answer. The defendants were thereupon required to open the case. There was much evidence concerning the alleged parol partition of the land. That of the plaintiff's witness D. C. Stephenson bears upon the transactions and dealings of the parties with reference to a partition of the land being sufficient to indicate the general nature of the evidence introduced by the plaintiff as to that matter. He testified in part as follows: "The surveyor marked all the lines and corners and located all the shares. The arbitrators set apart to each one his share. We did immediately enter into possession, each of his share, and have remained in the exclusive possession, each of his share ever since. The land as divided has been ever since assessed against each individual according to his share, and each has ever since paid taxes upon his share. These lines were marked and well known to all the parties, and have been recognized ever since by all the parties as lines between the parties. Mrs. Rhea entered into possession of her part at once, has occupied it ever since, cultivating or having it cultivated every year, built upon it and improved it, and cleared up a great deal of it, until shortly before she began this suit.
She never made any claim to my share, or to that of the Craigs, that I ever heard of, until the beginning of this suit. She has never made any claim whatever to my part, and, if she ever has to Craig's I never heard of it. I know that she never trespassed upon any of it. I have lived upon my part, and cultivated and improved it by building upon it, ever since the division, planted an orchard upon it, which is still on it, and I would not have moved for $300. I have made as high as $300 on it in one year; that is, on the orchard alone. Neither the plaintiff nor any one else has ever made any claim to my share until the beginning of this suit, although I have lived upon it and made it my home constantly ever since the division. The Craigs have lived upon their shares continuously ever since the division, have improved it somewhat, have cultivated it every year since, and, so far as I know, no claim has ever been made upon it by the plaintiff or any one else, until after this suit was brought. They have, since the division and shortly after the division, moved their fences upon the division lines and have maintained them there ever since." There was other testimony tending to corroborate Stephenson and to establish the agreement between the parties to divide the land by arbitration, and to show adverse possession under known and visible boundaries of several lots since 1869. The referees made no written report of their acts and proceedings. There was only the written submission, signed by the parties, the survey and plot of the surveyor, showing the location and lines of the different lots, and the evidence as to the continuous and adverse possession of each party of his or her lot, as already stated. The plaintiff introduced evidence tending to show that there had been no such partition of the land as would bind her, and no adverse possession of each of the tenants with respect to the portion of the land alleged to have been allotted to him or her, but that they had occupied the premises indiscriminately as tenants in common and without reference to any division of the same. There was evidence on the part of the defendants that at the time of the survey Westhall, the surveyor, prepared deeds for the parties to execute, so that they could convey to each other the several lots according to the allotment, and that the plaintiff refused to sign the deed prepared for her, and that the defendants were always able, ready, and willing to execute the deeds prepared for them. There was also evidence that the plaintiff had used and cultivated the land allotted to her and cut timber thereon. Some of the original defendants have died since the proceeding was brought and other parties brought in. When reference is made to the defendants in connection with the transaction in 1868, the original defendants are meant.
The court charged the jury fully upon the facts as the jury might find them from the evidence, and especially as to the effect of the agreement of the parties, the survey and allotment and the subsequent adverse possession of the lots by the parties, and among other instructions the court gave the following: The plaintiff had requested the court to charge the jury as follows: ...
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