Southern Spruce Co. v. Hunnicutt

• Decision Date: 30 May 1914
• Docket Number: 626.
• Citation: Southern Spruce Co. v. Hunnicutt, 81 S.E. 1079, 166 N.C. 202 (N.C. 1914)
• Parties: SOUTHERN SPRUCE CO. v. HUNNICUTT ET AL.
• Court: North Carolina Supreme Court

81 S.E. 1079

166 N.C. 202

SOUTHERN SPRUCE CO. v. HUNNICUTT ET AL.

No. 626.

Supreme Court of North Carolina

May 30, 1914

Appeal from Superior Court, Swain County; Shaw, Judge.

Action by the Southern Spruce Company against Spurgeon Hunnicutt and others.Judgment for plaintiff, and defendants appeal.No error.

Where the incapacity of an officer who takes the probate or certificate of a corporate deed does not appear on the record, one who takes under the grantee gets a good title.

This is an action to recover land, and damages for wrongfully withholding possession thereof.The defendants denied the title of the plaintiffs, and set up an equity under a bond for title of date November 22, 1882, but which was not registered until January 4, 1904.

The land in controversy had been in either the actual or constructive possession of the plaintiff and its predecessors in title, from the date of the grant up to the year 1911; one of the plaintiff's predecessors in title having lived on one of the tracts continuously for more than seven years.These lands, from the date of the grant to the date of plaintiff's deed, had passed through the hands of some nine or ten different owners and had increased in value from 50 cents per acre to from $15 to $20, according to defendant's evidence.

The defendant's ancestor, James M. Hunnicutt, had never during his lifetime placed the bond to record or instituted any suit to test its validity or seek to compel specific performance, he having died about the year 1903; neither did the defendants contend that the purchase money had been paid as provided in said instrument.They did, however, offer evidence that $21 had been paid at one time, which assertion was controverted by J. A. Chambers, the party who executed the bond; he testifying that he had never received a penny either from Whitt or Hunnicutt.

There was no evidence tending to show that any of the plaintiff's predecessors in title had notice of the existence of bond from the year 1882 till the date of registration in 1904, except that one or two witnesses testified that it was rumored in the community that Chambers had executed a bond to Whitt and Hunnicutt, and the further testimony of one of the defendants that Franklin Gibson, a former owner, had told him that he knew of the bond when he bought the land in 1892.Gibson, however, testified that he never heard of the bond until years after he had purchased the tract.

The defendants' only excuse for neglecting to assert their rights, if they ever had any under the bond, was that their ancestor, some time after the date of the bond, was informed by one Clarke Whittier that a large tract he owned covered the tract embraced in the bond and was an older and better title.Hunnicutt took no further action either by offering to pay the money provided for in the bond or requesting title to be made thereunder; neither was any action taken by his heirs at law until some eight or nine years after his death, when one of them moved into a vacant house on said land and asserted that he and his codefendants were the owners of the same.

The plaintiff offered a connected chain of title from the state covering the land in controversy, subject to the objection of the defendants to the admissibility of two deeds in the chain of title, objected to on account of defect of probate.The first of these deeds was from the Three M Lumber Company, a corporation, to W. S. Harrey, the probate of which was as follows:

"State of North Carolina, Buncombe County.

I, W B. Williamson, a notary public in and for said county of Buncombe and state of North Carolina, do hereby certify that on this day the due execution of the foregoing deed by the Three M Lumber Company, a corporation, the grantor therein was duly proved before me by the oath and examination of G W. Morris and Frank L. Mitchell; and the said G. W. Morris being by me duly sworn, says: That he is the vice president of the said Three M Lumber Company, and the said Frank L. Mitchell is the secretary and treasurer; that the seal affixed to the foregoing deed is the corporate seal of said company, and was thereto affixed by him, the said G. W. Morris, by the authority of the board of directors of said company, and that he by like authority signed the name of said company to said deed by himself as its vice president, as aforesaid, and that the name of said company thereto appearing was so signed by him as such its vice president, and that the said Frank L. Mitchell at the same time attested said deed as the secretary and treasurer of said company as aforesaid, and that he was present and saw the said Frank L. Mitchell so attest said deed and sign his name thereto as so attesting the same.And the said Frank L. Mitchell, being duly sworn, says that he is the secretary and treasurer of the said the Three M Lumber Company, and that G. W. Morris is the vice president, and that he, the said Frank L. Mitchell, knows the corporate seal of said company, and that the corporate seal of said company is attached to the foregoing deed and was thereto attached by the said G. W. Morris, its vice president as aforesaid, by order of the board of directors of said company, and by like authority the said Morris as its vice president signed the name of said company to said deed by himself as such vice president, and that the said Frank L. Mitchell, as the said secretary and treasurer of said company as aforesaid, attested said deed and signed his name thereto as so attesting the same, and that the said G. W. Morris so affixed to said deed the name of said company by himself as its vice president as aforesaid in the presence of the said Frank L. Mitchell."

The second of these deeds was from one Enloe to Connor in August 1893.The probate was regular in form.This deed was probated before J. A. Chambers, a justice of the peace.The clerk adjudged the...