Steljes v. Simmons

• Decision Date: 10 November 1915
• Docket Number: 304.
• Citation: 86 S.E. 801,170 N.C. 42
• Parties: STELJES v. SIMMONS.
• Court: North Carolina Supreme Court

86 S.E. 801

170 N.C. 42

STELJES v. SIMMONS.

No. 304.

Supreme Court of North Carolina

November 10, 1915

Appeal from Superior Court, New Hanover County; Rountree, Judge.

Action by Herbert Steljes against Mary F. Simmons. From a judgment for defendant, plaintiff appeals. Affirmed.

A husband's delay in proceeding to establish his wife's lost will devising land to him held such laches as to preclude his devisee from maintaining ejectment against a bona fide purchaser from the State University under an escheat judgment.

S. M Empie and E. K. Bryan, both of Wilmington, for appellant.

H. E Faison and Isaac C. Wright, both of Clinton, and H. McClammy of Wilmington, for appellee.

CLARK C.J.

Isaac Carr and Neely Carr were husband and wife; the latter being the owner and in possession of the land in controversy in Wilmington. She died without issue or any relative in 1896. No will was found or probated. There being no proceeding to sell her land to make assets, and no suggestion of any debts, on January 9, 1904, the University of North Carolina brought an action in ejectment in New Hanover for this tract of land against Isaac Carr, who was in possession, and on whom the summons was personally served. The complaint was duly filed, alleging that the University was the owner in fee and entitled to immediate possession of the property in controversy (the decedent not having had issue born alive), and that the defendant unlawfully and wrongfully withheld the possession from the plaintiff. Judgment by default final was rendered at February term, 1904, adjudging the plaintiff to be the owner of the land and directing a writ of possession to issue under which Isaac Carr was dispossessed, and plaintiff in that action wa put into possession on July 11, 1904. The University executed a deed to W. H. Shearin for said land in consideration of $410, who on October 19, 1904, conveyed the same to the defendant, Mary F. Simmons, for full value, by warranty deed. She has been in possession ever since. This action in ejectment was begun against her August 10, 1914, 9 years, 9 months, and 21 days after the defendant took possession under her deed, and more than 10 years after the University was put into possession. On March 16, 1905, more than a year after the judgment declaring the University the owner of the land, and more than a year after Isaac Carr was dispossessed, and 5 months after the purchase of the land by this defendant for full value, Isaac Carr brought a proceeding before the clerk to establish an alleged lost will of his wife devising this land to him. The defendant appeared, pleaded that Isaac Carr was estopped to set up a will or claim any interest in the land by the aforesaid judgment of the University against Isaac Carr, and that the laches of Isaac Carr in waiting till Mary F. Simmons had bought and paid for the land, or to give any notice of it, was a bar to the proceeding so far as Mary F. Simmons and the University were concerned. This plea was sustained by O. H. Allen, J., and no appeal was taken. In 1907 Isaac Carr died, leaving a will, under which the plaintiff claims. In 1913 judgment was rendered setting up the lost will of Neely Carr, against whom it does not appear, as she left no issue or collateral kin.

The plaintiff, devisee of Isaac Carr, but not related to Neely Carr in any way, brought this action August 10, 1914, 18 years after her death. The court properly rendered judgment dismissing the action for several reasons:

(1) The defendant and those under whom she claims have been in adverse possession under known and visible metes and bounds, openly and notoriously claiming the same under color of the title for more than 10 years. It was admitted that the title was out of the state and in Neely Carr.

(2) The defendant was an innocent purchaser for value of said land without notice of any defect in the title.

The plaintiff's claim is that a proceeding to establish a lost will is a proceeding in rem, and that, when the will was established in 1913, it related back to the death of Neely Carr and vested the title in Isaac Carr, though he was dead, and through his devise, in this plaintiff, but this cannot divest defendant's title. In Harrison v. Hargrove, 120 N.C. 96, 26 S.E. 936, 58 Am. St. Rep. 781, it was held:

"Where a court of competent jurisdiction of the subject-matter recites in its judgment or decree that service * * * of summons has been made upon the defendants, who are subject to the jurisdiction of the court, and the judgment is regular on its face, an innocent purchaser under such a judgment * * * will be protected, even though it should be afterwards set aside on the ground that, in point of fact, there had been no service of process, * * * and the judgment is conclusive against all persons."

In this case service was personally made upon Isaac Carr. He made no defense, and the judgment was regularly entered, and under the writ of possession issued thereon the plaintiff therein, the University, was put in possession, and through mesne conveyances the defendant, Mary F. Simmons, for full value and without notice, bought the land, and has ever since been in possession. She has been guilty of no laches, but Isaac Carr was. He delayed from 1896 to 1905 to set up the will (if there was one), and did not defend in 1904 the action alleging that there was no will. The rule of justice and of law is that, when one of two innocent persons must suffer, the one who has been guilty of no laches is protected.

(3) The plaintiff is estopped to claim title to this land by the judgment of Ferguson, J., at February term, 1904, and by the judgment of Allen, J., which held that such judgment of Ferguson, J., was an estoppel. A judgment is res judicata of all the...