Stewart v. Cary

• Decision Date: 29 October 1941
• Docket Number: 23.
• Citation: 17 S.E.2d 29,220 N.C. 214
• Parties: STEWART v. CARY et al.
• Court: North Carolina Supreme Court

17 S.E.2d 29

220 N.C. 214

STEWART v. CARY et al.

No. 23.

Supreme Court of North Carolina

October 29, 1941

Civil action to recover mineral interest in land, and remove cloud upon title. C.S. § 1743.

Plaintiff a resident of Macon County, alleges in her complaint, among other things, (1) that she is "the owner in fee simple in law and in equity of the minerals, metals, ores and mining privileges in, under and upon" a certain tract of land "in Ellijay Township, Macon County, North Carolina," specifically described, containing 136 acres more or less, "being the property known as the B. E Hamlin property in said Ellijay Township, Macon County, North Carolina"; (2) that defendants wrongfully and unlawfully assert and claim an estate or interest or right of title in and to said minerals, metals, ores, and mining privileges in said land adverse to plaintiff, which plaintiff is entitled to have removed as cloud upon her title to same; and (3) that defendant, Francis C. Cary, a resident of Virginia, has wrongfully and unlawfully entered upon said land without regard to the rights of plaintiff and is digging, mining raising and removing therefrom valuable minerals in large quantities, thereby irreparably damaging plaintiff.

Defendants Francis C. Cary and wife, Gladys May Cary, erroneously named in complaint Betty Cary, in their answer deny the title of plaintiff in and to the mineral, metals, ores and mining privileges described in complaint, and assert title in themselves, and plead adverse possession for 7 years under color of title, and for 20 years in bar of any claim of plaintiff, and, further, while admitting that they are digging, mining and removing certain minerals from said land they assert a right to do so.

Defendants Ellis C. Soper and wife, Larry Soper, in their answer deny the ownership of plaintiff as alleged, but aver that she is the owner in fee of an undivided one-sixth interest in the minerals, metals, ores and mining privileges in and to the land described in her complaint, and that they, themselves own in fee simple the remaining five-sixths interest therein. Said defendants further admit the allegation of plaintiff with regard to wrongful claim of and trespass by defendants Francis C. Cary and wife.

In the trial court plaintiff offered in evidence record of the following muniments of title:

1. Five certain State grants to David P. Ammons, each dated 7 September, 1883, and registered in office of register of deeds of Macon County, N. C., 8 October, 1883.

2. Deed from David P. Ammons to Byron E. Hamlin, dated 14 September, 1891, and registered 21 September, 1891.

3. A tax deed from T. B. Higdon, Sheriff of Macon County, to W. H. Haskett, dated 1 June, 1903, registered 8 June, 1903, together with affidavit of W. H. Haskett as purchaser, purporting to have been executed pursuant to sale of real estate as property of B. E. Hamlin for nonpayment of taxes for the year 1901. Defendants Cary objected to the introduction of this deed for that the affidavit does not comply with the requirements of law for affidavits in support of tax titles effective at date this deed purports to have been executed and the rights accrued. "Overruled for the present". Exception by defendants.

4. Will of W. H. Haskett, dated 27 February, 1893, admitted to probate 1 April, 1908, in which he devised, and bequeathed, all his property, real, personal and mixed, other than certain items of cash, absolutely and in fee simple to his wife, Nancy Jane Haskett.

5. Deed from N. J. Haskett to Andy Haskett, dated 9 October, 1908, registered 15 June, 1936, "for two thirds of the mineral interest in a certain tract of land in Macon County, N. C., *** known as the B. E. Hamlin property and conveyed to W.

H. Haskett by sale of taxes", and referring to deed from T. B. Higdon, Sheriff.

6. Deed from N. J. Haskett to A. C. Haskett, dated 7 August, 1908, registered 15 August, 1908, "for a one third interest in a tract of land situated in Ellijay Township, known as the Hamlin lands", and refers to the Sheriff's deed.

7. Deed from A. C. Haskett and wife to J. T. Berry, dated 8 August, 1908, registered 15 August, 1908, for "an undivided sixth interest in a tract of land situated in Ellijay Township, known as Hamlin property, and fully described in a deed from T. B. Higdon, Sheriff, to W. H. Haskett", dated and registered as above indicated, "to which reference is hereby made".

8. Deed from Andy Haskett and wife to J. T. Berry dated 15 December, 1925, registered 24 December, 1925, in which the description following the granting clause reads: "A certain tract or parcel of land in Macon County, State of North Carolina, adjoining the lands of J. M. Bryson heirs and others bounded as follows"; then follows specific description of three tracts; and then after "excepting from the above" certain mineral interest, these words appear: "We hereby convey all our mineral interest in the hereinafter described lands: *** also the tract on Indian Camp Branch known as the Hamlin tract".

9. Proceeding in Superior Court of Macon County, N. C., before Sam L. Rogers, clerk, entitled J. T. Berry v. Lola K. Corbin and Annie A. Corbin, in which J. T. Berry, in verified petition filed 31 May, 1893, sets forth as follows:

"That Lola K. Corbin, one of the above named defendants, is a minor child now of the age 20 years and 7 months, May 5, 1893. That Annie A. Corbin, the other defendant above named, is now the age 11 years and 8 days, May 23, 1893. That the defendants above named are without a mother living, their mother Modenia Corbin died October 27, 1885. That John T. Berry, the petitioner above named, is their reputed father; that the defendants are without guardian and are now and have been for three years past living and making their home with your petitioner, John T. Berry.

"That the defendants above named have personal estate worth about $100.00, consisting of one mare and colt, two head of cattle, ten sheep. That they have an interest only in the real estate inherited through their mother Modenia Corbin from the estate of John Corbin, deceased, valued at about $50.00."

Upon these allegations he prays "that the relation of John T. Berry, the petitioner herein, and the said Lola K. Corbin and Annie A. Corbin may be that of parent and children and that an order be made forthwith establishing the relation of parent and child during the life of such children with all the duties, powers and rights belonging to the relationship of parent and children, and that said children herein named be hereafter known and changed from Lola K. Corbin and Annie A. Corbin to Lola K. Berry and Annie A. Berry"; also the order of Sam L. Rogers, clerk, entered upon the petition on 31 May, 1893, in which, after finding "that Lola K. and Annie A. Corbin are minors without parents living and without guardian and that John T. Berry provided them a home *** and is the proper person to have custody of them", it is adjudged, "that letters of adoption be, and the same are hereby granted to the said John T. Berry, petitioner, to the effect forthwith to establish the relation of parent and child between the petitioner John T. Berry and Lola K. Corbin and Annie A. Corbin, the defendants, for the life of such children, who hereafter by authority of this decree shall be known and called by the names Lola K. Berry and Annie A. Berry and the relationship of parent and child are hereby established with the duties, powers and rights belonging thereto in the same manner and to the same extent such children would have been entitled to if such children had been actual children of the said John T. Berry, the petitioner".

10. Deed from Annie Berry Moore and husband, J. L. Moore, to plaintiff, dated 18 May, 1935, registered 25 May, 1935, for all the right, title and interest of Annie Berry Moore as child of J. T. Berry.

Plaintiff further offered evidence tending to show that Nancy Jane Haskett and N. J. Haskett were one and the same person; also that Andy Haskett and A. C. Haskett were one and the same, and that in 1934 John T. Berry died intestate, survived by plaintiff and Annie Berry Moore nee Annie Berry, to whom said adoption proceedings relate.

Plaintiff, then, for the purpose of showing that she and defendants Cary claim under a common source of title, and that deed under which said defendants claim is subsequent in date and registration to that of plaintiff, offered in evidence record of deed from Andy Haskett and wife to Francis C. Cary, dated 13 June, 1938, registered 14 June, 1938, for all the mineral interest and mining privileges in certain tract of land described in certain deed from Andy Haskett and wife to Ellis C. Soper, dated 22 May, 1937, registered 27 August, 1937, and "known also as the B. E. Hamlin land *** consisting of 135 acres in the Ellijay watershed", which latter deed, is said in the former deed, to be void because of certain defaults of grantee there described by reference.

Plaintiff, further, for the purpose of showing that she and defendants Soper claim under a common source of title, and that deed under which said defendants claim is subsequent in date and registration to that of plaintiff offered in evidence record of deed from Andy Haskett and wife to Ellis C. Soper, dated and registered as set forth in preceding paragraph, for all of the mineral interest together with mining privileges in a certain tract of land specifically described containing 99 acres, more or less, "and being known as the old B. E. Hamlin tract".

Further, plaintiff, for purpose of showing severance of surface from the mineral, offered in evidence records of certain other deeds covering the land in question.

Defendants admitted in open court that the grants and the deeds from David P....