Thompson v. John L. Roper Lumber Co

• Decision Date: 17 February 1915
• Docket Number: (No. 19.)
• Citation: 84 S.E. 289,168 N.C. 226
• Court: North Carolina Supreme Court
• Parties: THOMPSON. v. JOHN L. ROPER LUMBER CO. et al.

84 S.E. 289

168 N.C. 226

THOMPSON.

v.JOHN L. ROPER LUMBER CO. et al.

(No. 19.)

Supreme Court of North Carolina.

Feb. 17, 1915.

Appeal from Superior Court, Pasquotank County; Carter, Judge.

Action to try title to land by one Thompson against the John L. Roper Lumber Company and others. Judgment of nonsuit, and plaintiff excepted and appealed. Affirmed.

This is a civil action to try title to land. The plaintiff relies upon a chain of paper title, originating with four grants to Jonothan Herring, with which the plaintiff seeks to connect himself by mesne conveyances. In deraigning his title, the plaintiff is compelled to show title to the locus in quo in William B. Shephard and the heirs of Ann Pettigrew, whose heirs at law or devisees the individual defendants admittedly are. In further deraigning his title, the plaintiff is compelled to rely upon two deeds, necessary links in his chain of title, as follows, to wit: First. A deed of date September 6, 1853, from Ehringhaus, clerk and master, to Joseph Prichard, and further purporting to have been executed under the authority of a decree, in a certain special proceeding, to sell said lands for partition, instituted by William B. Shephard and the heirs of Ann Pettigrew, at spring term, 1850, of Pasquotank county court of equity. Second. A certain paper writing, dated March, 1854, purporting to be a deed from James Taylor, administrator of Joseph Prichard, to Matchett Taylor. The plaintiff contends that, even if the deed from the clerk and master to Joseph Prichard be void, still the equitable title to the locus in quo vested in Joseph Prichard, by virtue of his purchase at the master's sale. It appears from the evidence, introduced by the plaintiff, that, at the time of the execution of said deed, to wit, September 6, 1853, Joseph Prichard was dead. The deed of James Taylor, administrator, contains the usual recitals showing a sale to make assets, but the proceedings and records under which it was made were not introduced.

To establish the loss or destruction of such original record and proceeding, the plaintiff relies on the evidence of G. R. Little, clerk of the court of Pasquotank county, who testified as follows:

"I hold in my hands some papers marked, 'Account of sale and inventory 1853, ' which I found in the files in my office where such accounts are kept. One of these accounts is entitled the "Estate of Joseph Prichard, deceased, in account with James Taylor, administrator, interest calculated up to the 1st of September, 1853. I have made search for the petition of James Taylor, administrator of Joseph Prichard, to sell the lands of his intestate for assets, but did not find them. I have found some entries in the petition docket and the appearance docket. I have seen no original papers. I made a search to satisfy myself that it could not be found easily. I don't know whether counsel understand or not. Most of the records about this date are down there in such a condition that I am unable to tell whether they can be found or not. They have not been filed and indexed, and from the search I made I was unable to find them. The record which I referred to just now was the docket record."

The plaintiff further offered certain docket entries, for the appearance and civil docket, December term, 1852, of the court of pleas and quarter sessions of Pasquotank county as follows:

Docket Entry No. 2. "No. 8. Petition to make realty assets. James Taylor, administrator, to the court and against the heirs at law. Report made and confirmed. Cost paid."

At the conclusion of the evidence, his honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

Ward & Grimes, of Washington, N. C, Ward & Thompson, of Elizabeth City, and Winston & Biggs, of Raleigh, for appellant.

J. Kenyon Wilson, of Elizabeth City, and Small, MacLean, Bragaw & Rodman, of Washington, N. C., for appellee Roper Lumber Co....