Tuttle v. Warren

• Decision Date: 17 November 1910
• Citation: 69 S.E. 426,153 N.C. 459
• Parties: TUTTLE v. WARREN et al.
• Court: North Carolina Supreme Court

69 S.E. 426

(153 N.C. 459)

TUTTLE

v.WARREN et al.

Supreme Court of North Carolina.

Nov. 17, 1910.

1. Ejectment (§ 90^*) — Evidence — Admissibility.

In ejectment, evidence for plaintiff that there had been a parol partition among the heirs of J., and that R., one of the heirs, had taken possession of his share, in order to show title by adverse possession in R., was properly excluded as irrelevant, where plaintiff failed to connect his title with that of R.

[Ed. Note.—For other cases, see Ejectment, Dec. Dig. § 90.*]

2. Adverse Possession (§ 75*)—Color op Title—Partition.

Where one holds possession of land under partition proceedings, such possession is under color of title which may be ripened into good title by adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. §§ 448-450; Dec. Dig. § 75.*]

3. Judgment (§ 570*)—Dismissal—Nonsuit-Involuntary Nonsuit—Operation.

A nonsuit on the evidence is not a bar to another suit.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1031; Dec. Dig. § 570.*] Appeal from Superior Court, Stokes County; Long, Judge.

Action for the possession of land by G. T. Tuttle against Sallie Warren and another. From a judgment of nonsuit, plaintiff appeals. Affirmed.

N. O. Petree and J. D. Humphreys, for appellant.

Watson, Buxton & Watson and J. W. Hall, for appellees.

WALKER, J. This Is an action for the possession of land, the title to which was ad-mitted»to be out of the state. Plaintiff introduced a deed for the land from Hulet Blackburn to James Warren, dated December 21, 1839, and a mortgage from Reuben Warren, son and heir of James Warren, to Edward H. Young, trustee, to secure a debt for $536.49 due to William A. Lash, dated October 25, 1866; the land described therein being a tract of 77 acres adjoining the locus in quo, and the undivided interest of Reuben Warren in the land of his father. He then introduced a contract dated in 1873, between William A. Lash and Reuben Warren, by which Lash agreed to sell to Warren for $509.14 the tract containing 77 acres and another tract of 16 acres. There was evidence tending to show a partition of lands among the heirs of W. A. Lash, and that lot No. 3 assigned to Laura Gilmer, one of the heirs, included the locus in quo and was conveyed to the plaintiff on March 19, 1908. No possession of that lot by Mrs. Gilmer, or those claiming under her, sufficient to ripen her title, was shown; nor does it appear that W. A. Lash was the owner of the land divided among his heirs in the partition proceedings. The plaintiff contends, though, that W. A. Lash claimed the land under Reuben Warren by virtue of the contract of 1873; but we have been unable to find any sufficient proof to the effect that the land therein described embraced the locus in quo, and that contract is the only evidence tending to show any connection or privity between Reuben Warren and W. A. Lash.

It is true that evidence was introduced to show that Reuben Warren had possession of the entire locus in quo for 16 years or more prior to his death, which, it is stated, occurred 7 years ago, and possession of a part of the locus in quo for 30 years; but his possession cannot inure to the benefit of the plaintiff,...