Weston v. John L. Roper Lumber Co.

• Decision Date: 12 March 1913
• Citation: 77 S.E. 430,162 N.C. 165
• Parties: WESTON v. JOHN L. ROPER LUMBER CO.
• Court: North Carolina Supreme Court

77 S.E. 430

162 N.C. 165

WESTON v. JOHN L. ROPER LUMBER CO.

Supreme Court of North Carolina

March 12, 1913

Appeal from Superior Court, Camden County; Bragaw, Judge.

Action by Carey P. Weston against the John L. Roper Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

As the only unity between tenants in common is one of possession, an adjudication in partition does not operate on the title unless title was directly put in issue, and has no effect except to sever and allot the possession.

A judgment in a partition where no issue of title was raised or adjudicated only estops as to the unity of possession and the equality of division, and hence does not estop a grantee of the land allotted to one of the parties thereto from denying the title of another to a different part of the land divided in the partition proceeding.

See also, 77 S.E. 448.

A number of issues were submitted, but it is only necessary to set out two, viz.:

"(3) Is the plaintiff the owner of the tract of land first described in the complaint as lot No. 1 in the New Lebanon division? Answer: Yes."

"(7) Is the plaintiff the owner of the tract of land described in the complaint as lot No. 4 in the New Lebanon division? Answer: No."

The jury assessed the plaintiff's damages at $7,630. From the judgment rendered, the defendant appealed.

Winston & Biggs, of Raleigh, G. Tayloe Gwathmey, of Norfolk, Va., M. H. Tillitt, of Elizabeth City, Ward & Grimes, of Washington, N. C., Chas. Whedbee, of Hertford, and Ward & Thompson, of Elizabeth City, for plaintiff.

W. B. Rodman, of Washington, N. C., W. M. Bond, of Edenton, and Angus D. MacLean, of Washington, N. O., for defendant.

BROWN J.

This action was brought to try the title to certain lands in Camden county known as lots Nos. 1 and 4 of the New Lebanon division, a partition of a large body of land made in 1819 among a large number of tenants in common, and recorded in said county.

In apt time the defendant entered a motion to nonsuit upon the ground that the plaintiff upon all the evidence had failed to show title in himself to the lands in controversy. This motion was overruled, and the defendant duly excepted. There are a large number of assignments of error in the record; but, in the view taken by the majority of the court, it is only necessary to consider the motion to nonsuit, as we are of opinion that it should have been sustained.

The plaintiff deraigned his title from the New Lebanon partition, and offered in evidence no grant from the state. By this division lot No. 1 was allotted to Enoch Sawyer, who conveyed to Carey Weston. Plaintiff claims by descent from him. Lot No. 12 of the New Lebanon division was allotted to Mills and Josiah Riddick, and for the purpose of showing that the defendant claimed lot No. 12 under Mills Riddick and under said division plaintiff offered deeds conveying lot No. 12 from Mills Riddick to Whitehead, and from Whitehead to John L. Roper, and from him to the defendant. For the purpose of showing an independent source of title acquired by the defendant long afterwards, the defendant introduced a deed from the state board of education to George W. Roper dated October 24, 1904, and from George W. Roper to defendant March 14, 1905. It is admitted that all the lands in controversy are within the boundaries of these deeds. It is practically admitted, and all the evidence for plaintiff as well as defendant shows, that the lands in controversy are swamp lands. The New Lebanon division refers to and calls these lands a juniper swamp, and plaintiff's witness Lewis testified that the land in controversy is swamp land. Upon these facts it is plain that unless the plaintiff proved that the locus in quo had been granted by the state prior to 1825, the title vested in the state board of education and passed from it to George W. Roper, and from him to the defendant. Board of Education v. Lumber Company, 158 N.C. 315, 73 S.E. 994; Const. art. 9, §§ 9, 10.

The law presumes that those claiming such lands under the deed of the state board of education acquired a good and valid title, and the burden of proof is placed on the adversary party to rebut such presumption by showing a good and valid title in himself. Rev. 1905, § 4047; Board of Education v. Makely, 139 N.C. 34, 51 S.E. 784; Same v. Lumber Company, supra. No grant from the state to any one covering the land in controversy is in evidence, but to meet this difficulty plaintiff contends that it is admitted in the pleadings (section 1 of amended complaint, and section 1 of answer thereto) that the lands in controversy were granted to Benjamin Jones. The answer admits "that on July 10, 1788, the state of North Carolina issued a grant to one Benjamin Jones, that that appears upon the books found in the office of the register of deeds of Camden county in Book D, p. 363, which purports to be a copy of said grant. The other matters alleged in section 1 are denied." This section practically denies everything alleged except that a grant to one Benjamin Jones appears on the records of Camden county. It denies the validity of the grant, and that its descriptive words embrace the land in controversy. We find no evidence in the record tending to prove that the description in the grant covers the land in controversy, although there is evidence that the description in the complaint does. The plaintiff does not claim title to any part of the lands in controversy by possession. All his testimony negatives such claim. On this point the plaintiff testified: "I never claimed the lands in controversy until one or two years ago, when a man named Johnson came to me about some property in this same Dismal Swamp situated in Pasquotank county, and told me the Richmond Cedar Works had been in possession long enough to give them title, and that I had only paper title, not actual title. He wanted to buy it. I employed Mr. Gwathmey to go down and look into it. He dug up the record as to this property in dispute, and then I entered into a contract with the Richmond Cedar Works by which they were to pay a part of the expense of this litigation, and to receive a part of whatever money might be recovered in this suit. *** I had never paid any taxes on this land. So far as I know, my father never paid any taxes on this land. So far as I know, my father never claimed this land." Therefore we conclude under the authorities cited that the defendant has shown a clear title to the land in controversy paramount to that of the plaintiff.

This disposes of the plaintiff's contention that he and the defendant claim under the same common source, to wit, the Lebanon division, and that defendant cannot deny plaintiff's title. We have held that defendant has shown an outstanding valid title to the locus in quo, and has connected itself with such title. Mobley v. Griffin, 104 N.C. 115, 10 S.E. 142; Whissenhurt v. Jones, 78 N.C. 361; Love v. Gates, 20 N.C. 498. But the plaintiff contends that as he claims title to lot No. 1, under Enoch Sawyer, to whom it was allotted in the New Lebanon division, and as he has shown mesne conveyances from Mills Riddick to defendant for lot No. 12, which was allotted to Riddick, by virtue of the partition proceedings, defendant is estopped to deny that plaintiff as the successor in title of Enoch Sawyer, is the owner in fee of the land in controversy, and is precluded from setting up this after-acquired paramount title against plaintiff. In support of this position plaintiff relies upon the principals laid down in Carter v. White, 134 N.C. 466, 46 S.E. 983, 101 Am. St. Rep. 853. We are not disposed to call in question this decision, although it reversed the former decision in the same case (131 N.C. 14, 42 S.E. 442), and its correctness was challenged by the present Chief Justice in a dissenting opinion. We are of opinion that the principle laid down in Carter v. White does not debar a purchaser of lands who acquired the title of one of the partitioners through mesne conveyances to a part of the land divided from afterwards acquiring an outstanding and valid legal title to other portions of the tract so divided. The title which the defendant purchased from the state board of education through George W. Roper was an after-acquired outstanding valid title to lots 1 and 4, and we see nothing in law or morals which debarred defendant from purchasing it. At the very time defendant acquired this title, plaintiff testifies he did not claim these lots in controversy. In the opinion of the court in Carter v. White, 134 N.C. 472, 46 S.E. 985, 101 Am. St. Rep. 853, it is said: "In the view which we take of the effect of the partition proceedings, it is not necessary to decide the effect of this estoppel upon an after-acquired outstanding title, and we forbear to express an opinion thereon." We think the learned counsel for plaintiff in their brief practically admit that the proposition now under consideration is left an open question when they say: "It is suggested in what is so lucidly enunciated in Carter v. White that the judgment of the court is conclusive as to an after-acquired title, not only upon the parties, but would also conclude their heirs, assigns and grantees. However, that is left an open question, and it may be that the court would hold that the defendant in this case, which is a successor in title, would not be estopped to set up an outstanding paramount title and to claim under it. It is not necessary to decide this question here, in so much as there is no paramount outstanding title shown."

That there is a paramount valid title which has been acquired by defendant from the state many years after the New Lebanon division was made we have already held. This title was in no way represented by any of the parties...