Woodlief v. Wester
| Citation | 48 S.E. 578,136 N.C. 162 |
| Parties | WOODLIEF v. WESTER et al. |
| Decision Date | 04 October 1904 |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Franklin County; Moore, Judge.
Suit by R. R. Woodlief against A. B. Wester and others. From the judgment, Wester appeals. Reversed.
This case, tried at January term, 1904, of Franklin superior court before Hon Fred. Moore, judge presiding, and a jury, was a special proceeding for partition of land, which was transferred from the clerk to the superior court and placed on the civil issue docket for the trial of issues joined, and A. B. Wester, mortgagee of the interest of one of the co-tenants, was made a party. The mortgagor relied upon the statute of limitations. The facts are as follows: Henry Merritt died in 1861, leaving a will, by which he devised a tract of land to Sallie Woodlief for life, and at her death to her children. There were six of these children. One of these--R. R. Woodlief--bought the share of one of his brothers, and, being thus entitled to two-sixths of the remainder in said land, he, on the 9th day of April, 1885 conveyed the same to A. B. Wester by mortgage deed to secure a note for $75, with interest, due January 1, 1886. The only payment ever made was in 1890, and the jury find that there is still unpaid on said debt $168.40 and interest. The life tenant, Sallie Woodlief, died in June, 1902, and this proceeding was begun September 29, 1902. His honor charged the jury that, if they believed the evidence, they should find that the right of the mortgagee, A. B. Wester, to foreclose his mortgage, is barred by the statute of limitations, and the defendant excepted. The jury found as directed. Defendant, A. B. Wester, moved for a new trial. Motion denied. Judgment in favor of the mortgagor, and appeal by defendant.
N. Y Gulley, for appellant.
F. S Spruill and W. H. Ruffin, for appellee.
The statute of limitation relied on in this case to bar the defendant's right to foreclose his mortgage and to extinguish his lien on the land is as follows: "An action for the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, shall be brought within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same." Code, § 152 (3). At the time the mortgage was executed by Woodlief to Wester, and ever since said time, Sallie Woodlief has been in the actual possession of the land described in the mortgage as the owner of the life estate therein, and neither the plaintiff, Woodlief, nor the defendant, Wester, has ever had any actual possession of the land, or any part thereof. The contention of the plaintiff was, and the court below sustained it, that the actual possession of the life tenant, Sallie Woodlief, inured to him, and was in law, if not in fact, his possession; the remainder being a continuation or elongation of the life estate, and the possession of the life tenant and the remainderman being necessarily one and the same. It is true that for some purposes the possession of the life tenant is to be considered as not adverse to the remainderman, because the latter has no right of entry until the determination of the life estate; but this does not prove, nor do we know of any principle of the law which sustains, the proposition that the actual possession of the life tenant inures to the remainderman, so that during the continuance of the life estate the latter can avail himself of that actual possession as against one who holds a mortgage on his interest for the purpose of barring his right under the mortgage. The law has been adjudged to be the other way. Malloy v. Bruden, 86 N.C. 257. It is true that the particular estate for life and the remainder are nothing but parts or portions of an entire inheritance, and this would be so if there were many remainders, upon the principle that all the parts are equal, and no more than equal, to the whole (2 Bl. Comm. 164); and it is also true that livery of seisin, when made to the tenant of the particular estate, related and inured to him in remainder, as both estates were but one in law. But the very reason and necessity for this rule fully answer the plaintiff's contention in this case that the possession of the owner of the particular estate, Sarah Woodlief, inures to him so as to bar the right of Wester, who holds the mortgage upon his interest. The reason of the rule just stated was that livery of the land was requisite to convey the freehold, and could not be given to him in remainder (as his is an estate not in possession, but in expectancy) without infringing the possession of the tenant for years or for life, and therefore livery to the latter was sufficient to support the remainder. It is the reason also why a remainder must have a particular estate to support it, as possession cannot be delivered to the owner, he having no immediate right to it. His estate commences in praesenti, but can be occupied or possessed and enjoyed only in futuro. 2 Bl. Comm. 166, 167. Livery was required to be made to the life tenant in order only to support the remainder, and for a reason which excludes the idea that the remainderman could have seisin during the continuance of the life estate. The remainderman could have no seisin of any kind, and therefore livery was made to the life tenant. But if the possession of the life tenant could inure to him in remainder for the purpose of barring rights, it could do so only for the benefit of him who holds the legal title (in this case the mortgagee), because the right to the possession is an incident of that title. In Houston v. Smith, 88 N.C. 313, it is said that seisin in deed is the actual possession, and seisin in law the right to the possession or enjoyment of a freehold estate, and seisin can only apply to such an estate. There is no such thing as a seisin of a remainder after a freehold estate, because the remainderman can have no actual seisin, and no right to the possession or enjoyment of the land, until the determination of the particular estate; and for this reason a widow is not dowable of such a remainder, though even a husband's seisin in law is sufficient to support the right of dower. If the statute refers to a constructive instead of an actual possession, the plaintiff must fail in his contention, because that title which draws to it the possession, in the absence of actual possession, so that the law adjudges the possession to be constructively with the title, is the legal title which is held by the mortgagee; and it has been expressly adjudged that the constructive possession is in the mortgagee under such circumstances, and where there is no outstanding life estate, and as between him and the mortgagor. Parker v. Banks, 79 N.C. 485. A valuable part of the remedy of the defendant as mortgagee is the right to enter upon and take possession of the premises. Credle v. Ayers, 126 N.C. 11, 35 S.E. 128, 48 L. R. A. 751; Wittowsky v. Watkins, 84 N.C. 456. As this right could not be exercised till the life estate fell in, the law will not bar his right, for the law bars the right of entry and of action of him only who can, but does not, either enter or sue. 2 Jones, Mort. (6th Ed.) § 1210; Bruner v. Threadgill, 88 N.C. 366; Lee v. McKoy, 118 N.C. 525, 24 S.E. 210.
But we think the plaintiff must fail on his plea of the statute by reason of the very words of the act itself. It is impossible to suppose that the Legislature intended a constructive possession, for the "mortgagor or grantor" could never have such a possession as against a mortgagee. The latter, we have already seen, has the right of possession by construction of law, as he has the legal title; and, if a constructive possession was intended, there was no use in requiring possession at all, as, if neither party was in actual possession, the constructive possession would always be in the mortgagee. Dobbs v. Gullidge, 20 N.C. 197; London v. Bear, 84 N.C. 266; Deming v Gainey, 95 N.C. 528; Code, § 146; Williams v. Wallace, 78 N.C. 354. We cannot resist the conclusion from the language of the act itself, when read in the light of well-settled legal principles governing the relation of mortgagor and mortgagee, that an actual possession was intended. Besides, it had always been held, before the adoption of section 152 (3) of the Code, that nothing short of an actual possession for the required period of time would be a good bar to the mortgagee's right. Adams' Eq. (5th Am. Ed.) 114, note 2, and cases; Roberts v. Welch, 43 N.C. 287; Moore v. Cable, 1 Johns. Ch. 385; Bollinger v. Chouteau, 20 Mo. 89; Locke v. Caldwell, 91 Ill. 417; Morgan v. Morgan, 10 Ga. 297; Cholmondely v. Clinton, 2 Jac. & Walk. Ch. 186. The principle was adopted in analogy to the statute of limitations tolling the right of entry...
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