Baggett v. . Lanier
100 S.E. 254
N.C.
1919
Check Treatment
Walker, J.,

after stating the case: The plaintiff reserved but two exceptions — first, that the deed of D. H. McLean, commissioner, to defendant was incompetent, as it did not appear that he had authority to make it, and that it does not appear that it covers this land; and second, that the charge in reference to the possession of the defendant and those under whom he claims was erroneous.

1. We do not see why the recitals in the McLean deed were not competent and sufficient to show his authority to make the deed. Irvin v. Ciark, 98 N. C., 437. Plaintiff relies on Barefoot v. Musselwhite, 153 N. C., 208. It may be that the objection was intended to be directed against the competency of this deed, because the preliminary fact as to the destruction of the record in which it was recorded and which must be shown in order to make it competent was not established. This is not the form or substance of the objection, and it therefore cannot be urged before us. But if it could, we are of the opinion that such fact was sufficiently shown by the defendant. The authority to make the deed, therefore, must be determined by the sufficiency of the recitals. The statement as to those is not very full or explicit, but enough appears to show it. If the recitals were insufficient, the plaintiff should have had them set out in the case so that we might know fully what they are. The burden of showing error is upon him, for in the absence of anything to the contrary we presume that the ruling of the court was correct, and that the necessary facts to support it had been proved. It appears by fair and reasonable inference that the deed of the commissioner was made under a decree in a regularly constituted special proceeding for the sale of the land, in which the heirs of J. R. McLean were the defendants. If the proceeding was irregular, the proper remedy is not by attacking it collaterally but by a motion in the original cause to have *132 tbe same set aside. Rackley v. Roberts, 147 N. C., 201; Hargrove v, Wilson, 148 N. C., 439; Barefoot v. Musselwhite, supra; Pinnell v. Burroughs, 168 N. C., 320 (S. c., 172 N. C., 186).

2. Tbe charge of tbe court was correct, as it appears to have been admitted that J. R. Grady was in possession of tbe land until bis death on 11 June, 1906, and plaintiff therefore could not have bad adverse possession for so long a time as seven years, because tbe defendant took possession about 8 July, 1911, when tbe deed of D. H. McLean, commissioner, was executed to him. Besides, James R. Grady bad but a life estate, and tbe remaindermen were not affected by tbe statute of limitations during the period of bis life.

"We do not overlook Gilchrist v. Middleton, 107 N. C., 663, cited and relied on by tbe defendant, but while admitting tbe correctness of tbe rule as to the sources of title and tbe different kinds of title under which a party may claim, which is there stated to be that be may assert title by adverse possession under color for seven years, where tbe State has. been divested of its title by grant or adverse possession for thirty years, as well as by twenty years of such possession without color, tbe question at last is, not merely whether that can be done, but whether tbe plaintiff has brought bis case within the rule. No kind of adverse possession-will avail tbe plaintiff unless it was continued long enough to ripen bis title, as against this defendant, claiming a remainder after tbe life estate of J. R. Grady, for during bis lifetime bis children, from whom defendant derived bis title, could not enter, as they bad no right to do so, and consequently their right of entry could not be tolled by adverse-possession of tbe plaintiff. It would not do to forbid one to enter upon land and at tbe same time bar bis right, because be did not enter and preserve bis right, against a trespasser whose possession might have continued for seven years with color or twenty years without, and ripen his imperfect title into a good one. In this case tbe plaintiff’s proof has-failed to come up to tbe standard in the face of bis admission that J. R.. Grady continued to occupy the land in dispute until bis death. Henley v. Wilson, 77 N. C., 216; Todd v. Zachary, 45 N. C., 286; Woodlief v. Webster, 136 N. C., 162; Joyner v. Futrell, ib., 301. Tbe case of Logan, v. Fitzgerald, 87 N. C., 308, cited by tbe plaintiff, is not applicable aá there tbe judge merely failed to correctly define adverse possession. If tbe plaintiff felt that be needed fuller instructions be should have asked for them. Simmons v. Davenport, 140 N. C., 407.

It may be that all of tbe evidence is not set out in tbe record, or not-distinctly so, but as it now appears to us, tbe principles of law we have-stated must govern tbe case, and when they are correctly applied, as was done by tbe court below, there can be no error upon tbe facts found by tbe jury.

.No error.