*1 0.] TEEM, FALL 1921. BRADFORD V. BANK.
tract o£ sale will exclude one tbat is where two ordinarily implied, the are general o£ the same or refer nature same the related closely subjects or qualities things sold.”
And to the evidence tending offered of an express show assurances output twenty-two of to twenty-five bales a day, is incompetent further reason of the express provision “that written instrument contains the entire contract between and none parties other written or verbal shall form any part contract.” Bland v. Harvester Co., 169 McClamrock, 418; Machine Co. v. N. C., Unless indeed verbal assurances of relied offered upon, avoidance contract, available to claimant as to on that issue are such permit the inference fraud, is allegation there or claim Feezer, fraud presented. See Machine Co. v. N. C., On the record, our decisions pertinent .precise questions involved are clearly affirmance of his judg Honor’s Co., ment of must nonsuit be affirmed. v. Hardware Farquhar Co. Co., N. C., 369; Mfg. Co. v. Allen v. Tompkins, Lumber N. C., Affirmed.
N. E. v. BANK OF BRADFORD WARSAW.
(Filed October, 1921.) Agency Conveyances Principal Agent Repudiation 1. Deeds and — — Lands. —Title to by plaintiff in Where defendant claims title to taken liis land because when, fact, acting defendant, own he was to whom should name conveyed, repudi- but verdict of have there evidence that the agency, favor, plaintiff’s ated a correct such question adversely court, this instruction settles to the defendant. in Common —Limitations. 2. Deeds —Tenants ripen title to lands under a tenant common adverse To twenty years necessary, applies this whom to one to attempted convey' S., tenant has entire estate. C. the alienee Conveyances Registration—Coloi’—Title—Common 3. Deeds and Source. — unregistered deed color of title An is not when the an action land are under the same source. Conveyances Common —Partition—rEvidence— 4. Deeds —Tenants Appeal and Error. Instructions — controversy the lands of title to The claim division thereof Supreme Court, arise in appeal, common does not when 15—182 COURT. THE SUPREME
Bradford *2 exception taken, jury, charged there judge that without has the trial was no evidence legal tenants in common. between the a to show oí Actions —Adverse Division —Limitation Common —Parol 5. Tenants Possession.- parol rights division etc., a tenant in commonto land To bar notorious, adverse, open, land, and must twenty years. Conveyances of Bents — Ouster. 6. Same — Deeds —Collection part a tenant in commonto his allotted to The deed of him parol agreement division, for, under a himself and those and the collection of rents deed, twenty years, under his for less than common, having acquired will not bar the other tenants in under or those title registered deeds, rights, of their and the statute as to seven application. has “color” Hoke, J., dissenting; Walker, J., concurring dissenting opinion. in the Appeal J., from Lyon, at April Term, WayNe. 1921, This was a petition for sale for partition of a small lot in Goldsboro, and the defendant bank pleaded sole seisin. The jury responded the issue that the plaintiff was owner of an undivided three-fifths interest in the premises, and from the judgment thereon the defendant appealed.
D. M. plaintiff. Bland for
Stevens, & Beasley Stevens and Kenneth O. Royal for defendant. Clark, C. J. The plaintiff defendant claim under a common source of court so to which there was no charged jury, The exception. defendant admits in its Kennedy brief Needham inwas land at the time of and mentions death, heirs name. The contends that he shown a better title to the three-fifths interest in the land from this common source. Mobley Griffin, It is has a not denied the defendant good of their through daughters from the two conveyances two-fifths interest in said lot. 12 the deed to Needham dated Kennedy, evidence put 1876, covering loroperty. registered January,
January, 1870, Fannie 5 children: 1905, leaving that he died about evidence and Levi Kennedy, William Kennedy, Darden, Bryant Kennedy. William Ham from to J. J. deeds put also The plaintiff their conveying each Kennedy, Levi Kennedy, Bryant Kennedy, 1916, 14 July, them dated all of lot, in said interest
undivided Ham from J. J. and a 1916, 24 August, registered Wayne, above three as conveyed rights the grantors’ covering to plaintiff . FALL TEEM, O.] 227 BRADFORD V. BANK.
deeds, dated 24 17 October, 1917. Tbe plaintiff testified that tbe deeds lot covered tbe in question and that there no evidence that Needham left will Kennedy nor that bis widow is living.
Tbe defendant offered evidence a deed from Fannie husband to her sister Ida Darden, dated March, 1910, registered March, 1912; also a deed from William Kennedy Ida Darden, January, 1910, registered 1921; and a April, mortgage, March, 1910, from Ida Darden to Matthew Aldridge, March, 1910, and registered the same deed dated 10 day, May, 1912, M. W. Aldridge, mortgagee, to A. J. Brown, registered 11 June, 1912, and a deed dated 27 1915, from Daisy Brown and J. D. Brown wife, dated March, 1915, all pur- *3 porting to the entire interest. Said J. Gr.’Brown and Daisy Brown were the children of only A. J. Brown, who died in 1913. Daisy Brown that testified the defendant Bank of Warsaw had a on mortgage this she and and her brother property made a deed to the bank in settle- ment of their father’s debts.
The court charged the that it jury agreed was and admitted that both the parties, and plaintiff defendant, derived their title from Needham Kennedy, who owned the land. The court also charged the jury, been, part: “There has said something about division of land parol the between the 5 children of Needham There Kennedy. been evidence the opinion of the court offered to show that there has been a legal the land and the deeds that partition have offered were only registered here this week, but the deed to from Ham the plaintiff was registered soon after its execution. You will remem- ber the date of the deed its and the date of It is first registration. the that deed on goes record that the covers title.” as up The defendant also set a further defense that the plaintiff in the title of the three heirs whom he while bought acting claims bank in sell the and that agent attempting discovering title, what he to be a defect in the he took a conveyance supposed he On this point interests of three heirs under whom now claims. the that, the “If find from the evidence the court the charged jury: you from and that Ham bought this land from Ham plaintiff bought here and that at the time the took Levi, plaintiff William, Bryant Bank of he the of the defendant Warsaw agent deed from Ham was not the contract them, repudiated was not that acting they him, if shall that the made find you when the deed was purchase their to Ham these three wives by deeds were made regis- they tends show that registered at the time the evidence recover that would be entitled to the the tered, charges you court parties William, these three Bryant interest this land whatever — COURT. THE SUPREME Bkadjtokd charges you tbe court that there 5 children being only Levi—bad and three-fifths of the land. The court if he was charges you own Warsaw, Bank of for getting the the then the title agent Warsaw, Bank of if that he you to the but find not its go would was the will answer the issue at time two-fifths agent you three-fifths, it to To both of the find be.” above instructions the you whatever voluminous as to alleged There was evidence excepted. sides, on both testified to rupture agency them of a connection between to the prior the severance agency, Ham the title under which he claims. acquired time that charge defendant also that the court erred refusing excepted “If find from the evidence during follows: you a deed in fee premises 1910 Ida Darden received year simple same 1912; and that the was recorded Aldridge; if still from the that the said Ida Darden you further believe to Matthew and that the executed mortgage premises March, 1910; May, and that duly said recorded A. J. and sold said said foreclosed June, 1912, March, 1915, and that duly Brown recorded Bank Warsaw recorded said premises heirs conveyed Darden, if that the said you further believe Brown the said Gr.Brown and Daisy said A. J. and said J. Brown, said either themselves or property, Bank of Warsaw possessed more conveyances period said their deeds agents, the commencement of this and that the said action, than 7 before *4 was notorious, continuous, adverse, under claim open, it would be to answer the issue your duty of color of then right ” “No/ instruction was refused. The defendant properly This prayer in fore deed on mortgage 1910, claims under a recorded 1912, and under the June, thereof to A. J. Brown recorded closure These at most were to the defendant recorded was not 7 thereunder years possession color of title there merely title which 1916 of the true under the conveyance registered prior in all our the three-fifths interest. has been held claims Porter, Webb, 176 C., 317, 14 N. down to Gill v. from cases Cloud is the title required 20 adverse vest 451, N. cases collected under C. S., See between common. attempts tenant in common where one the same is true And Works, Cedar estate, whole Alexander v. which were certain deeds of partition defendant put The is to quote As to these deeds it sufficient the trial. not until not Hedden, 224: “The defendants did 169 N. C., from Buchanan v. FALL TEEM, 0.] Bradford
contend that they bad been in adverse possession long enough to ripen tbeir title without color and as the deed under which claim title was not and as registered, both parties derived title from the same source, there was no color of Robbins, title. Janney N. C., Gore McPherson, McRackan, N. C., 638; King 621.” The headnote to that case sums up proposition thus: correctly “An unregistered deed not color of title when the to an action of land are under claiming the same source.” only request charge was, above set that the defendant out, title under a possession, with the in 1910 beginning mortgage one tenant in by common for years title acquired to the entire tract which was refused.
The defendant made charge to the that there was exception “No evidence offered to show that there has been a legal division of land,” and hence the of error on that if assignment ground, there were anything is not The entire it, before us. defense was stated in the refused the issue as to the except being estopped prayer, by alleged its from the defendant “to cure defect agency title,” which negatived. is a conveyance by
The defendant’s sole claim of title one sister in and a later $75 of her “interest” for to her daughters the entire tract daughter alleged (though the other cover mortgage by and an alleged possession the deed was not set thereunder out), purchaser under conveyance n bank, another said mortgage by purchaser and collection rents there- the release to said by mortgagor bank, This possession. certainly good under as a substitute for actual not less requiring years possession under our uniform decisions than deed from one tenant in common (or grantee) the other three tenants in 1916. their three-fifths to the plaintiff registered common of “Negro Town,” Goldsboro, The tract in is a lot in a suburb of question of actual capable partition, 42 feet which was feet, hardly tenants in common (who the other three possession against no adverse residence thereon of one another shown residing state) her in 1910 by mortgage payment tenant common *5 the defendant rent after foreclosure to bank.
A one tenant conveyance by common, though registered duly and adverse less continuous, open, notorious, possession for than years deed would not registered under such bar the title of the other tenants. alleged oral an oral Certainly, therefore, conveyance by partition charged shown and the defendant did not (which judge COURT. IN THE SUPREME
BRADFORD V. BANK.
with,
even
tenant,
one
mortgage by
a
beginning
except),
possession
other
for 7
cannot bar
years
the whole tract,
it
cover
though might
from them.
registered
under
and the alleged
if an
oral partition
would
an
indeed
anomaly
mortgages
lot and a chain of
in common on said
by one tenant
residence
I
possession
rent
defendant
and the
of
payment
to the defendant
give
to be
shown
adverse —should
years
even
—not
confer
than 20
would
less
adverse
nothing
when
their
the other tenants
deed,
against
registered
even under a
their interest.
a
of
duly
grantee holding
adverse
possession,
is an oral
partition,
"Where there
141 N.
C.,
approved
Rhea
cited
continuous,
bar,
Craig,
602,
will
This last case
p.
172 N.
Corporation,
in Collier v. Paper
In Gilchrist v.
of
in the trial court below.
Stacy, J.,
affirmed
Middleton,
is said:
“The
of
681,
reception
107 N.
sole
p.
is not an
will raise
one tenant in common
ouster,
profits
enjoyed
an ouster
his fellows
he has
until
presumption
of such
20 years,
grantee
the exclusive
rents for
a
profits
common,
though
tenant
he
purport
hold
ing
whole, stands,
in this
respect, precisely
position
Benson,
his grantor. Linker v.
C., 150;
Caldwell Neely,
Branch,
Upon consideration of all the we find exceptions, No error. I am J., dissenting: to concur disposi- unable in the present Hoke,
tion made of defendant’s appeal. This, proceeding partition, is, an effect, action to recover three-fifths interest in a in the city lot Goldsboro under deeds three of the children and heirs at law of Needham deceased, Kennedy, Bryant, Levy, William, duly proven in Wayne County, July 1916. The August, two other heirs at law children and wife being Fannie, of Matthew Aldridge, and Ida, wife of John Darden.
The action was instituted and the summons the cause bears date 15 resists with allegations to show that at the tending time acquired deeds from these three Kennedy children he was and control of the charge agent and the title defendant, relied on him was obtained of defendant’s rights fraud and in breach of plaintiff’s trust and duties as aeent. *6 TEEM, FALL
N. O.]
Bbadfoed that' Second, defendant and those whom it claims have been of said open, exclusive, adverse, prop- and continuous possession erty, asserting title thereto for more than 7 'action years next before brought. allegation issue as to of trust. plaintiff’s agency and breach
was submitted to the On the and resolved the defendant. position as to adverse ruled that possession, effect, court, on the entire evidence, adverse insufficient to possession was mature title in defendants, but that 20 required for purpose, to which There was for excepted. judgment plaintiff, and defendant On appealed. exception defendant’s to the statute of limitations the facts inference if do not permit they require the finding.
“That Needham Kennedy died in owner certain property, including that He dispute. was survived five children: Ida Darden, Fannie Levi Aldridge, Kennedy, Bryant Kennedy, and 'William Kennedy; and aby (the widow stepmother children), who died 1908. After the death widow the children made arrangements for the division of the William property, whereby Bryant (who lived Jersey) were receive money, Ida, New. Fannie, and Levi were to divide the Ida to lot property, get the now controversy (designated “A”), and Fannie other and Levi to lots get (designated “B” “C,” respectively). 17 June, fee; “A” Ida in
Accordingly, pn 1909, Bryant conveyed on 24 1910, William “A” January, conveyed fee; also to Ida during 1910, conveyed fee; Levi “A” to Bryant Ida deeds from and "William were on the probated named, delivered dates but were recorded until 1921. The April, deed'from lost and Levi was never The arrangements recorded. completed March, 1910, in the officeof Gol. A. 0. an Davis, attorney and notary, exchange for following deeds the following property: from Fannie Aldridge Matthew to Ida Darden for husband, “A”; from’Fannie Aldridge and Matthew for Kennedy “C”; Levi and from Levi Ken- Ida nedy wife and Darden and husband to Matthew “B” “B.” The deeds to and “C” were All immediately probated. three into gone of their respective lots after the death widow; remained possession. Levi later sold his lot. “A” from Fannie and husband to Ida probated The deed him, To secure a sum due Ida gave Matthew Aldridge dated and recorded March, on “A” mortgage received from her death stepmother’s “A” until 20 the rents from May, 1912. sold the Capt. On that A. day J. June, being recorded the deed Brown,
’ THE SUPREME COURT.
BRADFORD V. BANK. *7 Ms the of Brown, after Ms death received rents Captain heirs, and “A” from that date On that the Brown day until 27' 1915. defendant, by heirs Bank of the deed re- conveyed Warsaw, lot to from the property corded The bank received the rent present. from then until the a Aldridge, facts it that from Fannie
From these under deed appears there has con- division of the been pursuant parol estate, made in adverse, of in possession controversy, open, tinuous the land in Darden de- grantees, including assertion of Ida and her ownership this suit was eight years for before entered. fendant, in undisputed possession, that Ida while and exclusive Second, Darden, to for the land asserting title, executed a Matthew grantees Aldridge in of the land under dispute, possessed for more than before suit same seven was entered. in powers that said
Third, Aldridge, grantee, pursuant in and Brown deed, conveyed dispute Brown, the land A. J. same including defendant, descendants grantees, possessed suit was assertion of for more than seven before entered. ownership and it that this Fourth, appears occupation further assertion grantees purporting of Darden and her under deeds by Ida of the entire convey pursuance parol was had property dispute of the real Kennedy of Needham personal property which the three took grantors Needham, part, of children of plaintiff, that these three as had executed to grantors, early Darden deeds land in of them not controversy, being regis- two however, until the other it is under these and tered, 1921, lost, a similar deed from Fannie other her daughter, that the of the defendants has grantees, occuj>ation maintained. continually that case tenants in common an held very generally occupa sole of the ownership reception rents and in assertion
tion mature a title occupant against not of itself will profits short of It is said period twenty years. that after any cotenants of the cotenants be presumed, time an ouster will no but period that Lowman, v. N. 547; suffice. Adderholt 179 C., time will Dobbins shorter jurisdiction And in this has been insist Dobbins, N. C., v. affected is not because the occujiation of one position held ently the entire purporting convey a deed is under one other cotenants or a is from stranger. deed whether Hatton, Somers, 390; Clary v. C., N. N. 107; C., Boggan Stewart, 114; Covington Neely, Caldwell Webb, 14 N. Cloud TEEM, FALL N. O.]
BRADFORD V. BANK. Works, 165 As Lumber Co. v. Richmond Cedar out pointed Roper one tenant in this C., 83, position requiring years occupation common entire interest bas been carried conveying very mueb further in this State than our decisions that the elsewhere, holding title of a cotenant will not be destroyed by occupation any period short though the claimant have known that the occu years, pant asserting sole ownership purporting entire But the property. established and we have fully here, no it. disposition question
In all of these the tenant in decisions, however, common, occupant the property, was to assert title a cotenant endeavoring who way acquiesced recognized claim of sole occupant’s *8 ownership, and none of so far as them, would examined, uphold position on the facts presented in this where the claimants record, have in a joined division the sole property awarding ownership tenant in possession and so where assuredly they have made deeds to such in recognition of the as made. ruling involved these North Carolina as decisions, rests shown,
upon position that an ouster will not be a tenant against presumed in common by mere occupation for short of any period twenty years, though such is occupation under color of knowledge title and to the but all claimant, the authorities here and elsewhere are to the effect that there may be an actual ouster of one tenant in common another. Co., Mott v. Stewart, Land 146 N. C., citing 525-526, Covington N. C., 148; on is Tyler 882. The test in such cases Ejectment, p. whether the occupation of the tenant has possession, asserting title, and both the reason of the cotenant, thing become hostile to the subject authorities are to the effect that a appertaining grantor grantee occupation ownership of a assertion of Holland, holding. a hostile Kirkman v. it will constitute N. Asheville, 101 185-189; Trustees v. Bank 483. And it has held that with assertion of directly possession ownership pursuant amount to a disseizin to a will parol partition occupa as hostile to the title of the tion will be considered others taking part Paper Corporation, C., 74; therein. Collier Boston & Wor al., Tenant, et Mass., cester R. R. v. Russell v. Sparhawk Lawson, 623; Justice et al. West Va., Va., West case referred Carolina to, North was for True, only that was ruled on view of but more, 20 years in and acted on for 20 becomes acquiesced valid, a parol partition that it created at the recognized inception a possession fully it was all concerned and others. the parties hostile THE’ SUPREME COURT.
Kimbrough B. K. Tbe court seems below to have been influenced tbe consideration tbat tbe deeds till after pertinent to tbe not question those of tbis invalid, and tbat plaintiff, parol partition tbe referred to in tbe But as a reason for tbe decision. principle opinion neither tbe deeds to as con- nor tbe are relied on or referred partition tbe trolling they but tbe here effect should question is, "What allowed on tbe tbe nature of defendant’s show tbat occupation —did possession of Ida Darden hostile to tbe and those under her was has plaintiff, part who from tbe and all of whom took bought eotenants, in tbe parol partition and tbe title of recognition bave made deeds their sister under whose deed defendants claim and bad possession, bave title for asserting more than 7 years? Robbins, 141 counsel for appellees Janney
We are cited effect tbat an is not to be unregistered and other cases to tbe deed considered color of title claimant under so facts there tbe cases appearing same source—under tbe restricted from relying defendant here bold; but, show, we bave endeavored for title or for color. Defendant unregistered these deeds either and wife and from color both under tbe deed tbe claims, unregistered tbe deed—under which mortgagee as they of tbe three tenants as stated and referred to and relied on only tbat affect tbe character of defendant’s and as showing bis claim a hostile character'— ownership was of occupation assured and so to an acquiesced by plaintiff grantors, amounting ouster. are presented if facts referred tbe record
In my opinion, *9 owner, defendant should be declared tbe sole tbe jury, tbe accepted by tbis to submit view of tbe case there should refusing tbe error and for tbe issue. a new trial dissenting opinion. concurring Walker, J"., HINES, General, D. WALKER KIMBROUGH Director J. W. LINE RAILROAD COMPANY. COAST ATLANTIC 1921.) (Filed October, Injuries Negligence—Fed- Control —Personal Bailroads —Government — Daw —Dismissal of Action. Decisions —Federal eral Supreme opinion Court, Ault, recent of tbe U. S. R. R. v. Under company govern- not be bad railroad while under damages personal injury operation negligently ment inflicted