81 S.E. 130 | N.C. | 1914
This action was brought to recover the possession of a tract (171) of land. On 3 April, 1854, John Wilson conveyed the land to his daughter, Mary A. Bowen, wife of Stephen Bowen, for life, with remainder to her surviving children. Bowen and his wife then entered into possession of the land and occupied it until two years before they left this State, which was in 1857. They never returned, nor was any claim to the land made by them or their heirs for many years. About one month after they left the land, John Gibb Fussell entered into possession of the same and cultivated it several years, when he conveyed it to James Wells, 22 January, 1876, and Wells occupied it until 1893, when he conveyed it to his two sons, the defendants in this action, and they have occupied it ever since that time. Stephen Bowen died in 1873, and Mary Ann Bowen, his wife, in 1885, and plaintiffs are their children and grandchildren and their heirs at law. A witness for plaintiffs, W. H. Fussell, testified, among other things, that the Bowens left John G. Fussell in possession of the land, but that all he knew about it was that John G. Fussell "lived there and worked the place," and he did not mean to say that he knew that Fussell was in possession under them. He afterwards said that he knew Fussell was their tenant, "but he did not know how he knew it," and "that all he knew was that he lived and worked there." He also stated, over objection of defendant, that he knew the circumstances and conditions of his possession by hearsay. There was evidence of a long continued adverse possession of defendants and those under whom they claim, and *172 of the disabilities of some of the plaintiffs during that period of time, but it is not necessary to set it out in detail.
The jury found for their verdict that certain of the plaintiffs, Sallie Couch and others, owned two-fifths of the land. Judgment on the verdict, and defendants appealed. After stating the case: We need not discuss the questions raised on the argument as to plaintiffs' disabilities or (172) defendants' title to the land by adverse possession, as we are of the opinion that there was no competent evidence to show that plaintiffs owned the land or any part thereof. The title was not shown to be in John Wilson, who conveyed it to his daughter, Mrs. Bowen, under whom they derive title, and no other claim of title was set up in behalf of Mrs. Bowen. In truth, she had none, nor did Wilson have any, so far as this case shows.
Plaintiffs contend, though, that defendants are estopped to claim the title, or rather to deny their title, as John G. Fussell acquired the possession from the Bowens, as their tenant, and defendants claim under Fussell.
If a party takes possession under another, as a tenant or permissive occupant, he cannot dispute the title of the person from whom he got the possession, until he has fully surrendered it or given it back to him from whom he received it. Farmer v. Pickens,
It was error to admit the hearsay testimony of W. H. Fussell against the objection of the defendants, and because of this error the appellants are entitled to another jury.
We have not considered the exceptions of defendants which are based upon their claim of adverse possession, and the evidence they offered to support it, and for the obvious reason that the burden is upon the plaintiff in the first instance to show a good title, before the defendant is called upon to say anything in defense. "The rule is well settled," as was said in Rumbough v. Sackett,
New trial.
Cited: Carstarphen v. Carstarphen,
(174)