Caskey v. . West
186 S.E. 324
N.C.
1936
Check Treatment
*243 Connor, J.

At the death of Mary Caskey, intestate, on 4 July, 1900, the tract of land described in the complaint, which had been conveyed to her by Emory Hussey by deed dated 14 Septemher, 1893, descended to her children, as her heirs at law, subject to the life estate of her husband, J. E. Caskey, who survived her. C. S., 2519.

The plaintiffs, as heirs at law of Mary Caskey, deceased, were not entitled to the possession of the tract of land described in the complaint until the death of their father, J. E. Caskey, on 22 June, 1928. Blount v. Johnson, 165 N. C., 25, 80 S. E., 882; Hauser v. Craft, 134 N. C., 319, 46 S. E., 756; Huneycutt v. Brooks, 116 N. C., 788, 21 S. E., 588. The statute of limitations, C. S., 430, therefore did not begin to run against the plaintiffs and in favor of the defendants until 22 June, 1928, and the action of the plaintiffs to recover possession of said tract of land is not barred by the statute, unless the statute began to run against Mary Caskey, under whom the plaintiffs claim, prior to her death. In that case, the statute having begun to run during the life of the ancestor of the plaintiffs, did not stop running at her death, but continued to run against her heirs at law, notwithstanding their disabilities, if any, under the statute or otherwise. Holmes v. Carr, 172 N. C., 213, 90 S. E., 152. In Chancey v. Powell, 103 N. C., 159, 9 S. E., 298, it is said: “We regard it as well settled that if the statute begins to run against the ancestor or devisor, it continues to run after bis death notwithstanding the infancy of the heir or devisee. There is no difference between voluntary and involuntary disability.”

There was error in the instructions of the court to the jury as to both issues submitted to the jury at the trial of this action.

The question of fact as to whether C. J. West entered into possession of the land described in the complaint before or after the death of Mary Caskey should have been submitted to the jury. The answer to this question will be determinative of the action.

If the jury shall find, in answer to an appropriate issue involving'this question, that C. J. West entered into possession of the land described in the complaint after the death of Mary Caskey — that is, in 1902, as the evidence for the plaintiffs tends to show — then and in that case the statute of limitations did not begun to run against the plaintiffs, until their cause of action accrued, to wit: On 22 June, 1928. In that case, the action of the plaintiffs is not barred by the statute of limitations, and the plaintiffs are entitled to recover in this action.

If on the other band, the jury shall find that C. J. West entered into possession of said land before the death of Mary Caskey — that is, in 1894, as the evidence for the defendants tends to show, then and in that case the statute of limitations began to run during the life of Mary Caskey, and was running in favor of C. J. West at her death. It con- *244 tinned to run after her death in favor of C. J. West and against the heirs at law of Mary Caskey, notwithstanding their cause of action did not accrue until the death of their father. When the tract of land described in the complaint descended to the heirs at law of Mary Caskey at her death, they succeeded to her title to said land, which vested in them subject to such rights as had been acquired by C. J. West against Mary Caskey. If C. J. West was in the adverse possession of the tract of land at the death of Mary Caskey, then, upon remaining in such possession continuously for twenty years, he acquired a title in fee to said land against Mary Caskey and all persons claiming under her. C. S., 430. In that case, the plaintiffs cannot recover in this action.

The defendants are entitled to a new trial. It is so ordered.

New trial.