27 N.C. 580 | N.C. | 1845
Ejectment, in which both parties claimed under one Josiah Unthank. The plaintiff in order to show title in himself, offered in evidence a decree of the Supreme Court, made at December Term, 1833, in the case of Redmond and others v. the said Unthank and others, with sundryfi. fa's. and ven. ex. issuing thereon, all duly certified. This was objected to by the defendant's counsel, on the ground that it ought to have been accompanied by an exemplification of the bill and (581) answer. The objection was overruled, because the decree recited the bill and answer and other proceedings had in the suit. The plaintiff then offered in evidence the sheriff's deed, made in pursuance of a sale under a ven. ex. issuing from June Term, 1835, and returnable to December Term, 1835, which covered the land in dispute; and he proved the defendant to be in possession of the premises. In order to show that both parties claimed title under Unthank the plaintiff also offered in evidence a deed of conveyance from the said Unthank to one Jesse Saunders, executed in 1830, and deeds of conveyance from the latter down to the landlord of the defendant, and proved that the said Saunders died about eight months before this suit was brought. The deed from Unthank to Saunders was thus expressed: "This indenture made (here the date was inserted) between Josiah Unthank and Jesse Saunders witnesseth, I the said Josiah Unthank have this day bargained and sold a certain tract of land lying (here the boundaries of the land are set forth), for and in consideration of the sum of twelve hundred and eighty-eight dollars, to me in hand paid by the said Jesse Saunders, the right and title of the above described lands I will forever warrant and defend from me, my heirs and every of them, and every other person lawfully claiming, unto Jesse Saunders, his heirs and assigns, to have and to hold with all its profits and advantages appertaining"; signed and sealed by Josiah Unthank. This deed, in the opinion of the court, only conveyed a life estate to Josiah Saunders. *407
The defendant offered to prove by a witness who wrote the deed that a fee simple was intended to be conveyed. This testimony was rejected by the court. The defendant then proved that himself and those under whom he claimed had been in the uninterrupted possession of the land from 1830 till the commencement of this suit, claiming adversely, and insisted, (1) That the deed from the said Unthank to Saunders conveyed a fee simple; and (2) If it did not, his title was made perfect by an adverse possession of more than seven years, under color of title; and (3) That it appeared from the return of the sheriff that two separate tracts of land, belonging to different defendants, (582) had been sold in mass. The court, as before stated, decided that the deed conveyed only a life estate, and was of opinion, from the return of the sheriff, that the sale was not in mass, but in separate tracts, and charged the jury that the adverse possession insisted on could not avail the defendant, as the plaintiff's right of action did not accrue till the death of Saunders, and, if the testimony was believed, the plaintiff was entitled to a verdict. The jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.
The judge, on the trial of this cause, was of opinion that the deed from Unthank to Saunders conveyed but a life estate in the land and that the clause, "I will forever warrant and defend for me and my heirs and every other person, unto Jesse Saunders and his heirs, to have and to hold with all its (the land's) profits and advantages appertaining," was to be construed only as a covenant of warranty of the title and quiet enjoyment to Jesse Saunders and his heirs of the land described in the preceding part of the deed, and that this case was, therefore, within the meaning ofRoberts v. Forsythe,
PER CURIAM. Venire do [de] novo.
Cited: Cobb v. Hines,
(584)