18 S.E. 666 | N.C. | 1893
The plaintiff introduced a certified copy of a judgment of the Supreme Court of North Carolina, rendered at June Term, 1868, in favor of one Amos Ladd against Jesse P. Adams and others, on a debt contracted before 1860, and an execution in the usual from issued (467) thereon, tested January Term, 1868, and returnable to January Term, 1869, of said court, under which the land in controversy was levied on 2 August, 1868, and sold on 2 January, 1869, by the sheriff of Wilkes, as the property of the said Jesse P. Adams; and the plaintiff then introduced the sheriff's deed to him, dated 13 February, 1869, and registered 19 April, 1869, reciting the levy and sale under the execution, and fully describing the land — the deed being in usual form. It was admitted that the levy, sale and sheriff's deed covered the land in controversy. The summons in this case was issued 7 February, 1890.
The defendant contended that the plaintiff's right of action was barred by the lapse of time, and introduced the following testimony:
H. C. Douthit testified: "That Jesse Adams lived on the land in controversy in 1869, after the suit had been brought. Ladd went to Adams to demand the land. I was with him. He said to Adams that he demanded possession of the land. Adams said, `I'll not talk to you this morning,' and went back into his house. Ladd said his counsel had advised him to demand possession. His wife and daughter were then living with Adams. Adams lived on the land until his death. His son-in-law Holdman has lived there since, a part of the time. Ladd has never been in possession, only Adams and his heirs."
W. S. Holdman, witness for the defendant, testified: "I married Jesse Adams's daughter, Martha. Have known Adams for thirty years. He lived all this time on the land, and died there in October, 1889. Since he died, my wife and I have been in possession, getting the rents and profits. Plaintiff has not been in possession at all."
The defendants then introduced the summons and complaint in the case of Aaron Ladd against Jesse P. Adams, brought to Spring Term, 1869, summons dated 30 March, 1869, being an action for the recovery of the land in controversy. (468) *344
The plaintiff then, for the purpose of explaining the possession, or rebutting the adverse possession, introduced the answer and case agreed and judgment of the Supreme Court to show that defendants have claimed and held the land as a homestead, and the same had been allotted.
It was admitted that judgment of nonsuit was rendered at Spring Term, 1871, in the case of Ladd v. Adams, in accordance with the ruling of the court upon the case agreed, and this ruling affirmed at January Term, 1872, on appeal to the Supreme Court.
The plaintiff asked the court to instruct the jury that if Jesse P. Adams lived upon the land, and held the same as his homestead, and the plaintiff acquired by reason of the ruling of the court in the case of Laddv. Adams, and the prevailing opinion that Adams was entitled to his homestead in the land, as against this plaintiff, it would not be such an adverse holding as would bar plaintiff's action.
His Honor declined to give this instruction, and told the jury that, if they believed the testimony, the plaintiff was not entitled to recover.
There was no evidence as to whether the widow of Jesse Adams was dead, or as to whether the children of said Adams are yet minors.
In deference to this ruling the plaintiff excepted to the refusal of the court to give the instructions asked, and to that given, and submitted to a nonsuit and appealed.
Prior to the passage of the Act of 1870, when the reversionary interest could still be sold under execution, the judgment (469) creditor might, at his option, recognize the claim of the debtor to a homestead by exposing to sale only such reversionary interest without affecting the validity of the sale or in any way impairing the right of the purchaser to the possession of the land on the expiration of the prescribed period of exemption. Long v. Walker,
But in the case at bar it seems that the present plaintiff, Ladd, recovered a judgment against one Adams on an old debt, and at a sale under execution thereon, on the 2d day of August, 1868, made without allotting a homestead to the debtor, became the purchaser and took the plaintiff's deed for the land. When, however, the plaintiff attempted to enforce his right by an action for possession, it was decided that Adams, the debtor under whom the present defendants claim as heirs-at-law, was entitled to a homestead in the land (Ladd v. Adams,
We think that the judgment in the former action is conclusive upon both parties to the extent only that the plaintiff (having failed to raise the Federal question by appeal to the Supreme Court of the United States) was precluded from demanding the possession till the falling in of the exemption, while the defendant and those claiming under him were estopped from denying as against the plaintiff and those claiming under him that they occupied the land in dispute as a homestead and not in the assertion of a title adverse to that of the plaintiff, so long as the homestead right subsisted. The creditor, though he acquired a good title under the sale, has recognized by his inaction the validity of the allotment of the homestead, and is in no worse plight than if he had not proceeded to sell until Adams died, in 1889. If the sale had not been made until that time a good title would have passed, as had been expressly held by this Court.Cobb v. Halyburton,
The judgment is
Affirmed.
Cited: Stern v. Lee,