| N.C. | Dec 12, 1905
This was an action to recover damages for cutting timber on certain land claimed by the plaintiff. The jury found, among other facts, that the defendants, Barnes, Williams and Van Roden, had wrongfully trespassed, and assessed the damage at $261.72. From the judgment rendered, the defendants appealed. (1) The principal question appearing (259) upon the record, which it is necessary for us to consider, is that presented by the eighth issue: "Is the defendants' claim of equity to have the plaintiff declared trustee of the legal title for them, barred by the statute of limitations?"
The defendants claim the locus in quo under an entry laid by one John P. Puett, 3 November, 1854. The survey was made on 22 February, 1855, and the entry price paid on or before 9 September, 1858. John Puett transferred his entry to D. S. Puett, who, on 21 December, 1896, obtained a grant and registered it.
The plaintiff claims under entries by J. R. Dyck laid in April and May, 1859, surveyed 27 May, 1859, grant issued November, 1867, and was registered 6 June, 1884.
This action was commenced 6 December, 1902. We think the defendants barred under section 158 of The Code, which provides that an action for relief, not otherwise provided for, must be commenced within ten years after the cause of action accrues. The learned counsel for the defendants, Mr. Norvell, admitted in his able argument that Ritchie v. Fowler,
Puett perfected his equity and right to call for the grant by paying to the State the purchase money in 1858, but he and his assignee, D. S. Puett, waited until 1896 before calling for the grant. During these thirty-eight years there is no evidence of any possession upon the part of the defendants (260) or of those under whom they claim. In fact, there is no evidence of possession until about 1902, when the defendants, Barnes, Williams and VanRoden, entered and cut timber upon the land.
The section (158) of The Code is so broad and comprehensive in its terms that it covers all causes of action, equitable or legal, not otherwise provided for. It bars the assertion of an equity as well as any other cause of action, unless there are circumstances which take the case out of the statute. The grant, registered in 1884, vested the legal title in the grantee. Registration has been held heretofore by this Court to be constructive notice to all the world that the grantee claimed the land as his own. Ritchie v. Fowler, supra. "The legal title vesting in the first grantee drew the constructive possession which continued until there was an ouster." Janney v. Blackwell,
The kind of trust which the defendants seek to impress upon the legal title to the land in the plaintiff is not an express trust created by the language of the parties, the terms of which were agreed to and assumed voluntarily. It is in the nature of an implied trust and requires the affirmative action of a court of equity to give it vitality. Bispham Eq., pp. 99, 125. Independently of statutes of limitation, courts of equity uniformly decline to assist a person who has slept on his rights and shows no excuse for his delay in asserting them. "Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court." Smith v. Clay, 3 Bro., Ch. 640; *197 Speidel v. Henrici,
"That one may preclude himself by his laches from asserting a right which otherwise a court would help him enforce, there are abundant authorities to show; but to do so in any case there must be something on his part which looks like an abandonment of the right, or an acquiescence in its enjoyment by another, inconsistent with his own claim. We have searched in vain for a single instance in which the court has withheld its aid in the enforcement of an equity on the ground of the lapse of time when the party seeking it has himself been in the continued possession of the estate, to which that equity was incident." If the defendants had shown possession of this land or such acts of ownership as indicate and establish possession, their delay in suing would not have precluded them, even now, from seeking the aid of the court in converting the plaintiff into a trustee for their benefit; but as they show no such possession, they have slept on their rights too long. There being no suggestion of coverture or infancy or other disability, and no possession, we can discover no reason why section 158 should not apply to the defendants' cause of action, although equitable in its nature, as well as any other.
As between the State and himself, having paid the purchase price, Puett could call for a grant at any time. The lapse of time would not hurt him.Gilchrist v. Middleton,
(2) It is stated in the defendants' brief that "the court erred in admitting the evidence of Hays and Keener, relative to locating any of these lands." The brief does not point out the particulars in which His Honor is alleged to have erred; nevertheless, we have examined the evidence and fail to discover any error upon the question of location of the plaintiff's grants. In the language of their counsel's brief "upon the *198 question of location, the judge followed the law as laid down by a long line of time-honored precedents."
Affirmed.
WALKER, J., did not sit.
Cited: Frazier v. Gibson, post, 279; Johnston v. Lumber Co.,