17 S.E. 579 | N.C. | 1893
Where the testimony relied on in an action for the possession of land to establish the plaintiff's title demonstrates incidentally the fact that a person or persons, other than the defendant, hold as tenants in common with plaintiff all of the undivided interest not (811) held by the latter, the action inures to the benefit of such cotenants as against a trespasser claiming sole seizin in himself, entitling the nominal plaintiff to recover, for himself and them, the whole. Allen v. *530 Sallinger,
The defendant claimed under a sheriff's deed for taxes, adverse in its very incipiency to the claim of the heirs of Moody and the representatives of Alexander Williams. He was, therefore, at the beginning of his occupancy a trespasser, setting up an invalid tax deed under which he *531 might acquire title by the laches of the true owners. If his possession did not ripen his title to the whole or any part, then he continued to be a trespasser up to the moment when the action was brought. The instructions of the court upon the three issues were well calculated to enable the jury to apply the law to the testimony and arrive at and announce their conclusion not only as to what was the actual interest of the plaintiffs, but whether the defendant was a trespasser or cotenant.
There was a conflict in the evidence bearing upon the question whether the defendant entered and put the statute in motion (813) before the death of H. M. Moody, in which event it would have continued to run against his infant child, or whether the occupancy began after his death, which occurred in the year 1870, so as to relieve the youngest child, who had arrived at maturity within three years before the summons issued, from the bar of the statute. It was, therefore, the province of the jury to determine, as they were told to do, whether the plaintiffs were in fact entitled in their own right to one undivided half, or whether the rights of all, except the youngest child, were barred. It was the duty of the court to require such specific findings in order to protect the rights of the parties against the effect of the estoppel of the judgment, and to enable the infant heir, if all others were barred, to recover his interest. Allen v. Sallinger, supra; Dickens v. Long,
But when the jury found that the defendant's possession was still wrongful it necessarily meant that he could have acquired no interest whatever by color of title, because if he had acquired seven years continuously, either before or after the death of H. M. Moody, (814) he must have acquired under the instruction given, as against those heirs, all but one undivided sixth held by the youngest. It followed, therefore, that if the jury determined that the two older Moody heirs were not bound by the defendant's possession, it could not have been an occupancy of such nature and duration as to mature title against *532 the heirs or representatives of Alexander Williams, to whom the plaintiffs, in the deraignment of their own title, had traced the other undivided half.
Lenior v. Mining Co.,
(815) In our case, though the defendant claimed sole seizin, the judge who presided in the court below, with a very clear perception of the difference between the two, submitted the second issue in two aspects of the testimony, and made the finding on the third conform to the response to the second. If the defendant's title had not matured as to either of the three plaintiffs then, ex necessitate, it followed that he had acquired nothing by his occupancy, and was still a trespasser as to the plaintiffs and all who were shown to have derived title from the same source. If the defendant had acquired title as to two-sixths he was not a trespasser, but a cotenant and non constat, but that his occupancy had ripened into title as to Williams' half interest also. So, if the answer to the second issue had been "One-sixth" that to the third would have been "No," and the judgment would in that event have ordered that the youngest of the three plaintiffs be let into possession with the defendant.
The practical difference between the present status of the case and that which would have been presented had the will of Alexander Williams been admitted and the finding followed that Reeves and the Moody heirs were the owners, is that, now, the plaintiffs may be concluded by an adjudication from denying that the title to one undivided half interest descended to the heirs and devisees of Alexander Williams, and that the plaintiffs are the owners of the other half. *533
The judgment of nonsuit being set aside and a new trial granted, the plaintiff Reeves may, on motion, have the decree amended so as to declare that title to one-half descended to the heirs or passed to the devisees, if any, of said Williams, and that plaintiffs hold the other half in fee. If the heirs of Moody do not contest the right of Reeves he can again submit to nonsuit and enter with them. If they resist his claim, or if he prefers to have the matters adjudicated (816) so as to operate by way of estoppel, he can have the cause, as to all of the parties before the court, retained till it shall have been ascertained by a jury whether the interest of Alexander Williams has been transmitted by mesne conveyances to him.
For the reasons given we hold on the defendant's appeal there was
NO ERROR.
Cited: Barnhardt v. Brown,