Morrison v. . Craven

26 S.E. 940 | N.C. | 1897

Lead Opinion

Claek, J.:

This action, having been tried in the court below at June Term, 1895, should have been docketed here at the Fall Term of that year, or a certiorari applied for upon filing such part of'the transcript as was available to the appellant. Burrell v. Hughes, at this term. But by agreement of counsel the case is now docketed, and where counsel waive the required diligence the court will not exact it.

The plaintiff rests her right to recover upon seven years possession in her father under color of title. Code, Sec. 141. The deed to him, which was color of title, was executed in 1852, but the grantor therein remained in possession for three years thereafter, upon plaintiff’s own showing, and her father’s possession thereunder began, at the earliest, some time in 1855. There was no color of title shown in tbe grantor, and hence his possession could not be added to that of his grantee. Therefore, the full seven years’ possession necessary to ripen the title, had not elapsed when the running of the Statute was suspended in May, 1851, and soon thereafter, if not before, those under ■whom defendant claims, went into adverse possession. Besides, the plaintiffs are estopped by the proceedings in 1863 to sell the realty as the property of John M. Pharr, deceased, to make assets, for the court adjudged that “due notice had been given to all parties concerned,” and the land in controversy was sold under the judgment in this case (Harrison v. Hargrove, at this term), and the feme, plaintiffs were among his heirs at law, and further, at that time, had a general guardian, Hare v. Holloman, 94 N. C., 14; Code, Sec. 387. The court records hare been destroyed and there was nothing to rebut the presumption omnia rile aeta est and that the plaintiff was duly made a party by her guardian, according to the judgment of the court that “all parties concerned” had been notified. It is significant evidence,'though not an estoppel, that in the partition proceedings of the land of J. 0. Pharr this realty was not mentioned. It is unnecessary to consider the other exceptions.

Error.

---

Dissenting Opinion

JDouolas, J.,

dissenting from the opinion: I concur in the judgment of the court for the reason first stated in the opinion, that seven years’ possession was not shown prior to the suspension of the Statute in May, 1861, but 1 cannot concur in the opinion that the feme plaintiff is estopped by the proceeding in 1863 to sell the realty in question as the property of John M. Pharr, deceased. The feme plaintiff (Cross) was then an infant with a general guardian, but there is no direct finding that either she or her guardian was ever made or became a party to that proceeding. There is no proof whatever of .that fact, and their names nowhere appear in any cf the remaining records. The fact can be gathered only inferentially from the vague hading of the Probate Court that “due notice had been given to all the parties concerned.” This is itself as much a conclusion of law as a finding of fact, the identity of the parties depending entirely upon the opinion of the court as to who were “concerned.” That an infant of tender years, with or without a guardian, should be estopped from asserting whatever rights she may have by such a record, I cannot admit. It appears to us that the femes plaintiffs were nieces and heirs at law of the said John M. Pharr, but this fact is nowhere found in the special proceeding, and, indeed, the very existence of the plaintiffs may then have been unknown to the court.

---

Lead Opinion

DOUGLAS, J., dissenting. This action, having been tried in the court below at June Term, 1895, should have been docketed here at the Fall Term of that year, or acertiorari applied for upon filing such part of the transcript as was available to the appellant. Burrell v. Hughes, ante., 277. But, by agreement of counsel, the case is now docketed, and where counsel waive the required diligence the court will not exact it.

The plaintiff rests her right to recover upon seven years' possession in her father under color of title. Code, sec. 141. The deed to him, which was color of title, was executed in 1852, but the grantor therein remained in possession for three years thereafter, upon plaintiff's own showing, and her father's possession thereunder began, at the earliest, some time in 1855. There was no color of title shown in the (330) grantor, and hence his possession could not be added to that of his grantee. Therefore, the full seven years' possession necessary to ripen the title had not elapsed when the running of the statute was suspended in May, 1861, and soon thereafter, if not before, those under whom defendant claims, went into adverse possession. Besides, the plaintiffs are estopped by the proceedings in 1863 to sell the realty as the property of John M. Pharr, deceased, to make assets, for the court adjudged that "due notice had been given to all parties concerned," and the land in controversy was sold under the judgment in this case (Harrison v.Hargrove, at this term), and the feme plaintiffs were among his heirs at law, and further, at that time, had a general guardian. Hare v. Holloman,94 N.C. 14; Code, sec. 387. The court records have been destroyed and there was nothing to rebut the presumption omnia rite acta est and that the plaintiff was duly made a party by her guardian, according to the judgment of the court that "all parties concerned" had been notified. It is significant evidence, though not an estoppel, that in the partition proceedings of the land of J. O. Pharr this realty was not mentioned. It is unnecessary to consider the other exceptions.

Error.