Norcum v. Savage., 53 S.E. 289

53 S.E. 289 | N.C. | 1906

The feme plaintiffs are the children of J. H. Parker, by his first wife, Frances. The defendants are his children by his second wife. The jury found that the deed to Frances, who bought and paid for the land, was stolen or lost without registration. It was not controverted that after her death, J. H. Parker procured another deed for the land to be executed to himself by the heirs at law of the grantor. By such conveyance, J. H. Parker held the land, by implication of law, as trustees for the plaintiffs, subject to his life estate as tenant by the courtesy. Flanner v. Butler, 131 N.C. 157.

Exceptions 1 and 2 are to the admission against the defendants of certain sections in their original answer — they having been allowed to file an amended answer — but the exceptions cannot be sustained. Gossler v.Wood, 120 N.C. 69; Cummings v. Hoffman, 113 N.C. 267; Guy v. Manuel,89 N.C. 83; Adams v. Utley, 87 N.C. 356. The third exception is to the testimony of a disinterested witness that he heard J. H. Parker say that the aforesaid deed to Frances had been stolen or lost, and that he did not know how he could get another. This was a declaration against interest made by a party in possession in disparagement of his title, and the defendants claim under him. It is competent against them. Shaffer v. Gaynor,117 N.C. 17.

Execution against J. H. Parker in 1869 and sale (474) thereunder and a subsequent conveyance back by purchaser to him were shown, but the seven years statute of adverse possession would not begin to run against the plaintiffs till his death, for at such execution sale only his tenancy by the curtesy passed (and not even that if his marriage was subsequent to the act of 1848), and of course the deed by the purchaser back to him could convey no more. If the latter was color of title, still the statute could not begin to run against the plaintiffs till his death, since they could have no claim to recover possession till then. Everett v. Newton, 118 N.C. 919. At the time of their father's death, both plaintiffs were married. The repeal of the disability of coverture by the Act of 1899 was not retroactive. By its terms no adverse possession, prior to 13 February, 1899, should be counted against a married woman. Revisal, section 363.

The action, so far as it seeks to have the trust declared and a conveyance by the defendants, would be barred only by the lapse of ten years (Norton v. McDevit, 122 N.C. 759), which time began to run against the plaintiffs by the above statute, on 13 February, 1899.

No Error.

Cited: Phillips v. Lumber Co., 151 N.C. 521; Bond v. Beverly,152 N.C. 63.

(475)