236 F. 264 | E.D.N.C. | 1916
“Be it known that I, Josiah Collins, Allen and Dickinson, of Edenton, county of Chowan, and state of North Carolina, for and in consideration (seven lines belonging to this deed cannot bo copied, it is torn so badly) Josiah Collins Allen Dickinson line.” (A description by metes and bounds covering 2% pages, and concluding:) “Containing sixty thousand acres he the same, more or less, being the land granted by his excellency, Samual Ashe, to the aforesaid Josiah Collins by patent No. 587, being dated 9th day of July, 1796. To have and to hold the said piece or parcel of land with all ways, woods, waters and every other appurtenance thereunto belonging or appertaining to the said Richard Davis, his heirs and assigns forever.”
Then follows the usual covenant of warranty to the said Richard Davis. The probate, September term, 1809, Tyrrell county court, is in the following words:
“This deed of sale for land fromi Josiah Collins, Sr., to Richard Davis, Esq., was proved in open court by the oath of Thos. Trotter ordered to be registered.”
“Of tlie sum of two hundred and fifty dollars current money to me in hand paid by Richard Davis of the county of Tyrrell, state o£ North Carolina, at and before the sealing and delivery of these presents, the receipt and payment whereof is hereby acknowledged, have bargained, sold, aliened, enfeoffed and confirmed and I do hereby bargain, sell, alien, enfeoff and confirm unto the said Richard Davis, his heirs and assigns, a certain piece or parcel of land lying and being in the county of Tyrrell on the east side of Lake Phelps, south side of Scnppernong river, on the west side.of Great Alligator river. Beginning at a pine in Allen Collins and Dickerson’s line, etc.”
This certified copy was admitted to probate and registration September 27, 1910, upon the affidavit of J. L. Cooper, who testified that he was the brother of W. H. H. Cooper, who was then dead, and was, at the date of the certificate, register of deeds of Tyrrell county. Plaintiff insists that section 988, Rev. 1905, authorized the registration of the certified copy. I am of the opinion that enough appears on the certified copy to show that the original was a perfect deed of conveyance from Josiah Collins to Davis. The habendum, which is complete, read in connection with that portion of the record which was not torn, shows that it was, before being torn, the registration of a deed from Collins to Davis. The certificate of probate made in open court expressly states that it was a perfect deed. To reject the overwhelming evidence in respect to this deed, 107 years after its registration, would be to make a precedent which, if followed, would endanger the title to innumerable tracts of land in this state. Whether or not the certified copy of September 26, 1887, was entitled to registration, the evidence is plenary and uncontradicted that it was a true and correct copy of the record in its then condition. The mutilation of the record evidently took place since 1887.
On March 27, 1809, Richard Davis conveyed a portion of the same land, covering the locus in quo, to Elisha Hassell.
“Which I have sold this day out of the deed, which I bought of Elisha Hassell, which is out of the Josiah Collins patent, No. 687.”
“Know all men by these present, that I, Elisha Hassell, for and in consideration of the sum of one hundred dollars to me in hand paid by Joseph Hassell, have given and granted unto said Joseph Hassell all of my right of the within deed. Signed and delivered in the present June 12, 1809.
“Elisha Hassell. [Seal.]”
This indorsement is attested by James Hassell, who also attested the signature to~ the deed of the same day, June 12, 1809. In view of the similarity in the two names, it is manifest that either the person who wrote the name of the grantor incorrectly spelled it, or the register incorrectly copied it in recording the deed. I find no difficulty in reaching the conclusion that the deed was, in truth, executed by Elisha Hassell. The next deed introduced by plaintiff is from Joseph Hassell to Solomon Hassell, bearing date August 22, 1809, recorded September 22, 1816. It is not denied that this deed covers a portion, which is located by the surveyor, of the Josiah Collins patent, No. 687, including the land in controversy.
It appears from the next deed introduced that Solomon Hassell on November 4, 1813, sold to Jesse Alexander a portion of the land conveyed to him by Joseph Hassell. The deed, after setting out the boundaries, concludes:
“Containing six hundred acres, more or less, which X have sold out of a deed I bought of Joseph Hassell, which was out of the Josiah Collins patent, No. 687.”
This deed is recorded October 5, 1819, and covers the land in controversy.
Section 1246, subd. 8, Code 1883, provides that, when the subscribing witness is a nonresident or dead and the maker shall also be a nonresident or dqad, proof of the handwriting of the witness, or that of the maker, before the clerk of the superior court of the county where the deed is to be registered, shall be sufficient evidence of the execution thereof to admit the deed to registration. The defendants insist that the clerk should have found, as a fact, and so certified, that the maker and subscribing witness were dead at the time he took the probate. The statute does not require that the certificate of the clerk shall contain a finding that the maker, or witness, are dead. In Cochran v. Improvement Co., 127 N. C. 386, 37 S. E. 496, Judge Eurches reviewed the decisions of the Supreme Court of this state bearing upon the sufficiency of certificates of probate of deeds, reaching the conclusion that the court would presume that the jurisdictional facts existed: This case has been repeatedly affirmed and may be regarded as the settled law of this state. Brown v. Hutchinson, 155 N. C. 205, 71 S. E. 302; Lumber Co. v. Branch, 158 N. C. 251, 73 S. E. 164. While the deed does not show the date upon which it was executed, it contains recitals, to which specific reference will be made, which clearly show that it was executed as early as 1850. It was probably 35 years of age when admitted to probate. It was shown in evidence that the maker died during the year 1854, and the witness Truitt died 1879 or 1880. There can be no doubt that, at the time the probate was taken, the jurisdictional conditions existed. It would be trifling with the property rights to reject the certified copy of the deed. The certified copy from the office of the register of deeds of Tyrrell county is admitted.
The “Appearance Docket, No. 42, Heath — Jordan L. Jones, Admr. v. Cahoon Heirs. Service accepted. It appearing to the court that the estate of James S. Cahoon is indebted to petitioner in the sum of |110.75, judgment for said sum and interest from this date is granted to be raised from the lands with costs, descended to defendants from James L. Cahoon. Issue Venditioni Ex-ponas. Issd.”
At the April term, 1849, the case is found on the execution d.ocket. No entry appears showing what, if anything, was done. The record shows:
An “account sales of J. L. Jordan the lands of Jas. S. Cahoon deed — sold on a credit of six months on the 21st day of April, 1849, agreeable to a petition filed at January term, 1849, by administrator.”
Among other tracts, the account sale shows: “The Alexander tract on east of Armstrong bridge. Charles McClees $75.00.” The deed recites that:
The land was sold “at Ashbee’s store in Gum Neck, after advertising the same at the court house door and several other places in said county when and where Charles McClees came and bid the sum of seventy-five dollars and no one bidding a higher price, the following tract of land was struck off to him, the said Chas. McClees,” etc.
Defendants insist that it appears from the record that no process was issued or served upon the heirs at law of James L. Cahoon, or their guardian, that therefore the court did not acquire jurisdiction of their persons, and that the judgment rendered in the cause is void.
Upon the back of the petition the following entry is found:
“Jordan L. Johnson, Administrator of Cahoon, v. Cahoon Heirs.
“Service accepted. Jesse Sikes, Guardian.”
The entry on the docket was evidently taken from this indorsement and constituted a judicial recognition of its validity.
It will be observed that, in the method of procedure prescribed by this statute, no difference is made between debts due the general creditors and the administrator; but, in all cases where the goods and chattels were insufficient to pay all his debts, with the charges of administering the estate, the administrator was required to file a petition, setting forth the amount of the debts and the charges of administration. He was also to set forth a description of the lands, the heirs were to be made parties and served with notice “as in other petitions,” and thereupon if the facts were found to be true, as alleged, the court was directed to make an order directing the sale, etc. The facts set forth in the petition filed by Jordan L. Jones, administrator, while not so full as required by the statute, complied substantially with its provisions — certainly containing those allegations which were essential to confer jurisdiction upon the court. The heirs were parties and, as we have seen, came into court by their guardian. The court found the amount of the debt and directed that the “sum be raised from the land descended to defendants from James S. Cahoon.” The criticism of the judgment is in that it directed that a venditioni exponas issue. By a literal translation, these words mean, “You expose to sale.” The writ known by that name is one -which directs the sheriff to expose to sale lands or goods upon which he has theretofore levied a writ of fieri facias, and returned it into the court. As we know, formerly, in noting pleadings and docket entries, Latin terms, abbreviated, were in general use by lawyers and clerks. Doubtless, in proceedings under the statute in force prior to 1847, the attorney, or the clerk, noted the action and orders of the court, by using the words “Sci Pi” and, upon its return, “Ven Px,” all of which was well understood by them. It is no strained construction of the term, used to give to it the meaning which it is manifest was given by the administrator, as shown by
Defendants insist that the deed cannot be sustained because no order of sale, nor report, nor order confirming the sale, is shown. It is undoubtedly true that, upon both the reason of the thing, and decided cases, the law requires that one claiming under a deed, made pursuant to a judicial proceeding, show the record of the proceeding or account for the failure to do so. There is evidence tending to show that search was made in the clerk’s office for the papers-, orders, etc., and that the only paper found was the petition which was put in evidence. There is abundant evidence that the records of the court of Tyrrell county, prior to the Civil War, and the change in the system of courts and procedure, are in much confusion, and that it is practically impossible to find many of them. The courts, of necessity, for the protection of the title of purchases dependent upon deeds made by sheriffs, administrators, or commissioners, indulge presumptions 'of regularity in procedure, when it is shown that the court making the order of sale or rendering the judgment had and entertained jurisdiction of the person and the subject-matter. Grignon’s Lessees v. Astor, 2 How. 319, 11 L. Ed. 283. It is also uniformly held by the courts of this state and the Supreme Court of the United States that, when it appears that the court in which the order of sale was made had jurisdiction, the title of the purchaser at such sales will be protected, without regard to the regularity of the procedure. In Brown v. Coble, 76 N. C. 391, it is held that, after the payment of the purchase money for land sold under a decree of the court, an order of such court is not necessary to enable the master to make a valid deed to the purchaser. In Rackley v. Roberts, 147 N. C. 201, 60 S. E. 975, Walker, J., says:
It is “the general doctrine, settled by this court, * * * that, when there is a purchaser under an order or judgment, the purchaser need only to inquire if upon the face of the redord the court apparently has jurisdiction of the parties and the subject-matter, in order to be protected, provided he buys in good faith and without notice of any actual defect” — citing a large number of decisions of the court.
In that case no process was served on the infant defefidant before the appointment of the guardian ad litem; the court held that the title of the purchaser was protected by the judgment. Yarborough v. Moore, 151 N. C. 116, 65 S. E. 763, wherein Judge Walker again reviews the authorities. In Comstock v. Crawford, 3 Wall. 396, 18 L. Ed. 34, Judge Field says:
“The proceeding for the sale of the real property of an intestate, though had in the general course of administration, is a distinct and independent pro*275 ceeding authorized by statute only in certain specially designated cases; but, when by the presentation of a case within the statute the jurisdiction of the court has once attached, the regularity or irregularity of subsequent steps can only be questioned in some * * * mode prescribed by law. They are not matters for which the decrees of the court can be collaterally assailed.”
Reference to the records of this court, and the state courts, discloses an amount, and character, of litigation involving the validity of title to the timber or swamp lands in this state, together with the unsatisfactory and incomplete records, which illustrate the wisdom, if not necessity, of resorting to presumption of regularity of judicial procedure in the courts, conducted frequently a century ago. The lands were usually of small value and incapable of other than constructive possession. The manner in which the judicial records were made and preserved render it necessary, for the protection of titles, that the courts indulge in presumptions that, however imperfect in form and state of preservation, they import verity. This record is a striking illustration of this necessity. I am of the opinion that the deeds and records introduced by the plaintiffs show a connected paper title to the interest which Thomas Alexander conveyed to Jas. S. Cahoon in the land in controversy.
Plaintiff introduced record of special proceedings in the superior court of Tyrrell county, instituted August 26, 1893, by the heirs of Chas. McClees for sale for partition, in which, pursuant to decrees made therein, the land in controversy, together with several other tracts, were sold and conveyed by M. Majette, commissioner, to C. R. Johnson, November 10, 1893. Johnson conveyed to Richmond Cedar Works, October, 1905. One of Jesse Alexander’s children died intestate and without issue.
Defendants can resist the plaintiff’s recovery by showing a superior legal or paper title, or by showing color of title in themselves or those under whom they claim, followed by an ouster and seven years’ adverse possession. Defendant Armstrong does not claim to have title. He was in possession of the land in controversy as the tenant of his codefendant, R. S. Stringfellow.
Defendant Stringfellow claims under the following paper title:
(1) Deed from Cahoon and others, children of Gilbert Cahoon, to Z. F. Owens, January 9, 1885.
(2) Z. F. Owens to G. W. Rowland, March 6, 1885.
(3) G. W. Rowland to H. C. Walker, July 18, 1888.
(4) G. W. Rowland to Mrs. S. Stringfellow, 1889.
(6) Defendant also introduces a deed from Roughton to himself, December 14, 1909.
An action was brought by plaintiff against defendant for the recovery of the land in controversy, December, 1911, in which plaintiff at - term, 191 — , submitted to a judgment of nonsuit, and on November 25, 1914, being within one year thereafter, brought this action. Defendant does not connect himself with the title, originating with Josiah Collins, nor any of those persons claiming under, or through, him, or a grant prior to that to Josiah Collins. His claim to ownership is based upon an ouster and an alleged adverse possession of seven years. While the description contained in the deeds under which defendant claims is very indefinite, it may be taken that it is sufficient to enable the location of the land, as surveyed by Mr. Bas-night, 1910, and covers the land in controversy.
For the purpose of showing adverse possession, defendant introduced evidence in regard to: (1) Listing and payment of tax on the land. (2) Posting notices warning trespassers to keep off. (3) Building and occupying a small cabin on the land. (4) Cutting trees.
I have given the evidence a careful examination and consideration. The payment of taxes by the agent of Mrs. Stringfellow, prior to 1896, the date upon which she conveyed to defendant, is of but little probative value as evidence of an ouster or possession. The latest expression of opinion as to the effect of payment of tax on land, as evidence of adverse possession, is found in Christman v. Hilliard, 167 N. C. 4, 82 S. E. 949, where Judge Walker says:
“The listing of the land and payment of taxes is a relevant fact, in connection with other circumstances, tending to show a claim of title and an adverse or hostile possession, though not sufficient by itself for the purpose.”
In this case, listing and paying taxes on the land prior to the time that,notices were posted and the cabin built thereon should be given but little, if any, weight, for the purpose of showing an ouster and possession. The land in controversy is a small portion of a large timber swamp. There was nothing on or around the land to show the metes and bounds of defendant’s claim; and, until 1910, it does not appear that any survey had been made or any act directing attention to the.extent of the claim to the land. Nothing appeared on the tax book indicating the location or extent of defendant’s claim. Mr.
-To establish adverse possession, there- must be actual occupancy, clear, definite, positive, and exclusive during the whole statutory period and with an intention to claim title to the land occupied.” Bland v. Beasley, 145 N. C. 108, 58 S. E. 993.
“Possession necessary to give title to land by limitations is a possession under color, taken by a grantee in person or by his agents, and heldi and claimed continuously to the boundaries o£ the deed, without interruption or relinquishment, for seven years.” Haddock v. Leary, 148 N. C. 378, 62 S. E. 426.
There can be no doubt that Mr. Stringfellow in good faith claimed to own the land in controversy; he honestly believed that his title was valid. He paid taxes on it, and during the year 1907 had his agent, Mr. Armstrong, to build a small house or cabin on it, built of logs cut from the land. Armstrong occupied it at night, with more or less regularity, kept the door locked, and left his cooking utensils and furniture in it. This was done for the purpose of claiming and asserting ownership and was notice to the holder of the legal title of his claim. At some time (the exact date is uncertain, but, so far as it can be fixed, during the year 1905), Mr. Stringfellow, who resides in Alabama, caused to be printed on pieces of cloth warning to trespassers, and had Mr. Armstrong, his agent, to post, or tack, them upon trees on different parts of the land. The words were printed on “a thin piece of duck” — cloth. One was posted or tacked upon the courthouse door in Columbia. During the year 1909, the first notices having become worn or defaced by the weather, Mr. String-fellow had the notice printed upon thicker or heavier cloth and posted on the trees and at the post office. The notices forbade people from “trespassing or hunting” on the land.
Assuming that the several assertions of possession by Mr. String-fellow, combined or connected, constituted an.ouster and were the exercise of such dominion or use of the land of which it was capable, and that they began with the posting of the first notices, 1905, and continued up to the time the first action was instituted, December, 1911, the period of time is not sufficient to ripen such possession into title. I think it doubtful, however, whether there was any ouster or adverse possession until the cabin or house was built in 1907. It is doubtful whether simply posting notices warning trespassers and hunters from going upon swamp land, with no suggestion of its boundaries, constitutes possession. There was no actual occupancy of any portion of the land, nor were there any metes and bounds marked or indicated by which the extent of the defendant’s claim could be ascertained. An examination of the deeds, under which he claimed, would have afforded but little information in respect to the
It is reasonably certain that, for some reason, not very apparent, August 22, 1809, a tract of swamp land was conveyed by Joseph Hassell, “out of the deed which I bought of Elisha Hassell, which’ is out of the Josiah Collins patent, No. 687,” containing 600 acres. This tract is located with reasonable certainty and is conveyed by the several deeds in plaintiff’s chain of title. It is not very clear that defendant’s deed covers this land, but there is sufficient evidence to indicate that it probably does. Assuming that it does, I am unable to find, nor is it seriously contended, that those under whom defendant claims acquired the Collins title. The claim therefore of the defendant must, of necessity, begin with an ouster and depend upon adverse possession. Giving to the principle that, in respect to lands of, that character, possession may be acquired and continued by subjecting the land to the use of which it is capable, a most liberal interpretation and application, I am unable to find that such possession began prior to 1907, when the house or cabin was built, and thus continued for only four years before the first action was brought. A nonsuit having been taken and this action brought within one year thereafter, the paintiff is not barred of its entry and action.
“One tenant in common of land may sue alone and recover tlie entire interest in the common property, against another claiming adversely to his cotenants as well as to himself, though he actually prove title to only an undivided interest. This he is allowed to do, in order to protect the rights of his eotenants against trespassers and disseisors.” Allred v. Smith, 135 N. C. 443, 47 S. E. 597, 65 L. R. A. 924.
This action was instituted on the law side of the docket; but upon hearing the evidence it was manifest that, by reason of the complication of the boundaries and the large number of deeds introduced, it was impracticable to have the questions involved decided by the jury. The court found the facts.
A judgment will be drawn declaring that the plaintiff is the owner of a one-half undivided interest in the land described in the complaint. So far as appears from this record, the other one-half interest is outstanding in the heirs of Jesse Alexander, deceased. The cost will be divided between the parties, each party paying its and his witnesses, subpoenas, cost of service, and attendance; the remaining cost, including stenographer’s allowance and court cost, to be divided equally.