Roscoe v. John L. Roper Lumber Co., 32 S.E. 389

32 S.E. 389 | N.C. | 1899

The plaintiff claimed a half-interest in the land under the will of her husband, H. E. Roscoe, executed 13 January, 1882, at his home in Mississippi, which devised to her all his property. In 1853, J. R. Riddick conveyed the land to said H. E. Roscoe and S.W. (43) Worrell. In 1865, Worrell alone conveyed said land by deed, purporting to pass the entire interest to other parties, under whom, through mesne conveyances, in 1891, 1893 and 1896, the defendant derived title and was in adverse possession at the commencement of this suit, 16 March, 1897.

The defendant took a number of exceptions to the competency of plaintiff's evidence, which were overruled by his Honor. At the close of plaintiff's evidence, the defendant moved to dismiss under act of 1897. Motion allowed, and judgment in favor of defendant dismissing the action. Plaintiff excepted and appealed.

The evidence and points of contention are stated in the opinion. In her complaint, the plaintiff alleges that she is the owner in common with the defendant in the lands described in the complaint, her alleged interest being one-half of the whole, and this action was commenced to have herself adjudged the owner of her one-half interest in common, and that the lands may be sold for a division by a commissioner appointed by the court.

In its answer the defendant denied the claim of the plaintiff and also pleaded the statute of limitations of twenty years adverse possession under known and visible lines and boundaries, and the seven years statute under color and adverse possession. In the trial in the Superior Court, upon the conclusion of the plaintiff's evidence, (44) the defendant moved to dismiss the action under chapter 109, Laws 1897. The motion was allowed, and from the order the plaintiff appealed to this Court. In support of her title, the plaintiff introduced a duly certified copy of a record from the Book of Wills in the office of the clerk of the Superior Court of Gates County, containing the will of H. E. Roscoe, who died in LaFayette County, Mississippi, and its probate, which will had been filed and recorded in the clerk's office of Gates County under section 2156 of The Code, as amended by chapter 393, Laws 1885. She also introduced a copy of the will and probate thereof, certified from the Chancery Court of LaFayette County, Mississippi. The plaintiff then introduced a deed from J. R. Riddick to H. E. Roscoe, her deceased husband, and S.W. Worrell, in fee simple, dated 1 January, 1853, to the land described in allegation III of the complaint; then a deed dated 7 October, 1865, from S.W. Worrell to Bond, Brady, Roberts and Wiley, purporting to convey the whole of the land in fee; and then successive deeds from these last grantees and their grantees to the defendant. The plaintiff further introduced in evidence sections 3, 4 and 5 of the complaint, which set out the ownership in common of the lands described therein between the plaintiff and defendant, in the proportion of one-half to the plaintiff and the other half to the defendant, and then the deeds under which the defendant claims the entire interest in the lands and the entry of the defendant thereon; and also section 8 of the answer is introduced, in which it is admitted that the defendant has entered upon the lands conveyed to it under the deeds set out in section 5 of the complaint.

Upon the argument here, the counsel of defendants insisted that the question of competency of a part of the evidence which his (45) Honor received was a matter for the consideration of this Court, objection having been made to its admission in the court below; but we think that the motion made by the defendant was, so far as the competency of the evidence is concerned, substantially a demurrer to the evidence, and that all objection to its competency was waived by the motion. A demurrer to the evidence admits as true all that the evidence tends to prove. Mining Co. v. R. R., 122 N.C. 881; Bazemore v. Mountain,121 N.C. 59; Whitley v. R. R., 122 N.C. 987. But the defendant's counsel insisted that if they were in error as to that position, and that their motion to dismiss was a waiver of all objection to the evidence received by the court below, yet the certificate of probate of the will by the clerk of the Court of Chancery of LaFayette County, Mississippi, did not show affirmatively that the will was executed according to the laws of North Carolina, and therefore that the lands situated in North Carolina did not pass to the plaintiff under the will. To an understanding of this contention it becomes necessary to examine the proceedings of the Mississippi court in reference to the probate of the will. The record of that court was properly certified, and from it it appears that the will was subscribed by two witnesses; that the witnesses subscribed in the presence of the testator and at his request; that the testator, at the time of his signing the will, was of sound and disposing memory, and that he was over twenty-one years of age. The examination of the witnesses to the will, however, was signed and certified by the clerk separately from the certificate of probate made by the clerk, and on that account the defendants contend that our statute, 2149 of The Code, which provides that the certificate of probate shall embody the substance of the proofs and examination, (46) was not complied with. The examination of the witnesses containing the essentials, according to the laws of North Carolina, for the order of probate of the will, was of the same date and in the same proceeding as the certificate of probate, and the certificate of probate set forth that the will had been duly proved as required by law. We think that the certificate of the clerk was sufficient, for it referred to the proof of the will already made in the proceedings of the probate. But the defendants further insist that the certificate of the officer to the record of the proceedings did not refer to anything but the will and the certificate of probate; that it did not embrace the examination of the witnesses. That point is not directly presented by the appeal, for the record — the whole record — is in evidence, and without objection, so far as the appeal is concerned, and it embraces the examination of the witnesses to the will. However, we might as well say that we think the certificate of probate refers to the certified examinations of the witnesses, and that the whole forms one transaction. The exceptions were not by any means frivolous; they were urged by counsel learned in the law, with zeal, but we cannot concur in their view of the matter.

The probate of the will then being sufficient to pass the property, that part of the case being treated as upon demurrer to the evidence, we are brought to the consideration of the other branch of the case. The plaintiff's evidence showed that her devisor and S.W. Worrell had been tenants in common of the lands, and that the defendant, at the time of the trial, and before, were in possession of the same, claiming by deeds purporting to convey the whole from successive grantees of Worrell. Now the contention of the defendant is that, as the plaintiff proved on the trial that the defendant went into possession of the lands under deeds purporting to convey the whole interest, the presumption (section 146 of The Code) that she had been in possession within (47) twenty years before the bringing of this action, she having shown the legal title in her to her interest, had been rebutted; and further, that from the plaintiff's evidence the presumption arose that the defendant's possession became adverse and began from 1866, the date of the execution of the first deed, conveying the entire estate, and that it was incumbent on the plaintiff to show possession in herself or some one from whom she claimed, within twenty years before the commencement of the action. However plausible this contention may appear, it cannot be sustained upon reason or under the decisions of this Court. There had been a tenancy in common at one time between the plaintiff's devisor and Worrell, from whom, through successive conveyances, the defendant claims, and the plaintiff's evidence did not show any adverse possession on the part of the defendant. It only went to prove entry by the defendant on the land (section 5 of the complaint, section 8 of the answer, put in evidence by the plaintiff). The possession of one tenant in common is in law the possession of all. Covington v. Stuart,77 N.C. 150; Neely v. Neely, 79 N.C. 478. And the rule is the same when one enters to whom a tenant in common has by deed attempted to convey the whole land. In the case of Ward v. Farmer, 92 N.C. 93, the Court said: "In the more recent case of Caldwell v. Neely, 81 N.C. 114, where there were two tenants in common and one of them undertook to convey the whole tract and a full estate therein to the defendant, and he took possession immediately and claimed to be absolute owner, it was held that the ouster of one tenant in common by another will not be presumed from an exclusive use of the common property and the appropriation of its profits to himself for a less period than twenty years; and the result is not changed when one enters to whom a tenant in common has by deed attempted to convey the entire tract." To the same effect are the cases of (48) Page v. Branch, 97 N.C. 97; Ferguson v. Wright, 113 N.C. 537.

There was error in the order dismissing the action.

REVERSED.

Cited: Shannon v. Lamb, 126 N.C. 47; Hardee v. Weathington, 130 N.C. 92;Bullin v. Hancock, 138 N.C. 202; Lumber Co. v. Hudson, 153 N.C. 99;Lumber Co. v. Cedar Works, 168 N.C. 350; Roberts v. Dale, 171 N.C. 467.