44 S.E.2d 54 | N.C. | 1947
Civil action to remove cloud on title of real property and quiet title thereto. G.S.
On 26 October 1897 Elijah Woolard died intestate, seized and possessed of five small tracts of land in Beaufort County. He had executed two mortgages thereon: one, 1 November 1893 to Thomas H. Blount, and another 18 January 1895 to E. Peterson. He left surviving him his widow, Julia V. Woolard, and a child in ventre sa mere. Said child, plaintiff herein, was born shortly thereafter. In January 1899 both *608 mortgages were foreclosed and the land was purchased at the sale by Richard Johnson, father of the widow. It was announced at the sale that Johnson desired to purchase for his daughter, widow of the mortgagor, and others present entered no bids, but permitted the land to be sold to said Johnson. Foreclosure deeds were executed and delivered to Johnson 28 January 1899. On the same day Johnson executed and delivered to Blount trust deed reconveying said property to secure unpaid purchase money.
After the death of her husband the widow moved to the home of her father and she and her child lived with him until the date of her remarriage in 1902. Johnson qualified as her guardian. She became 21 years of age 12 December 1900. On 22 December 1900 she acknowledged full settlement by her guardian and in consideration of one dollar "and in further consideration of the conveyance to me by my said Guardian of a certain tract of land in Beaufort County," released and forever discharged him and his bond from further liability. Johnson delivered to her deed dated 4 February 1899, conveying the land purchased at the Woolard foreclosure, subject to existing mortgage to Blount.
She went in possession of the locus and remained in possession thereof until the date of her death. During her life she sold or otherwise disposed of all land conveyed to her by Johnson except the one tract described in the complaint. While in possession she paid the amount due on the mortgage and the same was canceled of record in 1907. While she lived with her father, before her second marriage, the net proceeds of the crops raised on the land were applied to the payment of the Blount mortgage.
Plaintiff became 21 years of age in 1919. In 1929 Julia B. Warner (Woolard) executed a will in which she devised the locus to plaintiff. Thereafter she executed another will in which she devised the same to Vandalia I. Sykes, her daughter by her second husband, for life with remainder to her surviving children, subject to a charge in the sum of $800 in favor of plaintiff.
Plaintiff disavowed any right under the will and instituted this action claiming the land as her own. At the conclusion of the evidence for the plaintiff the court, on motion of defendants, entered judgment dismissing the action as in case of nonsuit and Plaintiff appealed. The principles of law relied upon by plaintiff are so well established we need not discuss them. Whether the facts appearing *609 on this record are such as to invoke the application of those principles is the question presented for decision.
Where a confidential relation is established between parties, either by act of law or agreement, the rights incident to that relation continue until the relation is put an end to, and time will begin to operate as a bar during the existence of such relation only in the event there has been an unqualified disavowal by clear and unequivocal acts or words. Blount v.Robeson,
Relying on this principle of law the plaintiff bottoms her cause of action upon the theory that Julia V. Woolard (later Warner), the widow, held possession of the locus after the death of her husband in trust for the use and benefit of herself and her daughter, the plaintiff herein. She alleges that the widow "caused and procured the land . . . to be advertised and sold under the powers of sale therein contained, and said lands were so sold and bid in for her by Richard Johnson, her father . . ." and that Johnson was acting as her agent in purchasing and later reconveying to her. In her brief she takes the additional position that the widow went into possession of the inheritance under her unallotted right of dower and that her possession was merely a continuation of the possession of the deceased husband and was not adverse to her daughter, the plaintiff. Page v. Branch,
The widow is not a tenant in common with heirs at law. Her estate is superimposed upon the estate of the heirs and is superior thereto. Even so, when the widow remains in possession of the whole estate under an unallocated dower right, her possession is an extension of the possession of her deceased husband and is not deemed to be adverse to her children.
But here the whole record negates the suggestion that the widow remained in possession as such. The property was under mortgage. The mortgages were foreclosed and the land was purchased by Richard Johnson. In the meantime the widow, herself an infant, had moved to the home of her father and become a member of his family.
Thus the continuity of possession under the same right was broken. The title of the deceased husband and his heirs was divested by the mortgage sales and a new title in a new line was created. When the widow entered into possession she went in, not as surviving widow but in her own right as purchaser.
There is no evidence that the widow "caused and procured" the foreclosure of the mortgages. The mortgagor was dead. The widow was under legal disability due to her nonage. The estate which was being *610 administered was without sufficient assets to pay the secured debts. There was neither widow nor heir legally capable of negotiating or contracting for an extension of the debt. Common prudence and foresight dictated foreclosure. The record discloses this and nothing more.
Even so, the plaintiff insists that the circumstances under which the widow acquired title were such as to impress it with a trust in favor of plaintiff. The record, we think, fails to sustain this position.
She was without means and incapable of contracting. Her father purchased the land so as to protect the home of his infant daughter who was again his dependent and a member of his household. There is not a particle of evidence tending to show that in so doing he acted as her agent rather than as her father, interested in providing a home for her. Under the circumstances here appearing, the statement that he desired to purchase "for her" cannot be construed to mean that he purchased as agent for her.Akin v. Bank, ante, 455.
It follows that there is no evidence tending to show that she purchased at the sale property in which she and her child were jointly interested so as to impress her title with a trust for the benefit of plaintiff.
Under the view we take of the case the widow held under a record title superior to any claim of plaintiff, and so she and those claiming under her need not resort to the defense of adverse possession. We note, however, that over a period of 25 years after plaintiff became 21 years of age the widow remained in exclusive possession of the land, appropriated the income therefrom to her own use and sold four of the five tracts formerly owned by plaintiff's father (one of which was sold to plaintiff's husband) without protest from or action by plaintiff. We cannot say that she, in equity and good conscience, has any good or valid claim thereto.
The judgment below is
Affirmed.
