*1 TERM, FEBRUARY O.] Williams
Smelting Company, they might purchase the same advantage injury their own for of the other Smelting Company. of the creditors The- reopen will below be reformed so as to first issue, which was submitted on the trial.
New trial on first issue. M. F. WILLIAMS v. GEORGE SCOTT and wife.
(Decided April 1898). to Recover Action Bankruptcy—Homestead— Land — Interest —Decree—Collateral Reversionary Attack— Title —Statute Color Limitations —Adverse Pos- session. bankruptcy A sale bankrupt had been listed inventory land which as subject homestead, previously allotted, to his carries the title subject purchaser to the homestead estate therein. petition bankrupt in his and schedules declared
2. Where that his him, mentioning allotted to the date of the appraisers, and the names of the a claim allotment to the land descent, and a contention his heir that there was no legally allotted, that the homestead had been evidence are incon- sistent. bankruptcy the record of is
3. Where made out ac- requirements law, cording sufficiently authenti- cated, the decree of District therein is not to col- and, appealed attack, having from, lateral binding on persons and all the State Courts claiming him. paper writing of title can be color without some 4. There no attempting convey not do it which does either because of 122—35 THE SUPREME u. Scott. *2 making it person in or because of defective of title want and, semble, used; that under the Act of of mode obviously defective that a man of plainly be so it must not by ordinary capacity could be misled (Section Code), 158 of The does not years of limitations statute ejectment who claim the land apply to in adverse recognized plaintiff’s they have claim and title possession, where that time. within thereto Mclver, J., land, to recover tried before ACTION Civil February Superior Term, 1898, of Rowan Court.
at opinion. appear in the At the of conclusion The facts testimony plaintiff’s defendants moved to dis- complaint and for as of non-suit, miss the Act. The motion was allowed, Hinsdale’s under appealed. plaintiff Williams, E. E. & Raper Long S. E.
Messrs. plaintiff (appellant). for Long de- Clement for H. Overman L. Lee S. Messrs. fendants. plaintiff the land and J.; claims Montgomery, possession of it in this com- action, recover
seeks January, under a deed exe- 1896, the 6th of menced and Alice V. John Hen- Marsh, S. to herself cuted on the 3d Hall, Jack derson, day. registered on the same The de- March, 1874, plaintiff’s right the denied the fendants plaintiff the claim of the barred pleaded further years statute limitations the ten years possession than 17 color more on all trial, It admitted on sides, title. plaintiff de- both under whom Hall, Jack leaving a who died widow, died claim, fendants only and November, 1895, feme FEBRUARY 0.] TERM, years and heir child at who law, was 31 old at the death her that the father; defendant has been con- tinuous the death her father; that plaintiff’s cause of accrued action at the death of in 1878; Hall that Alice Marsh died intestate before this leaving plaintiff, action was commenced, law, controversy heir at and that the land covered plaintiff. Henderson, deed of On plaintiff the trial the the deed Hender- introduced plaintiff son, aud Alice also Marsh, assignment *3 the bankrupt’s deed of of the the effects register bankruptcy, Henderson, to also exemplified copy an of the of the record the District matter the States the United bankrupt; Jack Hall, all evidencewas received of which objection under the of the to ex- ceptions. plaintiff Williams, introduced E. also S. objection, who, without as follows : testified plaintiff, “I am a a con son-in-law of and had the Scott, defendant, versation with after the Mrs. the soon give up death of her I if mother. asked her she would possession. that claim, said of our She she knew thought she it hard that on her for we called so soon after death mother, the of her said buy plaintiff, Marsh, to father not offered they the life him and estate, wanted to sell had wrilten him were that effect. We several letters to talking rights. about the father Marsh is plaintiff, agent. acting and was Scott her Mrs. as give up possession. refused to I had a conversation George with the months W. about six Scott, year a regard or before the death Hall in to this of Mrs. property. pave payment It was about the of the brick (We ment tax. He said, remainder; do own the not THE SUPREME 54:8 do we tax; to have pay we do, and ought you and I don’t think out, when will us put know you the matter tax.’ After talking all the ought pay we I about pay should we agreement over came I was as acting the balance. pay should $90 ” of the attorney plaintiff. the agent : the witness stated cross-examination On have been only the tax may amount of “The whole I do remember exact $4:0. and I $90, paid a a or $40 item.” $90 feel sure there amount, but case, and de- then rested plaintiff the action under Chapter motion to dismiss fendants’ motion was allowed Acts defendants, entered in favor non-suit as of appealed. plaintiff which in that The deed from Hen error ruling. There conveyed to the rever- plaintiff derson, assignee, recognized interest sionary in the homestead its allotment A sale of the in land bankrupt. which bankruptcy, homestead has an *4 in our allotted, fully recognized courts. Wind v. 88 N. 99 N. Tankard, C., 223; Murray Hazell, v. ley a The laws of North Carolina prohibit sheriff 168. C., in the interest reversionary homestead lands selling from do the execution, prevent home under v. Bobbitt, from Jenkins conveying himself steader The takes as purchaser 385. from C., the v. assignment. Easton, Dudley bankrupt the Hall, 99. The his and bankrupt, S., petition 104 U. the land which is controversy, inventoried schedule ‘‘ real estate is covered the homestead added, on 16th allotted to the petitioner April, 1870,, exemption N. O.] FEBRUARY TERM, by W. F. Howerton, H. W. H. H. Crawford Sprague, at $1,000.” valued them bankruptcy assignment by register Hen
The the assignee, conveyed subject to home the derson, the land assignee’s exemption bankrupt. stead the of was It the duty bankrupt prop in the to sell all the interest of the erty, subject exemption, the so that to the homestead might and the them, creditors receive what due was bankrupt discharged. contend be the But defendants legally there has is no evidence that the homestead unau it was' allotted, and that, therefore, the sale position conveying This thorized and void. the it deed The the one. defendants not á consistent father, defendant claims land the descent he de bankrupt, petition the schedules and in men him, clared that his had been allotted the tioning names the the date of allotment and the appraisers. exemption the The as claimed re conveyed that officer the spected petition exemption out in the as set and sold record land. however, insist, incompetent to bankruptcy were prove allotted had had his homestead that the defendant regularity to sell was, The record and make reversion the deed therefor. require according so far can as we made out see, sufficiently It of the law authenticated. ments attack, open decision and the to collateral juris sole matter, District where v. binding Lewis courts. our diction, was, is, Wallace, Post, v. 68 N. Sloan, C., Michael 557; ordering a sale of decree of District Court *5 having ap- THE SUPREME bankrupt, him and binds concluded pealed from privies him and are claim who defendants Judgments, 2, Vol. Section Black and estate. blood further that insist defendants at law of the the heir the color of title descent. 1878, death from other authorities States to us some cited Counsel upon it is found that that examination effect, may law Whatever the statute. made so has thing in North can be no such Caro there elsewhere, be paper writing without some at title color of lina as convey v. tempting In Tate title. Southard, upon writing to be “a defined of title is 119, color C., professing but which does not do to bear face its person making it, want title from either it, used;” mode of defective or at that it 1891, least, under the Act seem, would obviously plainly and so much so defective, not be must ordinary capacity misled could be man of that no been the definition of color of title this has And time to time, as late as Avent our courts . C., 105 N. 377 The case of Neal v. Nel Arrington, C.,N. is not consistent with the former son, Court, of this we feel that we cannot fol decisions as the true doctrine of color of low it title. years
The contention of the defendants that the ten applies statute, 158 of al- Section where it is Code, leged adversely, the defendant holds need not be appears testimony considered, for it from witness, Williams, which must be taken as true recognized that the case, claim and the *6 n O.]N. FEBRUARY TERM, 1898. plaintiff just year bring-
title of the or so before the ing of this suit.
Error. concurring: my J., In addition to what Clark, Montgomery brother has so well there is fur- said, ther consideration. This is not a case of a sale under execution which apart, the homestead must be set only conveys the excess can be but the sold, debtor property, subject only entire right his to the have to his apart by assignee bankruptcy. set Had apart, the latter failed to set it debtor could right. property enforced passed pur- to chaser plight the deed from the in the same as the right held it, and the of the debtor done) have it allotted metes and (if bounds personal leaving and determined no death, his minor children. Had he left minor children, to have an allotment would till have survived to them coming age. their But the failure to allot would validity affect the from the debtor purchaser, or from him to the the estate thereby conveyed being merely subject right the debtor to have the homestead allotted out of said property.
As to the statute of limitations, Section Code, applies provided to cases “not and as for,” recovery actions for the of real estate there are two ex- press 141) year statutes; the 7 (Section these, statute apply does not because there is no color of and the years required elapsed Section 144 brought;'besides, when this action was the defendant expressly pleads the absence of visible lines and boun- necessary ripen daries, which years pos- would be session into title.