Wilson v. Brown , 134 N.C. 400 ( 1904 )

CoNNOR, J.

Tbe plaintiff, administrator of B. J. Wilson, filed bis petition against tbe defendants, lieirs at law, etc., for tbe purpose of procuring license to sell certain real estate, of wbicli be alleged bis intestate was tbe owner at tbe time of bis death, to make assets, etc. Tbe petition includes two tracts of land: one “known as tbe homestead of B. J. Wilson,” etc., tbe other “known as a part of the John S. Brown land, lying on tbe east side of tbe Greenville and Washington road,” etc. Tbe petition contained tbe necessary averments to entitle tbe plaintiff to relief.

Tbe defendant, G. C. Edwards, filed an answer admitting tbe material averments and further alleged that be and bis wife bad recovered in tbe Superior Court of Greene County, on tbe first day of October, 1889, a judgment against tbe plaintiffs intestate, which was duly docketed in Pitt County. That an execution thereon had issued from tbe Superior Court of Greene County, and tbe homestead of tbe defendant therein duly allotted. That said judgment remained unsatisfied and constituted a lien upon that portion of tbe land described in tbe complaint known as tbe “homestead.” To this answer tbe plaintiff filed a reply admitting the recovery of tbe judgment.

Tbe second paragraph of the reply is as follows: “That it is denied on information and belief that execution on said judgment was properly and lawfully issued from tbe Superior Court of Greene County, and tbe homestead legally and regularly allotted under tbe same, and it is specifically averred that said execution was irregular and void.” Tbe plaintiff pleaded tbe bar of tbe statute.

Tbe defendants, B. W. Brown and others, by their guardian, filed an answer denying that tbe plaintiff’s intestate was at tbe time of bis death tbe owner of tbe tract of land on tbe east side of tbe road, etc. They further alleged that they were tbe owners in fee of said land.

To tbis answer the plaintiff filed a reply denying the affirmative allegations, and pleading the twenty and seven year statutes of limitation in bar of their claim, etc. The plaintiff further alleged that at a sale of said land made by the Sheriff, E. W. Brown, the father of the defendants purchased the same upon a parol trust to hold the title to the use of plaintiff’s intestate. That he remained in possession, paying tases and receiving the rents of said land, for more than twenty years and until his death. The cause was, upon issues made by the pleadings, transferred to the civil issue docket for trial.

In regard to the defendant Edwards, the Court submitted the issue upon the statute of limitations. The'defendant introduced the Clerk of the Superior Court of Pitt, who produced the record showing transcript of judgment from Greene, docketed in Pitt, October 5, 1889. The docket showed the entry, “Fi. fa. issued October, 1889.. Homestead appraised and set off and return made October 14, 1889.” He next introduced the record of the return of the Sheriff showing allotment of homestead and personal property exemption, under execution on judgment of G. G. Edwards and wife v. B. J. Wilson, dated October 14, 1889. (It did not appear from said return from what county the execution was issued). The defendants introduced a deed from the Sheriff of Pitt County to E. W. Brown, in which a sale under two executions issued from the Superior Court of Greene County, upon judgments in favor of G. G. Edwards and wife v. B. F. Wilson, Julia C. Dixon, Executrix, v. B. F. Wilson, is recited. The levy is recited as made on October 14, 1889. This was all the evidence in regard to the controversy upon the lien of the Edwards’ judgment. His Honor instructed the jury that if they believed the evidence they should answer the issue “No.” Plaintiff excepted.

We concur with tbe opinion of bis Honor. There was uncontradicted, evidence amply sufficient to sbow that tbe execution issued on tbe Edwards’ judgment from tbe Superior Court of Greene County. It is very doubtful whether tbe answer sufficiently denied tbe averment. We-think that upon a proper construction of tbe paragraph in tbe answer it may well be said that it was not denied. Erom any point of view bis Honor correctly instructed the jury. Tbe Court submitted the following issue to tbe jury: “Did Erank W. Brown take tbe legal title to tbe tract of land described in tbe Sheriff’s deed introduced for tbe use and benefit of B. J. Wilson?”

Tbe plaintiff tendered in addition an issue directed to tbe inquiry whether plaintiff’s intestate bad been in tbe open and adverse possession of tbe land in controversy for more than twenty years, also in regard to adverse possession under color of title for more than seven years. His Honor declined' to submit either of these issues and tbe plaintiff excepted. His Honor’s ruling was correct. Tbe possession of plaintiff’s intestate could not possibly have been adverse to Dr. Brown for twenty years, for tbe manifest reason that tbe Sheriff’s deed was executed March 7, 1890, before which time Dr. Brown bad no right of action or right of entry. Tbe plaintiff’s intestate prior to that time bad a perfect title to tbe land.

In regard to tbe second issue tendered, there was no evidence that tbe plaintiff’s intestate bad possession of tbe land after March 17, 1890, tbe date of tbe Sheriff’s deed, under color of title. We have no difficulty in bolding, upon tbe authorities, that, in tbe absence of any explanation, tbe possession of plaintiff’s intestate after tbe right of action accrued to Dr. Brown, was adverse to him and if continued for twenty years would have ripened into perfect title. Scarborough v. Scarborough, 122 N. C., 234. Tbe deed ■under which iffaintiff’s intestate became the owner of the land could not constitute color of title after the execution of the Sheriff’s deed.

In Johnson v. Farlow, 35 N. C., 84, Pearson, J., says: “McCracken, after his deed to the lessor, had no color of title, and the adverse possession which he held was naked. It is absurd to suppose that the deed under which he had originally acquired the land could serve his purpose as color of title, after he had passed all of his estate, interest and claim under it to the lessor. Color of title is something which purports to give title, but he had nothing of the kind The deed to him was fundus officio, except as one of the mesne conveyances of the lessor. If McCracken had taken a deed from a third person, that would have been color of title, and seven years’ adverse possession under it would, in the language of the cases, 'have ripened it into a perfect title,’ thus originating that which did not exist at the date of his deed, for the averment of this new title would not be inconsistent with the admission which he was bound to make, that his deed had passed the title to the lessor.”

Brown’s legal title was but a continuance of the title of the plaintiff’s intestate, the defendant in the execution. After the sale and execution of the Sheriff’s deed, the character of the possession retained by plaintiff’s intestate was open to explanation. Ruffin v. Overby, 88 N. C., 369; Bryan v. Spivey, 109 N. C., 57; Boomer v. Gibbs, 114 N. C., 76.

Ilis Honor properly refused to submit either of the plaintiff’s issues tendered. His Honor instructed the jury in regard to the issue tendered: “That if the plaintiff had satisfied them by strong, clear and convincing evidence that Dr. F. IV. Brown took the legal title to the tract of land described in the Sheriff’s deed introduced, for the use and benefit of B. J. Wilson, they should answer the third issue ‘Tes,’ and that unless the plaintiff had satisfied them by strong, clear and convincing evidence that Dr. E. W. Brown took the legal title to said tract of land for the use and benefit of B. J. Wilson, they should answer the third issue ‘No.’ ” The instruction was in accordance with the decisions of this Court. Smith, C. J., in McNair v. Pope, 100 N. C., 404, says: “But to engraft such a trust upon a legal estate, the proof of its formation should be strong and convincing.” In Summerlin v. Cowles, 101 N. C., 473, it is said: “To attach a trust to a legal estate by parol, or to convert a deed absolute in form into a security merely, and perhaps in other cases invoking the exercise of equitable judicial functions for relief, more proof is required than that which preponderates and governs in the trial of ordinary questions of fact.” In Cobb v. Edwards, 117 N. C., 244, Avery, J., says: “Where the Judge is not at liberty to say that there is no evidence of the kind required by the rule of law prescribed in such cases, it is his duty to tell the jury that the law requires clear, strong and convincing proof to show the agreement as well as the subsequent acts or admissions, and that it is their province to say whether that offered does so convince them of its truth.”

This, and other cases in our Reports, sustain his Honor’s charge to the jury. While the testimony in regard to the inadequate price paid for the land, the continued possession of the judgment debtor, payment of taxes, the reduction of the mortgage indebtedness upon the land, the relation between himself and the purchaser might well have justified the jury in finding that Dr. Brown held the title upon some trust or understanding between himself and the judgment debtor, these questions are peculiarly within their province, and in the absence of any error in the instructions by which they were guided, we are not permitted to question their verdict. Upon careful examination of the entire record, we find

No Error.