Whitten v. Peace , 188 N.C. 298 ( 1924 )

CONNOR, J.

Tbe first assignment of error is based upon tbe contention of defendant that tbe judge failed to give full force and effect to the paper-writing dated 13 May, 1919.

Tbe will and all codicils thereto, except tbis paper-writing, were executed and attested in accordance with tbe laws of North Carolina, tbe same having been signed by -Samuel S. Wbitten and subscribed by two witnesses, as required by C. S., 4131. Tbis paper-writing was signed b'y Samuel S. Wbitten, who refers to it as an affidavit, not as a codicil to bis will. It is not subscribed by two witnesses, nor does it appear to have been executed animo testandi. It is true that be expresses a desire “that tbis affidavit be made a part of my last will and testament,” but it does not affect or purport to affect tbe disposition of bis property made in bis will and codicils, which are valid under the laws of North Carolina.

It may be that, having been probated in Virginia and certified and recorded in Yance County, in accordance with tbe provisions of C. S., 4152, as a codicil, it cannot now be attacked collaterally (Spencer v. Spencer, 163 N. C., 83), but by the express provisions of C. S., 4152, when any will made by a citizen of any other State has been duly proven and allowed according to the laws of such State, and a certified copy thereof has been duly recorded in any county of this State in which is situate property owned by testator, and such will contains any devise or disposition of real estate in said county, such devise or disposition shall not have any validity or operation unless the will is executed according to the laws of North Carolina. McEwan v. Brown, 176 N. C., 249.

This paper-writing, therefore, whether it is valid as a codicil, for any purpose or not, has “no validity or operation” with respect to the lot of land described in the complaint and situate in Yance County.

Even if the inference sought to be drawn by the defendant is permissible, and the statement contained therein, that “my wife, Sallie S. Whitten, never had any of her money in any property that I own or ever did own,” is evidence that he paid the purchase money for the lot conveyed to his wife by M. S. Alley and others, this fact did not affect her title to the said land. Where a husband pays the purchase money for land conveyed to his wife, no resulting trust to him arises from this fact, for the law .presumes, from the relationship, that it is a gift. Nelson v. Nelson, 176 N. C., 191; Anderson v. Anderson, 177 N. C., 401.

Defendant’s first assignment of error is therefore not sustained. The second assignment of error is that the judge failed to consider and give full force and effect .to the deed of Sallie S. Whitten to Samuel S. Whitten, dated 17 November, 1897, and recorded in Vance County on 15 September, 1914.

The certificate of the notary public who took the acknowledgment of Sallie S. Whitten that she signed the said deed does not state that it appeared to his satisfaction and that he found that the execution of the same by her was “not unreasonable or injurious to her.” The deed is therefore void. C. S., 2515. Davis v. Bass, ante, 200; Smith v. Beaver, 183 N. C., 497; Butler v. Butler, 169 N. C., 584. The second assignment of error is therefore not sustained.

In his third assignment of error the defendant contends, however, that conceding that the deed, for the reason stated, has no effect or validity as a deed of conveyance, it is color of title, and that possession of the land described therein by the defendant and Samuel S. Whitten, his testator, claiming under this deed, for seven years, is a perpetual bar against the plaintiffs, heirs at law of Sallie S. Whitten, and ripens into a perfect title in the defendant. C. S., 428.

This Court has held, in Norwood v. Totten, 166 N. C., 649, that a deed executed by a wife conveying land to her husband, void for failure of the probate officer to comply with C. S., 2515, is, nevertheless, color of title, and that adverse possession by the husband under such deed for seven years will ripen into a perfect title. See, also, Clendenin v. Clendenin, 181 N. C., 465; Elmore v. Byrd, 180 N. C., 120; Adderholt v. Lowman, 179 N. C., 547; Shermer v. Dobbins, 176 N. C., 547; King v. McRackan, 168 N. C., 621.

The third assignment of error, therefore, presents the question whether or not defendant and his testator have had such possession of the land described in the complaint, under the deed of Sallie S. Whitten, as bars the claim of her heirs at law and ripens into a perfect title to the land in the defendant.

Upon the death of Sallie S. Whitten, in 1912, intestate, her husband, Samuel S. Whitten, issue of their marriage, having been born alive, became and was entitled to an estate as tenant by the curtesy, during his life, in the said lot of land, the wife having been seized in fee of the same during the coverture. O. S., 2519.

Samuel S. Whitten was, therefore, entitled, as against the heirs at law of Sallie S. Whitten, to the possession of the said lot of land as tenant by the curtesy, during his life. The judge finds as a fact that Samuel S. Whitten was in possession of the lot of land from the death of his wife until his own death, and that defendant, as his executor, has continued in possession since his death. No facts are found by the judge, and none appear from the evidence, that the entry of Samuel S. Whitten into possession at the death of his wife was adverse to her heirs at law. The law presumes that he entered and was in possession rightfully, and therefore presumes that he entered into possession as tenant by the curtesy for his life. Vanderbilt v. Chapman, 175 N. C., 11.

The possession of Samuel S. Whitten, and of defendant claiming under him, has been continuous for more than seven years. Such possession, although under color of title, does not ripen into a perfect title in the defendant unless it was adverse. In Vanderbilt v. Chapman, supra, Justice Allen says: “Possession which will ripen an imperfect into a perfect title must not only be actual, visible, exclusive and continued for the necessary period of time, but it must be under a claim of title. It is the occupation with an intent to claim against the true owners which renders the entry and possession adverse.” lie cites Parker v. Banks, 79 N. C., 485, and Snowden v. Bell, 159 N. C., 500.

Chief Justice Ruffin, in Green v. Harman, 15 N. C., 158, often cited and approved by this Court, says: “The operation of the statute of limitations depends upon two things. The one is possession, continued for seven years, and the other is the character of that possession — that it should be adverse.”

The fact, therefore, found by the judge, that Samuel S. 'Whitten was in possession from the death of his wife until his own death, and that defendant, his executor and trustee, has been in possession since his death — more than seven years — is not sufficient, for Samuel S. Whitten entered into possession rightfully and not adversely to the plaintiffs, heirs at law of his wife.

In 1914 a deed executed by his wife conveying the land to him was recorded in Yanee County, which, although void as a deed of-conveyance, was good as color of title. There is no fact found or evidence in the record which shows that the character of his possession was changed after the registration of this .deed. At no time prior to his death could plaintiffs have maintained an action against him for the possession of the land, for he was entitled to possession as tenant by the curtesy for his life, and their right of action for possession did not accrue until the falling-in of his life estate at his death, in 1919. “The ¡possession of real property cannot be considered as adverse to one who during its continuation did not have a right of entry, as, for instance, a remain-derman or reversioner.” 1 R. C. L., 758; Hauser v. Craft, 134 N. C., 319; Maynard v. Sears, 157 N. C., 1. We approve as the law applicable to the facts of this case the statement in the note to be found in 9 L. R. A. (N. S.), p. 750, as follows:

“It may be said to be a well-settled rule, with but few exceptions, that a tenant for life cannot acquire an outstanding paramount title as against the remainderman and gain any rights by claiming thereafter to hold by adverse possession, unless, at least, it appears that he has clearly renounced all claim as tenant, to the knowledge of the remain-derman.” The mere registration of a void deed, although good as color of title, by the life tenant in possession is not evidence of such a renunciation of his right of possession as tenant for life, and of his claim under-the color of title, as to put the heirs at law upon notice that thereafter he is claiming adversely to them.

The third assignment of error is not sustained.

The fourth assignment of error is that the judge failed to hold that plaintiffs, as devisees and legatees under the will, by which the testator .devised the lot of land to the defendant, are estopped to set up title to the lot of land against the will.

The principle invoked to sustain this assignment of error is well established and has been uniformly recognized and enforced by this Court. It has no application, however, to the facts of this case, for the judge has found that the will made no specific devise of, or reference to, this lot of land. This finding is fully sustained by an inspection of the will. Defendant admits in his answer that he claims title to the lot of land under tbe will of bis testator. This claim is under item 11 of tbe will, wbicb is as follows:

“It is -my will and desire, and I so direct, tbat all tbe rest and residue of my estate and property shall be beld intact until tbe death of my wife, Mamie Whitten, by my executors.” Tbis lot of land, not being included within tbe description, “all of tbe rest and residue of my estate and property,” was not devised in tbe will, and tbe plaintiffs were not put to an election with respect to it. There is no finding and no evidence tending to show tbat plaintiffs have accepted benefits under tbe will, or claim adversely to tbe will; but tbis is immaterial, for in no event, upon tbe facts as they appear in tbe record, does tbe doctrine of election apply in tbis case.

Tbe judgment, upon tbis aspect of tbe case, is fully sustained by tbe learned and exhaustive opinion of Justice Walker in Elmore v. Byrd, 180 N. C., 122.

Tbe fourth assignment of error is not sustained.

Tbe fifth assignment of error is to tbe judgment, and is based upon a formal exception, wbicb is overruled. There is no error in tbe record, and tbe judgment is

Affirmed.