Tuttle v. . Warren , 153 N.C. 459 ( 1910 )

This is an action for the possession of land, the title to which was admitted to be out of the State. Plaintiff introduced a deed for the land from Hulet Blackburn to James Warren, dated 21 December, 1889, and a mortgage from Reuben Warren, son and heir of James Warren, to Edward H. Young, trustee, to secure a debt for $536.49 due to William A. Lash, dated 25 October, 1866, the land described therein being a tract of 77 acres adjoining the locus in quo, and the undivided interest of Reuben Warren in the land of his father. He then introduced a contract dated in 1873, between William A. Lash and Reuben Warren, by which Lash agreed to sell to Warren for $509.14 the tract containing 77 acres and another tract of 16 acres. There was evidence tending to show a partition of lands among the heirs of W. A. Lash, and that Lot No. 3 assigned to Laura Gilmer, one of the heirs, included the locus in quo and was conveyed to the plaintiff on 19 March, 1908. No possession of that lot by Mrs. Gilmer, or those claiming under her, sufficient to ripen her title, was shown, nor does it appear that W. A. Lash was the owner of the land divided among his heirs in the partition proceedings. The plaintiffs contend, though, that W. A. Lash claimed the land under Reuben Warren by virtue of the contract of 1873, but we have been unable to find any sufficient proof to the effect that the land therein described embraced the locus in quo, and that contract is the only evidence tending to show any connection or privity between Reuben Warren and W. A. Lash. It is true that evidence was introduced to show that Reuben Warren had possession of the entire locus in quo for sixteen years or more prior to his death, which, it is stated, occurred seven years ago, and possession of a part of the locus in quo for thirty years, but his possession can not inure to the benefit of the plaintiff, claiming under Mrs. Gilmer as one of the heirs of W. A. Lash, unless some privity between the latter and Reuben Warren had been established. In this view of the case, the evidence which was offered by the plaintiff and excluded by the court, that there had been a parol partition among (461) the heirs of James Warren, who took possession of their respective parts, was irrelevant. If the plaintiff had offered to show that Reuben Warren went into possession of what is called "his share," and continued in possession thereof, and that it included the locus in quo, and it had further appeared that there was such privity between him and W. A. Lash as would entitle the latter or his heirs to claim the benefit of the possession of Reuben Warren, if it was sufficient in itself, or by tacking it to the possession of W. A Lash held for him by Reuben Warren under the contract of 1873, to confer title, the evidence might have been competent and relevant, although the oral partition was invalid, to show the character of the possession of Reuben Warren, as being adverse and under a claim of right. Rhea v. Craig, 141 N.C. 603. But the plaintiff, we think, has failed in his proof at the vital point of the case. He has shown no legal right to claim under Reuben Warren, or to avail himself of his possession of the locus in quo. In this respect, the evidence is wholly lacking, and some of the other evidence is of an indefinite nature. The allotment to Mrs. Gilmer in the partition proceedings constituted color of title (Bynum v. Thompson, 25 N.C. 578; Smith v. Tew, 127 N.C. 299), which could be ripened into a good title by adverse possession, but there is no evidence of such possession.

In the absence of the essential proof, we must sustain the judgment of nonsuit, but this does not prevent the plaintiff from bringing another action (Tussey v. Owen, 147 N.C. 335) and supplying the present deficiency in the evidence, if he is able to do so.

No error.

Cited: Culbreth v. R. R., 169 N.C. 727.

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