Opinion · Supreme Court of North Carolina
Doe Ex Dem. Callender v. Sherman
27 N.C. 711
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1845-06-05
- Topic
- bankruptcy
Daniel, J. The lot of land in controversy belonged to Joseph Dean. He leased it to Mrs. Smith for the years 1803 and 1804, and she entered thereon as his tenant. Dean died intestate in the year 1804, and, before Mrs.
Citator
UpLaw has not yet analyzed Doe Ex Dem. Callender v. Sherman. The absence of a flag is not a finding that it is good law.
- Cited by
- 6 opinions
CALLENDERv. SHERMAN,27 N.C. 711(1845)
DOE EX DEM. H. B. CALLENDER ET AL. v. BRADFORD SHERMAN ET AL.
Supreme Court of North Carolina
(June Term, 1845.)
2. A paper purporting to be a will of lands, which has but one subscribing witness and which has never been proved as a will, is not such a color of title as will ripen a seven years possession under it into a good title.
3. No length of possession of lands will inlawamount to a presumption of title when the origin of the possession is shown; but such possession, with its attendant circumstances, must be left to the jury as a matter of fact, from which they may or may not infer that a legal conveyance of title had been made to the person claiming under the possession.
4. At any rate, the original consistency of relation between the possession and the opposite title must have been clearly dissolved and turned into an adverse possession for many years before suit in order to make it available as a ground of presumption of title.
It was proved that the lot belonged to one Joseph Dean, who, previous to 1803, had rented it to a Mrs. Cook. Mrs. Cook went out of possession in the year 1802, and Dean rented the premises, consisting of a tavern and boarding house and out-buildings and lot, for 1803 and 1804, to a Mrs. Smith, at a yearly rent of $250. Dean died some time in 1804, while on a trip to the West Indies. He was a native of the State of Massachusetts, but had his domicil in the town of Wilmington, in this State, at the time of his death, and had resided there for many years. It was proved that the lessors of the plaintiff were the heirs at law of Dean.
The defendants claimed to derive title for the Lodge under the (712) said Dean; and for this purpose read in evidence certain paper-writings, purporting to be the last will and testament of the said Dean, and to devise the premises to the Lodge. These papers were proved to be all in the handwriting of Dean, but there was only one attesting witness, and it was not shown that they had been placed in the hands of any person for safekeeping or that they were found among the valuable papers or effects of the deceased. The defendants proved that, soon after the death of Dean, the Lodge set up claim to the premises, under the papers purporting to be the last will and testament of Dean, and, after the lease to Mrs. Smith for 1804 had expired, to wit, in 1805, the Lodge, with the consent of the gentleman appointed executorPage 497of Dean, caused the premises to be put up at auction to rent for the term of one year, when Mrs. Smith, who had not moved out of the house, but did not object to the premises being thus exposed for rent at auction by the Lodge, became the last and highest bidder, and accordingly gave her note for the rent of 1805, to the Lodge. The premises were thus exposed to rent for one year, for each and every year afterwards, until the houses were burnt down in 1830, and Mrs. Smith thus rented the premises each year during that time, and paid the rent to the Lodge. After the fire the lot was not occupied for some two or three months, but another building was then erected, and the defendant Sherman went into possession as the tenant of the Lodge, and has occupied it ever since. The defendants also proved that the Lodge had paid the taxes upon the lot from 1805 up to this time, and for a good portion of the time had paid for the insurance of the premises. It was proved that the lessors of the plaintiffs were inhabitants of the State of Massachusetts, and it did not appear that either of them had ever been in this State. It was also proved that the Lodge always claimed the lot under the supposed will of Dean, and never alleged or asserted title in any other way.
The defendants' counsel insisted that the papers offered as a will constituted a devise of the said lots to the Lodge, and that the age of the papers and the possession consequent thereon superseded (713) the necessity of any further proof of the execution of the papers as a devise. (2) That the papers were color of title, which was ripened into a good title by the possession of the defendant, Sherman, as tenant from 1830 to 1839. (3) That, as the Lodge had been in possession for 30 years, from 1805 to 1839, claiming the lots as its property, a presumption of property was raised, or the jury should be instructed by the judge to presume a title in the Lodge.
The plaintiffs' counsel insisted, (1) That the papers offered as a will were not color of title; (2) That the possession of Mrs. Smith was not the possession of the Lodge, as she held over after the death of Dean, but possession for the heirs at law of Dean, the lessors of the plaintiffs; that at least it was not such a possession as would raise a presumption of title in the Lodge from the lapse of time, as she had never surrendered possession to the heirs, nor had she gone out of possession and left the premises, nor had the heirs at law been notified, or otherwise informed, of her consent to become the tenant of the Lodge; (3) That if the possession of Mrs. Smith was otherwise, yet, upon the facts proved, the presumption of title in the Lodge, against the heirs at law, was not an imperative one; but the facts as proved might be sufficient to justify the jury in refusing to make the presumption.Page 498
The court charged that the paper-writing exhibited as a will did not constitute color of title. The court further charged that, when possession was held adversely for a great many years (say thirty-four) without interruption or claim made, the jury should presume a title. This presumption was to be made for reasons of policy and to quiet estates; and it did not depend upon whether the jury, in point of fact, believed that a proper deed or title had been executed or not. In this case, if the jury were satisfied that the Lodge had held adverse possession for thirty-four years, in the absence of any sufficient reason why the lessors did not make the claim during all that time; and (714) none had been proved, (for the fact that the lessors lived in Massachusetts and had never been in this State was not sufficient) the jury should presume title in the Lodge; and the fact that the Lodge never averred that a deed had been made, but always claimed under the paper supposed to be a devise, but which was not duly executed, would make no difference, because it was not an open question of fact, to be decided by circumstances, but the law gave to such long, uninterrupted possession a technical force over and beyond that which it would naturally have. This case fell under that class of presumptions which the jury were to make, with the instructions and advice of the court — which the court could not make, but on which it was their duty to instruct the jury, that, under a given state of facts,they shouldmake the presumption.
As to the possession before 1830, by Mrs. Smith, the court charged that, had the proof been that Dean made a long lease to Mrs. Smith, say for 30 years, and after his death no alteration was made in the possession, except that she paid the rent to the Lodge instead of to the heirs of Dean, a different question might have been presented. But, as the proof was that Mrs. Smith rented of Dean year after year, paying an annual rent, and, after his death, the Lodge, claiming the lot under the supposed will of Dean, caused the lot to be put up at auction for one year, when Mrs. Smith, as the highest bidder, rented for one year, and continued so to rent until the fire in 1830, and at the renting Mrs. Smith became a bidder upon equal terms with others, claiming no preference from the fact that she had been the tenant of Dean in his lifetime, or from the fact that she had not actually gone out of his house and taken her furniture out, all of which facts were not controverted, the court was of opinion, that this state of facts made her the tenant of the Lodge, and her possession, after that, was the possession of the Lodge. So that, taking the evidence to be true, the Lodge had been in possession for some thirty-four years, and this authorized the jury to make the presumption of title. And the court instructed the jury that it was their duty so to presume from the facts stated.Page 499
The jury found a verdict for the defendants, and from the (715) judgment thereon the plaintiffs appealed.
It was then insisted for the defendants, that the great length of time (35 years) which had elapsed since any rent had been paid to Dean or his heirs, and the constant receipt of the said rents by thePage 500Lodge, and also other acts of ownership by it, raised a presumption that the heirs of Dean had made a conveyance of the lot to the Lodge. The judge said, "taking the evidence to be true, the Lodge had been in possession 34 years, and this authorized the jury to make the presumption of title. And the court instructed the jury that it wastheir dutyso to presumefrom the facts stated." We think that the judge erred in the charge as applied to this case. If the heirs of Dean hadactuallymade a deed of conveyance of the lot to the Lodge at any time since the death of their ancestor, of course it would defeat the plaintiffs' action. And to ascertain that fact the jury were the judges. That the 35 years' time which had elapsed since the Lodge set up claim to the lot was only to be taken as evidence, which was to go to the jury with and any evidence of circumstances in the cause, to enable them to find or not to find, whether any such conveyance had actually taken place. InFenwick v. Reed, 5 Barn. Ald., 232, where a defendant's ancestor came into possession of certain lands in 1752 as a creditor under a judgment obtained against the owner of the land, and the defendant's family had continued in possession ever since to 1821:Held, that the original possession having been taken, not under any conveyance, but as a creditor, and the possession being thus accounted for, the length of possession was onlyprima facieevidence, from which a jury might infer a subsequent conveyance by the original owner or some of his (717) descendants, but that it might be rebutted, and that the jury must not presume such conveyance from that length of possession, unless they were satisfied that it had actually been executed. At any rate, the original consistency of relation between the possession and the opposite title must have been clearly dissolved and turned into adverse possession for many years before suit, in order to make it available as a ground of presumption. 1 Mer., 125. Here the possession ceased not in the lessors of the plaintiffs' tenant until 1830. There are many American cases to the point, as that ofFenwick v. Reed. They may be found collected in 2 Philips Ev., 365, c. Amer. ed. The judge, we think, mistook the class of presumptions to which this case belonged. It was only evidence to aid in raising a presumption of a fact, in the ascertainment of which the judge could not say it was theirdutyto presume the existence of the fact. InFenwick v. Reedthe jury found for the plaintiffs against 48 years possession by theReedfamily, and the court refused to disturb the verdict. There must be a
PER CURIAM. New trial.Cited: Sutton v. Wescott,48 N.C. 284;McConnell v. McConnell,64 N.C. 343;Melvin v. Waddell,75 N.C. 367;Davis v.Davis,83 N.C. 73;Pate v. Turner,94 N.C. 55;Springs v. Schenck,99 N.C. 558;Lawrence v. Eller,169 N.C. 213.Page 15