Barrett v. . Williams

Supreme Court of North Carolina

Barrett v. . Williams

1 S.E.2d 366, 215 N.C. 131, 1939 N.C. LEXIS 217

CourtSupreme Court of North Carolina

DecidedMarch 1, 1939

StatusPublished

Cited by2 cases

This text of 1 S.E.2d 366 (Barrett v. . Williams) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barrett v. . Williams, 1 S.E.2d 366, 215 N.C. 131, 1939 N.C. LEXIS 217 (N.C. 1939).

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Opinion

Stacy, C. J.

The appeal has been presented with much learning and industry on the part of counsel.

Conceding without deciding that the plaintiff has made out a prima facie showing of title under the terms of her grandfather’s will, still it would seem that the case should have been submitted to the jury on the defendant’s claim of adverse possession. There is evidence that Newton A. Jones, being a witness to his father’s will, did not enter into possession of the locus in quo under the devise to him, as this was avoided by the statute, C. S., 4138, McLean v. Elliott, 72 N. C., 70, that he later purchased his sister’s half of the farm and then sold the entire *133 tract to tbe defendant, and tbat tbe defendant bas been in possession since 1899 or 1900 under claim of right, etc. Tbis evidence would seem to be sufficient to preclude a peremptory instruction on tbe issue of adverse possession. Dorman v. Goodman, 213 N. C., 406, 196 S. E., 352.

Tbe trial court may bave concluded tbat the defendant’s claim of adverse possession was defeated by tbe tax foreclosure proceeding instituted after tbe death of Newton A. Jones, but on all tbe evidence we think tbe issue is one for the jury. Hayes v. Cotton, 201 N. C., 369, 160 S. E., 453; Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381.

New trial.

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Stacy, C. J.

The appeal has been presented with much learning and industry on the part of counsel.

Conceding without deciding that the plaintiff has made out a prima facie showing of title under the terms of her grandfather’s will, still it would seem that the case should have been submitted to the jury on the defendant’s claim of adverse possession. There is evidence that Newton A. Jones, being a witness to his father’s will, did not enter into possession of the locus in quo under the devise to him, as this was avoided by the statute, C. S., 4138, McLean v. Elliott, 72 N. C., 70, that he later purchased his sister’s half of the farm and then sold the entire *133 tract to tbe defendant, and tbat tbe defendant bas been in possession since 1899 or 1900 under claim of right, etc. Tbis evidence would seem to be sufficient to preclude a peremptory instruction on tbe issue of adverse possession. Dorman v. Goodman, 213 N. C., 406, 196 S. E., 352.

Tbe trial court may bave concluded tbat the defendant’s claim of adverse possession was defeated by tbe tax foreclosure proceeding instituted after tbe death of Newton A. Jones, but on all tbe evidence we think tbe issue is one for the jury. Hayes v. Cotton, 201 N. C., 369, 160 S. E., 453; Power Co. v. Taylor, 194 N. C., 231, 139 S. E., 381.

New trial.

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1 S.E.2d 366, 215 N.C. 131, 1939 N.C. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-williams-nc-1939.

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