Bonds v. . Smith

11 S.E. 322, 106 N.C. 553

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Avery., J.

after stating the facts: The plaintiff alleges in his complaint that his father, Granville Bonds, was left in charge as his tenant of the whole one hundred acre tract, when the former left the State in the latter part of the year 1875, it being verbally agreed between them that his father should take all of the rents of said land in consideration of paying the taxes during the son’s absence. He further declares that subsequently, during the year ¡1876, his father, by collusion with the defendant Smith, permitted the land to be sold for the taxes of that year, and though the full amount of said tax, with twenty-five per centum thereon in addition, was repaid to said Smith by Granville Bonds within a year from the time of his purchase, still the said Smith fraudulently induced the Sheriff (Hardie) to make to him, after the lapse of the year from the time of sale, title to the said one hundred acre tract, save one acre, in accordance with the statute then in force in reference to the collection of taxes.: The plaintiff further charges that Granville Bonds, while he (plaintiff) was still absent from the State, brought suit against said Smith in his own name to recover possession and title of said land, and by an arrangement made without the knowledge or approval of the plaintiff, compromised said action, the said Smith executing to said Gran-ville a deed for forty-nine and a half acres of the land, and retaining, through his tenant, the defendant Inman, possession of the residue of the tract, claiming title to it under the said deed from Hardie, Sheriff. The defendant admits the purchase at “ a regular Sheriff’s sale in the year 1876,” and that he claims under a Sheriff’s deed, but denies that the amount of tax was repaid to him till the action was brought by Granville Bonds more than a year after the sale. The defendant further denies that he obtained possession of the land from Granville Bonds, or the deed from the Sheriff, or compromised said suit, by making the said conveyance in pursuance of any arrangement or under any collusive agreement with said Bonds.

We think that there is a sufficient allegation of fraud, but if the complaint were not so full and distinct as it is, the denial of collusion in the answer shows that the defendant comprehended the nature of the action, and the doctrine of aider would be brought to bear for the plaintiff’s benefit. Garrett v. Trotter, 65 N. C., 430; Knowles v. Bailroad, 102 N. C., 59. The objection, that the issue involving the question, whether the defendant fraudulently procured the Sheriff to execute a deed to him, was not raised by the pleadings, is untenable. The defendant admits, either in terms or constructively, by failure to deny, that he bought the land when sold as the property of the plaintiff for taxes, and that he went into possession under that deed, and subsequently conveyed to Granville Bonds the upper half of the tract. The jury find that the deed was procured from the Sheriff by fraud, and we can place no other construction upon the finding, than that the defendant Smith, having received the amount of tax due, with the per centum prescribed by law, from the plaintiff’s agent, still procured the Sheriff, by fraud, to make him a deed, and entered into possession under that deed, but subsequently conveyed to plaintiff’s agent, in his own right, a portion of the land in consideration of the money paid, as the defendant knew, in the capacity of agent for the plaintiff.

Where one enters into possession of the land as tenant of another, not only the tenant but his sub-lessors are estopped from denying the title of his landlord or those holding the fee through the lessor until the possession is surrendered to the landlord and an entry is made under some other title. Conwell v. Mann, 100 N. C., 234; Freeman v. Heath, 13 Ired., 498; Sikes v. Basnight, 2 Dev. & Bat., 157; Buswell L. & A. P., §§304 and 308; Wood on.Lirn., § 265.

Where one acquires pretended title or possession of land, or both, by collusion, or a fraudulent compromise with another, whom he knows to be holding as an agent or tenant, the former is considered in privity with the latter and with his landlord, and is estopped, just as the agent or tenant would have been, from denying the title of the principal, or landlord, till after a surrender of the possession and an entry in some other right. Springs v. Schenck, 99 N. C.. 551; Farmer v. Pickens, 83 N. C., 549; Pate v. Turner, 94 N. C., 47; Davis v. Davis, 83 N. C., 71; Angell on Lim., §§442 to 446 The statute of limitation does not operate as a bar therefor in favor of the defendant Smith, because he stood in the shoes of Granville Bonds, and his mouth was effectually stopped from denying the title of plaintiff. His possession was not adverse, but in subordination to the plaintiff’s title.

It constitutes no ground of exception if it be admitted that it was unnecessary to submit both the first and second issues. The defendant has not shown that the Court failed, when requested by him, to present to the jury, through medium of some issue, any view of the law applicable to the evidence in this case. Emery v. Railroad, 102 N. C., 209; McAdoo v. Railroad, 105 N. C., 140.

The equivocal denial of the allegation as to the nature of the deed is an admission of its truth. But apart from that principle, it is a universal rule that whore a deed is attacked for fraud, recitations contained in it may be shown to be false, as it may be proved that others, which should have been inserted, were omitted, if such evidence tends in any way to establish the alleged fraud. McLeod v. Bullard, 84 N. C., 515; Knight v. Houghtalling, 85 N. C., 17 .

On the trial of an issue of fraud, the range of the testimony is often necessarily very wide, and we do not think that-liis Honor erred in admitting as relevant to the second issue the record of the action brought by the plaintiff’s agent claiming in his own right the land of his principal, and showing the compromise made by him with the defendant.

A witness for the plaintiff testified that he delivered to George M. Rose, the attorney of Granville Bonds, certain receipts, showing the payment of tax on the land by Gran-ville Bonds to the defendant Smith, and the time of the payment, which receipts are admitted to be relevant testimony, if before the Court and properly identified. The witness got the receipts from Granville Bonds, who has since died. Mr. Rose testified that be could not find the receipts, and thought he delivered them to Granville Bonds, bpt was not certain. ' It was in evidence that the receipts could not be found among the papers of Granville Bonds. We do not think that his Honor erred in admitting evidence of the contents of the receipts. Mobley v. Watts, 98 N. C., 284; Clifton v. Fort, 98 N. C., 173; Mauney v. Crowell, 84 N. C., 314. This Court would assume, when nothing appeared to the contrary, that the Court below admitted secondary evidence as to the contents of receipts, or other documents, after hearing plenary proof of the loss of the originals. It is always within the sound discretion of the Judge who tries a case to determine what is sufficient proof of the loss or destruction of an original paper to make evidence of its contents competent. 1 Greenleaf, §558; Ibid., §509.

A plaintiff must generally show title good against the world, while a defendant can ordinarily prevent his recovery by showing a better outstanding title in any person. But it is an old and well established rule, adopted originally for convenience in the trial of actions of ejectment, that where both parties claim title under the same person, neither will be allowed to deny that such person had title. While a defendant in such cases may set up a title superior to him through whom both claim as the common source, provided he connects himself with it, he is not allowed, as in other cases, to show a better title than that of the plaintiff in a third person. Whissenhunt v. Jones, 78 N. C., 362; Ives v. Sawyer, 4 Dev. & Bat., 52; Barwick v. Wood, 3 Jones, 306; Caldwell v. Neely, 81 N. C., 114. Where the plaintiff shows from the deeds offered, or the admissions in the pleadings, that both claim from a common source, he is required only to exhibit a better title in himself derived from it than that of the defendant, in order to establish prima facie his right of recovery. Spivey v. Jones, 82 N. C., 179; Mobley v. Griffin, 104 N. C., 112.

The defendant does not deny the allegation of the complaint, that the Sheriff sold for tax due from the plaintiff; that he bought at said sale the interest of the plaintiff, and took the Sheriff’s deed for it. He cannot, therefore, avoid being subjected to the rule by reason of omitting the necessary recitals in his deed if the fact of his purchase for tax due from the plaintiff sufficiently appears aliunde. It does appear, from the pleadings and evidence, that he claims under a tax title for the plaintiff’s interest, and if that deed is shown to be fraudulent and void, there is no further obstacle in the way of plaintiff’s recovery. We have field that the defendant claiming title and possession by fraud under one who was himself estopped from denying the plaintiff’s title, will not be heard to set up a claim by adverse possession against him. We have not deemed it necessary, as the defendant did not hold adversely, to determine whether the plaintiff, though out of the State, would have been deemed to have had constructive notice of his claim if the defendant had entered under a fraudulent deed, but free from the estoppel arising out of his relations to Gran-ville Bonds.

There is no error. .Judgment affirmed.