Walkee, J.,
after stating tbe case: Tbe admitted facts, as above set forth,' justified bis Honor’s instruction to tbe jury on tbe third and fourth issues. It will be observed tbat tbe issues did not correspond with tbe allegations, as stated in tbe complaint, and denials in tbe answer. There is no finding of a conspiracy to defraud tbe plaintiffs, nor of any actual fraud committed by defendants. Tbe simple and only finding is, that at tbe time tbe two deeds were made by
W.
A. Bell be did not have sufficient mental capacity to execute them, and tbat Natban Barefoot purchased from N. A. Bell and bis wife with notice of tbis fact.
We
need not consider tbis feature of tbe case any further, as we will base our decision on other grounds. Tbe plaintiffs contended tbat there was no merger of tbe life estate with tbe remainder, and tbat tbe statute of limitations did not bar them, as tbey could not sue until tbe life estate expired. Defendants contended tbat there was such a merger, and therefore no life estate to prevent tbe statute from barring tbe plaintiffs.
According to our view of tbe record, tbe question of merger does not arise. Tbe first deed, or tbe one to N. A. Bell, alone, dated 26 June, 3903, and registered in Book 126, at page 438, conveyed tbe fee to him, reserving a life estate to tbe grantors. Tbe second deed, dated 30 April, 1904, and registered in Book 130, at page 44, conveys tbe fee simple absolute to N. A. Bell and bis wife, Eva A. Bell, without any reservation or condition, and contains tbe following recital: “Tbis deed is for tbe purpose of revoking prior deed for said land, which is now on record, and the land known as tbe “Bass place,” found in Book 126, page 438.” Tbe deed which is revoked is tbe first deed, tbe one to N. A. Bell alone, each of tbe two deeds conveying tbe same tract of land, as is alleged in tbe complaint and admitted in tbe answer. So tbat instead of there being two estates, one a particular estate for life, and tbe other a remainder in fee, there is but one estate, tbe highest known to tbe law, as Blackstone says, and tbat is a fee simple absolute, and tbis is so,«because tbe former deed, by consent of tbe parties to it, has been revoked and
set aside by their solemn legal act, it being the one in which the grantors reserved a life estate, and the parties then substituted therefor a deed conveying the entire interest and estate in the land in fee simple. Both deeds conveyed the land, even though it was afterwards found that the .grantor did not have sufficient mental capacity to do so. But they were not void for this reason, but only voidable, and were valid for all purposes, until assailed and set aside at the instance of those having an interest to impeach them. 13 Cyc., 591;
Sprinkle v. Wellborn,
140 N. C., 163. And the deed to the defendant, Nathan Barefoot, stands in the same category, for at most it was only voidable when attacked by the interested party, the
feme plaintiff,
and valid until set aside at her instance. It therefore constituted color of title, and when the defend ant, Nathan Barefoot, entered into possession under it and continued in possession openly, notoriously, continuously, and adversely for seven years, he thereby acquired a good title as against the true owner. There can be no question that the deed to Barefoot was good color of title. It had the appearance of passing the title, and professed to pass it, but failed to do so.
Seals v. Seals,
165 N. C., 409;
Norwood v. Totten,
166 N. C., 648, where the principal cases are collected by the
Chief Justice; McConnell v. McConnell,
64 N. C., 342;
Perry v. Perry,
99 N. C., 273;
Ellington v. Ellington,
103 N. C., 58;
Smith v. Proctor,
139 N. C., 324. We held in
Seals v. Seals, supra:
“A claim to property under a con-weyance, however inadequate to carry the true title, and however incompetent the grantor may have been to convey, is one under color of title, which will draw to the possession of the grantee the protection of the statute of limitations,” citing
Wright v. Matheson,
18 How. (U. S.), 50 (15 L. Ed., 280);
Beaver v. Taylor,
1 Wall. (U. S.), 637 (17 L. Ed., 601);
Cameron v. U. S.,
148 U. S., 301 (37 L. Ed., 461). And our cases are to the same affect.
McConnell v. McConnell, supra; Burns v. Stewart,
162 N. C., 360. So that while Barefoot did not get the title by his deed, but acquired it in another way and from a different source, by his adverse possession under color, this title must, therefore, prevail against the plaintiffs’ prior right. Judge Connor charged that plaintiffs knew of the facts, that Barefoot was in possession, claiming to hold adversely to them under his deed, which conveyed the entire title, when taken in connection with the deed of W. A. Bell and wife to his grantors, N. A. Bell and wife, the first deed to N. A. Bell having, by consent of parties, been revoked and put out of the way as if it had never existed. There is no room for arguing that there are two separate estates, one for life and the other in remainder, as the last deed, or the one to N. A. Bell and wife, passed Only one estate, which was a fee simple absolute, •and destroyed the former life estate instead of merging it. If that is not incontrovertibly true, and the parties intended that there should be
two estates, there was no use in making the last deed;, and, besides, it clearly expresses on its face the contrary intention of the parties. If there had been a case of. merger, equity would not keep the two estates, apart, for it will not aid one who is guilty of laches in prosecuting his rights, or who lies by while the title of another is maturing with his full knowledge, and does nothing, when it was so easy to prevent the operation of laches or the statute of limitations by simple procedure. Litigation must end somewhere
(interest reipublicae ut sit finis litium).
Equity aids the vigilant, not the indolent.
Justice Story
well observed that it has often been a matter of regret in modern times that in the construction of the statute of limitations (21 Jac., 1, c. 16), the decisions had not proceeded upon principles better adapted to carry into, effect the real objects of the statute; that instead of being viewed in an unfavorable light as an unjust and discreditable defense, it had not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to deprive any one of his just rights by lapse of time, but to afford security against stale demands. The possession of the land by defendant, Nathan Barefoot, was, in law, notice of his claim.
Tankard v. Tankard,
79 N. C., 54.
And as to the maxim that the law aids the vigilant and not thpse who-sleep over their rights,
Sir William Blackstone
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Walkee, J.,
after stating tbe case: Tbe admitted facts, as above set forth,' justified bis Honor’s instruction to tbe jury on tbe third and fourth issues. It will be observed tbat tbe issues did not correspond with tbe allegations, as stated in tbe complaint, and denials in tbe answer. There is no finding of a conspiracy to defraud tbe plaintiffs, nor of any actual fraud committed by defendants. Tbe simple and only finding is, that at tbe time tbe two deeds were made by
W.
A. Bell be did not have sufficient mental capacity to execute them, and tbat Natban Barefoot purchased from N. A. Bell and bis wife with notice of tbis fact.
We
need not consider tbis feature of tbe case any further, as we will base our decision on other grounds. Tbe plaintiffs contended tbat there was no merger of tbe life estate with tbe remainder, and tbat tbe statute of limitations did not bar them, as tbey could not sue until tbe life estate expired. Defendants contended tbat there was such a merger, and therefore no life estate to prevent tbe statute from barring tbe plaintiffs.
According to our view of tbe record, tbe question of merger does not arise. Tbe first deed, or tbe one to N. A. Bell, alone, dated 26 June, 3903, and registered in Book 126, at page 438, conveyed tbe fee to him, reserving a life estate to tbe grantors. Tbe second deed, dated 30 April, 1904, and registered in Book 130, at page 44, conveys tbe fee simple absolute to N. A. Bell and bis wife, Eva A. Bell, without any reservation or condition, and contains tbe following recital: “Tbis deed is for tbe purpose of revoking prior deed for said land, which is now on record, and the land known as tbe “Bass place,” found in Book 126, page 438.” Tbe deed which is revoked is tbe first deed, tbe one to N. A. Bell alone, each of tbe two deeds conveying tbe same tract of land, as is alleged in tbe complaint and admitted in tbe answer. So tbat instead of there being two estates, one a particular estate for life, and tbe other a remainder in fee, there is but one estate, tbe highest known to tbe law, as Blackstone says, and tbat is a fee simple absolute, and tbis is so,«because tbe former deed, by consent of tbe parties to it, has been revoked and
set aside by their solemn legal act, it being the one in which the grantors reserved a life estate, and the parties then substituted therefor a deed conveying the entire interest and estate in the land in fee simple. Both deeds conveyed the land, even though it was afterwards found that the .grantor did not have sufficient mental capacity to do so. But they were not void for this reason, but only voidable, and were valid for all purposes, until assailed and set aside at the instance of those having an interest to impeach them. 13 Cyc., 591;
Sprinkle v. Wellborn,
140 N. C., 163. And the deed to the defendant, Nathan Barefoot, stands in the same category, for at most it was only voidable when attacked by the interested party, the
feme plaintiff,
and valid until set aside at her instance. It therefore constituted color of title, and when the defend ant, Nathan Barefoot, entered into possession under it and continued in possession openly, notoriously, continuously, and adversely for seven years, he thereby acquired a good title as against the true owner. There can be no question that the deed to Barefoot was good color of title. It had the appearance of passing the title, and professed to pass it, but failed to do so.
Seals v. Seals,
165 N. C., 409;
Norwood v. Totten,
166 N. C., 648, where the principal cases are collected by the
Chief Justice; McConnell v. McConnell,
64 N. C., 342;
Perry v. Perry,
99 N. C., 273;
Ellington v. Ellington,
103 N. C., 58;
Smith v. Proctor,
139 N. C., 324. We held in
Seals v. Seals, supra:
“A claim to property under a con-weyance, however inadequate to carry the true title, and however incompetent the grantor may have been to convey, is one under color of title, which will draw to the possession of the grantee the protection of the statute of limitations,” citing
Wright v. Matheson,
18 How. (U. S.), 50 (15 L. Ed., 280);
Beaver v. Taylor,
1 Wall. (U. S.), 637 (17 L. Ed., 601);
Cameron v. U. S.,
148 U. S., 301 (37 L. Ed., 461). And our cases are to the same affect.
McConnell v. McConnell, supra; Burns v. Stewart,
162 N. C., 360. So that while Barefoot did not get the title by his deed, but acquired it in another way and from a different source, by his adverse possession under color, this title must, therefore, prevail against the plaintiffs’ prior right. Judge Connor charged that plaintiffs knew of the facts, that Barefoot was in possession, claiming to hold adversely to them under his deed, which conveyed the entire title, when taken in connection with the deed of W. A. Bell and wife to his grantors, N. A. Bell and wife, the first deed to N. A. Bell having, by consent of parties, been revoked and put out of the way as if it had never existed. There is no room for arguing that there are two separate estates, one for life and the other in remainder, as the last deed, or the one to N. A. Bell and wife, passed Only one estate, which was a fee simple absolute, •and destroyed the former life estate instead of merging it. If that is not incontrovertibly true, and the parties intended that there should be
two estates, there was no use in making the last deed;, and, besides, it clearly expresses on its face the contrary intention of the parties. If there had been a case of. merger, equity would not keep the two estates, apart, for it will not aid one who is guilty of laches in prosecuting his rights, or who lies by while the title of another is maturing with his full knowledge, and does nothing, when it was so easy to prevent the operation of laches or the statute of limitations by simple procedure. Litigation must end somewhere
(interest reipublicae ut sit finis litium).
Equity aids the vigilant, not the indolent.
Justice Story
well observed that it has often been a matter of regret in modern times that in the construction of the statute of limitations (21 Jac., 1, c. 16), the decisions had not proceeded upon principles better adapted to carry into, effect the real objects of the statute; that instead of being viewed in an unfavorable light as an unjust and discreditable defense, it had not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to deprive any one of his just rights by lapse of time, but to afford security against stale demands. The possession of the land by defendant, Nathan Barefoot, was, in law, notice of his claim.
Tankard v. Tankard,
79 N. C., 54.
And as to the maxim that the law aids the vigilant and not thpse who-sleep over their rights,
Sir William Blackstone
said, that in all posses-sory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary; for if he be unreasonably negligent, the law refuses afterwards to lend him any assistance to recover the possession, both with a view to punish his neglect, and also because it is presumed that the supposed wrongdoer has in such a length of time procured a legal title, otherwise he would sooner have been sued. And it was said by the'Vice Chancellor, in
Manby v. Bewick,
3 K & J., 352, the Legislature has in this, as in every civilized country that has ever existed, thought fit to prescribe certain limitations of time, after which persons may suppose themselves to be in peaceable possession -of their property and capable of transmitting the estates of which they are in possession without any apprehension of the title being impugned by litigation in respect of former transactions.
This is really ejectment, the remedy of cancellation being resorted to as ancillary, merely to the primary relief, or, in other words, it is in its essence a suit to remove a cloud or obstruction out of the way of effectuating the main purpose, which is the recovery of the land. Against such a recovery the statute bars, for it is so expressly provided' therein.
The coverture of plaintiff will not avail ber. Consol. Statutes, vol. 1, see. 408, and note;
Carter v. Reaves,
167 N. C., 131;
Graves v. Howard,
159 N. C., 594.
We
therefore conclude that plaintiffs were barred by the three years statute, and also by adverse possession under color for seven years, as held by the court below.
No error.