Cox v. . Wright

11 S.E.2d 158, 218 N.C. 342, 1940 N.C. LEXIS 152

• Court: Supreme Court of North Carolina
• Decided: October 30, 1940
• Status: Published

Opinion

ClakksoN, J.

The defendants in their brief do not deny that the above statement of facts set forth by plaintiff is correct, if the documents offered by plaintiff had been admitted in evidence.

The defendants’ first question: “Did the court below err in excluding the summons in the partition case of N. T. Cox, Admr. of the Estate of J. T. Cox, deceased, v. T. L. Cox, E. A. Cox, Bettie L. Cox, Mrs. C. L. Dixon, Nannie Hinshaw, Walter Stout, Ada L. Stout, W. C. Cox, heirs at law of J. T. Cox, deceased’?” We think so.

Mehetable A. Cox, at the death of Joe T. Cox, her brother who died intestate, became the owner of the fifty-acre tract of land in controversy (two tracts of land, one containing 30 acres and the other 20 acres), subject to tbe debts of ber brother. Before the death of her brother she was a tenant in common with him, owning a one-fourth undivided interest in the 30-acre tract and one-half undivided interest in the 20-acre tract. Joe T. Cox, at the time of his death, 3 November, 1925, owed T. L. Cox, the plaintiff, $1,500.00, which was reduced to judgment at Special October Term, 1931, in an action entitled “T. L. Cox v. N. T. Cox, Admr. of the Estate of Joe T. Cox, deceased.”

N. C. Code, 1939 (Miehie), sec. 16, is as follows: “Land conveyed by heir within two years sold. — All conveyances of real property of any decedent made by any devisee or heir at law within two years of the death of the decedent, shall be void as to the creditors, executors, administrators and collectors of such decedent but such conveyances to bona fide purchasers for value and without notice, if made after two years from the death of the decedent, shall be valid even as against creditors. Provided, that if the decedent was a nonresident, such conveyances shall not be valid unless made after two years from the grant of letters. But such conveyances shall be valid, if made five years from the death of a nonresident decedent, notwithstanding no letters testamentary or letters of administration shall have been granted.”

The amendment of 1935 made the limitation begin to run from the death of the decedent rather than from the grant of letters. The proviso as to nonresidents is new. The 1939 amendment, which added the last sentence, provided that it should not affect pending litigation nor prior conveyances. The conveyances, under this section, are only conditionally void, i.e., contingent upon the personal estate proving insufficient to pay the debts. Davis v. Perry, 96 N. C., 260; see, also, Bank v. Zollicoffer, 199 N. C., 620 (623).

The language of the above section is clear. Joe T. Cox died on 3 November, 1925, and Mehetable A. Cox on 28 December, 1925, made a deed to the defendant John A. Wright for the land in controversy, within two years. This deed was void as to creditors. In a special proceeding to sell the land for assets, plaintiff offered evidence:

(1) Record of Administrators Book “H,” page 1, showing the appointment of N. T. Cox as administrator of Jos. T. Cox, on 10 July, 1930. No exception was taken to this.

(2) Plaintiff offered in evidence summons of “N. T. Cox, Admr. of the Estate of J. T. Cox, deceased, v. T. C. Cox and others, for Mr. and Mrs. L. B. Lambert,” duly served by the sheriff. No objection to this.

(3) Summons of “N. T. Cox, Admr. of the Estate of J. T. Cox, deceased, v. T. L. Cox, Bettie L. Cox, Mrs. C. L. Dixon, Nannie Hin-shaw, Walter Stout, Ada L. Stout, W. C. Cox, heirs at law of J. T. Cox, deceased.” On this summons is the following: “We the undersigned hereby accept service on the within summons and waive - all time in which to answer. This May, 1935. Bettie L. Cox, Mrs. C. L.' Dixon, Mrs. Nannie Hinshaw, Ada L. Stout, Walter Stout, T. L. Cox.”

(4) Plaintiff offered petition and amended petition and reply, filed by N. T. Cox, petitioner, in the case of “N. T. Cox, Admr. of the Estate of J. T. Cox, deceased, v. T. L. Cox.” Plaintiff offered answer filed by L. B. Lambert and Mrs. L. B. Lambert in the case, or proceeding, entitled “N. T. Cox, Admr. of the Estate of J. T. Cox, deceased, v. T. L. Cox, et al.” Plaintiff offered judgment rendered by Cowper, J., in the Superior Court of Eandolph County, at the July Term, 1936, in the said case, or proceeding, of “N. T. Cox, administrator of J. T. Cox, deceased, v. T. L. Cox, et al.”

(5) Plaintiff offered judgment of confirmation by Hill, J., rendered in the Superior Court of Eandolph County in said case, or proceeding, entitled “N. T. Cox, Administrator of the Estate of J. T. Cox, deceased, v. T. L. Cox, et al.”

(6) Plaintiff offered deed by N. T. Cox, administrator of J. T. Cox, deceased, to T. L. Cox, plaintiff.

(7) Plaintiff introduces Judgment Eoll A-7820, entitled “T. L. Cox v. N. T. Cox, Administrator of the Estate of Joe T. Cox, deceased,” and offered the judgment signed by his Honor, N. A. Sinclair, Judge presiding, in said case at the Special October Term, 1931, of the Superior Court of Eandolph County, being a judgment in favor of the said T. L. Cox and against N. T. Cox, administrator, for $1,500.00.

Objection by defendants to all the above sustained. Plaintiff excepted. We think that none of the objections made by defendants can be sustained.

N. T. Cox testified for plaintiff: “I live at Greensboro. I was appointed as administrator of the estate of Joe T. Cox. The plaintiff T. L. Cox presented a claim against the estate of Joe T. Cox to me. There was no personal property that I found in the estate of Joe T. Cox. I made an effort to find some personal property. The assets I did find were real estate. That claim, to the best of my recollection, was about $1,500.00. I sold the real estate to make assets to pay the judgment. I was present at the sale of the real estate. The land described in the deed from N. T. Cox, administrator, to T. L. Cox, is the land that I sold. I am a brother to the plaintiff T. L. Cox.” This was unob-jected to.

In the judgment of Cowper, J., before setting forth the facts on which the judgment is predicated, is the following: “This cause coming on to be heard before his Honor, G. Yernon Cowper, Judge presiding at the July Term, 1936, Superior Court of Eandolph County, upon the petition of the plaintiff, N. T. Cox, Admr. of the estate of J. T. Cox, deceased, and the answer filed by the defendants L. B. Lambert and Mrs. L. ’B. Lambert, and it appearing to the court that none of the other defendants have filed any answer or other plea. And the court finds-from the pleadings and from the admissions of counsel for the petitioner and the answering defendants made in open court, that the facts in this cause are as follows,” etc.

It will be noted that the parties who accepted service are making no-contention that the record does not import verity.

The evidence, unobjected to, of N. T. Cox, the administrator, was,. “I sold the real estate to make assets,” etc. “The land described in the deed from N. T. Cox, Admr. of T. C. Cox, is the land that I sold.” It is the land in controversy in this action.

In Black v. Chase, 145 Iowa, 715 (720), it is said: “The signature to the waiver, dated, etc., is prima facie evidence of the service. It is to be regarded by the court in the same light as the signature to a pleading,” citing authorities.

With the summons in evidence showing acceptance, the testimony of the administrator that he sold the real estate to make assets and made the deed, which we think presumes regularity and the objection not being made by parties affected, is at least prima facie evidence.

The first contention of defendants: (1) “Did the court err in excluding the summons set out in the record?” (2) “Did the court err in excluding the judgment roll as a whole or in excluding each of the documents separate?” We have set forth our reasons as to the first. As to the second, as far as we can glean from the records introduced in evidence, they were material to the controversy and were original records.

In Blalock v. Whisnant, 216 N. C., 417 (420), it is stated: “The contents of a public record may be proven in any court by the original record itself. S. v. Voight, 90 N. C., 741; Iron Co. v. Abernathy, 94 N. C., 545. See, also, Riley v. Carter, 165 N. C., 334, 81 S. E., 414, where the Court said: ‘While certified copies of records are admitted in evidence, the originals are not thereby made incompetent.’ ”

From the evidence we think the records were produced from the proper custody, at least they showed on their face that they were court records, etc., and at least prima facie evidence of their identity, authenticity and genuineness.

The last question presented by defendants: (4) “Did the court err in granting a nonsuit (a) because the evidence of the plaintiff showed that the defendants had been in possession of the lands under a recorded deed for fourteen years, (b) or that the plaintiff by any admitted evidence had not shown any chain of title?” We think the nonsuit improperly granted.

The chain of title of both litigants came from a common source and the parties were tenants in common. The answer of defendants says: “That defendant John A. Wright purchased the said lands on December 29, 1925, and has a fee simple deed therefor recorded in the office of the register of deeds of Eandolph County, in Book 220, page 509, and that since said date he has been in the sole, exclusive and adverse possession thereof, and is now in the sole, adverse and exclusive possession thereof.”

In Alexander v. Gibbon, 118 N. C., 796 (798), it is said: “It is admitted, as claimed by defendant, that when sole seizin is pleaded, in a proceeding among tenants in common for partition, it becomes substantially an action of ejectment. Huneycutt v. Brooks, 116 N. C., 788. And it then becomes subject to the rules of law applicable to trials in actions of ejectment — that plaintiffs must recover by the strength of their own title, and not on the weakness of defendant’s title. This is the doctrine enumerated in Huneycutt v. Brooks, supra.”

In Woodlief v. Woodlief, 136 N. C., 133 (137), Connor, J., says: “In Day v. Howard, 73 N. C., 1, Pearson, C. J., says: ‘There is a fellowship between tenants in common, the law assumes that they will be true to each other; the possession of one is the possession of all and one is supposed to protect the right of his cotenants and is not tolerated in taking an adversary position unless he acts in such a manner as to expose himself to an action by his fellows on the ground of a breach of fealty; that is an actual ouster. ... If a tenant in common conveys to a third person, the purchaser occupies the relation of a tenant in common, although the deed purports to pass the whole tract and he takes possession of the whole, for in contemplation of law his possession conforms to his true and not to his pretended title.’ In Covington v. Stewart, 77 N. C., 148, it is held that the possession of one tenant in common is the possession of all, but if one have the sole possession for twenty years without acknowledgment on his part of title in his co-tenants, and without any demand or claim on the part of such cotenants to rents, profits or possession, he being under no disability during the time, the law in such cases raises a presumption that such sole possession is .rightful and will protect it.’ It is also held in that case that under our statute of limitations such sole possession vests title. Neely v. Neely, 79 N. C., 478; Caldwell v. Neely, 81 N. C., 114; Ward v. Farmer, 92 N. C., 93; Hicks v. Bullock, 96 N. C., 164.” To the same effect is Page v. Branch, 97 N. C., 97.

In Crews v. Crews, 192 N. C., 679 (685), we find: “This Court has held that a deed by one tenant in common, conveying to his grantee the entire estate in the land, is not color of title as against his cotenants,'so that possession under such a deed by the grantee, and those who claim under him, for seven years, does not bar an action by cotenants to be let into possession of the land, according to their respective interests. Lumber Co. v. Cedar Works, 165 N. C., 83, and cases cited. ’In such •cases, iiventy years of adverse possession, under a claim of sole ownership, is required to bar tbe entry of tbe other tenants, under tbe presumption of an ouster from tbe beginning raised thereby.’ Lumber Co. v. Cedar Works, 168 N. C., 344. Tbe principle supported by authoritative decisions of this Court is as follows: Where tbe grantee of a tenant in common, who enters into possession under a deed conveying to him tbe entire tract of land and those who claim under such grantee, have been in the exclusive, quiet, and peaceable possession of the whole of said land, for twenty years or more, the law presumes that there was an ■actual ouster, not at tbe end of tbe period, but at tbe beginning, and that tbe subsequent possession was adverse to tbe cotenant, who was out of possession.” (Italics ours.) Stallings v. Teeter, 211 N. C., 298.

From tbe authorities cited, we think tbe positions taken by defendants •cannot be sustained and tbe evidence objected to was competent, and as between tenants in common an adverse possession for 20 years by one tenant in common is necessary to bar bis cotenants. Tbe possession of defendant John A. Wright bad existed some 14 years at tbe time this proceeding was instituted.

For tbe reasons given, tbe judgment of tbe court below is

Eeversed.