McAlpine v. . Daniel , 101 N.C. 550 ( 1888 )

The provisions of the will are recited to show that the testator contemplated his executors taking possession of his land as essential to the execution of the trusts with which he clothed them, and the reason why the plaintiff should be a party to the action in order to recovering possession.

If the executor were not a proper party for such purpose, and there were no testamentary dispositions of the real estate requiring him to be present in the action, he should be, for the recovery of the damages sustained up to his testator's death, since they, as part of the personal estate, devolved on him in his representative capacity.

The heirs-at-law are also made parties, and any objection on this ground is thus removed.

1. We have already said that the executor would be entitled to carry on the suit, if only to recover the damages, but we think he has also a right to recover possession, assuming the title to have been vested in the testator at his decease, since only thus could he control the property, and by "the renting and letting of the same" have and receive rents "to be paid over to him" for the widow, as required under the will.

2. The introduction into the cause of the said heirs is (558) unnecessary, but the result of abundant caution, impairs no defense open to the defendant, and works no injury to the plaintiff executor.

3. The appropriate time to make objection to the admission of a new party to the record, because of there not being any suggested relation to the cause or subject matter of the suit, is when the motion is made to admit. It is somewhat uncertain, on the record, when the objection in this case was made, but it is not material, since for the reasons stated, the executor, under clear indications of the will, must have possession in order to carry out the testator's direction, and no harm can come to the defendant from the action of the court.

4. The next inquiry is as to the title to the tract of 175 acres mentioned and defined in the deed, made on 10 March, 1838, by Joseph Eller to the plaintiff's testator.

We find no error in the refusal to give to the jury the instructions asked, nor in the directions given instead, in which, in our opinion, the law is correctly laid down for their guidance. The charge is strictly warranted by the ruling upon a very similar state of facts in Osborne v.Anderson, 89 N.C. 261, so ruled upon former hearing of this case,94 N.C. 781. It is there said that "the title has thus been divested out of the State and put in the possessor, unless Joshua Cox (the bargainor), or some one succeeding to his estate, can show a larger estate than that conveyed to Moses Dixon (the grantee) reserved, against which the possession of the latter would be inoperative to defeat a recovery by one in whom the reversion is vested. But there is no such claim asserted or suggested, and hence the long occupancy of the land with limits defined in the deed, irrespective of the latter as color of title, becomes itself an independent source of title in Dixon, which descended to his son." See, also, Fisher v. Mining Co., 94 N.C. 397, affirmed on rehearing, 97 N.C. 95. In that as in this case the defect in the deed was the absence of words of inheritance, and it is held (559) that an occupancy of upwards of thirty years put title in the occupant, in the want of proof that any estate was reserved in the grantor, or that he did not convey all that he had to the grantee. There is no error, and the judgment must be

Affirmed.

Cited: Smathers v. Moody, 112 N.C. 795.