Corbett v. Corbett , 249 N.C. 585 ( 1959 )

107 S.E.2d 165 (1959) 249 N.C. 585

R. L. CORBETT and wife, Callie Lillian Corbett
v.
S. L. CORBETT and wife, Maude A. Corbett; and J. C. Corbett and wife, Margaret Corbett.

No. 96.

Supreme Court of North Carolina.

February 25, 1959.

Jones, Reed & Griffin, Kinston, for plaintiffs.

James & Speight, W. H. Watson, and M. E. Cavendish, Greenville, for defendants.

DENNY, Justice.

The plaintiffs' first assignment of error is to the overruling of their motion to make W. O. McGibbony, Trustee, and the Federal Land Bank of Columbia, South Carolina, parties defendant in this action.

In McIntosh, North Carolina Practice and Procedure, section 209, page 184, it is said: "Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in. Proper parties are those whose interests may be affected by a decree, but the court can proceed to adjudicate the rights of others without necessarily affecting them, and whether they shall be brought in or not is within the discretion of the court." McIntosh, Practice and Procedure, 2d Ed., section 584, page 292; Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659; Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231.

"The making of new parties defendants where they are not necessary is a matter within the discretion of the trial judge, and his refusal is not reviewable." Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859.

We hold that the parties sought to be brought in and made parties defendant are not necessary parties in the determination of the rights litigated between the present parties. Hence, this assignment of error is overruled.

The ninth assignment of error is directed to the refusal of the court below to continue the case pending appeal from the ruling on the motion to make additional parties.

There is no merit in this assignment of error. The court below having exercised its discretion in denying the motion to make additional parties, who are not necessary parties, but at most only proper parties, an appeal therefrom would have been premature and subject to dismissal. The ruling of the court below did not impair any substantial right of the plaintiffs which would warrant an appeal. McPherson v. Morrisette, 243 N.C. 626, 91 S.E.2d 574; Burgess v. Trevathan, supra; City of Shelby v. Lackey, 235 N.C. 343, 69 S.E.2d 607; Horne v. Horne, 205 N.C. 309, 171 S.E. 91; Bank of Montgomery v. McCraw, 203 N.C. 860, 166 S.E. 790; State Planters' Bank & Trust Co. v. Whitehurst, 201 N.C. 504, 160 S.E. 757; Spruill v. Bank of Plymouth, 163 N. C. 43, 79 S.E. 262.

The plaintiffs' sixth and seventh assignments of error are directed to the admission of evidence to the effect that from 1922 until 1929 the lands in controversy were listed for taxes in the name of J. C. Corbett, and since 1929 the lands have been listed for taxes in the name of S. L. Corbett and the taxes have been paid by him.

The listing and payment of taxes, while not sufficient alone to show adverse possession, evidence of such listing and payment of taxes is competent and may be considered in connection with other circumstances as tending to show claim of title. Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904; Perry v. Alford, 225 N.C. 146, 33 S.E.2d 665; Pasley v. Richardson, 119 N.C. 449, 26 S.E. 32; Ellis v. Harris, 106 N.C. 395, 11 S.E. 248. These assignments of error are overruled.

The eighth assignment of error is based on the exception to the allowance of S. L. Corbett's motion for judgment as of nonsuit.

In connection with this assignment of error we deem it appropriate to consider the character and effect of the deed executed by Addie O. Corbett to J. C. Corbett. In the first place, this Court has held that there is an effective delivery of a deed when the grantor causes the instrument to be recorded, notwithstanding the grantee knew nothing of its execution or of its having been filed of record. Buchanan v. Clark, 164 N.C. 56, 80 S.E. 424; Robbins v. Rascoe, 120 N.C. 79, 26 S.E. 807, 36 L.R.A. 238, 58 Am. St. Rep. 774; Phillips v. Houston, 50 N.C. 302.

Where a deed is executed and recorded, it is presumed that the grantee therein will accept the deed made for his benefit. This is so, although the transaction occurs without the grantee's knowledge. Such presumption will prevail in the absence of evidence to the contrary. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Buchanan v. Clark, supra; Robbins v. Rascoe, supra; 16 Am.Jur., Deeds, section 389, page 658.

Heirs cannot attack the deed of an ancestor except for fraud or undue influence in securing the execution thereof. Gadsby v. Dyer, 91 N.C. 311. There is no allegation of fraud or undue influence pleaded in this proceeding.

Moreover, the deed from S. O. Worthington and wife to S. L. Corbett would constitute color of title if it be conceded, which it is not, that the foreclosure pursuant to which S. O. Worthington obtained his deed to the premises was defective or even void. First-Citizens Bank & Trust Co. v. Parker, 235 N.C. 326, 69 S.E.2d 841; Garner v. Horner, 191 N.C. 539, 132 S.E. 290; Best v. Utley, 189 N.C. 356, 127 S.E. 337; Whitten v. Peace, 188 N.C. 298, 124 S.E. 571.

The appellants contend that Addie O. Corbett was in possession of the lands involved herein until her death in 1947. However, in our opinion, since she conveyed the lands to her son, J. C. Corbett, in 1921, and caused the deed to be duly filed of record, the circumstances and character of her possession under the facts disclosed on this record were not such as to re-establish title in her, and we so hold. Consequently, the only person in a position to attack the foreclosure pursuant to which S. L. Corbett now holds title, was J. C. Corbett. Even so, since he acquiesced in the foreclosure and the execution by S. L. Corbett of the deeds of trust to W. O. McGibbony, Trustee for the Land Bank and the Bank Commissioner, by accepting the major portion of the proceeds derived from said loans in settlement of a lien against the lands held by him as assignee, he is estopped from attacking S. L. Corbett's title.

We have carefully examined the remaining exceptions and assignments of error and in our opinion no prejudicial error has been made to appear that would warrant a reversal of the judgment entered below. The ruling of the court below on the motion for judgment as of nonsuit is

Affirmed.

MOORE, J., took no part in the consideration or decision of this case.