Locklear v. Oxendine , 233 N.C. 710 ( 1951 )

65 S.E.2d 673 (1951) 233 N.C. 710

LOCKLEAR
v.
OXENDINE et al.

No. 676.

Supreme Court of North Carolina.

June 7, 1951.

McKinnon & McKinnon, and F. D. Hackett, Jr., all of Lumberton, for plaintiff appellee.

J. E. Carpenter, and Varser, McIntyre & Henry, all of Lumberton, for defendants appellants.

WINBORNE, Justice.

A careful consideration of the exceptions covered by the assignments of error presented on this appeal reveal error prejudicial to defendants.

I. The judge of Superior Court in disposing of defendants' exception to the failure of the referee to find the facts on the evidence bearing upon their plea that the deed to plaintiff from D. L. Stewart, et al., is void in that the consideration therefor is champertous, likewise failed to find the facts, and to make the conclusions of law arising thereon.

Defendants group exceptions thereto, and pertaining thereto, and assign same as error. We agree, and hold that error appears.

The common law offenses of champerty and maintenance have been considered and condemned in this State. See Merrell v. Stuart, 220 N.C. 326, 17 S.E.2d 458, where the authorities are discussed and the principles applied. See also Martin v. Amos, 1851, 35 N.C. 201; Barnes v. Strong, 54 N.C. 100; Munday v. Whissenhunt, 90 N. C. 458. Compare Smith v. Hartsell, 150 N.C. 71, 63 S.E. 172, 22 L.R.A.,N.S., 203; State v. Batson, 220 N.C. 411, 17 S.E.2d 511, 139 A.L.R. 614, and Lamm v. Crumpler, N.C., 65 S.E.2d 336.

In Martin v. Amos, supra, this Court in opinion by Nash, J., had this to say: "The object of all laws is to repress vice and to promote the general welfare of the State; and no one can be assisted by the law in enforcing demands founded on a breach or violation of its principles. Hence sprung the maxim at common law, ``Ex turpi contractu non oritur actio'. It is the public good which allows a contract to be impeached for the illegality of the consideration * * * A defendant, therefore * * * may * * * prove that the consideration upon which it was given is illegal, as being immoral or contrary to public policy", and, continuing, "Maintenance is an offense against public justice, and is defined by Justice Blackstone, 4 Com. 134, to be ``an officious intermeddling in a suit that no way belongs to one by maintaining or assisting either party, with money or otherwise, to prosecute or defend it, * * * Champerty is a species of maintenance, being a bargain with a plaintiff or defendant to divide the subject in dispute, if they prevail, whereupon the champertor is to carry on the suit at his own expense' * * * All contracts, then, founded upon either or both of these offenses are absolutely void."

While the applicability of the provisions of G.S. § 1-57 may arise upon further hearing, we do not reach it on this record.

II. Defendants also take exceptions to recitals in the judgment which they contend indicate that the court found the facts in misapprehension of the law applicable to the case,—and assign same as error. The contention seems to have merit.

When in an action for the recovery of land and for trespass thereon defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant,—the burden as to each being on plaintiff. Federal Farm Mortgage Corp. v. Barco, 218 N.C. 154, 10 S.E.2d 642; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451.

In such action, plaintiff must rely upon the strength of his own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142; see also Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Moore v. Miller, 179 N.C. 396, 102 S.E. 627, 628; Smith v. Benson, supra, and many others.

Moreover, in all actions involving title to real property, title is conclusively presumed to be out of the State unless it be a party to the action, G.S. § 1-36, but "there is no presumption in favor of one party or the other, nor is a litigant seeking to recover land otherwise relieved of the burden of showing title in himself". Moore v. Miller, supra; Smith v. Benson, supra.

In the light of such presumption, apparently, plaintiff in the present action, assuming the burden of proof, has elected to show title in himself by adverse possession, under known and visible lines and boundaries and under color of title, which is one of the methods by which title may be shown. In pursuing this method a deed offered as color of title is such only for the land designated and described in it. Davidson v. Arledge, 88 N.C. 326; Smith v. Fite, 92 N.C. 319; Barker v. Southern Ry. Co., 125 N.C. 596, 34 S.E. 701; Johnson v. Case, 131 N.C. 491, 42 S.E. 957; Smith v. Benson, supra.

In Smith v. Fite, supra, this headnote epitomizes the opinion of the Court by Smith, C. J., "Where a party introduces a deed in evidence, which he intends to be used as color of title, he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession". In other words, the plaintiff must not only offer the deed upon which he relies, he must by proof fit the description in the deed to the land it covers—in accordance with appropriate law relating to course and distance, and natural objects called for as the case may be.

The general rule as to this is that in order to locate a boundary, the lines should be run with the calls in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line. Lindsay v. Austin, 139 N.C. 463, 51 S.E. 990; Asheville Land Co. v. Lang, 146 N.C. 311, 59 S.E. 703; Hanstein v. Ferrall, 149 N.C. 240, 62 S.E. 1070; Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326: Town of Belhaven v. Hodges, 226 N.C. 485, 39 S.E.2d 366.

Apparently the court in considering the case, assumed that plaintiff had so located the boundaries of the lands described in the deeds to plaintiff's predecessors in title, on which plaintiff relies as color of title, and in this light, has considered evidence of possession outside the locus in quo as extending constructively to the locus in quo.

Furthermore, the court declared, "It is common learning that the possession of any part of the land described in his deed is constructive possession of the entire tract, against all persons, except those having a superior title to the part which is held only by constructive possession".

This declaration is not entirely in accord with what is held in the recent case of Wallin v. Rice, 232 N.C. 371, 61 S.E.2d 82. The headnote there expresses the holding in this manner: "While the possession of one entering upon lands under a deed describing same by metes and bounds is constructively extended to the outermost bounds set out in the deed, such constructive possession does not cover that portion of the land in the actual adverse possession of another, and therefore possession of a part of the boundary described in a deed for more than twenty years does not preclude a claim of adverse possession of a part of the tract by the owner of contiguous lands who has introduced evidence of actual, continuous and hostile possession of such part under known and visible lines and boundaries for more than twenty years." See also Currie v. Gilchrist, 147 N.C. 648, 61 S.E. 581, as to lappages.

III. The referee found as a fact, and concluded as a matter of law that defendants French Oxendine and Pearlie Oxendine are entitled to tack their adverse possession to the adverse possession of Arch Bullard, father of Pearlie Oxendine, in order to establish title to a certain portion of the disputed land, etc. Plaintiff excepted thereto. Defendants excepted also, for that the finding, and conclusion were limited to only a part of the locus in quo. The court overruled both the finding and the conclusion of the referee.

In this connection, the court said: "The sole question presented to the court was whether or not French Oxendine and his wife had been in the adverse possession of the lands in question for the statutory period of 20 years."

However, the principle prevails in this State that several successive possessions may be tacked for the purpose of showing a continuous adverse possession where there is privity of estate or connection of title between the several occupants. A daughter stands in privity to her father, and may tack his adverse possession to her adverse possession to ripen title by adverse possession. See Ramsey v. Ramsey, 224 N. C. 110, 29 S.E.2d 340.

Moreover, one tenant in common can recover the entire tract against a third person. See Winborne v. Elizabeth City Lbr. Co., 130 N.C. 32, 40 S.E. 825, and cases cited.

For reasons pointed out, the judgment from which appeal is taken will be and is set aside, and the cause is remanded for further proceedings as to justice appertains, and the rights of the parties may require. Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133.

Error and remanded.