Brewer v. Brewer ( 1953 )

78 S.E.2d 719 (1953) 238 N.C. 607

BREWER et al.
v.
BREWER et al.

No. 246.

Supreme Court of North Carolina.

November 25, 1953.

Bell & Horton, Daniel L. Bell, Pittsboro, for petitioners-appellants.

Ike F. Andrews and Barber & Thompson, Pittsboro, for respondents-appellees.

DENNY, Justice.

The petitioners in the trial below moved for judgment as of nonsuit on the plea of sole seizin on the ground that the evidence offered by the respondents was insufficient to show ouster. The motion was overruled and the petitioners excepted thereto and base their seventh assignment of error thereon. They cite, in support of their motion, the case of Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158. This case quotes with approval the language of Pearson, C. J., in Day v. Howard, 73 N.C. 1, as follows: "There is a fellowship between tenants in common. The law assumes they will be true to each other; the possession of one is the possession of all, and one is supposed to protect the rights of his co-tenants and is not tolerated in taking an adversary position unless he acts in such manner as to expose himself to an action by his fellows on the ground of a breach of fealty; that is, by an actual ouster."

In this connection, however, it is well to note that in Woodlief v. Woodlief, 136 N.C. 133, 48 S.E. 583, 584, Connor, J., in quoting the above language from Day v. Howard, supra, pointed out that in Covington v. Stewart, 77 N.C. 148, it was held that the "possession of one tenant in common is the possession of all; but if one have the sole possession for 20 years without acknowledgment on his part of title in his co-tenant, and without any demand or claim on the part of such co-tenant 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."

Furthermore, in the case of Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507, 509, Justice Winborne, in speaking for the Court, said: "It is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his cotenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster would be presumed." Duckett v. Harrison, 235 N.C. 145, 69 S.E.2d 176; Whitehurst v. Hinton, 230 N.C. 16, 51 S.E.2d 899; Hardy v. Mayo, 224 N.C. 558, 31 S.E.2d 748; Parham v. Henley, 224 N.C. 405, 30 S.E.2d 372.

In the case before us it is conceded and stipulated that the improvements made upon the premises in controversy were made under a bona fide claim of title by the respondents. The petitioners claim, however, that this stipulation was entered into for the sole purpose of settling the question of betterments in the event the petitioners prevailed. Conceding this to be so, it was likewise an admission that the possession of the premises in question by George W. Brewer was also under a bona fide claim of title, otherwise he could not have erected buildings on the premises in good faith, under claim of title.

The petitioners take the further position that since the relationship between them and the respondents has always been friendly and cordial, possession of the respondents has not been hostile. It is true the definition of the word "hostile" is given by the lexicographers as "showing ill will or animosity, or as being unfriendly or antagonistic," but this does not correctly state the character of the occupancy necessary to create adverse possession. The character of the possession must be hostile in order for it to be adverse. However, this does not mean that ill will or animosity must exist between the respective claimants. It only means that the one in possession of the land claims the exclusive right thereto. 1 Am.Jur., Adverse Possession, section 138, page 872.

The evidence offered by the respondents was ample to take the case to the jury on the plea of sole seizin and the exception to the failure of the trial judge to sustain petitioners' motion for judgment as of nonsuit on this plea is overruled.

In the course of the trial below the respondents offered in evidence the pleadings in a tax foreclosure suit instituted in December, 1941, by the Town of Pittsboro against George W. Brewer and wife. In paragraph two of the Town's complaint it was alleged that "the defendants are the owners, subject to the tax liens hereinafter referred to, of the following described lands lying and being in the said Town of Pittsboro * * *." The complaint then purported to describe the lands now in controversy and concluded with these words, "being the homeplace of the said George W. Brewer * * *." The defendants in their answer denied the allegations in paragraph two of the complaint, except as admitted. They then alleged that the lands in question did not lie within the incorporated area of the Town of Pittsboro; that such fact had been established by a survey authorized by the Town in 1927 and paid for by the defendants, at which time it was agreed by the officials of the Town of Pittsboro that the described lands lie outside of the Town's corporate limits.

The petitioners excepted to and assign as error the admission in evidence of the above pleadings on the ground that it was an attempt by the respondents to prove title by reputation, citing Stansbury, N. C. Evidence, section 148; Locklear v. Paul, 163 N.C. 338, 79 S.E. 617; Sullivan v. Blount, 165 N.C. 7, 80 S.E. 892.

It is true that reputation is not admissible to prove ownership of lands, but on the question of adverse possession the rule seems to be that a general reputation that land is owned by one who is in possession thereof is admissible to show the notoriety of such possession. 20 Am.Jur., Evidence, § 464, page 408, et seq.; 2 C.J.S., Adverse Possession, § 223, page 833, et seq.; Maxwell Land-Grant Co. v. Dawson, 151 U.S. 586, 14 S. Ct. 458, 463, 38 L. Ed. 279. In the last cited case the United States Supreme Court in passing upon a similar question said: "There was no error in admitting testimony to the effect that the land claimed by Dawson was generally reputed to belong to him. Claiming as he did by open, notorious, and adverse possession of these lands for a period sufficient under the statutes of New Mexico to give him a good title, it was competent to prove that it was generally understood in the neighborhood, not only that he pastured his cattle upon these lands, but that he did so under a claim of ownership, and that his claim and the character of his possession were such that he was generally reputed to be the owner. While this testimony would be irrelevant in support of a paper title, it had an important bearing upon the notoriety of his possession." See Everett v. Sanderson, N.C., 78 S.E.2d 408.

The evidence disclosed on this record clearly establishes the fact that George W. Brewer entered upon the premises in question in the year 1919 or 1920 and continued to reside thereon until his death on December 8, 1950. There is certainly no evidence that his occupancy was a permissive one, or that the petitioners, or their ancestor, prior to the death of George W. Brewer, ever asserted any claim of title to the one-fifth undivided interest in the premises they now undertake to assert. Therefore, the character and notoriety of the possession of George W. Brewer was an important factor in determining whether or not his occupancy of the premises in controversy for more than thirty years was or was not adverse to the petitioners. Consequently, since the allegations in the above pleadings with respect to ownership were clearly based on reputation, the defendants in that action having no paper title of record at that time to any part of the premises involved, we hold that the pleadings were admissible to show the notoriety of George W. Brewer's possession. Moreover, when evidence that is competent for some purposes, but not for all, is admitted generally, an exception thereto will not be sustained unless the appellant asks, at the time of its admission, that its purpose be restricted. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. page 558; State v. Hendricks, 207 N.C. 873, 178 S.E. 557.

The petitioners' eighth exception is to an inadvertance of his Honor in stating to the jury that the respondents offered in evidence the deed conveying the property in question to S. W. Brewer from Mr. Foushee, dated in 1887, and deed from Mary C. Brewer, Annie B. Thompson and others, heirs of S. W. Brewer, to George W. Brewer, when as a matter of fact these deeds were offered in evidence by the petitioners.

We cannot conceive how this inadvertence or misstatement could have prejudiced the rights of the petitioners. It was made clear in the pleadings and in the trial below that the respondents had no paper title to the one-fifth undivided interest involved in this action, and the jury was instructed that in order to show title thereto the burden was on the respondents to establish by the greater weight of the evidence "that the respondents have been in the open, notorious, sole, adverse, continuous peaceful possession of this property for a period of twenty years, exercising the right of dominion and ownership over it, making such use of the property and land in question as its condition made it suitable for." Moreover, this inadvertence or misstatement on the part of his Honor was one that should have been called to his attention at the time it was made, and thus afforded him an opportunity to correct it before the case was submitted to the jury. State v. Lambe, 232 N.C. 570, 61 S.E.2d 608, and cited cases. This exception is without merit.

In connection with the petitioners' thirteenth exception, which is to the charge, it is contended that his Honor should have charged the jury with respect to the offer made by the respondent, John B. Regan, for a quitclaim deed to be executed by the petitioners. The petitioners contend that by making this offer the respondents specifically recognized that title to the one-fifth undivided interest in controversy was in the petitioners, and that his Honor should have charged the jury that they must find that the respondents did not acknowledge the title of the petitioners before they could answer the issue in favor of the respondents. We do not concur in this view. The evidence with respect to Regan's offer was insufficient to bind the respondents who are the real claimants, but for the sake of argument, if it be so conceded, it would have no effect on the validity of a title theretofore perfected by adverse possession; neither would it break the continuity of such possession. In 1 Am. Jur., Adverse Possession, section 184, page 893, et seq., it is said: "The continuity of the possession of an adverse claimant is not interrupted by his act in purchasing or bargaining for an outstanding title. Indeed, the person may very well deny the validity of an adverse claim or title, and yet choose to buy his peace at a small price, rather than be at great expense and annoyance in litigating it," citing Alsworth v. Richmond Cedar Works, 172 N.C. 17, 89 S.E. 1008; John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523, Ann.Cas. 1917B, 992.

We have carefully considered the remaining exceptions and assignments of error and, in our opinion, they present no prejudicial error that would warrant a new trial.

No error.