Howell v. . Shaw ( 1922 )

One of the recognized methods by which the title to real property may be established in ejectment is that of connecting the defendant with the common source and showing a better title in the plaintiff. Love v. Gates,20 N.C. 498; Whissenhunt v. Jones, 78 N.C. 361; Spivey v. Jones,82 N.C. 179; Mobley v. Griffin, 104 N.C. 115. Failing to show a connected chain of title, the plaintiffs introduced evidence tending to prove that all parties derived their title from E. J. Strider. They offered in evidence the following muniments of title to the land in controversy:

1. A release or quitclaim from the heirs at law of E. J. Strider to Hildebrand Hulin and Y. B. Howell, dated 20 June, 1919, purporting to convey the fee.

2. A release from Hildebrand Hulin to B. S. Howell, dated 30 June, 1919, purporting to convey the fee.

3. A paper-writing which plaintiffs contend is a deed from E. J. Strider and his wife to P. D. Luther, dated 12 February, 1876, and which they contend conveys only a life estate.

4. A deed from Luther and his wife to the defendants, dated 5 August, 1919, purporting to convey the fee.

There was evidence tending to show that the instrument under which Luther claimed had been mutilated, but in their answer the defendants allege that it was the intention of the grantors to convey a fee, (462) and that the words of inheritance were omitted through ignorance, inadvertence, or mutual mistake.

The grounds upon which his Honor based the nonsuit are not stated in the record. But the attorney for the defendants argued here (1) that the plaintiffs failed to locate the land; (2) the evidence for the plaintiffs showed adverse possession, which barred their recovery; and (3) that the written instrument by which Luther acquired his title was not sufficient to connect the defendants with the common source.

The paper-writing last referred to was admitted in evidence without objection, and Luther testified to its execution and subsequent mutilation. These circumstances, considered in connection with the defendants' allegation that they are in possession and claim title under this particular instrument, relieve any perplexity otherwise incident to their legal proposition. The rule which applies to the admission of this evidence is not strictly an estoppel; it is a rule of justice and convenience adopted by the courts to relieve the plaintiff from the necessity of going behind the common source. Frey v. Ramsour, 66 N.C. 466; McCoy v. LumberCo., 149 N.C. 1. This deed apparently conveys only a life estate, and the defendants derived from Luther only such title as he had. If a life estate is outstanding, possession during its continuance would not be adverse to the plaintiffs, because they cannot recover possession against the life tenant. It is true that the evidence as to the location of the land was meager, but the description in the complaint, and in each of the deeds, is practically identical.

While the plaintiffs, as the record now appears, are not entitled to recover the land, they are entitled to have the action retained for the purpose of adjudicating the controversy affecting the alleged unlawful destruction of the timber. C.S. 889.

The paper-writing purporting to be the deed to Luther has not been registered. We suggest that the merits of the controversy may the more readily be determined by incorporating in the complaint by way of amendment an allegation as to the execution and delivery of the Luther deed and as to the estate therein conveyed, if it is not meanwhile registered, with such amendment of the answer as the defendants may desire.

The judgment of nonsuit is set aside and the cause remanded for further proceedings.

Reversed.

Cited: Stewart v. Cary, 220 N.C. 222.

(463)