Weston v. John L. Roper Lumber Co. , 169 N.C. 398 ( 1915 )

AlleN, J.

No case has been more carefully investigated or more deliberately considered by this Court than the one involving the same sub-: ject-matter between the-same parties, reported in 162 N. C., 165, and the only material difference in the facts, so far as they relate to lot No. 1, is that upon the first appeal the plaintiff did not introduce a grant from the State covering the land in controversy, while on this appeal a grant from the State is in evidence.

This difference in the facts changes the legal aspect of the two appeals, because, with no grant in evidence, the Court dealt with the deed of the State Board of Education to the defendant as a paramount outstanding title which the defendant had the right to acquire; but when it is shown that the land had been previously granted, as now appears, the deed of the State Board of Education has no legal effect, and must be eliminated from consideration.

It will be seen, however, from an examination of the opinion of the Court in the former appeal, written by Associate Justice Brown, that it is not based alone upon the title of the defendant procured from the State Board of Education, but that, in addition thereto, it was held that as partition proceedings are primarily for the purpose of severing the possession, and as there was no allegation in tbe petition tbat tbe tenants in common were tbe owners in fee, and as title was not put in issue in tbe proceeding, tbat tbe partition proceeding of 1815 did not operate as an estoppel, and as tbe plaintiff could not recover unless it was beld tbat tbe parties to tbis record were estopped, tbe judgment of nonsuit tben entered was sustained upon tbis additional ground.

A separate concurring opinion, in wbicb tbe Chief Justice tben concurred, and in wbicb Associate Justice Brown now concurs, was tben filed by tbe writer of -tbis opinion, beginning at page 114, in wbicb tbe consideration of tbe deed from tbe State Board of Education was entirely eliminated and wbicb rested upon two propositions: (1) tbat tbe implied warranty of title existing between tenants in common is broken by alienations, and does not prevail between tbe grantees of tbe several tenants acquiring title after tbe partition. (2) Tbat tbe partition proceeding of 1815 did not constitute an estoppel as to tbe ownership in fee of tbe land in controversy.

Tbe concluding sentence of tbis last opinion is: “Tbis disposes of tbe appeal, and it is unnecessary to discuss tbe validity of tbe deed of tbe State Board of Education to tbe defendant or of tbe right of tbe defendant to rely upon tbis deed as an after acquired title.”

Tbe reasons and authority tben relied on in support of tbe opinion of tbe Court are satisfactory to us, and in our judgment are conclusive against tbe title of tbe plaintiff to lot No. 1.

Tbe introduction of tbe grant from tbe State to Benjamin Jones, instead of weakening tbis position, tbat tbe defendants are not estopped to deny tbat tbe parties to tbe partition proceeding were tbe owners in fee of tbe land described therein, confirms it, because it shows tbat tbe fee-simple title was not tben in tbe parties to tbe proceeding, but in Benjamin Jones under tbe grant.

We are also of opinion tbat bis Honor properly nonsuited the plaintiff as to lot No. 4.

One of tbe deeds in tbe first chain of title to tbis lot, introduced by tbe defendant, and wbicb is necessary to complete it, is tbe deed from Seguine and Weston to Samuel Proctor, and it appears from tbe description in tbis deed tbat it does not purport to convey any part of tbe “juniper timbered land,” but only an upland tract, and there is no evidence tbat tbe grant from tbe State covers tbe upland.

In tbe second chain of title to lot No. 4, a deed upon wbicb tbe plaintiff has to rely is one from Isaac Lam, sheriff, to Bichard Morris, wbicb recites tbat it was made pursuant to a sale under a fieri facias issued upon a judgment recovered by Benjamin Jones’s executors against Mary Aitcbison, executrix of William Aitchison, and tbat the land sold was in tbe bands of William Nicholson, devisee.

There is no recital in this deed that any notice or other process issued to the devisee or that any judgment was rendered condemning the lands in the hands of the devisee, and this is fatal to the deed.

In Barrow v. Arrenton, 23 N. C., 228, Gaston, J., referring to the act of 1784, says: “Since this act, therefore, whatever doubts might have been entertained before, the law is positive that the lands of a deceased debtor in the hands of his heirs cannot be sold, upon a judgment obtained against an executor or administrator, until after a sci. fa. shall issue to the heirs to show cause, if any they have, why execution of said judgment shall not issue against the land.”

Judge Gaston further says: “That act, after reciting that doubts were entertained whether the lands of deceased debtors, in the hands of their heirs or devisees, should be subject to the payment of debts upon judgment against executors or administrators, in order to remove such doubts thereafter, and to direct the mode of proceeding in such cases, enacted that when in an action at law an executor or administrator should plead fully administered, no assets, or not sufficient assets to satisfy the plaintiff’s demand, and such plea should be found in favor of the defendant, the plaintiff might proceed to ascertain his demand and sign judgment; but before taking out execution against the real estate of the deceased debtor, a writ or writs of scire facias should issue, summoning the heirs or devisees of such debtor to show cause wherefore execution should not issue against the real estate for the amount of such judgment, or so much thereof as the personal assets were not sufficient to discharge; and that if judgment should pass against the heirs or devisees, or any of them, execution should issue against the lands of the deceased debtor in their hands.”

The purpose of the sci. fa. to the heir or devisees was to give him a day in court in order that he might contest the plea of fully administered and show that there was personal estate applicable to the payment of the judgment, and thereby relieve his land.

The judgment must be

Affirmed.