Hancock v. . Davis , 179 N.C. 282 ( 1920 )

The evidence shows that John E. Henry entered into possession of the lot in controversy prior to 1870, having no paper title thereto. He remained in possession up to his death in 1912. This action was commenced in 1917.

The lot was listed for taxes by John E. Henry in 1870, and sold for taxes on 7 January, 1871, and bid off in name of W. R. Henry, infant son of John E. Henry and brother of defendant, Mary Davis, who was John E. Henry's daughter. W. H. Henry was born in 1866, and died in 1873, according to the evidence. No deed was made to W. R. Henry at the time of sale, but the then sheriff, John D. Davis, gave a receipt for the taxes in name of W. H. Henry. On 18 April, 1891, John D. Davis, not then being sheriff, executed a tax deed to W. R. Henry for the lot.

The plaintiff offered in evidence a deed to Agnes Henry, dated 30 October, 1891, purporting to be signed by W. R. Henry for the lot, and probated upon the oath of John E. Henry.

On 21 October, 1913, Agnes Henry executed a deed for the lot to plaintiff Hancock. Agnes Henry was the third wife of John E. Henry, and was married in 1887. The defendant, Mary Davis, is the child of John E. Henry by a prior marriage, and, so far as the record discloses, is his only heir at law.

Plaintiff offered mortgage from John E. Henry and Agnes Henry to S. P. Hancock, 17 March, 1906, recorded in Book 5, page 303, which said mortgage has been canceled and fully satisfied of record, as appears from the face of the same.

The defendants objected to the introduction of this mortgage on the grounds that it was not material, and was prejudicial; objection overruled, and defendants excepted. As the mortgage was duly canceled, we fail to see its bearing on this controversy.

We are of opinion that his Honor erred in refusing the motion to nonsuit, as in any view of the evidence plaintiff failed to make out title to the lot.

John E. Henry was in possession of the lot from prior to 1870 to his death. Assuming that he had acquired title by possession, no one except defendants have shown a title from him. Mary Davis was his only heir at law, and after her father's death, held the property subject to what dower right the widow may have had. The widow held no conveyance from John E. Henry.

The deed signed by W. R. Henry conveyed no title, for he died in 1873, some years before Davis executed the deed. If Agnes Henry had anything, she had only a paper-writing, which might be color of title. Assuming that it was, it never ripened into a good title by adverse possession.

John E. Henry lived on the lot up to date of his death in 1912, and died without either devising or conveying the property to his wife, Agnes. She did not hold adversely after she received the deed purporting to be executed by W. R. Henry. She resided with her husband on the lot, and was there as his wife, and could not hold adversely to him. This subject is discussed in the recent case of Kornegay v. Price, 100 S.E. Rep., 883, where it is said:

"It seems to be well settled that, owing to the unity of husband and wife, adverse possession cannot exist between them so long as the coverture continues. But where the marital relations have been terminated by divorce or abandonment, it seems that one may acquire title from the other by adverse possession. 1 A. and E. Ency., p. 820, sec. 11. In First NationalBank v. Guerra, 61 Cal. 109, it is held that a wife cannot claim adversely to her husband or those claiming under him so long as he remains the head of the family. It is held further, in Hendricks v. Rasson, 53 Mich. 575;19 N.W. 192, that the husband cannot hold adversely to his wife premises belonging to her."

To same effect is 1 Ruling Case Law, p. 755, where more cases are cited. The author says: "It is well settled that neither a husband nor a wife can acquire title, by adverse possession as against the other, of land of which they are in joint occupancy during the continuance of the family relation."

According to the evidence, in any view of it, the title never passed out of John E. Henry until his death. The land then descended to defendant, Mary Davis, his daughter and only heir at law, subject to the widow's right of dower.

The motion to nonsuit is allowed.

Reversed.