Johnson v. Eversole Lumber Co.

(Closer attention of officers charged with the duty of collecting State and county taxes is called to a not uncommon occurrence of persons claiming wild lands, not in possession, escaping payment of taxes thereon.) (718) Action for damages for cutting and removal of timber trees from two tracts of land described in the complaint. The plaintiffs derive title by mesne conveyances from J. T. Foster, to whom State grants 150 and 151 issued 20 April, 1855, for 640 acres each, upon entries made by him 5 November, 1853, and surveyed April, 1854. These grants were registered 27 June, 1856.

The defendant derives title by mesne conveyances from Allison Welch, under State grant 408, for 5,000 acres (embracing the locus in quo), issued 26 December, 1857, upon an entry made 23 March, 1853, and surveyed 17 and 18 October, 1853. This was registered 27 July, 1858. The defendant asks that the plaintiffs be decreed trustees for its benefit and to convey whatever title, if any, they may have. The plaintiffs' replication pleads the bar of the ten years statute of limitations.

If the statute of limitations is a bar to the equity set up by the defendant, it is unnecessary to consider whether the equity alleged is otherwise valid or not. In McAden v. Palmer, 140 N.C. 258, where the defendants, claiming, as here, under a grant junior to plaintiff's grant, but issued upon an entry prior to his, asked to have the plaintiff declared trustee of the legal title for their benefit, the Court sustained the plaintiff's plea of the statute of limitations. The defendant's cause of action in this case accrued upon the registration, 27 June, 1856, of the grant to Foster, under which the plaintiffs claim. The matter is so fully and clearly discussed by Mr. Justice Brown in McAden v. Palmer,supra, that it is sufficient to refer to the opinion in that case without repeating what is there so well said. The plea of the ten years statute upon the same state of facts was also sustained in Ritchie v. Fowler,132 N.C. 790. "The legal title vesting in the first grantee drew the constructive possession, which continued until there was an ouster."Janney v. Blackwell, 138 N.C. 442. Here there is no evidence of possession of the lands within the bounds covered by grants (719) 150 and 151 by the defendant, or those under whom it claims, after the registration of the grant to Foster in April, 1855, and its registration in June, 1856, till the cutting of timber by the defendant in 1900 or 1901, for which this action was begun 31 July, 1902. Indeed, neither party was in possession nor paid taxes. The latter is probably a not uncommon circumstance as to wild lands, and may well call for the closer attention of officers charged with the duty of collecting State and county taxes.

The defendant contends, however, that the statute does not run in favor of plaintiffs because Foster, the original grantee, left the State in 1860, and he and those under whom the plaintiffs claim have been nonresidents ever since, relying upon Code, sec. 162, now Revisal, sec. 366. But that section by its terms did not apply to causes of action accrued prior to 24 August, 1868. Blue v. Gilchrist, 84 N.C. 239.

It is true that this claim, having accrued 27 June, 1856, was governed by the ten years statute of presumptions (R. C., ch. 65, sec. 19; Campbellv. Brown, 86 N.C. 376), and that Code, sec. 136, provided that the limitations in The Code should not apply to causes of actions accrued prior to 24 August, 1868, and section 137 suspended the statute of limitations and presumptions from 20 May, 1861, to 1 January, 1870. The ten years statute of presumptions expired, therefore (eliminating 8 years, 7 months, 10 days), on 9 March, 1875, and there was no evidence to rebut the presumption. Chapter 113, Laws 1891, repealed sections 136 and 137, i. e., it repealed the exemption of actions accruing before 24 August, 1868, from the statute of limitations and repealed the suspension of time between 20 May, 1861, and 1 January, 1870, so that the defendant's equity was really barred since 27 June, 1866. Alexander v.Gibbon, 118 N.C. 802. It did not repeal the proviso of Code, sec. 162, which is not a statute of limitation, but merely prevents (720) the statute of limitations protecting a nonresident as to causes of action accruing since 24 August, 1868. There is no reference to section 162 in the repealing statute, Laws 1891, ch. 113, whose object was to extend the protection of the statute, not to withdraw it. Every phase of the contention of the parties was fully presented by the two issues submitted, and it was not error to refuse to submit others. Wilson v. Cotton Mills,140 N.C. 57, and cases there cited.

If, as defendant contends, Foster was an alien, the law at that time applicable to Cherokee lands (which this was) did not debar aliens (Laws 1852-'53, ch. 169). The general land law did not apply to these lands, as was expressly provided by section 18, chapter 31, Laws 1854'55. But even if an alien was prohibited from entering these lands, the State only could divest his title, for "an alien has capacity to take, but not capacity to hold land; . . . he cannot hold it against the sovereign, should the sovereign choose to assert his claim thereto as forfeited. But against all the rest of the world the alien has full capacity to hold, and he can hold even against the sovereign until the state of the alien be divested by an office found or some other equally solemn sovereign act." Rouche v.Williamson, 25 N.C. 146; Wilson v. Land Co., 77 N.C. 457.

Whether the first probate of the deed from Wilson to Wilson and Roller was valid, the second probate and registration thereunder was sufficient, and, though made after suit begun, entitled the deed to be used as evidence. The act of 1885 makes deeds valid only from registration against purchasers and creditors — which these defendants are not. Deeds, if registered, can be put in evidence, when otherwise competent, even when registered during the trial.

There are other exceptions, but they do not require discussion.

No error.

Cited: Frazier v. Cherokee Indians, 146 N.C. 480; s. c., 147 N.C. 250;Phillips v. Lumber Co., 151 N.C. 521; Hodges v. Wilson, 165 N.C. 328;Lynch v. Johnson, 171 N.C. 615.

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