Kirkman v. Holland.

This is an action for the recovery of two lots in the city of New Bern. Plaintiffs claimed under the following chain of title: Deed from Joseph Merkell to Jno. Peter Merkell, bearing date 15 April, (186) 1841, upon the following uses and trust, to wit: "In trust for the sole and separate use of Caroline M. Merkell, wife of the said Joseph Merkell, during the life of the said Caroline Merkell, so that said real estate hereby granted shall not be liable, or in any manner subject to, the debts, contracts or engagements of the said Joseph Merkell, and further to grant and convey said property or any part thereof to such person or persons for such considerations and for such interests and estates as the said Caroline M. Merkell, shall, by any writing under hand and seal during her coverture, direct, limit or appoint, and upon the dissolution of the said marriage by the death of the said Caroline M. Merkell, and on her failure to make the appointment above mentioned in trust to surrender and deliver up said property to such child or children of the said Joseph Merkell, and Caroline M. Merkell, his wife, as may be living at her decease."

By successive conveyances, the title to the said property was vested in R. A. Russell on 4 August, 1855, upon the same trusts set forth in the deed of 15 April, 1841. Carolina M. Merkell died on 27 December, 1903. The plaintiff, Emeline Kirkman, is a daughter, and plaintiff, Ella Moore, is a granddaughter of the said Carolina M. Merkell. The defendants claim title to the real estate in controversy under deed executed by T. G. Wall and wife, Janet, to Samuel Bishop during 1856. The said Janet Wall was a daughter of William Hollister. This deed recites that this lot had been contracted to be sold to Wm. Hollister. By mesne conveyances such title as Bishop acquired by said deed passed to and vested in the defendants. The defendants, and those under whom they claim, by the said chain of title have been in possession of the said property under said deeds claiming to own the same in fee simple since 6 (187) June, 1856. That plaintiffs and the trustees had no other notice of this claim than that which the law implies from actual possession and the registration of the deeds. The plaintiffs offered to show by R. A. Russell, the trustee and brother of Caroline Merkell, that he had knowledge of a contract entered into between Caroline Merkell and Joseph Merkell, under which the lot was turned over to William Hollister, a near relative of Janet Wall, who was soon in possession of said property. To this testimony the defendant objected. Objection sustained and plaintiffs excepted. Plaintiffs also offered to show by said witness that from 1855 and up to the death of Caroline Merkell, his sister, he made no effort I recover the possession of the said property because he was told by his said sister not to do so, that she had sold her life estate, but that her daughters would be entitled to the said property after her death. Defendants objected; objection sustained and plaintiffs excepted. The defendants relied upon the statute of limitations to bar the action of the plaintiffs. Judgment was rendered for the defendants and plaintiffs appealed. The first question to be disposed of is the admissibility of the proposed testimony. In respect to the first question, we concur with his Honor. Assuming the fact to be proven, which we must do for the purpose of passing upon the exception, we do not see how it could affect the right of the defendants; they do not claim under William Hollister, nor does it appear that he was to become the purchaser. The mere fact that Joseph Merkell and his wife made a contract, under which the lot was turned over to him prior to the execution of the deed from his daughter, Mrs. Wall, to Bishop, did not (188) tend to show that either Mrs. Wall or her grantees were in possession under Mrs. Merkell. The contract may, so far as it appears, have been a lease to Mr. Hollister. The fact that he was "soon in possession" does not intend to show that he was a purchaser, and if it did, there is no legal connection between that fact and the execution of the deed by his daughter to Bishop. If the fact were admitted, the deed from Wall and wife would have conveyed no estate either legal or equitable to Bishop. In respect to the second question we also concur with his Honor. We do not perceive how Mrs. Merkell's declaration, that she had sold her life estate, can be competent against the defendants. If competent, the proposed testimony is too indefinite to base any conclusion upon. It does not appear to whom she said that she had sold, or when the declaration was made. If made after the entry by Bishop, under his deed, it would be clearly incompetent. With the proposed testimony excluded, the case as decided by his Honor presents the single question whether the possession by Bishop and those claiming under him was adverse to the trustee, thereby barring thecestuis que trustent. It is clear that the trust declared in the deed to John Peter Merkell, which passed to Russell, was not one of that class which was executed by the statute of uses. The duties imposed upon the trustee to convey the legal title when directed by Mrs. Merkell and in default of such direction to "surrender and deliver it up to such child, etc., as she might leave surviving" prevented the operation of the statute.Perkins v. Brinkley, 133 N.C. 154. The legal title remained in the trustee until the death of Mrs. Merkell. This being so, it would seem that the case comes directly within and must be governed by the decision of this Court in King v. Rhew,108 N.C. 696. There is but one possible difference between the two cases. In that case it was admitted that the defendant had been in the actual, open possession of the land claiming adversely under said deed and such possession was adverse, unless in law it was not so. (189) In our case it is admitted that the defendants and those under whom they claim have been in possession under such deeds, claiming to own said property in fee simple since 1856. We are unable to see any substantial difference between the two cases. When one has a deed conveying no title, interest or estate and enters under said deed, claiming to own the land in fee simple, it is difficult to see why such possession is not adverse to the owner. The learned counsel for the plaintiffs call our attention to section 146 of The Code. It is not necessary to consider the effect of this section because, conceding the presumption raised thereby, it is rebutted by the admission in the case agreed. The counsel suggest that the decision in King v. Rhew, supra, is based upon subtle refinement rather upon plain reason. However this may be, the opinion of Mr. JusticeShepherd shows clearly that in this State, at least, the authorities are uniform. The discussion in that opinion leaves nothing to be said by us upon the subject. It would seem that, accepting as we must do the doctrine as announced in that case, the facts in this record bring the case clearly within it. There the defendant grantors entered under a deed attempted to be made by the owner of the equitable life estate. There was in fact no ouster of the life tenant. She and her husband undertook to sell the lot and put the purchaser in possession yet the Court held that because the deed. was void by reason of a defect in its form and execution, the entry of the grantee was an ouster of the trustee and the possession adverse. In our case, if the proposed testimony were competent it would not show any deed or paper title to Mrs. Wall. If Russell had owned the land free from any trust there would be no question that upon the admitted facts he would be barred. This being so, thecestuis que trustent are also barred. It is a hardship on the plaintiffs and if it were an open question, we should attach much weight to the able argument and brief of their counsel, but we cannot unsettle rights acquired under decisions which have become rules of (190) property. The judgment must be

Affirmed.

Cited: Cameron v. Hicks, 141 N.C. 32; Cherry v. Power Co., 142 N.C. 410;Webb v. Borden, 145 N.C. 197, 201; Brown v. Brown, 168 N.C. 13;Hayden v. Hayden, 178 N.C. 264.