Barrett v. Brewer.

Waleer, J., after stating the case: It was conceded that if the plaintiffs’ counsel cannot avail themselves of their father’s possession of the land, they cannot recover. The argument before us in this case indicated that the Court had charged the jury to presume that Eobert W. Barrett went into possession of the land and held it for his minor children, because during the time of his occupancy they lived together as members of the same family, and as he was their father and therefore was under the duty and obligation to look after all their affairs, and as they had color of title. We do not think this proposition can be sustained, and after diligent *91 search we have not been able to find any authority sustaining it; and yet it must be upheld in order to affirm the judgment, as there is no evidence that the father actually took possession of the land for his children. Indeed, the testimony tends to show that he was acting for himself. In Camphell v. Everhart, 139 N. C., 517, we stated, incidentally though not decisively, the general rule to be that, as between persons occupying parental or filial relations, the possession of one is presumed to be permissive and not adverse to the other who holds the title. But in that case the parties were living together as one family on the same tract of land, it being the locus in quo, while here the plaintiffs did not live with their father on the land in dispute, but on a different tract and, as stated in the argument, in another county. It may also be said that in that case the controversy was one between the father and his children, and the question presented was whether the father’s possession was adverse to the children so as to have the effect of barring their right by the lapse of time,-while here the dispute is between the children and a stranger, the former claiming by virtue of the alleged adverse possession of their father. Clark v. Trindle, 52 Pa. St., 492; Allen v. Allen, 58 Wis., 202; McDougal v. Bradford, 80 Tex., 558. The two cases are therefore entirely different. Here Josephine Barrett had a deed for the land which constituted color of title. She did not enter under this deed, and died at the age of eight years. The plaintiffs were not in actual possession of the land prior to the death of their father in 1897. They therefore had no title under which he could rightfully enter as their agent or trustee, but at the most only color of title, provided that they acquired the right to claim under the deed to their sister,Josephine Barrett, by virtue of descent cast, she not having had any seizin during her lifetime. The ease, therefore, presents this question: Will the father be presumed to have entered in behalf of his children, when *92 there is no evidence that be professed do .do so, and none that they bad any title, but at most only color, which would make his entry a trespass from the start ? Is he presumed to have trespassed on another’s land and to have subjected himself to a suit for damages by the true owner in order to ripen the colorable title of his children into a good and perfect one by continuing to hold the possession a sufficient length of time for that purpose ? We think this would be pushing the doctrine of presumption a great way, and that the father cannot under the given circumstances be presumed to have been acting for his children. He may be in a certain sense their natural guardian or protector, but no such duty as that supposed can be held to rest upon him. His possession commenced by disseizin, and if it had continued long enough it might have ripened into a good title, but it would have been a title which accrued to him, and not to his children. When there is a mixed possession by several persons the law adjudges the legal seizin to be in him who has the title. Hall v. Powell, 4 Serg. & R., 465; Langdon v. Potter, 3 Mass., 219 ; Codman v. Winslow, 10 ibid., 151; Com. v. Dudley, ibid., 408; Cheney v. Ringgold, 2 Har. & J. (Md.), 87-94; Newell on Ejectment, p. 366. But no such case is presented here, as the possession was taken and maintained by the father apparently for himself, and besides, during the time he was in possession of the land the plaintiffs did not have the title, nor were they the owners of it, but they had merely a deed to their sister, which they claimed to be color of title. We held in Francis v. Reeves, 137 N. C., 269, that there •is no presumption that the husband is the agent of his wife and acting for her, and we do not see why we should hold that the father is the agent of his children and acting for them when he takes possession of land and commits a trespass in doing so. Is there anything in the relation of parent and *93 child wbicb casts the duty upon him of committing a trespass in their behalf so as to raise a presumption that in such a case he is acting for them ? We think not. There being no evidence that Robert Earrett was acting for his children and none from which such an inference should be drawn, his possession did not enure to them so as to perfect any colorable title they may have had. The defendants were not bound to except to the instruction as to the “force and bearing of R. W. Barrett’s possession for his children,” as there was no evidence to warrant the same, and they had already moved to dismiss the action. The Court should, therefore, have granted the defendant’s motion to nonsuit the plaintiffs under the statute, and in refusing to do so there was error, for which the judgment is reversed and the action dismissed. Reversed.