Headen v. . Womack

Ruffin, J. Several very interesting questions were raised upon the trial of this cause in the court below, as well as in the argument of counsel at this bar, but it is not deemed necessary to advert to them, since the court considers the point, upon which the case was at last made to turn, as perfectly conclusive against the plaintiffs. The statute enacts, that a presumption of abandonment of every equitable interest shall arise within ten years after the right of action thereon shall have accrued. Rev. Code, eh. 65, § 19. Its obvious policy, as said in Ingram v. Smith, 6 Ired. Eq., 97, is to insist peremptorily on diligence in all cases to which it has any application, and it is one which the courts must fairly carry out. So emphatically is it a statute of repose, that no saving is made in it of the rights of infants, femes covert, or persons non compos. Hamlin v. Mebane, 1 Jones’ Eq., 18; Hodges v. Council, 86 N. C., 181. Like the presumption of payment arising upon a bond under the act of 1826, that of the abandonment of a claim may become, and does become, when the facts of the case are admitted, a conclusion of law from facts, to be applied by the court, and not left to the discretion of the jury. Blake v. Lane, 5 Jones’ Eq., 412; Cluggage v. Duncan, 1 Sergt. and Rawle, 109. So, likewise, is it a question of law for the court, what circumstances, if true, are sufficient to repel the inference created by the lapse of time under the statute. Brown v. Becknall, 5 Jones’ Eq., 423. So far from there being anything in the case to repel or even to impair this statutory presumption of abandonment of their claim to the land, the very facts upon which the plaintiffs rely seem to the court to strengthen and sustain it, as being true in *471 fact. The contract which their mother made for the land was, at the outset, but a conditional _one, and depended upon their ratification of it at the coming of age of the youngest child. When that event took place, or shortly thereafter, the parties are proved to be in a dispute about the matter, and it is not shown how they finally settled. They took the advice of counsel; submitted to a sale of the land to another; voluntarily surrendered the possession; taking care to remove the house they had erected thereon, and for full twelve years have taken no steps to assert their title or renew their claim. Such conduct cannot fail to satisfy every mind that what the law presumes, in fact took place, and that they then really abandoned their right; and very certainly that state of the facts warranted the instructions that were given to the jury. We fully concur with His Honor also upon the point of evidence that arose in the case. The declarations of a grantor, made at any time before the sale, are admissible against his immediate grantee, and all who remotely claim under him. But all the cases agree, says 2 Phil, on Evidence, 655, that declarations made by the person under whom a party claims, after the declarant has departed with his right and the possession, are utterly inadmissible to affect any one claiming under him; and to this effect are the authorities in this court. Gray v. Harrison, 2 Hay., 292; Arnold v. Bell, 1 Hay., 396; Askew v. Reynolds, 1 Dev. and Bat., 367. The court, therefore, sees no error in the judgment of the court below. No error. Affirmed.