Hardy v. . Mayo

DeNNy, J. The first exception is directed to his Honor’s refusal to permit the respondent to amend her answer by alleging title by adverse possession for more than 20 years. The exception cannot be sustained. After the time for answering a petition or complaint has expired, the *562 respondent or defendant may not as a matter of right, file an amended answer. The right to amend after the time for answering has expired, is addressed to the discretion of the court, and the decision thereon is not subject to review, except in case of manifest abuse. Lumber Co. v. Wilson, 222 N. C., 87, 21 S. E. (2d), 893; Cody v. Hovey, 219 N. C., 369, 5 S. E. (2d), 165; Osborne v. Canton and Kinsland v. Mackey, 219 N. C., 139, 13 S. E. (2d), 265; Biggs v. Moffitt, 218 N. C., 601, 11 S. E. (2d), 870. Moreover, in the case of Winstead v. Woolard, 223 N. C., 814, 28 S. E. (2d), 507, Justice Winborne, speaking for the Court, said: “It is a well settled and long established principle of law in this State that the possession of one tenant in common is in law the possession of all his co-tenants unless and until there has been an actual ouster or a sole adverse possession of twenty years, receiving the rents and profits and claiming the land as his own from which actual ouster would be presumed,” citing numerous authorities. The respondent, within twenty years from the institution of this proceedings, as a party in special proceedings and in conveyances, has expressly recognized and asserted that the title to a one-half undivided interest in the land now in controversy was in the Macclesfield Company. And more than twenty years elapsed between the death of Mr. and Mrs. Mayo and the institution of this proceedings, during which period the respondent and her predecessors in title did not claim any interest in the said land, save and except a one-half undivided interest therein. The amendment, had it been allowed, under the evidence disclosed herein, would not have aided the respondent. We deem it unnecessary to discuss the remaining exceptions seriatim. The contention that under the pleadings, the respondent should have been permitted to prove fraud or breach of trust by petitioners’ predecessors in title, cannot be sustained. We think the title to a one-half undivided interest in and to the' 35-acre tract referred to herein, passed to Macclesfield Company under the deed from L. A. Mayo and wife, L. S. Mayo, executed and recorded in 1906, and that under the facts disclosed the respondent is estopped by record and laches to deny the validity of said deed. Moore v. Baker, ante, 498; Huffman v. Pearson, 222 N. C., 193, 22 S. E. (2d), 440; Harshaw v. Harshaw, 220 N. C., 145, 16 S. E. (2d), 666; Crawford v. Crawford, 214 N. C., 614, 200 S. E., 421; Thomas v. Conyers, 198 N. C., 229, 151 S. E., 270; Fort v. Allen, 110 N. C., 183, 14 S. E., 685; Stewart v. Mizell, 43 N. C., 242. The respondent also attacks the sufficiency of the description in the deed of trust and the Trustee’s deed to convey to petitioners all the interest of the Macclesfield Company, conceding the validity of its title. The description complained of is set forth in paragraph 9 of the state *563 ment of facts hereinabove. We think the position is untenable and that the description is sufficient to include all the right, title and interest in and to the 35-aere tract of land in controversy, which was conveyed to Macclesfield Company by the conveyances referred to herein, less any lots conveyed by Macclesfield Company prior to the execution of the said deed of trust, 1 July, 1932. A careful consideration of the remaining exceptions leads us to the conclusion that no prejudicial error was committed in the trial below which would warrant a disturbance of the verdict. No error.