Kirkman v. Holland.

CONNOR, J., after stating the facts: 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 *188 over to him prior to tbe execution of the deed from bis daughter, Mrs. Wall, to Bishop, did not 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 the ceslui que irustent. It is clear that the. trust declared in the deed to John Peter Merkell, which passed to Bussell, 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, *189 open possession of the land claiming adversely under said deed and such possession was adverse, unless in law it was not s'o. 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. Shew, supra, is based upon subtle refinement rather than upon plain reason.. However this may be, the opinion of Mr. Jusiice Shepherd 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 piit 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, the cestui que trustent are also barred. It is a hardship on the plaintiffs and if it were an open question, we: *190 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 property. The judgment must be Affirmed.