Hinson v. . Kerr

AlleN, J. As the land in controversy belonged to a married woman, and there was no probate or private examination of the paper-writing under which the defendant entered upon the land, the paper is ineffectual to pass any title or interest in the land, and the defendant must therefore rely upon adverse possession to defeat the claim of the plaintiff. He admits that he entered upon the land under the paper-writing, and that he has claimed under it since that time, and he fails to produce evidence of the payment of the purchase money, or of any act or conduct which has made his possession hostile to the true owner. Under these conditions, the law is settled by a long line of decisions beginning with Young v. Irwin, 3 N. C., 9, decided in 1791, up to the present time, that his possession has not been adverse to the title of the true owner. In the Young case the owner of the land, one Kutherford, contracted to sell to Irwin, and Irwin went into possession under the contract and remained in possession for nearly forty years, after which time an action was brought by one who claimed under Eutherford, and the defendant relied on an adverse possession to bar the plaintiff’s right, and the Court said of the claim of the defendant: “When a purchaser in a case like the present takes possession, he takes it by consent of the owner, and may continue it until he fails in payment, and then is liable at law to be turned out; he does not take a tortious possession and gain a tortious fee, as has been contended; if he is not, strictly speaking, a tenant at will, his possession is that of the owner, and not a distinct independent possession opposed to his; if he is ousted of possession by a stranger, he cannot regain it by an action in his own name, but only in an action which sets up and affirms the vendor’s title. Such possession of the purchaser is therefore not an adverse possession to the vendor; and if, by the act of limitations, an adverse possession is necessary to bar the plaintiff’s title, such an one as has been in the present case will not answer that description.” *540 In Knight v. Lumber Co., 168 N. C., 452, the same principle is declared as follows: “It is true that, as against the vendor, the possession of the vendee, occupying under such a contract, does not, as a rule, become hostile or adverse until something has occurred that places one of the parties in the position of resistance to th# claim of the other, and, until that time, the ordinary statute of limitations does not begin to run. It has been so held with us in Worth v. Wrenn, 144 N. C., 656, and authorities cited.” Nor does the fact that the paper-writing was void because imperfectly executed affect the character of the possession. “As a general rule, the invalidity of the executory contract of purchase will not have the effect .of rendering adverse, as to the vendor, the possession taken thereunder by the. vendee who enters into possession in pursuance thereof. Although the instrument is invalid, the possession of the vendee is taken in pursuance thereof, and, therefore, amicably to the vendor; and, being so taken, it is looked upon as so continuing, regardless of the fact that the vendee cannot enforce his rights as purchaser under the contract.” 1 Am. Law Rep., 1336. This principle was applied in Mitchell v. Freeman, 161 N. C., 322, in which it was held that possession under a contract to convey which was void because not in writing was not adverse. There is no error in the instructions of his Honor. No error.