Sheppard v. . Sykes

Barnhill, J. The principles of law relied upon by plaintiff are so well established we need not discuss them. Whether the facts appearing *609 oh tbis record are sucb as to invoke the application of those principles is the question presented for decision. Where a confidential relation is established between parties, either by act of law or agreement, the rights incident to that relation continue until the relation is put an end to, and time will begin to operate as a bar during the existence of such relation only in the event there has been an unqualified disavowal by clear and unequivocal acts or words. Blount v. Robeson, 56 N. C., 73; Hospital v. Nicholson, 190 N. C., 119, 129 S. E., 149; Sorrell v. Sorrell, 198 N. C., 460, 152 S. E., 157; Teachey v. Gurley, 214 N. C., 288, 199 S. E., 83. Relying on this principle of law the plaintiff bottoms her cause of action upon the theory that Julia V. Woolard (later Warner), the widow, held possession of the locus after the death of her husband in trust for the use and benefit of herself and her daughter, the plaintiff herein. She alleges that the widow “caused and procured the land ... to be advertised and sold under the powers of sale therein contained, and said lands were so sold and bid in for her by Richard Johnson, her father . . .” and that Johnson was acting as her agent in purchasing and later recon-veying to her. In her brief she takes the additional position that the widow went into possession of the inheritance under her unallotted right of dower and that her possession was merely a continuation of the possession of the deceased husband and was not adverse to her daughter, the plaintiff. Page v. Branch, 97 N. C., 97. We are constrained to hold that neither position is sustained by the record. The widow is not a tenant in common with heirs at law. Her estate is superimposed upon the estate of the heirs and is superior thereto. Even so, when the widow remains in possession of the whole estate under an unallocated dower right, her possession is an extension of the possession of her deceased husband and is not deemed to be adverse to her children. But here the whole record negates the suggestion that the widow remained in possession as such. The property was under mortgage. The mortgages were foreclosed and the land was purchased by Richard Johnson: In the meantime the widow, herself an infant, had moved to the home of her father and become a member of his family. Thus the continuity of possession under the same right was broken. The title of the deceased husband and his heirs was divested by the mortgage sales and a new title in a new line was created. When the widow entered into possession she went in, not as surviving widow but in her own right as purchaser. There is no evidence that the widow “caused and procured” the foreclosure of the mortgages. The mortgagor was dead. The widow was under legal disability due to her nonage. The estate which was being *610 administered was without sufficient assets to pay the secured debts. There was neither widow nor heir legally capable of negotiating or contracting for an extension of the debt. Common prudence and foresight dictated foreclosure. The record discloses this and nothing more. Even so, the plaintiff insists that the circumstances under which the widow acquired title were such as to impress it with a trust in favor of plaintiff. The record, we think, fails to sustain this position. She was without means and incapable of contracting. Her father purchased the land so as to protect the home of his infant daughter who was again his dependent and a member of his household. There is not a particle of evidence tending to show that in so doing he acted as her agent rather than as her father, interested in providing a home for her. Under the circumstances here appearing, the statement that he desired to purchase “for her” cannot be construed to mean that he purchased as agent for her. Akin v. Bank, ante, 455. It follows that there is no evidence tending to show that she purchased at the sale property in which she and her child were jointly interested so as to impress her title with a trust for the benefit of plaintiff. Under the view we take of the case the widow held under a record title superior to any claim of plaintiff, and so she and those claiming under her need not resort to the defense of adverse possession. We note, however, that over a period of 25 years after plaintiff became 21 years of age the widow remained in exclusive possession of the land, appropriated the income therefrom to her own use and sold four of the five tracts formerly owned by plaintiff’s father (one of which was sold to plaintiff’s husband) without protest from or action by plaintiff. We cannot say that she, in equity and good conscience, has any good or- valid claim thereto. The judgment below is Affirmed.