Troxler v. . Gant

AlleN, J. The exceptions of the plaintiff which are relied on in the brief present three questions for decision: (1) Did Robert Yanstory, a son of Peter Yanstory and a tenant in common with the mother of the plaintiff, have the right to buy under the power of sale contained in the mortgage executed by Peter Yanstory and wife, and did he thereby acquire the title to the land, if the sale was regular and properly advertised? (2) Was it error in his Honor to charge that the burden of proof was on the plaintiff to show that the land was not properly advertised for sale under said mortgage? (3) Was the charge of his Honor as to adverse possession erroneous? The first of these questions is decided against the contention of the plaintiff in Jackson v. Baird, 148 N. C., 29, and the second in Lunsford v. Speaks, 112 N. C., 608, and in Cawfield v. Owens, 129 N. C., 288. The Court said in the Jachson case, in dealing with the right of a co-tenant to buy at a sale made under an instrument executed by an ancestor, that “The contention of plaintiffs that John Baird could not acquire the exclusive title at the sale is founded upon a misapprehension of the law. The general rule is well settled that one cotenant cannot purchase an outstanding title or encumbrance affecting the common estate for his own exclusive benefit, and assert such right against his cotenants. But that rule does not apply under the facts of this case. The title which was acquired by Shuford, assuming that he acquired it for Baird, was not an outstanding title adverse to the title of Robert Baird. It was the title of Robert Baird himself, the common ancestor under whom all claimed, and the sale was being made under a deed executed by such ancestor and to pay his debts, which were an encumbrance on the land when it descended to plaintiffs and their coheir. It is held in this State that one cotenant lawfully may purchase his eotenant’s share of the common property under execution sale to pay the debt of such cotenant. Likewise it is held that one of the cotenants may purchase the entire property at a sale to pay the common ancestor’s debt”; and in the 0 aw field case, as to the burden of proof: “The presumption of law is in favor of the regularity in the execution of the power of sale, and if there was any failure to advertise properly, the burden was on defendant to show it.” The recitals in the deed establish prima facie that the sale was regularly advertised, and it is, therefore, incumbent upon the plaintiff to offer evidence to rebut the presumption therefrom in favor of the defendant. *426 The exception to the charge of his Honor on adverse possession is well taken. The charge is predicated upon a finding by the jury that the sale under the mortgage executed by Peter Yanstory was void because of want of advertisement, and that, therefore, the defendant, having acquired his title through Robert Yanstory, who was one of the children of Peter Yanstory, became a tenant in common with the plaintiff, and the 'jury was instructed, in substance, that if the defendant had been in the adverse possession of the land for twenty years without an actual ouster, or for seven years if there was an ouster, the title would be in the defendant and the plaintiff could not recover. There are several objections to this charge. There is no evidence that the defendant or those under whom he claimed had been in possession of the land for twenty years, nor is there any evidence of an actual ouster. The evidence tends to prove that the defendant took possession of the land in 1903 and had occupied it since that time, and prior to 1903 there is no evidence of possession after the death of Peter Yanstory in 1887 or 1888 except that the plaintiff testified that “Bob Yanstory stayed there a right smart while.” Neither the plaintiff nor his mother was turned out of possession by the defendant, nor does it appear that there was any demand made for an accounting as to the rents and profits and a denial of the right by the defendant. The charge is also objectionable because it is not qualified by any instruction to the jury as to the effect of the minority of the plaintiff, and as there is no evidence that the adverse possession began in the lifetime of the mother of the plaintiff, if, as his evidence tends to prove, he did not become 21 until 1910 or 1911 and his action was commenced in 1911, the possession of the defendant could not avail as against him. For the error pointed out, there must be a New trial.