Christenbury v. . King

Ashe, J. The instructions asked by the defendant were properly refused. The first instruction asked could not have been given, as there were other grounds disclosed in the evidence upon which the plaintiff was entitled to, a verdict; and it would have been error .to have given the second, because the law does not require that the seven years’ adverse possession, with color of title, which gives a title under the statute of limitations, shall be a possession next preceding the commencement of the action. How could it *233 be, when the defendants in possession, and must be proved to be so, in order to sustain the action. When the title to land is out of the state, the continuous adverse possession of the same for seven years with color of title by the occupant and those under whom he claims (the adverse claimant not being under disability) will vest in him the title against all thé world, which cannot be divested except by a subsequent continued adverse possession for seven years with color of title, or twenty years’ adverse possession without color. Johnson v. Parker, 79 N. C., 475; Lenoir v. South, 10 Ired., 237; Freeman v. Loftis, 6 Jones, 524. His Honor, we think, in his charge to the jury, put the case upon its true ground. He told them that if they should find that the deed made by Levi Spencer, and the others, was delivered by them, not as an escrow, but as a deed, they must find the first issue in the affirmative, and in that event they need not consider any of the other issues, except the third as to damages; but if they should find the deed was delivered as an escrow by Spencer or either of the other parties, they should find the other issues according to the preponderance of the evidence, and that as defendant claimed through Spencer and Strange, he was estopped to deny title in them. Both parties claim title under Spencer. The plaintiff deduced his title by a deed from John Davidson to himself, a deed from Speneer, Foster and wife, and Nicholson and wife to Davidson, the femes covert being children and heirs of Minta Spencer. The deed from Levi Spencer and the heirs of Minta bears date the 15th of March, 1870, and the date of the deed from Spencer to Schenck is left blank in the “ statement of the case,” but we must assume it wras of junior date to that from Spencer and the others to Davidson, as it seems to have been so treated on the trial below, and the case was agued in this court upon that assumption. *234 It is well settled as an inflexible rule, that where both parties claim under the same person, neither of them can deny his right, and then as between them, the elder is the better title and must prevail. Caldwell v. Neely, 81 N. C., 114; Gilliam v. Bird, 8 Ired., 280; Ives v. Sawyer, 4 Dev. & Bat., 51. To this rule there is an exception, when the defendant can show a better title outstanding, and has acquired it. But the defendant’s counsel contends that estoppels must be mutual, and in this case there is no mutuality; and by way of illustration, he says, if the case were reversed and the defendant claimed under the deed made by Levi Spencer and the children of Minta, the plaintiff claiming under the deed from Levi alone, could not recover. That is so, because he would be not only estopped by the application of the general rule, but the case would come under the exception to the rule, because the defendant could show in that case a better title in the heirs of Minta, derived from her, and that he had acquired it. It must be borne in mind, that the general rule applicable to cases like this, is not strictly an estoppel, but a rule of justice and convenience adopted by the courts to relieve the plaintiff in ejectment from the necessity of going back behind the common source, from which he and the defendant derive title, and deducing his title by a chain of mesnes conveyances from the state. Frey v. Ramsour, 66 N. C., 466. But again, the defendant insisted on the trial below, and offered proof to show, that Levi Spencer was a tenant by the curtesy of the land in controversy. If that be so, then he must have claimed through his wife, Minta, from W. E. Strange, and hence it would follow that both parties claim under Strange and are estopped to deny his title. So that in whatever view we consider the case, under the rule above stated, it is shown that the plaintiff has the elder title de *235 rived from Spencer or Strange, and has therefore the better-title, and it must prevail. No error. Affirmed.