Ramsey v. . Ramsey

DeNNy, J. The first exception relates to the refusal of his Honor to admit in evidence the original deed for the 15-acre tract of land described in the complaint, for the purpose of attacking it. The plaintiffs contend that this 15-acre tract of land was conveyed originally to Andrew Ramsey as sole grantee, that the name of his wife, Lillie Ramsey, was inserted afterwards, thereby giving Lillie Ramsey, according to the record, title to the property, since Andrew Ramsey, her husband, predeceased her. Lillie Ramsey devised this tract of land to her two surviving children by her first husband, Andrew Ramsey, and to her grandchildren, heirs at law of another child by her first husband, who had predeceased her. Lillie Ramsey’s will has been duly probated and no caveat filed thereto. However, plaintiffs insist they are entitled to hold this land directly from Andrew Ramsey, and not under and by virtue of the deed, which purports to create an estate by the entirety and the devise from Lillie Ramsey. The defendants in their answer aver the plaintiffs are the owners of the 15-acre tract of land, they testified to that effect, and stated in open court in the trial below that they claim no interest in said 15-acre tract of land. They assert, however, the plaintiffs hold title to the 15-acre tract of land under and by virtue of the will of Lillie Ramsey and not otherwise. Ordinarily, any person claiming title to real estate, whether in or out of possession, may maintain an action to remove a cloud from title against one who claims an interest in the property adverse to the claimant, and is required to allege only that the defendant claims an interest in the land in controversy. Plotkin v. Bank, 188 N. C., 711, 125 S. E., 541; Carolina-Tennessee Power Co. v. Hiawassee Power Co., 175 N. C., 668, 96 S. E., 99; Satterwhite v. Gallagher, 173 N. C., 525, 92 S. E., 369; Rumbo v. Gay Mfg. Co., 129 N. C., 9, 39 S. E., 581; Daniels v. Baxter, 120 N. C., 14, 26 S. E., 635. See also Higgins v. Higgins, 212 N. C., 219, 193 S. E., 159. There appears to be some well established exceptions, however, to the general rule. In 44 Am. Jur., sec. 79, p. 63, it is said: “While it has been stated that in an action to determine adverse claims it is not necessary for the plaintiff to set forth the nature of the defendant’s claim, except in cases of fraud, the adverse or beclouding character of the claim ■or other matter complained of should appear from the complaint. If *114 tbe complainant relies on fraud to overcome tbe effect of an instrument, be must allege and prove tbe fraud,” citing Thompson v. Moore, 8 Cal. (2d), 367, 65 P. (2d), 800, 109 A. L. R., 1027; Strong v. Whybark, 204 Mo., 341, 102 S. W., 968, 12 L. R. A. (N. S.), 240, 120 Am. St. Rep., 710. Moreover, an action to remove a cloud from title cannot be sustained wben tbe title or pretended title is not adverse to tbe complainant. 44 Am. Jur., sec. 11, p. 11; Murray v. Hazell, 99 N. C., 168. Tbe actual record title to tbe 15-acre tract of land is not adverse to tbe plaintiffs, but confirms title in them; and tbe complaint does not seek relief by way of reformation of tbe deed based on fraud. Hence, we think bis Honor properly sustained tbe defendants’ objection to tbe proffered evidence. Tbe eigbtb and tenth exceptive assignments of error are directed to tbe following portions of bis Honor’s charge: “Tbe plaintiffs have proceeded in this case upon tbe theory that they bad seven years possession under color of title before tbe action was brought, but no grant has been shown as having issued to tbe plaintiffs or anybody else, and before plaintiffs could avail themselves of that remedy they would have to prove that a grant was issued to somebody and then, even without connecting themselves with tbe grant, show title by adverse possession, open, notorious and continuous possession, for seven years under known and visible lines and boundaries and under color of title. . . . There is no evidence that they bad that continuous, open, notorious, adverse possession under color of title for seven years, and they likewise do not introduce a grant from tbe State to any person, which is absolutely necessary in a case where they claim title by seven years possession under color of title. They must first introduce a grant from tbe State to some person.” Since tbe adoption of chapter 195, Public Laws of 1917, C. S., 426, G. S., 1-36, in actions between individual litigants involving tbe title to real property, except wben protested entries are involved, title is conclusively deemed to be out of tbe State. Ward v. Smith, 223 N. C., 141, 25 S. E. (2d), 463; Berry v. Coppersmith, 212 N. C., 50, 193 S. E., 3; Johnson v. Fry, 195 N. C., 832, 143 S. E., 857; Dill Corporation v. Downs, 195 N. C., 189, 141 S. E., 570; Pennell v. Brookshire, 193 N. C., 73, 136 S. E., 257; Moore v. Miller, 179 N. C., 396, 102 S. E., 627. Tbe seventh exception is to the action of tbe court in directing a verdict in favor of tbe defendants. Tbe plaintiffs introduced tbe deed to tbe 25-acre tract of land, which deed is dated 27 March, 1899, and was duly recorded on 12 September, 1899.- Plaintiffs also introduced evidence to tbe effect that Andrew Ramsey, tbe grantee in said deed, built a bouse on said tract of land, immediately after tbe purchase thereof, moved with bis family to tbe premises and occupied tbe same until bis death in 1905, and that bis widow and children continued to occupy said premises until about tbe *115 year 1910, thereafter tbe widow rented the land to one Mark Chandler for several years, but upon her marriage to John Eamsey, she returned to the Eamsey home with her husband, some time prior to 1913, and continued to reside there until her death, 16 May, 1941. This evidence was sufficient to carry the case to the jury on the question of title by adverse possession under color of title for seven years. Jt was error to direct a verdict in favor of defendants. As stated in Jacobs v. Williams, 173 N. C., 276, 91 S. E., 951: “The possession of the widow is not only not adverse to the heir, but it may be tacked to the possession of the ancestor for the purpose of perfecting title in the heir.” Where a widow, entitled to dower, remains upon the land of her husband after his death, whether or not dower is assigned, her possession is not adverse to the heirs of her husband. Farabow v. Perry, 223 N. C., 21, 25 S. E. (2d), 173; Trust Co. v. Watkins, 215 N. C., 292, 1 S. E. (2d), 853; Atwell v. Shook, 133 N. C., 387, 45 S. E., 777; Everett v. Newton, 118 N. C., 919, 23 S. E., 961; Nixon v. Williams, 95 N. C., 103. We refrain from discussing the remaining exceptions to matters which ■may not recur on another trial. For the 'reasons stated herein, there must be a New trial.