Carswell v. . Creswell

Clarkson, J. The only exception and assignment of error made by defendants is to the order of the court below overruling the defendants’ demurrer. We think the ruling of the court below correct. The plaintiff states two main contentions why the demurrer should have been overruled. As one is sufficient to determine this cause, we do not consider the other: The plaintiff contends that he has been in possession and held the property in controversy adversely for thirteen years *45 next preceding tbe commencement of this action, under known and visible lines and boundaries and colorable title, by virtue of a valid deed from tbe trustees to tbe plaintiff. That be purchased tbe land in good faitb and paid full value. Tbat therefore plaintiff’s title has ripened into a fee simple title by adverse possession under color of title for more than seven years. ¥e think plaintiff’s contention correct under tbe facts and circumstances of this case. N. C. Code, 1935 (Michie), sec. 428, is as follows: “When a person or those under whom be claims is and has been in possession of any real property, under known and visible lines and boundaries and under color-able title, for seven years, no entry shall be made or action sustained against such possessor by a person having any right or title to tbe same, except during tbe seven years next after bis right or title has descended or accrued, who in default of suing within tbat time shall be excluded from any claim thereafter made; and such possession, so held, is a perpetual bar against all persons not under disability.” Adverse possession consists of tbe actual possession of property held to tbe exclusion of others, including tbe true owner, and is exercised by making tbe ordinary use of which tbe property is susceptible in its present state and taking tbe usual profits. Locklear v. Savage, 159 N. C., 236; Owens v. Lumber Co., 210 N. C., 504 (508). Tbe record discloses tbat plaintiff bad not only possession for seven years, in conformity to tbe above statute, but for thirteen years. Tbe defendants contend: “There is respectable authority to tbe effect tbat where lands have been dedicated for use as a public square or common or park or playground title thereto can never be acquired by adverse possession, whether under color of title or not.” They cite tbe case of Moose v. Carson, 104 N. C., 431 (434), where it is said: “No one can acquire as a general rule by adverse occupation as against tbe public tbe right to a street or square dedicated to tbe public use. Hoadley v. San Francisco, 50 Cal., 265; People v. Pope, 53 Cal., 437.” 1 Amer. Jurisprudence, p. 850, sec. 106. We do not think tbe deed creating tbe trust in this case susceptible of tbe defendants’ construction. See Sheets v. Walsh, ante, 32. "We have tbe following statute — N. C. Code, supra, sec. 435 : “No person or corporation shall ever acquire any exclusive right to any part of a public road, street, lane, alley, square or public way of any kind by reason of any occupancy thereof or by encroaching upon or obstructing tbe same in any way, and in all actions, whether civil or criminal, against any person or corporation on account of an encroachment upon or obstruction or occupancy of any public way it shall not be competent for a court to bold tbat such action is barred by any statute of limitations.” This statute -is not applicable in this ease. *46 Ill tbe case of Shannonhouse v. Wolfe, supra, it was beld by tbis Court tbat tbe Park Eoad Community House property was in tbe nature of a charitable trust, and tbe decisions are uniform tbat adverse possession under color of title of property belonging to a charitable trust will ripen into a full title for tbe person in such adverse possession.- Tbe general rule is stated in 2 Corpus Juris, part sec. 476, at p. 225, as follows: “But in tbe absence of some statutory provision to tbe contrary, title by adverse possession may be acquired as against a religious or charitable corporation or educational corporation, and tbat, too, although such corporations are expressly prohibited by statute from conveying their lands.” Tbe same general rule is reaffirmed in 2 Corpus Juris Secundum, sec. 5 in part, at pp. 515-516: “In tbe absence of some statutory provision to tbe contrary, title by adverse possession may be acquired against religious, charitable or educational corporations, even though such corporations are expressly prohibited by statute from conveying their lands.” In Herndon v. Pratt, 59 N. C., 327 (333-334), Pearson, C. J., speaking to tbe subject says: “Tbe principle, tbat when tbe statute of limitations is a bar to tbe trustee, it is also a bar to tbe cestui que trust for whom be bolds tbe title, and whose right it is bis duty to protect, is settled; Wellborn v. Finley, 7 Jones, 228. In delivering tbe opinion in tbat case, tbe principle was considered so plain tbat it was deemed unnecessary to cite authorities, and tbe Court was content to leave tbe question on tbe manifest reason of the thing. For statutes of limitation and statutes giving title by adverse possession, would be of little or no-effect, if their operation did not extend to cestui que trust as well as trustees who bold tbe title for them, and whose duty it is to protect their rights. If by reason of neglect on tbe part of tbe trustees, cestm que trust lost tbe trust fund, their remedy is against tbe trustees, and if they are irresponsible, it is tbe misfortune of tbe cestui que trust, growing out of tbe want of forethought on tbe part of tbe maker of tbe trust, under whom they claim.” 2 A. L. R., at p. 41, et seq. Wellborn v. Finley, 52 N. C., 228; Blake v. Allman, 58 N. C., 407; Clayton v. Cagle, 97 N. C., 300; King v. Rhew, 108 N. C., 696; Kirkman v. Holland, 139 N. C., 185; Cameron v. Hicks, 141 N. C., 21. In Orange County v. Wilson, 202 N. C., 424 (427), is tbe following." “Besides, tbe trustees of tbe petitioners were parties defendant and were served with process.” Tbe principle was so well settled tbat it was recognized without citing authorities, tbat a trustee could bind tbe cestuis que trustent. Tbe defendants raise tbe questions: “Would judgment in tbis case be binding upon minor residents in tbe community who are neither parties *47 to the action nor represented by guardians ad litem?” and “Would judgment in this cause be binding upon the other numerous beneficiaries not parties to this action under the doctrine of representation?” N. C. Code, supra, sec. 457, in part, is as follows: “When the question is one of a common or general interest of many persons, or where the parties are so numerous that it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” We think the deed of the trustees bound all who had an interest in the land if not the community meeting, and other matters set forth in the record were in the nature of an estoppel. From the facts and circumstances of this case, we think none of the contentions of defendants can be sustained. We think the deed tendered by plaintiff to defendant J. E. Harris conveyed to him “a good fee simple marketable title to the locus in quo, entirely freed from the trust heretofore imposed upon same,” and defendant Harris is bound by the contract to take and pay for the land. The brief of defendants is persuasive, but not convincing. For the reasons given, the judgment of the court below is Affirmed.