Gill v. . Porter

Brown, J. It is useless to consider any assignments of error except such as relate to tbe third1 issue, for if that finding stands tbe plea of sole seisin interposed by Mrs. Mae Hinson Porter must be sustained. Tbe evidence discloses that David Gill owned tbe land in controversy and lived on it in 1865. He then removed to Wake County. His son, Henry P. Gill, then took possession and remained on tbe land until bis death in 1896. On 29 May, 1896, immediately preceding bis death, be conveyed the entire tract of land to Daniel M. Morrison, who took possession and there remained until be conveyed tbe land to John P. Cameron and John M. Smith on 10 February, 1901. They entered and held possession until they sold to C. V. Williams and A. W. Porter, conveying to each separate parts of tbe land. A. W. Porter took and held possession of bis part, being tbe land in controversy, until be conveyed to bis wife, Mae Hinson Porter, on 2 July, 1913. She has been in possession from then until tbe trial. Tbe judge correctly instructed, tbe jury that tbe statute of limitations, did not begin to run until 29 May, 1896, when Henry P. Gill conveyed tbe entire tract to Morrison, who then entered and claimed tbe land as bis own. Tbe contention that tbe deed from Henry P. Gill to Morrison purports to convey only tbe interest of a tenant in common owned by tbe grantor cannot be maintained. Tbe deed purports to convey tbe entire tract of land in fee simple and with full covenants of warranty. No matter what was tbe legal effect of tbe trust deed of 1882, tbe deed from *453 H. P. Gill to Morrison constitutes good color of title to tbe entire tract described in it. When Morrison entered into possession under that deed, claiming the whole of the land, the statute began to run against the trustee, D. D. Gill. Assuming that the possession of H. P. Gill was not adverse to the other children of David Gill, the possession of Morrison and those claim-, ing under him has been adverse for more than twenty years up to 16 January, 1917, when the defendant Mae Hinson Porter was made a party to this proceeding. It is true, as contended, that A. ~W. Porter, John P. Cameron, and others were adjudged to be tenants in common of this land with plaintiffs, but no such adjudication was made against Mrs. Porter. She was not a party to the action and is in no manner bound by the decree. The plaintiffs contend that if Mrs. Porter relies upon the possession of her husband, she can tack it to hers only in the character it had been adjudicated to be. This is true if' she had purchased from her husband pending the action, but he was not in possession when that action was begun on 28 April, 1914. The record shows that he had conveyed to Mrs. Porter by deed recorded 2 April, 1914. By operation of law, the tenants on the land became her tenants on that date, and from thence she became entitled to the rents. Her possession then became adverse to all the world, including her grantor. Barrett v. Brewer, 153 N. C., 552. Mrs. Porter obtained her title and possession by “purchase” on 2d April, 1914, and the suit entered against A. W. Porter on 28 April, 1914, was against one who had neither title nor possession; and any answer filed in that suit by A. W. Porter, or any statements or conduct of his in that case cannot affect the title of his grantee. Any declaration or acts of A. W. Porter after the delivery of his deed were incompetent against Mrs. Porter in disparagement of her title or her possession. Ward v. Saunders, 28 N. C., 382; Hodge v. Spicer, 79 N. C., 223; Headen v. Womack, 88 N. C., 468; Grandin v. Triplett, 173 N. C., 732. There is a marked distinction between this case and Locklear v. Bullard, 133 N. C., 264, relied on by plaintiffs, in that A. W. Porter was not a tenant in common in possession. He had parted with title and possession prior to the commencement of the action against him. Mrs. Porter was not in any sense a privy to that action because she acquired both title and possession prior to its commencement. A privy to a' judgment is one whose succession to the rights of property affected occurs after the institution of the suit and from a party to it. Bigelow on Estop., p. 142. *454 The cases cited by counsel for plaintiffs would be in point if the deed from Porter to his wife had been executed after 28 April, 1914, when the action against the husband was commenced. The charge of the court as to what constitutes adverse possession is strictly correct and need not be commented on as it follows almost verbatim the language of this Court in Locklear v. Savage, 159 N. C., 236, and quoted with approval in McCaskill v. Lumber Co., 169 N. C., 24. No error.