Edgecombe County NcArchives Court.....Howard And Baker, Mary B. Day V. 1875
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File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a October 29, 2011, 12:41 pm

Source: Nc Reports
Written: 1875

Mary B. Day v. Geo. Howard and Joseph H. Baker

A delay by a feme covert, tenant in common, for three years and a few months 
after the death of her husband, and for seven years and a few months after the 
falling in of the life estate of her father, do not raise a presumption of an 
actual ouster by her co-tenants in common, as as to defeat her title, and 
under the statute of limitations bar her action.

Civil Action, for the recovery of the possession of real estate, tried before 
Moore, J., at the July (Special) Term, 1874, of Edgecombe Superior Court, upon 
the following

"Case agreed.

Bythel Bell, of Edgecombe County, died in 1802, leaving a will which was duly 
proved and recorded, and a copy of which is filed, &c. His widow and five 
children, to wit, Marmaduke N. Bell, Henry C. Bell, William W. Bell, Elizabeth 
Bell and Margaret Bell survive him. Elizabeth Bell died soon afterward, 
without issue and intestate. In the year 1809, and after the death of the said 
Elizabeth, the said Wm. W. Bell died without issue and intestate. Afterwards 
the widow of said testator died. In 1806, the said Margaret Bell married 
Robert Joyner, she being then under the age of twenty-one years, and had by 
said marriage, Mary Joyner and other children, all of whom died without issue 
and intestate, except the said Mary.

No deed can be found of record, conveying the interest of said Margaret Joyner 
and her husband, Robert, or either of them, in the land of which testator died 
seized, which descended to her as one of the heirs of said Wm. W. Bell. In a 
petition filed in 1810, November Term of the County Court of said county, by 
one William Foxhall and the said Henry C. Bell, it was alleged that the said 
Marmaduke N. Bell had purchased of the said Robert Joyner and wife Margaret, 
their share of the interest in said land, which descended from said William W. 
Bell, and had conveyed one-half of all the land of which said testator died 
seized, to the said William Foxhall. (Copies of said petition, &c., filed as 
part of the case, but which are not necessary to be inserted.) 

Henry C. Bell and William Foxhall sold the entire tract of land to James L. 
Battle, by deed in fee simple after 1810, but in the lifetime of Mrs. Joyner, 
and Battle took possession of he whole tract immediately; and the defendants 
and those under whom they claim, have had possession ever since, claiming the 
land as their own, by conveyances in fee simple from Battle and others 
succeeding him. Defendants claim that this in law amounts to an actual ouster. 
Neither said Robert Joyner nor his wife Margaret has had possession of any 
part thereof, since the date of said report.

The said Margaret Joyner married W. H. Day in the year 1830, she being then 
eighteen years of age. The said Robert Joyner died in 1854, having survived 
his wife, the said Margaret Joyner, many years. The said W. H. Day died on the 
14th day of November, 1859. The said Mary Day survived him, and is the 
plaintiff in this action, which was commenced by summons on the 4th day of 
November, 1871.

If the Court should be of opinion, that the plaintiff is entitled to recover, 
and is not barred by the statute of limitation, then judgment shall be 
rendered in favor of the plaintiff, for such a proportion of the hereinafter 
described land, as the Court shall be of opinion she is entitled to.

But if the Court shall be of opinion that she is barred by the statute of 
limitation, then judgment shall be rendered for the defendant"

His Honor being of the opinion that the plaintiff's actions was barred by the 
statute of limitations, gave judgment accordingly in favor of the defendants.

From this judment plaintiff appealed.

Batchelor, for appellant
Perry and Bridgers, contra

NC Supreme Court Justice Pearson, C. J. - There is error. Judgment reversed 
and judgment for plaintiff, (according to the case agreed,) to be let into 
possession with the defendants, of one undivided ninth part of the land. (see 
case for judge's full findings)

This will be certified
Per Curiam
Judgment accordingly

Additional Comments:
In the NC Supreme Court June Term 1875

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