Iredell County NcArchives Court.....W.S. Clendenin, J. C. Clendenin Et Al V. 1921 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 14, 2009, 7:55 pm Source: North Carolina Reports Spring Term Written: 1921 J.C. Clendenin Et Al v. W.S. Clendenin (Filed 7 June, 1921) 1. Deeds and Conveyances-Husband and Wife-Probate-Title A deed by a married woman to convey her land will pass no interest therein when her privy examination has not been taken according to law. 2. Limitation of Actions-Adverse Possession-Ouster-Notice The use and occupation of land is not alone sufficient to confer title on the occupant, the presumption being that the title is in the true owner; and the statute will only ripen the tile of the occupant when it has been adverse for the statutory period; that is, open, continuous, notorious, and hostile to the true owner, and evidenced by such unequivocal acts as will put the true owner on notice of the claim. 3. Same-Relationships of Parties, Parent and Child The husband moved with his wife upon the lands of her mother, and continued thereon with her and their children to the death of his mother-in-law and of his wife, who inherited the lands from her, and cultivated them without giving clear, definite, or unequivocal notice of his intention to exert exclusive ownership; Held, the character of the husband's possession was affected by the relationship of the parties, and this possession was subordinate to the superior title, inherited by his children from their mother, and could not ripen a perfect title in him. 4. Limitation of Actions-Adverse Possession-Color of Title The question of color of title to lands does not arise when the character of the possession of the claimant is not sufficient to ripen a perfect title in him. 5. Appeal and Error-Judgments-Modification and Dismissal Where a judgment has been properly entered against a party, except that it allows a greater amount for damages than found by the verdict, it may be modified in this respect on appeal and affirmed. Clark, J., dissenting Appeal by defendant from Lane, J., at the October Term, 1920, of Iredell. This is an action, commenced 1 May, 1919, to recover land, which formerly belonged to Jane E. Click, a marriage woman, who died intestate in October, 1901, leaving as her only heirs one daughter, Annie Fleming, and the plaintiffs, who are the children of a deceased daughter, Belle V., and of the defendant, W.S. Clendenin. The interest of Annie Fleming has been conveyed to the plaintiffs. The husband of Jane E. Click died in 1902, and Belle V. in 1893. The defendant married in 1885, and the children, who are plaintiffs, were born respectively, 18 January, 1887; 18 or 21 December, 1889; 18 December, 1891. The defendant was permitted to introduce in evidence a paper-writing of date 10 February, 1896, purporting to be executed on 10 February, 1896, by Jane E. Click and her husband, and to convey said land to the plaintiffs, with the following reservation therein in behalf of the defendant: "It is further hereby stipulated that the said W.S. Clendenin shall hold a life estate in the above described tract of land." The private examination of Jane E. Click was not taken, and there is no probate of the writing or other proof of its execution except that on 11 February, 1919, it purports to have been proved on the oath and examination of two witnesses to the handwriting of the subscribing witness, and was put on the record on 12 February, 1919, and there is no evidence that the plaintiffs knew of it existence prior to that time. The defendant relied on said paper as color of title for a life estate, and that his color had ripened into a good title by seven years adverse possession. He also contended that if the paper was not color he was the owner of a life estate by twenty years adverse possession. His Honor instructed the jury to answer the first issue "Yes," if they believed the evidence, and the defendant excepted. The jury returned the following verdict: "1. Are the plaintiffs the owners and entitled to the possession of the lands described in the complaint? Answer: 'Yes.' "2. What amount are the plaintiffs entitled to recover of the defendant as rent? Answer: '$100.'" There was a judgment in favor of the plaintiffs, and the defendant appealed. Dorman Thompson for plaintiffs Long & Jurney and W.D. Turner for defendant [NC Supreme Court] Allen, J. Modified and affirmed [See court case for Judge Allen's complete findings} File at: http://files.usgwarchives.net/nc/iredell/court/wsclende1264wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 4.9 Kb