Wayne County, NC - Court - A.B. Ward vs Farmer & Southerland, 1885

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The Reporter

In the Superior Court, February Term, 1885

North Carolina }  Superior Court
Wayne County   }  January Term, 1885

A.B. Ward et als    }
       vs           } Statement of Case on Appeal
M.B. Farmer and     }
Needham Southerland }

This was a special proceeding for partition of land commenced before the
Clerk of Wayne Superior Court, and the defendants having pleaded they were
sole seized of the lands in question, and issue having been joined thereon,
said issue was transferred for trial by jury in term to the Superior Court
of said county ; and the said issue having come on for trial at January
Term, 1885, of said Court, before his Honor, Judge Gudger, it was admitted
that one Josiah Ward was, in his lifetime, seized in fee of said land, and
that the plaintiffs and one W.W. Ward were the only heirs-at-law of the said
Josiah Ward, who died prior to the year 1865.

It was further admitted that the plaintiff, Frances Kelly, was entitled to
recover one-fourth, and the plaintiffs, John B. Ward and Jane F. Padget
together, one-eighth of said land.

It was proved that on the 25th day of November, 1870, a judgment against the
said W.W. Ward was duly docketed in the county of Wayne, in which said land
was situated, and that under an execution duly issuing thereon, the interest
of the said W.W. Ward in said land was regularly sold by the sheriff to one
A. Day, to whom the said sheriff executed a deed in fee, conveying the interest 
of said W.W. Ward in said land, on the 7th day of October, 1870, and that 
thereafter, to-wit: on the 1st day of January, 1873, the said A. Day conveyed 
a fee to each of the defendants a part of said land, together constituting the 
whole thereof, by deeds professing to convey the whole, and not an undivided 
part thereof, to the said grantees. A copy of said deeds are herewith filed 
and made a part of this case. The following issue was substituted to the jury, 
to-wit:

Were the defendants in the adverse possession of the land in controversy from
the first day of January, 1873, to the second day of November, 1883 ? And 
under said issue the defendants offered a witness, who testified as follows:

That the defendants, M.B. Farmer and Needham Southerland, had been in possession
of the land in controversy from January 1st, 1873, to November, 1883; that no
one else had been in possession, and that the defendants occupied and used the
same, claiming it as their own, under their deeds from A. Day; that they built
upon the land, cleared it, and otherwise improved the same; that there were
marked and visible lines around the land, and that they occupied up to the lines 
in face of the public, and paid taxes on same.

After argument of counsel, the Court instructed the jury that no possession 
short of twenty years, except after an acutal ouster, would be adverse as against
tenants in common, and instructed them to find said issue in the negative. The
defendants excepted.

The jury found said issue in the negative, and thereupon His Honor adjudged that
the cause be remanded to the Clerk of the Superior Court, in order that further
proceedings might be had for the partition of said lands according to law. The 
defendants excepted.

From this judgement the defendants appealed. Notice of appeal waived. Bond fixed
at fifty dollars.

                                    Dortch & Strong,
                                    Attorneys for Defendants.
                                    Faircloth & Allen,
                                    Attorneys for Plaintiffs.


N.B. Ward et als vs Farmer & Southerland
Feb. 1885
Box 14,355

This indenture made this first day of January in the year one thousand eight
hundred and seventy three between Albert Day of the town of Goldsboro in the
county of Wayne and State of North Carolina and Caroline E. his wife, parties
of the first part and Needham Southerland of the county of Duplin and State
aforesaid party of the second part - Witnesseth that the said parties of the
first part for and in consideration of the sum of twelve hundred and fifty
pounds of lint cotten of good quality to them in hand paid by the said party
of the second part at or before the ensealing and delivering of these presents
the receipt whereof is hereby acknowledged have demised released and quit-
claim unto the said party of the second part and to his heirs forever all that
certain piece or parcel of land lying and being situated in Brogden Township
and in the county and State aforesaid adjoining the lands of Thomas Beard
John Kornegay & others and more fully known as being a part of the W.W. Ward
tract and bounded as follows - begining at the ford across Reedy branch on
the Fayetteville road and runs thence along said road about 140 poles to A.H.
Jones line, then with his line North 201 poles to a stake on the Goldsboro
road Jones corner, then along said road North 26 W 65 poles to a stake then
S 62 W 62 poles then North 41 W 95 poles to a stake Catherine Price corner,
then South 19 W 82 poles to a sweet gum in Gum Branch, then S 73 E 111 poles
to a maple in Reedy Branch then down the run of said Branch to the begining
containing by estimation one hundred seventy three and one half acres together
with all and singular the tenements hereditaments or in any wise appurtaining
and the reversion and reversions, remainder and remainders rents issues and
profits thereof and also all the estate right title and interest down and right
of Jones property possession claim and demand whatever as well in how as in 
equity and the said parties of the first part of, in or to the above decided 
premises and every part and parcel thereof with the appurtenances to have and 
to hold all and singular the above mentioned & described premises together with 
the appurtenances unto the said party of the second part his heirs and assigns
forever

In Witness whereof the said parties of the first part have hereunto set their
hands and seal, the day and year first above written
Sealed and delivered                                   A. Day {Seal}
in presence of                                         C.E. Day {Seal


This indenture made the first day of January one thousand eight hundred and
seventy three between Albert Day of the town of Goldsboro in the county of
Wayne and state of North Carolina and Caroline E. his wife parties of the
first part and M.B. Farmer of the county of Wayne and state aforesaid party
of the second part

Witnesseth that the said parties of the first part for and in consideration
of the sum of twelve hundred and fifty pounds of lint cotton of good quality
to them in hand paid by the party of the second part at or before the 
ensealing and delivery of these presents the receipt whereof is hereby
acknowledged have remised, released, and quit claimed unto the said party of
the second part to his heirs and assigns forever all that certain piece or
parcel of land lying and being situated in Brogden Township and county of
Wayne and state aforesaid adjoining the lands of A.H. Jones R.W. Woodard &
others and more fully known as being a part of the W.W. Moore land and 
bounded as follows, begining at the ford across Reedy branch and on the
Fayetteville raod and runs along said road about one hundred and fifty poles
to A.H. Jones line, then with his line S 90 poles to a sweet gum said Jones
corner on the run of Arthens Branch then down said branch to a black gum on
the mouth or junction with Munn's Branch then up the run of said branch to 
the mouth of Reedy branch to a water oak then up the run of said Reedy branch
to the begining containing by estimation one hundred and sixty four (164)
acres together with all and singular the teniments, hereditaments and 
appurtenances thereto belonging or in anywise appertaining and the reversion 
& reversions, remainder and remainders, rents, issues and profits thereof and
also all the estate right title interest dower and right-of-dower, property
possession claim and demands whatever as well in how as in equity and the
said parties of the first part of in or to the above described property and
every part and parcel thereof with the appurtenances, to have and to hold
all and singular the above mentioned and described premises, together with
the appurtenances unto the said party of the second part and his heirs and
assigns forever.

In Witness whereof the said parties of the first part have hereunto set
their hands and seals the day and date above written
Sealed and delivered                                   A. Day {Seal}
in the presence of                                     C.E. DAy {Seal}


State of North Carolina }
Wayne County            }   Probate Court
Be it remembered that on this 14th day of January AD 1873, before the
undersigned Judge of Probate for said county personally came A. Day and
Caroline E. Day his wife the persons described in and who signed the foregoing
deed and acknowledged the due execution thereof by them as their act and deed
and therefore the said Caroline E. Day being by the undersigned privately
examined separate and apart from her said husband, touching her for consent
in the execution thereof does declare that she executed the said deed freely
of her own free will and accord without force fear or other undue influence
of her said husband or of any other persons and does still voluntarily assent
thereto, therefore let the said deed together with this certificate be 
registered
                                             Geo. John Robinson
                                               Probate Judge

Received & recorded Jany 15th 1873

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