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MORRISON v. CRAVEN
Practice — Appeal — Waiver of Diligence — Color of Title — Possession Under Color of Title — Tacking Possession of Several Parties — Judicial Proceedings — Estoppel.
1. Where counsel waive the diligence required by rule 5 of this Court as to docketing appeal, it will not be exacted by the Court.
2. The possession of a grantor who had no color of title cannot be tacked to that of his grantee in order to make up the necessary seven years' possession under color of title.
3. Where the record of a proceeding to sell land, as the property of a decedent, to make assets for the payment of his debts, recited that "due notice had been given to all parties concerned," it is sufficient to estop an infant heir of a decedent from claiming the land as his heir when such heir had a general guardian.
DOUGLAS, J., dissenting.
CLARK, J.
This action, having been tried in the court below at June Term, 1895, should have been docketed here at the Fall Term of that year, or a certiorari applied for upon filing such part of the transcript as was available to the appellant. Burrell v. Hughes, ante., 277. But, by agreement of counsel, the case is now docketed, and where counsel waive the required diligence the court will not exact it.
The plaintiff rests her right to recover upon seven years' possession in her father under color of title. Code, sec. 141. The deed to him, which was color of title, was executed in 1852, but the grantor therein remained in possession for three years thereafter, upon plaintiff's own showing, and her father's possession thereunder began, at the earliest, some time in 1855. There was no color of title shown in the (330) grantor, and hence his possession could not be added to that of his grantee. Therefore, the full seven years' possession necessary to ripen the title had not elapsed when the running of the statute was suspended in May, 1861, and soon thereafter, if not before, those under whom defendant claims, went into adverse possession. Besides, the plaintiffs are estopped by the proceedings in 1863 to sell the realty as the property of John M. Pharr, deceased, to make assets, for the court adjudged that "due notice had been given to all parties concerned," and the land in controversy was sold under the judgment in this case ( Harrison v. Hargrove, at this term), and the feme plaintiffs were among his heirs at law, and further, at that time, had a general guardian. Hare v. Holloman, 94 N.C. 14; Code, sec. 387. The court records have been destroyed and there was nothing to rebut the presumption omnia rite acta est and that the plaintiff was duly made a party by her guardian, according to the judgment of the court that "all parties concerned" had been notified. It is significant evidence, though not an estoppel, that in the partition proceedings of the land of J. O. Pharr this realty was not mentioned. It is unnecessary to consider the other exceptions.
Error.
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