Quelch v. Futch, 174 N.C. 395 (1917)

Oct. 24, 1917 · Supreme Court of North Carolina
174 N.C. 395

J. P. QUELCH et al. v. D. K. FUTCH.

(Filed 24 October, 1917.)

Limitations of Actions — Nonsuit—Statutes.

In action to recover lands wherein tbe plaintiff depends upon a nonsuit in a former action to repel tbe bar of tbe statute of limitations, Revisal, sec. 370, it is necessary for him to bring bimself witbin tbe meaning of tbe statute and show identity of parties, cause of action, and title, or tbat be is tbe “beir at law or representative” of tbe former plaintiff,. tbe second action being regarded as a continuance of tbe writ in tbe first one; and it is insufficient if tbe plaintiff in tbe second action was a grantee of tbe plaintiff in tbe first one before tbe latter commenced bis action.

Appeal by plaintiff from Lyon, J., at tbe Spring Term, 1917, of New HaNOVER.

Tbis is an action to recover land.

During tbe progress of tbe trial tbe plaintiffs offered in evidence tbe summons, complaint, answer, and judgment of nonsuit in a case begun on tbe.day of., 191. — , by Thomas E Williams against tbe defendant herein, D. K. Futch, seeking to recover for bimself tbe property in controversy in tbis action. At tbe trial of tbat action tbe plaintiff suffered a nonsuit, and tbis action was begun by J. F. Quelcb in less than twelve months thereafter. At tbe time tbat Thomas E. Williams instituted tbe suit referred to, be bad made deeds referred to in tbe record herein, and J. P. Quelcb bad bis deed and was living on tbe tract described by metes and bounds in tbe deed from Thomas E. Williams to E. L. Kirkwood, assignee.

*396At the conclusion of the evidence the plaintiff prayed the court to charge the jury with reference to defendant’s plea of adverse possession under color, and more especially with regard to the tract of 18% acres claimed by deed under deed from "Worth, that the statute of limitations ceased to run on the date of the institution of the suit by Thomas R. Williams v. D. K. Futch. His Honor refused to so charge the jury, and charged the jury “that the date when the statute of limitations ceased to run in defendant’s favor was the date of the institution of this action on the.day of., 191....,” and the plaintiffs excepted.

From the judgment rendered plaintiffs appealed.

Kenan & Wright and McGlammy & Burgwyn for plaintiff.

John D. Bellamy & Bon, W. P. Gafford, and E. K. Bryan for defendant.

Allen, J.

The only question presented by the appeal is whether the plaintiff has brought himself within section 370 of the Revisal, so that he may have the benefit of the action instituted by Thomas R. Williams against the defendant to defeat the claim of adverse possession.

The statute provides, in substance, that if a judgment of nonsuit, etc., is entered in a pending action, “the plaintiff, or if he die and the cause of action survive, his heir or representative, may commence a new action within one year after such nonsuit,” and its. effect, when its terms are complied with, is to cause the new action to relate back to the commencement of the first action, and to stop the running of the statute of limitations at that time.

It is clear that the plaintiff does not come within the language of the statute, because he was not the plaintiff in the former action, and it does not appear that Williams, who was plaintiff, is dead, or that the present plaintiff is his heir or representative. Nor is he within the equity and spirit of the statute, which is based upon substantial identity of parties,- cause of action, and title, and because of these the two actions are treated as one, and the second action as a continuance of the writ in the first.

“The two suits must, it is said, .be for substantially the same causes and the parties in each suit identical.” 17 R. C. L., 814; Hughes v. Brown, 88 Tenn., 578. “The object is to preserve the right of any person having it at the time of instituting an action on his title.” Long v. Orrell, 35 N. C., 129.

The second action must be “based upon the same cause of action and title.” Marlin v. Young, 85 N. C., 158.

These conditions do not exist in the present action, as Williams, the plaintiff in the former action, had executed the deeds under which the *397plaintiff in this action claims, before his action was instituted, and he could not therefore be claiming by the same title as the present plaintiff.

No error.