Doe on the Demise of Childers v. Bumgarner, 53 N.C. 297, 8 Jones 297 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 297, 8 Jones 297

Doe on the demise of JAMES R. CHILDERS, et ux. et al. v. SIMON BUMGARNER.

Where the ancestor of a married woman died seized and possessed of a tract of land, it was held that the descent cast, and the title derived from her ancestor, according to the law of this State, gave her an actual seizin, and having had children during her coverture, her husband became tenant by the curtesy initiate, and was subject to the bar of the statute of limitations. A fortiori is such the case where one of the wife’s co-heirs made an actual entry; for his possession was that of all the heirs.

The children of one entitled to an estate as tenant by the curtesy, are allowed seven years from the death of their father before they are barred by the statute of limitations.

Where there were two counts in an action of ejectment on the demises of several heirs-at-law, and a general verdict was rendered, giving nominal damages, but on a point of law reserved it was determined that the lessor in one of the counts was barred by the statute of limitations, it was held that the other lessor was, nevertheless, entitled to his judgment.

Action of ejectment, tried before Dick, J'., at Fall Term, 1860, of Alexander Superior Court.

The first count in the declaration was upon the demise of James Childers and his wife, Margaret, the latter of whom is the daughter of William Munday, and the second count is on the demise of Margaret Jolly, Allen Jolly, Jane Jolly and John Jolly, the children of Jane Jolly, another daughter of William Munday. The ancestor of the plaintiff’s lessors had title to the land in question, and died seized thereof in 1833, and one or another of his children cultivated the premises until the year 1835, when the defendant entered, and has had adverse possession ever since, with a color of title reaching back to March, 1836. Both Mrs. Childers and Mrs. Jolly were married, and had children in the life-time of their father, and the latter has had none since his death. Mrs. Childers is «till living, but Mrs. Jolly died in 1841, and her husband, John Jolly, died in May, 1853.

This suit was brought 16th of March, 1860. It was insisted by the defendant that the lessor, Childers, could not recover because he had forborne to sue the defendant who was in, under a color of title, for more than seven years after his estate by the curtesy began, and as to the second count, that as the defendant was in the adverse possession of the premises in 1841, when Mrs. Jolly died, John Jolly, the husband, acquired no estate by the curtesy, and that there was nothing to prevent the statute of limitations from running against the heirs of Mrs. Jolly also.

A general verdict was rendered for the plaintiff on the facts of the case, for sixpence damages, his Honor reserving the question of law as to the right of the lessors of the plaintiff under the rules of law, with leave to set aside the verdict and enter a nonsuit in case he should be against the plaintiff on the points reserved.

Afterwards, on consideration of the case, his Honor gave judgment for the plaintiff, and the defendant appealed.

Boyden and Mitchell, for the plaintiff.

W. P. Oaldwell, for the defendant,

Pearson, C. J.

William Munday died in 1833; one of his sons entered and continued in possession until 1835 ; since that time, the defendant, and those under whom he claims, have been in the adverse possession under color of title.

James Childers, and his wife, Margaret, who is the daughter of William Munday, were married and had children at the time of his death. It is clear that Childers became entitled to an estate as tenant by the curtesy initiate, at the death of William Munday, the ancestor of his wife. The descent cast, and the title derived from her ancestor, gave his wife the actual seizin, and not amere constructive possession, according to the established doctrine of our courts; but, in addition to this, one of the lieirs-at-law entered and held possession for two years after the death of their ancestor, and it is settled that the possession of one tenant in common is the possession of all, in respect to third persons. So, James Childers acquired an estate as tenant by the curtesy initiate, in 1833, and being afterwards evicted in 1835, a right of actiort then accrued to him, which was barred by the subsequent adverse possession of the defendant, according to the distinction between an eviction Toefore coverture, where the right of action is that of the wife, and an eviction after coverture, where the right of action is that of the husband, and he is not allowed, by joining his wife, to protect himself from the operation of the statute of limitations; Williams v. Lanier, Busb. Rep. 30. It follows that the plaintiff was not entitled to recover on the count, laying the demise in the names of Childers and wife.

The same reasoning and authority shows that upon the deatli of William Munday, Jolly, who had married one of his daughters, and had children by her, who are the lessors of the plaintiff in the other count, became tenant by the curtesy initiate, and upon her death, in 1841, became tenant by the curtesy, and his estate did not determine until his death, in May, 1853, at which time the right of entry of her children, the lessors of the plaintiff, first accrued, and the statute of limitations did not begin to run, as against them, until that date, and the action, having been commenced in March, 1860, is within time. It follows, that the plaintiff is entitled to recover on the count laying the demise in their names.

An objection was made in this Court, that as the verdict is general, finding the defendant guilty on both counts, and the plaintiff was not entitled to recover on one of the counts, the judgment ought to be arrested. It is true, where a declaration,contains several counts, one of which is defective, and there is a general verdict for the plaintiff, the judgment must be arrested, although all the other counts be good; whereas, if one count in an indictment be good and there is a general verdict, judgment will not be ari’ested, although all of the other counts ax’e bad. The reason of this difference is, that in an indictment the jxuy merely finds the issue, and tlxe punishment is fixed by the court, and in so doing, the court is presumed to reject the bad coxxnts and regulate the senteixce in reference to the good coxxnt alone; but, in a civil suit, the jux-y not only finds the issue, but assesses the danxages, and, in doing so, the defective counts are considered, and influence the verdict as much as the good. This principle has no bearing on the present case, for both counts are good, and the damages are nominal, so that the judgment and the amount recovered are exactly the same as the plaintiff would have been entitled to had there been but one count, and the verdict in respect to the other, may be treated as surplusage.

The conclusion of the Court in State v. Williams, 9 Ired. Rep. 151, is strictly applicable; “It was manifestly of no •consequence, whether the conviction was upon any one or all of the counts, since the offences were of the same grade and the punishment the same.” Hese, the damages are the same, and the judgment is the same, and it is manifestly of no consequence whether the verdict was upon one or both counts.— 'There is no error.

Per Curiam,

Judgment-affirmed.