Opinion
(Filed 21 May, 1909.)
1. Deeds and Conveyances — Cities and Towns — Streets — Title Acquired — Subsequent Purchasers — Sleeping on Rights.
A land company acquired certain lands, laid them off into lots, with streets, platted them and incorporated a town therewith, sold a part thereof to defendant for a farm, conveying the title to the streets within the boundaries of his conveyance, and defendant obtained a quitclaim deed from the town authorities to the streets thus conveyed: Held, (1) subsequent purchasers of lots in a different part of the town so laid off could not maintain an action to enjoin defendant from blocking up the streets thus acquired by him on his own land; (2) an action begun more than ten years after defendant had acquired the deed from the land company and the quitclaim deed from the town would be barred by plaintiffs having slept on their rights, if any they had.
2. Deeds and Conveyances — Cities and Towns — Streets — Title Acquired — Equitable Rights — Parties in Interest — Parties to Conveyance — Estoppel.
When some of the plaintiffs claim as heirs at law of one who was an officer of defendant's grantor corporation, and, as such, a party to his conveyance, and the other plaintiffs are two corporations, the majority stock of which was held by one also an officer of defendant's grantor, no equitable rights can be asserted by them.
(727) ACTION tried before Justice, J., and a jury, at January Term, 1909, of WILKES.
W. W. Barber, Louis M. Swink, F. D. Hackett and C. G. Gilreath for plaintiffs.
Manly Hendren and Finley Hendren for defendant.
In 1890, upon completion of the railroad to a point opposite Wilkesboro, the Winston Land Company purchased the land around the new station and laid it off into lots, streets and alleys for a town. They made a map of the new town, which they procured to be incorporated as North Wilkesboro. The streets designated by the letters of the alphabet run east and west — B, C and D running westwardly to Reddie's River. The streets named by number — First, Second, Third, and so on — run north and south. The town is laid off in the northeast angle formed by the junction of Reddie's River with the Yadkin. Lying between the town and these rivers, on the south and west of the town, is low bottom land, suitable for farming and subject to overflow. No lots were ever laid off in this bottom land, save between B, C and D streets, and no lots were sold west of an alley which was laid off 170 feet west of Tenth Street. In 1893, the Winston Land Company laid off an alley 30 feet wide, running from A to D streets, 170 feet west of and parallel with Tenth Street. It laid off the lots on this 170-foot strip lying between Tenth Street and this 30-foot alley, facing these lots westwardly on Tenth Street. All the land west of this 30-foot alley north of B Street the land company sold to the defendant, by the acre, for farming purposes, and quitclaimed the streets and alleys which had been laid out thereon. In February, 1897, the town commissioners passed an ordinance vacating the streets and alleys which had been laid out by the land company on the land sold as above to the defendant and, in addition thereto, the town executed a deed conveying to the defendant whatever rights the town had in said discontinued streets and alleys. Upon these discontinued streets, lots and alleys, dwellings and (728) manufacturing plants have since been erected. The streets, lots and alleys thus discontinued had been surveyed and laid down on the map, but the streets and alleys were never graded and no lots facing upon them were sold. Upon the conveyance to the defendant, in 1893, he fenced off his purchase. The plaintiffs are owners of lots in the other parts of the town, but all these lots, except one, were acquired by them after the sale to the defendant, and the owners of that lot are the heirs of W. M. Absher, who was a large stockholder and director in the Winston Land Company, and, in his official capacity, party to the deed to the defendant. The only other plaintiffs are the State Company and the Deposit Bank, of both of which W. F. Trogden is president and owner of a majority of the stock. He was secretary, treasurer and managing agent of the Winston Land Company, and as such was a party to the deed to the defendant. The summons herein issued 30 April, 1907. On motion the action was dismissed as on nonsuit.
This action is to compel the defendant to open the streets and alleys on the land sold to him, and is governed by Church v. Dula, 148 N.C. 262. This section of the proposed town was, it is true, laid off on the map, but it was cut off, conveyed to defendant and fenced out before any of the streets and alleys were ever used, and no lot was ever sold in this abandoned section. The land company conveyed this section, including the proposed streets and alleys, to the defendant, in 1893, and, in February, 1897, the town authorities quitclaimed to the defendant any rights it might have to the streets and alleys in this abandoned and discarded "cut-off." This action began more than ten years thereafter — 30 April, 1907. The plaintiffs have slept on their rights, if any they had. Staton v. R. R., 147 N.C. 428.
Besides, the plaintiffs are in no situation to assert any equitable rights. All the lots they hold were acquired after the land company had conveyed this "cut-off" to the defendant, except one (729) held by the heirs of W. M. Absher, who was a party, as an officer of the land company, to the deed to the defendant, and the other plaintiffs are two corporations, the president and owner of the majority of the stock in both of which companies (W. F. Trogden) was likewise an officer of the land company and a party to the conveyance to the defendant.
The judgment dismissing the action as of nonsuit is
Affirmed.