July Term, 1811.
A, a married woman, being seized of lands, joins her husband in a deed of them to B, who enters and occupies the lands seven years, during the coverture of A, who then dies, leaving C her heir at law. A never acknowledged her deed to B; it was proved as to her husband, and registered. B occupied the lands more than three years after the death of A, without any claim or suit by C. C was a feme, and with her husband brought suit for the lands after the expiration of three years from A's death. But it did not appear whether she labored under any disability at the time of A's death. The Court, to avoid deciding the question as to the effect of cumulative disabilities until it be fairly presented for decision, will presume that C did not labor under any disability at the time of A's death; and seven years' adverse possession having run in the lifetime of A, and continued for three years after her death, the right of entry of C and her husband is barred.
THE lands claimed in this ejectment were granted to John Tannyhill on 6 December, 1720. On 13 February, 1753, Nathan Smith made a deed of bargain and sale in fee of the lands to Francis Dawson, who devised them to Anne Dawson, 17 February, 1781. Anne Dawson, having married Seldon Jasper, they executed to William Clayton and Nelson Delamar the following instrument, to wit:
Gaston for plaintiff.
This indenture, made this 13 September, 1798, between Seldon Jasper and Anne Jasper, of the State of North Carolina and county of Hyde, on the one part, and William Clayton and Nelson Delamar, of the State aforesaid and county of Craven, of the other part, witnesseth: that for and in consideration of the sum of 400 Spanish milled dollars, to the said Seldon Jasper and Anne Jasper in hand paid by the said William Clayton and Nelson Delamar at the sealing and delivery of these presents, the receipt whereof is fully acknowledged, we, the said Seldon Jasper and Anne Jasper, have granted, bargained and sold, and by these presents do grant, bargain and sell unto William Clayton and Nelson Delamar, all our right, title and interest in a certain piece or tract of land, situate, lying and being on the north side of Neuse River, and partly at (63) the mouth of said river, it being the whole of that parcel or piece of land which was left by will by Francis Dawson, Sr., to the said Anne, generally known by the name of the Gum Thicket, containing by estimation 300 acres, be the same more or less. And we, the said Seldon and Anne Jasper, do warrant and defend the aforesaid granted lands and premises from him, the said Seldon Jasper and Anne Jasper, their heirs, executors, administrators and assigns forever, from the lawful claim of any other person. In testimony whereof, we have hereunto set our hands and affixed our seals, the year and date above written.
SELDON JASPER. (SEAL.)
ANNE JASPER. (SEAL.)
In presence of FRANCIS DELAMAR, CHRISTOPHER DELAMAR.
STATE OF NORTH CAROLINA — Craven County Court, March Term, 1804. Then was the within deed proved in open court by the oath of Francis Delamar, one of the subscribing witnesses thereto, and ordered to be registered.
Teste: SAML. CHAPMAN, C. C.
I certify that the within deed is correct agreeably to the register's office of Craven County — Book Z, page 317.
Teste: THOS. L. CHEEKE, Register.
The wife of said Jasper never acknowledged the said deed, had no children, and died in February, 1806 N.C. leaving the plaintiff her heir at law, and her husband, Seldon Jasper, yet living. The question submitted to this Court was, Whether a possession of seven years by Delamar and Clayton, under the aforesaid deed, before the death of Anne Jasper, and three years thereafter without claim or suit, bars the right of entry of her heir at law, Eunice, the wife of Roger Jones.
It doth not appear in the statement of the case whether Eunice, the heir at law of Mrs. Jasper, was of full age or covert at the time of Mrs. Jasper's death. Although the fact be not stated in the case, yet it is admitted by the parties that Clayton and Delamar had seven years' possession of the lands before the death of Mrs. Jasper. The character of their possession is evidenced by the deed under which they claimed. It is also admitted that this possession was continued for more than three years after Mrs. Jasper's death. If, instead of the death of Mrs. Jasper, she had become discovert, the act of 1715, ch. 27, gave her three years after her discoverture to bring her suit or make her entry. What time shall be allowed to her heir at law? It is said, if at the time the descent is cast the heir labor under disability, the statute of limitations shall remain suspended during the disability; so that if Eunice was married to Roger Jones at the time of Mrs. Jasper's death, she shall have during all the coverture and three years thereafter to bring her suit or make her entry or claim, notwithstanding seven years' adverse possession had run in the lifetime of her ancestor, Mrs. Jasper. This would at once present the question of cumulative disabilities to the Court — a question which will not be decided until it be fairly presented. It would be wrong to decide it in this case by assuming facts which are not in proof. As the verdict and judgment in this (65) case is not conclusive upon the rights of the parties, the Court will rather presume that Eunice labored under no disability when Mrs. Jasper died, and that this suit being instituted more than three years after that event, her right of entry was barred by the adverse possession of the defendants. Judgment for defendants.
Cited: Fagan v. Walker, 27 N.C. 638; Williams v. Lanier, 44 N.C. 38.