{
  "id": 8661971,
  "name": "A. S. T. JOHNSON et al. v. EVERSOLE LUMBER COMPANY",
  "name_abbreviation": "Johnson v. Eversole Lumber Co.",
  "decision_date": "1907-05-27",
  "docket_number": "",
  "first_page": "717",
  "last_page": "720",
  "citations": [
    {
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      "cite": "144 N.C. 717"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
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      "cite": "25 N. C., 146",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "140 N. C., 57",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "118 N. C., 802",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "84 N. C., 239",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8690411
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    {
      "cite": "138 N. C., 442",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "132 N. C., 790",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "140 N. C., 258",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8651859
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  "last_updated": "2023-07-14T19:27:07.773177+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "A. S. T. JOHNSON et al. v. EVERSOLE LUMBER COMPANY."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nAction for damages for cutting and removal of timber trees from two tracts of land described in tbe complaint. Tbe plaintiffs derive title by mesne eonveya\u00f1ces from J. T. Poster, to whom State grants ISO and 151, issued 20 April, 1855, for 640 acres each, upon entries made by bim 5 November, 1853, and surveyed April, 1854. These grants were registered 27 June, 1856.\nTbe defendant derives title by mesne conveyances from Allison & Welch, under State grant 408, for 5,000 acres (embracing tbe locus in quo), issued 26 December, 1851, upon an entry made 23 March, 1853, and surveyed 17 and 18 October, 1853. This was registered 27 July, 1858. Tbe defendant asks that tbe plaintiffs be decreed trustees for its benefit and to convey whatever title, if any, they may have. Tbe plaintiffs\u2019 replication pleads tbe bar of tbe ten years\u2019 statute of limitations.\nIf the statute of limitations is a bar to the equity set up by the defendant, it is unnecessary to consider whether the equity alleged- is otherwise valid or not. In McAden v. Palmer, 140 N. C., 258, where the defendants claiming, as here, under a grant junior to plaintiff\u2019s grant, but issued upon an entry prior to bis, asked to have the plaintiff declared trustee of the legal title for their benefit, the Court sustained the plaintiff\u2019s plea of the statute of limitations. The defendant\u2019s cause of action in this case accrued upon the registration, 27 June, 1856, of the grant to' Poster, under which the plaintiffs claim. The matter is so fully and clearly discussed by Mr. Justice Brown in McAden v. Palmer, supra, that it is sufficient to refer to the opinion in that case without repeating what is there so well said. The plea of the ten years\u2019 statute upon the same state of facts was also sustained-in Ritchie v. Fowler, 132 N. C., 790. \u201cThe legal title vesting in the first grantee drew the constructive possession, which continued until there was an ouster.\u201d Janney v. Blackwell, 138 N. C., 442. Here there is no evidence of possession of the lands within the bounds covered bj grants 150 and 151 by the defendant, or those under whom it claims, after the registration of the grant to Foster in April, 1855, and its registration in June, 1856, till the cutting of timber by the defendant in 1900 or 1901, for which this action was begun 31 July, 1902. Indeed, neither party was in possession nor paid taxes. The latter is probably a not uncommon circumstance as to wild lands and may well call for the closer attention of officers charged with the duty of collecting State and county taxes.\nThe defendant contends, however, that the statute does not run in favor of plaintiffs because Foster, the original grantee, left the State in 1860, and he and those under whom the plaintiffs claim have been non-residents ever since, relying upon Code, sec. 162, now Revisal, sec. 366. But that section by its terms did not apply to causes of action accrued prior to 24 August, 1868. Blue v. Gilchrist, 84 N. C., 239.\nIt is true.that this claim, having accrued 27 June, 1856, was governed by the ten years\u2019 statute of presumptions (R. C., ch. 65, sec. 19; Campbell v. Brown, 86 N. C., 376), and that Code, sec. 136, provided that the limitations in The Code should not apply to causes of actions accrued prior to 24 August, 1868, and section 137 suspended the statute of limitations and presumptions from 20 May, 1861, to 1 January, 1870. The ten years\u2019 statute of presumptions expired, therefore (eliminating-8 years, 7 months, 10 days), on 9 March, 1875, and there was no evidence to rebut the presumption. Chapter 113, Laws 1891, repealed sections 136 and 137, i. e., it repealed the exemption of actions accruing before 24 August, 1868, from the statute of limitations and repealed the suspension of time between.20 May, 1861, and 1 January, 1870, so that the defendant\u2019s equity was really barred since 27 June, 1866. Alexander v. Gibbon, 118 N. C., 802. It did not repeal the proviso of Code, sec. 162, which is not a statute of limitation, but merely prevents the statute of limitation protecting a non-resident as to causes of action accruing since 24 August, 1868. There is no reference to section 162 in the repealing statute, Laws 1891, ch. 113, whose object was to extend the protection of the statute, not to withdraw it. Every phase of the contention of the parties was fully presented by the two issues submitted, and it was not error to refuse to' submit others. Wilson v. Cotton Mills, 140 N. C., 57, and cases there cited.\nIf, as defendant contends, Foster was an alien, the law at that time applicable to Cherokee lands (which this was) did not debar aliens (Laws 1852-\u201953, ch. 169). The general land law did not apply to these lands, as was expressly provided by section 18, chapter 31, Laws 1854-\u201955. But even if an alien was prohibited from entering these lands, the State only could divest his title, for \u201can alien has capacity to take but not capacity to hold land; * * * he cannot hold it against' the sovereign, should the sovereign choose to assert his claim thereto, as forfeited. But against all the rest of the world the alien has full capacity to hold, and he can hold even against the sovereign until the estate of the alien be divested by an office found or some other equally solemn sovereign act.\u201d Rouche v. Williamson, 25 N. C., 146; Wilson v. Land Co., 77 N. C., 457.\nWhether the first probate of the deed from Wilson to Wilson and Holler was valid, the second probate and registration thereunder was sufficient, and, though made after suit begun, entitled the deed to be used as evidence. The act of 1885 makes deeds valid only from registration against purchasers and creditors \u2014 which these defendants are not. Deeds, if registered, can be put in evidence, when otherwise competent, even when registered during the trial.\nThere are other exceptions, but they do not require discussion.\nNo Error.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Shepherd & Shepherd and George H. Smothers for plaintiffs'.",
      "Davidson, Bourne & Parher and A. M. Fry for defendant."
    ],
    "corrections": "",
    "head_matter": "A. S. T. JOHNSON et al. v. EVERSOLE LUMBER COMPANY.\n(Filed 27 May, 1907).\n1. State\u2019s Lands \u2014 Grant\u2014Registration\u2014Statute of Limitations. \u2014 \u2022 The defendant\u2019s cause of action accrues upon the registration of a junior grant to plaintiffs\u2019 grantor, and the ten-year statute of limitations (sec. 158 of The Code) runs from the time of such registration.\n2. Same \u2014 Computation of Time. \u2014 Chapter 113, Laws of 1891, repealed sections 136 and 137 of The Code, which exempted actions accruing before 24 August, 1868, from the statute of limitations during the time from 20 May, 1861, and 1 January, 1870; therefore, \u25a0 when defendant\u2019s cause of action accrued against plaintiffs\u2019 entry of 27 June, 1856, his equity was barred 27 June, 1866, by the ten-year statute (Code, sec. 158).\n3. Issues. \u2014 When every phase of the contention of the parties has been fully presented under the issues submitted, it is not error in the Court below to refuse to submit others.\n4. State\u2019s Lands \u2014 Aliens.\u2014Laws of 1852, ch. 169, sec. 3, was inapplicable to aliens entering Cherokee lands (Laws 1854-\u201955, ch. 31, sec. 18).\n5. Same \u2014 Estate Divested. \u2014 An alien has full capacity to hold realty until his estate be divested by an office found or some other equally solemn sovereign act.\n6. Registered Deeds \u2014 Evidence.\u2014Deeds, if registered, can be put in as evidence, when otherwise competent, even when registered during trial.\n(Closer attention of officers charged with the duty of collecting State and county taxes is called to a not uncommon occurrence of persons claiming wild lands, not in possession, escaping payment of taxes thereon).\nCivil actioN, tried before McNeal, J., and a jury, at March Term, 1906, of tbe Superior Court of SwaiN County. Erom a judgment for plaintiffs, defendant appealed. The facts sufficiently appear in the opinion.\nShepherd & Shepherd and George H. Smothers for plaintiffs'.\nDavidson, Bourne & Parher and A. M. Fry for defendant."
  },
  "file_name": "0717-01",
  "first_page_order": 757,
  "last_page_order": 760
}