#### F. M. HINSON and Wife v. JOHN KERR and Wife.

(Filed 26 November, 1919.)

Deeds and Conveyances — Probate—Husband and Wife — Private Examination —Contracts to Convey — Bond for Title — Adverse Possession — Limitation of Actions.

A contract to convey tlie wife’s land, joined in by her husband, but without probate and the privy examination of the wife, is void, and the possession of the grantee thereunder is not hostile to the wife’s interest *538or title to the lands, and will not ripen Ms title by seven years adverse possession, without evidence to show payment of the purchase money or of any act or conduct on his part hostile to the wife’s title.

Appeal by defendant from Shaw, J., at tbe September Term, 1919, of MECKLENBURG.

Tbis is a proceeding for tbe partition of land transferred to tbe Superior Court upon an issue of sole seizin'relied on by tbe defendant.

Prior to 1896 Tirsey Hinson, a married woman, was tbe owner of tbe land in controversy, and on 29 September, 1896, tbe said Tirsey Hinson and ber busband delivered to tbe defendant a paper-writing in tbe form of a bond for title, agreeing to convey said land to tbe defendant upon tbe payment of $400.

Tbe paper-writing was signed by tbe said Tirsey Hinson and ber bus-band, but there was no probate to tbe same, and tbe private examination of Tirsey Hinson was not taken.

Tirsey Hinson died on 7 December, 1896, leaving a will in wbicb sbe devised said land to ber two sons, William R. Hinson and E. M. Hinson, witb tbe right in ber busband to have tbe use arid benefit of said land during bis lifetime, wbicb said will was probated on 9 January, 1897.

On 26 May, 1899, William R. Hinson, one of the devisees in tbe will of Tirsey Hinson, conveyed bis undivided one-balf of said land to the defendant.

E. H. Hinson, tbe busband, died on 21 October, 1916, and this proceeding was instituted on'24 March, 1919.

Tbe defendant was examined as a witness in bis own behalf, and testified as follows:

“I am tbe defendant in tbis case. I occupy the Nancy Little dower tract of land. I took possession of it in 1896, right irrimediately after tbis paper was executed. In September, I believe. Tbis paper was given to me at tbe time. E. H. Hinson wrote that paper. I bought it in September, 1896, and I began paying taxes on it in 1897. I live on tbis tract of land. Yes; I built on it. I opened up tbe land and have been on it since that time. I have been working it since 1897. I have made tax returns for it every year since that time. Yes; tbe paper you now show me is tbe paper I spoke of just now. That is tbe paper that Mrs. Tirsey Hinson and E. II. Hinson signed. I went into possession of tbe land tbe day tbe paper-was signed; be told me to go right down. Yes; I went into possession on account of that paper. Yes; I still have possession of it on account of that .paper.”

His Honor instructed tbe jury if they believed tbe evidence to answer tbe first issue “Yes,” and tbe second issue “No,” to wbicb tbe defendant excepted, and tbe jury returned tbe following verdict:

*539“1. Is the plaintiff owner and entitled to the possession of an undivided one-half interest in the lands described in the petition ? Answer: ‘YesI

“2. Is the plaintiff’s right to recover the one-half interest in said lands barred by the statute of limitations? Answer: No.’ ”

Judgment was entered upon the verdict in favor of the plaintiff, and the defendant appealed.

Stewart & McRae and John M. Robinson for plaintiff.

J. D. McOall and J. F. Newell for defendant.

AlleN, J.

As the land in controversy belonged to a married woman, and there was no probate or private examination of the paper-writing under which the defendant entered upon the land, the paper is ineffectual to pass any title or interest in the land, and the defendant must therefore rely upon adverse possession to defeat the claim of the plaintiff.

He admits that he entered upon the land under the paper-writing, and that he has claimed under it since that time, and he fails to produce evidence of the payment of the purchase money, or of any act or conduct which has made his possession hostile to the true owner.

Under these conditions, the law is settled by a long line of decisions beginning with Young v. Irwin, 3 N. C., 9, decided in 1791, up to the present time, that his possession has not been adverse to the title of the true owner.

In the Young case the owner of the land, one Kutherford, contracted to sell to Irwin, and Irwin went into possession under the contract and remained in possession for nearly forty years, after which time an action was brought by one who claimed under Eutherford, and the defendant relied on an adverse possession to bar the plaintiff’s right, and the Court said of the claim of the defendant: “When a purchaser in a case like the present takes possession, he takes it by consent of the owner, and may continue it until he fails in payment, and then is liable at law to be turned out; he does not take a tortious possession and gain a tortious fee, as has been contended; if he is not, strictly speaking, a tenant at will, his possession is that of the owner, and not a distinct independent possession opposed to his; if he is ousted of possession by a stranger, he cannot regain it by an action in his own name, but only in an action which sets up and affirms the vendor’s title. Such possession of the purchaser is therefore not an adverse possession to the vendor; and if, by the act of limitations, an adverse possession is necessary to bar the plaintiff’s title, such an one as has been in the present case will not answer that description.”

*540In Knight v. Lumber Co., 168 N. C., 452, the same principle is declared as follows: “It is true that, as against the vendor, the possession of the vendee, occupying under such a contract, does not, as a rule, become hostile or adverse until something has occurred that places one of the parties in the position of resistance to th# claim of the other, and, until that time, the ordinary statute of limitations does not begin to run. It has been so held with us in Worth v. Wrenn, 144 N. C., 656, and authorities cited.”

Nor does the fact that the paper-writing was void because imperfectly executed affect the character of the possession.

“As a general rule, the invalidity of the executory contract of purchase will not have the effect .of rendering adverse, as to the vendor, the possession taken thereunder by the. vendee who enters into possession in pursuance thereof. Although the instrument is invalid, the possession of the vendee is taken in pursuance thereof, and, therefore, amicably to the vendor; and, being so taken, it is looked upon as so continuing, regardless of the fact that the vendee cannot enforce his rights as purchaser under the contract.” 1 Am. Law Rep., 1336.

This principle was applied in Mitchell v. Freeman, 161 N. C., 322, in which it was held that possession under a contract to convey which was void because not in writing was not adverse.

There is no error in the instructions of his Honor.

No error.