SPRINKLE et al.
v.
CITY OF REIDSVILLE et al.
No. 22.
Supreme Court of North Carolina.
February 27, 1952.*181 Rufus W. Reynolds, Greensboro, and J. C. Johnson, Jr., Mayodan, for the plaintiffs-appellees.
Scurry & McMichael, Reidsville, for the corporate defendant, City of Reidsville, appellant.
P. T. Stiers, Reidsville, for the individual defendants and the executors, appellees.
ERVIN, Justice.
In its written brief and oral argument, the appellant follows the precedent set by the Walrus in Lewis Carroll's pleasing *182 fantasy entitled "Through the Looking-Glass."
"The time has come," the Walrus said,
"To talk of many things:
Of Shoesand Shipsand sealing-wax
Of cabbagesand Kings
And why the sea is boiling hot
And whether pigs have wings."
As a consequence, the appellant debates many intriguing legal propositions not sanctioned by the exceptions noted by it at the trial. For example, it asserts with much earnestness and eloquence that the testimony of the plaintiffs does not suffice to support the findings of fact of the presiding judge. This interesting question is not before us. The appellant did not except to any of the findings. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; Riddick v. Farmers' Life Association, 132 N.C. 118, 43 S.E. 544. Moreover, as hereafter appears, the assignment of error based on the denial of its motion for a compulsory nonsuit is legally ineffectual.
Under the rules of practice in this court, the questions arising on an appeal are those defined by appropriate exceptions taken by the appellant in the superior court. Rules 19(3) and 21, 221 N.C. 554, 558; Wilson v. Beasley, 192 N.C. 231, 134 S.E. 485; Harrison v. Dill, 169 N.C. 542, 86 S.E. 518.
The City of Reidsville noted exceptions in the court below to the admission of certain testimony tendered by the plaintiffs, to the denial of a motion for a compulsory nonsuit made by it at the close of the plaintiffs' evidence, and "to the rendering and signing of the judgment."
An examination of the record shows that there can be no reasonable doubt of the propriety of any of the challenged rulings admitting testimony except those permitting the plaintiffs' surveyor, A. N. Mattocks, to testify as to the location of the parcels of land mentioned in the findings of fact. The appellant lost the benefit of the exceptions covering the receipt of this particular evidence, however, by allowing the same witness to give virtually the same testimony without objection in other portions of his examination. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56; Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844; White v. Disher, 232 N.C. 260, 59 S.E.2d 798.
A somewhat similar observation applies to the exception to the denial of the motion for compulsory nonsuit. The appellant moved to nonsuit at the close of the plaintiffs' evidence, the motion was refused, and the appellant noted the exception in question. The appellant thereafter introduced evidence, and neglected to renew its motion for nonsuit at the conclusion of all the evidence. The statute expressly provides that "if the defendant introduces evidence he thereby waives any motion for dismissal or judgment as of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal." G.S. § 1-183 as rewritten by Chapter 1081 of the Session Laws of 1951.
The remaining exception, i. e., the exception "to the rendering and signing of the judgment," does not bring up for review the findings of fact or the evidence upon which they are based. Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22. It presents for decision the solitary question whether error appears on the face of the record. Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; King v. Rudd, 226 N.C. 156, 37 S.E.2d 116; Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422.
B. F. Sprinkle was alive at the time of the execution of the deeds of May 24 and October 8, 1900. Seven of his nine children were then living. His other two children were born between that time, and the termination of Ida A. Sprinkle's precedent life estate. Since the statute codified as G.S. § 41-6 prescribes that "a limitation by deed, will, or other writing to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the deed or will", the deeds of May 24 and October 8, 1900, operated as a conveyance *183 of the remainder in the land in controversy to the nine children of B. F. Sprinkle as a class. Cooley v. Lee, 170 N.C. 18, 86 S.E. 720; Condor v. Secrest, 149 N.C. 201, 62 S.E. 921. As a consequence, these nine children became entitled to the actual enjoyment of the land in question immediately after the death of Ida A. Sprinkle, the life tenant. Subsequent to that event one of them, namely, Philip E. Sprinkle, transferred his interest in the property to another, namely, Mrs. Minnie V. Pettigrew. These things being true, the presiding judge did not err in adjudging that the plaintiffs and the individual defendants own the land in dispute in fee simple and are entitled to its immediate possession. His findings of fact support and require that adjudication.
In reaching this conclusion, we necessarily reject the contentions of the appellant on this phase of the case. Two of these contentions merit some elaboration.
It is asserted that the plaintiffs and the individual defendants are the heirs at law of the life tenant, Ida A. Sprinkle, and her husband, B. F. Sprinkle, and that as such heirs at law their action for the land in controversy is barred or rebutted by the warranty in the deed from their ancestors to the appellant. This contention meets full refutation in the statute embodied in G.S. § 41-8, which is a re-enactment of the Statute of 4 Anne, Chapter 16, Section 21, and is couched in this language: "All collateral warranties are abolished; and all warranties made by any tenant for life of lands, tenements or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void; and all such warranties, as aforesaid, shall be deemed covenants only, and bind the covenanter in like manner as other obligations." Under this statute, a warranty in a deed of a life tenant does not bar or rebut the claim of heirs who can connect themselves with the outstanding remainder. Starnes v. Hill, 112 N.C. 1, 16 S.E. 1011, 22 L.R.A. 598; Hauser v. Craft, 134 N.C. 319, 46 S.E. 756; Southerland v. Stout, 68 N.C. 446; Moore v. Parker, 34 N.C. 123. This is so because such heirs take by purchase, i. e., as remaindermen, and not by descent, i. e., as heirs. Hauser v. Craft, supra.
The appellant also insists that it has acquired a good title to the land in controversy by seven years' adverse possession under color of title, and that this proposition has been established by the fourth finding of fact of the presiding judge. This contention runs afoul of the well settled rule that possession by the grantee of a life tenant is not adverse to the rights of the remainderman during the life of the life tenant. Eason v. Spence, 232 N.C. 579, 61 S.E.2d 717. The seven-year statute of limitation prescribed by G.S. § 1-38 did not begin to run against the plaintiffs and the individual defendants until April 4, 1949, when the life tenant died.
The City of Reidsville is in no position to complain of the refusal of the presiding judge to pass on its claim against the executors of Ida A. Sprinkle in the instant action. The answer of the city does not allege that its grantor was without title, or the right to convey. Consequently, it does not state a counterclaim or cross-action against the executors for breach of the covenants of seisin and right to convey. Pridgen v. Long, 177 N.C. 189, 98 S.E. 451. The answer likewise fails to assert a counterclaim or cross action against the executors for breach of the covenant of warranty. It does not aver facts showing an ouster or its equivalent. Richmond Cedar Works v. J. L. Roper Lumber Co., 161 N.C. 603, 77 S.E. 770; Wiggins v. Pender, 132 N.C. 628, 44 S.E. 362, 61 L.R.A. 772; Ravenel v. Ingram, 131 N.C. 549, 42 S.E. 967. Furthermore, there was nothing before the court indicating the damages recoverable for any unalleged partial breach of any of the covenants of title. Lemly v. Ellis, 146 N.C. 221, 59 S.E. 683; Dickens v. Shepperd, 7 N.C. 526.
For the reasons given, the judgment of the superior court is affirmed.