Previous to 1834, Benjamin C. Williams, the lessor of the plaintiff, was the owner of the land sued for, and Council, the defendant, was in possession when the suit was brought.
The defendant proved that Josiah Tyson, in 1834, purchased the land in dispute at a sale by the clerk and master in equity of Moore County, under a decree of the court, as the property of Benjamin C. Williams, and went into possession and so continued for five or six years, when one William Watson took possession. Tyson did not take a deed from the clerk and master until 9 January, 1841, when one was made to him by Bryan Burroughs, who was in office when the sale was made, but was not when the deed was made. In 1842, Tyson agreed to sell the land to the said Watson for $3,500, and the payment was to be made from the proceeds of the estate of Watson's wife in the hands of J. B. Cox, her trustee, and he entered into bond to make title to said Cox, as trustee, when the purchase money should be paid. *Page 176 Watson at that time entered into the possession as the tenant of Tyson and continued to hold possession as such for ten or twelve years, viz., till March, 1853, when he left without surrendering the possession (230) to him or any one for him. The purchase money was paid about 1846, principally by J. B. Cox, the trustee, but partly by Moses Cox, a brother of Mrs. Watson. In 1852, Watson called on Tyson to make a deed for the land to J. B. Cox, which was done on 17 February, 1852. The defendant also offered in evidence a deed from the said Cox, dated 17 February, 1853, and he took possession of the land not long after Watson left, viz., some time in March, 1853.
Previously to the sale to Watson, to wit, on 9 February, 1841, Tyson executed a deed of trust to one Roberts, to secure the payment of debts therein named, but no sale was ever made under it and no action taken upon it, and Tyson's possession was continued as above stated.
It was admitted that Benjamin C. Williams became af [of] age on 20 September, 1842. This suit was commenced on 29 December, 1857.
Upon these facts, his Honor being of opinion that plaintiff could not recover, the plaintiff took a nonsuit and appealed. This suit is for the same land which was the subject of controversy inWilliams v. Council, 49 N.C. 206. But the facts now presented are not the same. The deed of trust executed by Tyson to Roberts, 9 February, 1841, was not then in evidence, and the Court is not now in possession of the fact, which was then in evidence, that Benjamin C. Williams had commenced an action of ejectment against William Watson, on 20 June, 1845, which pended until Spring Term, 1853. So we have one fact added and one fact omitted.
On the facts now submitted for our consideration, we are of opinion the plaintiff is entitled to recover.
A sale in a case of this kind by a decree of a court of equity is, in effect, a sale by the owner of the land through the agency of the (231) court; Smith v. Brittain, 38 N.C. 351. So, our case is the same as if Benjamin Williams had, in 1834, contracted to sell the land to Tyson, who entered under Williams and held possession by virtue of the contract. Tyson's possession, consequently, was not adverse at its commencement, and the question is, did anything take place afterwards to make it adverse.
1. On 9 January, 1841, it is admitted, Tyson was in possession under the contract of sale. At that date he took a deed for the land from Burroughs, who was not authorized to make it. So the title did not *Page 177 pass out of Williams, and the deed was but color of title. There certainly is no principle on which the fact of taking the deed could alter the character of Tyson's possession. He had color of title, but his possession was not adverse.
2. On 9 February, 1841, Tyson executed to Roberts a deed of trust to secure the payment of certain creditors, but he continued in possession. There is no principle on which the fact of his making this deed of trust could alter the character of his possession. Suppose the effect of this deed was to pass his color of title to Roberts and as between them, to make him hold under Roberts, still he was not thereby relieved from his obligation to Williams and, having entered under him and held possession for him, there was nothing he could do, or say, so long as he continued the possession thus acquired, to make his possession adverse, without the concurrence of Williams, or some act done by Williams to put an end to the relation which existed between them. If he wished to assume an adversary position, he could only have effected it by surrendering back the possession. Our ordinary notion of fairness shows that this must be so. As against Roberts, Tyson was entitled to a resulting trust, after satisfying the debts secured in the deed of trust, and as against Williams he had an equity, on paying the purchase money, to call for the legal title, but, in the meantime, he was holding under and for Williams. Taylor v. Gooch,49 N.C. 436.
3. In 1842, Tyson contracted with William Watson to sell (232) the land for $3,500, to be paid out of the trust estate of Watson's wife, and when the purchase money was paid he agreed to make the title to Cox in trust for Mrs. Watson. "Watson, thereupon, entered into possession as the tenant of Tyson, and remained in possession until March, 1853, when he left without giving up the possession to any one." Here, then, is Watson taking possession under Tyson and holding as his tenant, and Tyson bound to hold for Williams; of course, Watson's possession, being the possession of Tyson, could not be adverse to Williams.
So, upon the facts before us, there was no possession adverse to Williams, until after March, 1853. This action was commenced December, 1857; consequently, his title could not have been divested by the color of title in Tyson or Roberts, as there was only, at most, some five years adverse possession and it is unnecessary to pursue the matter further.
What would have been the result, had the fact that in 1845 Williams commenced an action of ejectment against Watson been put in evidence, we are not at liberty to say. Did he, thereby, put an end to the congeable relation previously existing between himself and Tyson and Watson, so as, by his own act, to make the possession adverse, as when a *Page 178 bailor makes a demand of the bailee, and the bailee refuses to give up the thing bailed? or did the obligation imposed on Tyson and his tenant to hold possession for Williams still continue? These are questions into which we will not enter.
The record does not present this as a "case agreed," so as to authorize this Court to give judgment for the plaintiff.
PER CURIAM. Reversed, and venire de novo.
Cited: S. c., 65 N.C. 10.
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