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Kennedy v. Whaley

Filed: January 5, 1982.

ALICE HOUSTON KENNEDY, JOHN HENRY KENNEDY, JR., FRANCES KENNEDY MATHIESON & HUSBAND, JAMES ERIC MATHIESON, JAMES KENNEDY, CAROLYN KENNEDY BLAKE, PATSY ANN KENNEDY BRYSON & HUSBAND, JERRY BRYSON, DORTHA KENNEDY CAMPBELL & HUSBAND, ELTON RAY CAMPBELL, VERTIE MAE WILLIAMS KENNEDY (WIDOW), ANNETTE KENNEDY CANADY & HUSBAND, WILLIAM ARTHUR CANADY, SR., JEANETTE KENNEDY FOY & HUSBAND, RENZELL FOY, HARRY G. BROWN (WIDOWER), BONNIE LOU KENNEDY WILLAFORD & HUSBAND, LEROY WILLAFORD, WILLIAM PICKETT KENNEDY & WIFE, RHONDA JARMAN KENNEDY, DIANA SUE KENNEDY GWYNN & HUSBAND, LEONARD PHILIP GWYNN, SHARON PATRICE KENNEDY EDWARDS & HUSBAND, GARDNER EUGENE EDWARDS, BRAXTON GEORGE KENNEDY & WIFE, DELPHIA COSTIN KENNEDY, KATHLEEN KENNEDY JONES (WIDOW), ALBERT KENNEDY & WIFE, RACHEL TYNDALL KENNEDY, ELIZA KENNEDY FOUNTAIN & HUSBAND, MURPHY FOUNTAIN, ARTHUR KENNEDY & WIFE, RUBY SUMMERLIN KENNEDY & RUBY KENNEDY TYNDALL & HUSBAND, LYNWOOD TYNDALL
v.
IDA WHALEY, WALTER WHALEY, JR., & WIFE, LOUISE WHALEY, ELENOR MARIE WHALEY COLEY & HUSBAND, RAY COLEY, REBA FAYE WHALEY THIGPEN & HUSBAND, GERALD THIGPEN, ANNETTE WHALEY CAVENAUGH & HUSBAND, GENE CAVENAUGH, VIRGINIA WHALEY BALL & HUSBAND, DEWEY BALL, VANCE B. GAVIN, TRUSTEE, GRADY MERCER, SR., TRUSTEE, COASTAL PRODUCTION CREDIT ASSOCIATION, BARBARA HORNE & IRENE COLE



Appeal by plaintiffs from Strickland, Judge. Judgment entered 17 September 1980 in Superior Court, Duplin County. Heard in the Court of Appeals 16 September 1981.

Morris, Chief Judge. Judges Clark and Wells concur.

Morris

Plaintiffs argue that the court erred in ruling that the foreclosure sale divested them of any claim of title to the property. They also allege error in the court's ruling that defendants had acquired title by adverse possession for more than 20 years and for more than seven years under color of title, urging that land cannot be held adversely to the interests of the remaindermen.

This case turns on the issue of whether defendants may show foreclosure of the mortgage from J. W. Kennedy and Susan A. Kennedy, and conveyance of the land in controversy to I. J. Sandlin pursuant to an order of sale. We find that defendant is entitled to prove this outstanding interest, which defeats plaintiffs' claim of record title.

Plaintiffs invoke the common source doctrine, arguing that John W. Kennedy is the source of title of both plaintiffs and defendants, but that plaintiffs possess better title from him, which shows, prima facie, their right to recover. Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889).

The doctrine of common source of title is the well-established rule, in actions involving the title to or the right to possession of realty or an interest therein, that when the adverse parties claim title from the same source, it is not necessary for the plaintiff to trace the title back of the common source.

Annot., 5 A.L.R. 3d 375, 381 (1966). Quoted in Finance Corporation v. Leathers, 272 N.C. 1, 7, 157 S.E.2d 681 at 685 (1967). "[W]hile ordinarily . . . the plaintiff must recover on the strength of his own title and not on the weakness of that of his adversary, such rule is inapplicable where the parties trace their titles to a common source, in which case plaintiff need only show a title good as against defendant." 65 Am. Jur. 2d Quieting title ยง 44 (1975). The rule, therefore, limits the inquiry to the question of which party has superior title from the common source. Annot., 5 A.L.R. 3d 375 (1966).

Plaintiffs contend that at the time he executed the deed to Tommy Whaley purporting to convey fee simple title, John W. Kennedy was merely a life tenant by curtesy consummate and could convey no more than a life estate. With this contention we have no quarrel, and we agree that plaintiffs, the surviving children of Susan A. Kennedy, were remaindermen whose right of possession did not mature until the death of John W. Kennedy on 5 October 1972. Thus, they had no right to maintain an action for the possession of the property until after the expiration of the life estate of their father. Narron v. Musgrave, 236 N.C. 388, 73 S.E.2d 6 (1952). Where a life tenant executes a deed in fee, the possession of the grantee cannot be adverse to the remaindermen until the death of the life tenant. Lovett v. Stone, 239 N.C. 206, 79 S.E.2d 479 (1954); Walston v. W. H. Applewhite and Co., 237 N.C. 419, 75 S.E.2d 138 (1953). Under this view of the facts, the defendants would have held adversely for less than seven years.

Plaintiffs rely on the proposition that "while defendant can defend by showing that he has a better title in himself than that of the plaintiff, derived from the person from whom they both

claim or from some other person who had such better title, he is not at liberty to show a better title outstanding in a third person." Stewart v. Cary, 220 N.C. 214, 222, 17 S.E.2d 29 at 33 (1941). Plaintiffs urge us to adopt this thesis, integral to their argument, which would require that we ignore the outstanding interest in I. J. Sandlin acquired pursuant to the foreclosure sale in 1939. We think that the law is otherwise, however. Defendants have not attempted to go behind the deed of the common grantor, John W. Kennedy, to show a paramount title outstanding in a third person. Defendants' evidence did show an outstanding title in I. J. Sandlin, "[h]owever, this was in no way violative of the common source doctrine. That doctrine only prevents a defendant who claims under a source common to plaintiff from showing a title outstanding in a third party which is paramount to the common source itself." Finance Corp. v. Leathers, supra at 9, 157 S.E.2d at 687.

The rule that a defendant in ejectment cannot show title in a third person independent of the common source without connecting himself with it is limited to paramount titles older than the common source, and does not preclude the defendant from showing an outstanding title which accrued subsequent to that of the common source, and the defendant . . . may defeat the plaintiff's recovery by showing that the title of the common source is outstanding in a third ...


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