
    JEFF P. ROBERTS et al. v. E. E. DALE.
    (Filed 10 May, 1916.)
    1. Deeds and Conveyances — Heirs—Division—Parties—Res Inter Alios Acta.
    Where a wife is in possession of a tract of land after the death of her husband under a deed he had made to her, proceedings for a division of his lands among his heirs at law, to which she has not been made a- party, are res inter alios acta as to her, and no title can be thereunder acquired as to her lands so held.
    2. Same — Executors and Administrators — Sales.
    Where the wife remains in possession of lands conveyed to her by her husband, after his death, living thereon with their son, who dies before his mother, the son acquired no title to such lands under a division of his father’s lands among the heirs at law, in which his mother was not a party, and a sale thereof by his administrator to make assets to pay his debts is a nullity.
    3. Deeds and Conveyances — Tenants in Common — Interest Conveyed.
    A conveyance by a tenant in common of the entire tract of land so held can only operate as a conveyance of the interest therein of the tenant in common executing the conveyance.
    4. Partition — Title—Evidence—Instructions—Directing Jury — Courts.
    Where, upon issue as to plaintiff’s title in partition proceedings the cause is transferred to the trial docket, and it appears on the trial that he and those under whom he claims have been in possession under a chain of title for sixty years preceding the institution of the action, and that the title is not affected by attempted proceedings for division among the heirs at law of the original owner or by an attempted sale to make assets by an administrator of one of them, an instruction is proper that if the jury find the facts to he as testified, to answer the issue “Yes,” in plaintiff’s favor.
    Appeal by defendant from Shaw, J., at November Term, 1915, of Caldwell.
    
      Edmund Jones and Wakefield & Williams for plaintiffs.
    
    
      W. G. Newland and Squires <& Whisnant for defendant.
    
   Clark, O. J.

Tbis was a petition for partition wbieb upon tbe plea of sole seizin was transferred to tbe civil-issue docket at term. At tbe close of tbe evidence tbe court refused tbe motion to nonsuit and charged tbe jury that there was but one issue, “Are tbe plaintiffs and defendant tenants in common of tbe land in controversy, as alleged in tbe petition?” and instructed them that tbe plaintiffs alleged that they owned two-tbirds of the land and tbe defendant one-tbird, and that if tbe jury found tbe facts to be as testified to by tbe witnesses, to answer tbe issue “Tes.” Tbis presents tbe entire matter for our consideration.

Hosea Tilley executed a deed for tbis land to bis wife, Nancy Tilley, 11 February, 1852, wbicb was recorded 22 Decomber, 1914, before tbe beginning of tbis action. It was in evidence tbat sbe was in possession of tbe land in controversy from tbe date of tbe deed to ber from ber busband till sbe conveyed tbe land to Sarab Roberts, 18 March, 1898. Sarab Roberts died in tbe fall of 1902, intestate, leaving ber surviving Jeff P. Roberts and Yance Roberts and Margaret Walker. Jeff P. Roberts, one of tbe plaintiffs and an beir at law of said Roberts, went into possession of tbe land in tbe spring of 1903 and remained in open and continuous possession until tbe beginning of tbis action, 22 December, 1914. He and bis sister, Mrs. Walker, are tbe plaintiffs. Yance Roberts, by deed of 25 November, 1911, conveyed bis entire interest in said land to one Beall, in trust to secure tbe payment of a debt. Tbe property was sold under said trust deed and was conveyed to tbe defendant Dale 6 October, 1913.

There is evidence of tbe division of tbe lands of Hosea Tilley by bis five heirs at law 25 April, 1889, but at tbat time tbe title to tbis tract was in Nancy Tilley, and sbe was not a party to tbe division of Hosea Tilley’s land in wbicb tbis tract of land was allotted to Ed. Til-ley. His mother, Nancy Tilley, was still living, and tbis proceeding among tbe heirs at law of Hosea Tilley was res inter alios acta, and in no wise affected tbe title to tbis land. Ed. Tilley was not in possession of tbe land, though be lived there, according to tbe evidence, with bis mother. He was an unmarried man and died before bis mother.

There was also evidence tbat W. J. Dula, as administrator of Ed. Tilley, filed a petition and caused tbis tract of land to be sold to make assets to pay tbe debts of Ed. Tilley, at wbicb sale Vance Roberts bought. But tbis proceeding was a nullity as to these plaintiffs, for tbe reasons above given.

When Yance Roberts conveyed tbis tract of land be conveyed, and could convey, only what interest be bad in tbe land, wbicb was one-third. Shannon v. Lamb, 126 N. C., 46; Roscoe v. Lumber Co., 124 N. C., 47; Page v. Branch, 97 N. C., 97; Ward v. Farmer, 92 N. C., 93; Caldwell v. Neely, 81 N. C., 114.

If tbe evidence is to be believed — and it is not contradicted — the plaintiffs and those under whom they claim were in possession of tbis tract for more than sixty years preceding tbe institution of tbis action. Tbe above mentioned proceedings being void in law as to these plaintiffs, and properly so held by tbe court, there was no conflict of evidence, and tbe court properly instructed tbe jury, if they believed tbe evidence, to answer the issue “Yes.” Nelson v. Ins. Co., 120 N. C., 305; Wool v. Bond, 118 N. C., 1; Chemical Co. v. Johnson, 101 N. C., 223.

This is not a ease where a party under a junior registered deed claims in. preference to a prior unregistered deed from the same grantor; nor is it a case of a party claiming under possession with color of title. It is simply a case where, if the evidence is to be believed, the plaintiffs claim under a chain of title and possession for more than sixty years, and the defendant claims under a sale for partition of the land as the property of another and under a sale of the property to make assets by the administrator of the party to whom the land was allotted in said proceedings. There is no estoppel, for Nancy Tilley was not a party to the partition by Hosea Tilley’s heirs, nor were the plaintiffs, or those under whom they claim, parties to the proceeding to sell the land by the administrator of Ed. Tilley, to whom this tract was allotted-in the partition of the lands of Hosea Tilley. The plaintiffs do not claim under Hosea Tilley’s heirs, he having conveyed the land to Nancy Tilley by deed of 1852. They claim by virtue of continuous possession for sixty years under deed from him.

No error.  