
    SAMUEL F. OLDS et al. v. RICHMOND CEDAR WORKS.
    (Filed 21 March, 1917.)
    1. Deeds and Conveyances — Title—Evidence — Mortgages — Payment — Presumptions.
    Where the plaintiff, in an action to recover lands, has to rely exclusively upon his paper chain of title, a writing therein which acknowledges an indebtedness of the maker, and to he void if it should he paid without evidence that the debt had not been paid, and which shows that the title to the lands described was in others, is insufficient. In this case the presumption of payment arose from the long lapse of time.
    2. Deeds and Conveyances — Warranty — Rebutter — -Estoppel-—Burden oí Proof.
    Where in an action to recover lands the plaintiff claims' by paper title to his ancestor, without claim of possession, and it appears that his ancestor has conveyed the land to a stranger with full covenants and warranty of title prior to his having acquired it: Held,, the burden of proof is on the plaintiff to establish his title, and he cannot recover, for his ancestor’s deed to the stranger, with covenant and warranty, destroys his right of action by rebutter, and passes the title to the grantee by estoppel. Lumber Go. v. Price, 144 N. C., 53, cited and distinguished. Semble, this would apply to a deed without covenant and warranty.
    3. Judgment — Partition—Tenants in Common — Title—Estoppel.
    Judgment in proceedings to partition lands will not operate to estop the parties from denying that the several tenants in common had an estate in, fee, when the question of title was not therein involved or put at issue. Weston v. Lumber Go., 162 N. C., 165 s. c., 169 N. C., 399, cited as controlling.
    Cira, aotioN, tried before Whedbee, J., at November Term, 1916, of Camden.
    Tbis is an action to recover a lot of land known as lot No. 7 of tbe New Lebanon Estate, tbe plaintiffs being tbe beirs of Hollowell Old -and Wiley McPberson.
    Tbe plaintiffs claim under three chains of title:
    (1) A grant from tbe State and a connected chain of title to Richard Morris, and a deed from Richard Morris to tbe ancestor of tbe plaintiffs, dated 3 June, 1812, purporting to convey a one-sixteenth interest in tbe estate. In tbis chain of title is tbe deed referred to in Weston v. Lumber Go., 169 N. 0., 403.
    (2) A grant from the State and a connected chain of title to Samuel Payne and a deed from Payne to tbe ancestor of tbe plaintiffs, dated 2 June, 1815, purporting to convey a one-tbirty-second interest in said estate. In this chain of title is the paper relied on by the plaintiffs to show title in Payne, the grantor of the plaintiff’s ancestor, which reads as follows:
    “I, Benjamine Jones of Camden, State of North Carolina, being justly indebted to Samuel Paine of Richmond, Yirginia, in a certain sum of money by bond bearing date July, 1802, and being disposed to secure and pay the same, do hereby grant, bargain, and sell to him two full sixteenths of the New Lebanon Estate, being the same that Charles Grice bought under execution against me, and the other is held now by Little in Edenton. And I hereby bind myself, my heirs, executors, and assigns, to make to- said Paine in his heirs, executors, and assigns, good and complete titles to said two-sixteenths of said New Lebanon Estate as soon as possible, but on this condition, that if I pay to said Paine, on or before the first day of January, 1807, the sum of $3,000, which sum is to be indorsed on my bond to him, then the above to be void.
    “In witness whereof I have hereunto set my hand and seal this 26 June, 1805.
    “The word ‘executors’ in the eigth line and the words, ‘then the above to be void,’ was inserted (?) in the original before signed.
    B. JoNes, [Seal]"
    (3) A grant from the State and a connected chain of title to Exum Newby and a deed from Newby to the ancestor of the plaintiffs, dated 17 June, 1815, purporting to convey a one-thirty-second interest.
    The defendant contends that the deed from Isaac Lamb, sheriff, to Richard Morris, one of the links in the first chain of title, is void, and that the paper set forth as a part of the Payne title is neither a conveyance nor a contract to convey, and that, therefore, these two chains of title must be eliminated.
    The defendant then offered in evidence a deed from the ancestors of the plaintiffs to Samuel "Weston, dated 10 June, 1812, conveying to said Weston and his heirs one-thirty-second of said estate, and containing a general warranty.
    The defendant contends that as the ancestor of the plaintiffs had no title at the time of the conveyance to Weston, with warranty, that this deed operates as á rebutter and destroys the right of action of the plaintiffs under the deed from Newby subsequently acquired.
    The plaintiffs also offered in evidence the partition proceeding of the New- Lebanon Estate, showing, among other things, that three-fourths of a share (a share being one-sixteenth of the whole) was allotted to McPherson and Old of the timber part of the land, and that lot No. 1 of tbe untimbered part, consisting of 400 acres, was allotted to Mills and Josiah Riddick, and then offered in evidence a connected chain of title from Mills and Josiah Riddick to the defendant.
    No evidence was introduced tending to prove from whom Mills and Josiah Riddick acquired title, nor as to the extent of their estate.
    There was no evidence that the plaintiffs had ever been in possession of the land or had paid taxes thereon or had exercised ownership or claimed any interest therein' for one hundred years.
    At the close of the evidence his Honor entered judgment of nonsuit, and the plaintiffs excepted and appealed.
    
      Adylett & Simpson, W. A. Worth, W. I. Halstead, and J. Kenyon Wilson for plaintiffs.
    
    
      D. H. Tillett, W. W. Siarlc, Winston <& Biggs, and Ward & Thompson for defendant.
    
   AlleN, J.,

after stating the case: The plaintiffs claim the land in controversy as the heirs of Hollowell Old and Wiley McPherson, and as no possession has been shown in the plaintiffs or in those under whom they claim, they must rely on a connected chain of title from the State, or on an estoppel growing out of the proceedings for the partition Of the New Lebanon Estate.

The Morris title, relied on by the plaintiffs, may be eliminated at once, as one of the links in this chain of title is the deed from Isaac Lam, sheriff, to Richard Morris, which was declared invalid by the unanimous opinion of the Court in Weston v. Lumber Co., 169 N. C., 403, and no additional facts appear which would cause us to change the conclusion then reached.

We are also of opinion that the ancestors of the plaintiffs acquired no title from Payne, because the paper relied on to show title in Payne is neither a conveyance nor a contract to convey land then owned. The paper is an acknowledgment of an indebtedness of $3,000 to Samuel Payne,, and an agreement to convey two-sixteenths of the Lebanon Estate as security as soon as possible, and as the paper shows itself that the title was then in others, this must mean that he would convey when he acquired the title, and the paper also provides that it shall be void when the indebtedness is paid, and there is no evidence that the maker of the paper ever acquired the title, or that the indebtedness has not been paid, and the presumption of payment arises from the long lapse of time.

This, therefore, leaves for consideration the Newby title, and as to that, the plaintiffs have shown a connected chain of title from the State ending with the deed from Newby to their ancestors in 1815, and upon this title they may maintain this action, unless tbe after-acquired title is in Weston, or tbe right of action bas been lost by reason of tbe fact that their ancestors, when they had no title, conveyed to Samuel Weston in 1812, with warranty, the same interest in the Lebanon Estate conveyed in the deed by Newby of 1815, under which the. plaintiffs claim.

The defendant contends that the deed of 1812, with warranty, operates to destroy the right of action of the heirs of the grantors to the after-acquired estate by rebutter, or that it has the effect of passing the title to this estate to the grantee by estoppel.

The distinction between an estoppel, which may exist without a covenant of warranty, and a rebutter, which is dependent upon a warranty (Weeks v. Wilkins, 139 N. C., 217), while questioned in some jurisdictions, has been recognized and established with us since the case of Taylor v. Shufford, 11 N. C., 127, in which Ilenderson, J., says: “The estoppel arises entirely out of the affirmations of matters of fact made in the deed. He (counsel for defendant) has confounded estop-pels and rebutters, things essentially different in their nature, although frequently producing the same results. A rebutter operates on the right of action to the estate. It operates as to strangers, as well as between parties and privies, which is a consequence flowing from its operation on the right to the'estate. An estoppel operates entirely as to facts; its effect is to conclude the parties from making, and of course proving, the facts to be otherwise than they are stated or acknowledged to be in the deed or other transaction out of which the estoppel arises. My collateral ancestor deprives me of my estate, and makes a feoffment in fee to a stranger, with warranty, and dies; the warranty descends on me as his heir (and this is done under such circumstances as that it does not amount to what is called a warranty commencing by disseisin). In any controversy which I may have with any one in regard to the lands, after the warranty has descended on me, this feoffment and warranty will bar my right of action to the estate.”

This.authority has been frequently approved, notably in Southerland v. Stout, 68 N. C., 448; Bell v. Adams, 81 N. C., 122; Weeks v. Wilkins, 139 N. C., 217.

The authorities are also to the effect, where there is a covenant of warranty, that the deed not only destroys the right of action in the grantor and his heirs to the after-acquired estate by rebutter, but that it also passes the title to the grantee by estopped by warranty.

Mr. Mordecai in his instructive and valuable law lectures, volume 2, p. 858, says: “I shall take ‘Estoppel by’Warranty’ to mean the effect which such covenants have in passing, so to speak, any title to the land which the bargainor in a deed may acquire after the execution of the deed; and 'Rebutter by Warranty/ to mean tbe effect which, such modern covenants have in barring, estopping, or rebutting the heirs of the covenantor, should they assert title to the land conveyed by the covenanting ancestor.”

The language in Wellborn v. Finley, 52 N. C., 237, is “transfers the estate”; in Hallyburton v. Slagle, 130 N. C., 487, that the after-acquired title “inures to her benefit” (the grantee in the first deed) ; in Buchanan v. Harrington, 141 N. C., 41, that the after-acquired title “would, by way of estoppel or rebutter, inure to the use and benefit of the defendant, and thereby vest one-half of the entire estate in him”; and in Cooley v. Lee, 170 N. C., 22,.that the after-acquired estate “should inure to the benefit of her grantee to pass this interest to him by way of estoppel or rebutter.”

If, therefore, the deed of the ancestors of the plaintiffs, being with warranty, has the effect of destroying the right of action of the heirs as to the after-acquired title by rebutter, or of passing this estate to the grantee and vesting the title in him by estoppel, in either event the plaintiffs cannot recover against the defendant, although it is neither a party nor a privy to the deed of 1812, because' of the rule that the burden is on the plaintiffs to prove title in themselves, and in one case there is no right of action, and in the other there is no title in the plaintiffs as it has vested in, the grantee in the deed with warranty.

Note that we are dealing with a claim by the heir, and with a deed which purports to convey the land, and not with one conveying the right, title,'and interest of the grantor, as to which a different rule prevails. Lumber Co. v. Price, 144 N. C., 53; Coble v. Barringer, 171 N. C., 448.

There is also authority for the position that a deed without warranty, which purports to convey the land, passes an after-acquired title to the grantee; but it is not necessary to decide that question, as there is a warranty in the deed before us.

In Eddleman v. Carpenter, 52 N. C., 618, in which it does not appear there was a warranty, the Court says: “Afterwards, in 1838, when he acquired title by the deed of Abernathy to him, the estoppel was fed so as by the act of law to vest the title in Carpenter in the same manner as if Eddleman had owned the land in 1832”; in Benick v. Bowman, 56 N. C., 315, that a similar deed “took effect (as to after-acquired title), so as to pass the title of the property by way of -estoppel”; and in Hallyburton v. Slagle, 132 N. C., 950, “When by his deed the grantor conveys without any of the usual covenants of title, or when by the form or nature of the conveyance he affirms, either expressly or impliedly, that he has a good and perfect title to the land, though, in fact, he has a defective or imperfect title, and he subsequently acquires a good title thereto, such after-acquired title will inure to the benefit of. bis grantee by estoppel. Van Ranselear v. Carney, 11 Howard, 297; Ryan v. U. S., 136 U. S., 68; 11 Am. and Eng. Ene. (2 Ed.), p. 403; Hagensick v. Castor 53 Neb., 495; French v. Spencer, 21 Howard, 240.”

It is also beld tbat a deed wbicb purports to convey tbe land transfers tbe estate as by a fine (Wellborn v. Finley, 52 N. C., 237); tbat under our registration acts all deeds are put on tbe same footing as a feoffment (Bryan v. Eason, 147 N. C., 292), and Mr. Bawle in bis work on Covenants, sec. 243, in discussiing tbe effect of an estoppel by deed without warranty, says: “Now, it must be carefully observed tbat by tbe common law there were two classes of cases in-wbicb an estate thus actually passes by estoppel, and two only. Tbe first was where tbe mode of assurance was a feoffment, a fine, or a common recovery. Such was their solemnity and high character tbat they always passed an actual estate, by right or by wrong, and, as against tbe feoffor or conusor and bis heirs, not only divested them of what they then bad, but of every estate wbicb they might thereafter by possibility acquire, and this doctrine has been applied in modern times. Tbe second was where tbe assurance was by lease, under wbicb, it will be remembered, estates could take effect in futuro; and tbe estoppel seems to have been put upon tbe ground of such having been tbe contract or agreement between tbe. parties.”

If this position is sound — and we would be inclined to so bold if tbe question was before us — if there was no warranty, tbe heirs of tbe grantor could not recover tbe land under title claimed by descent as against a stranger, for tbe reason tbat tbe after-acquired title would pass to tbe grantor in the deed by estoppel, and as tbe heirs would not be tbe owners of tbe after-acquired title, they could not recover on it.

It follows, as tbe ancestor of tbe plaintiffs bad no title at tbe time of tbe conveyance to Weston in 1812 with full covenant of warranty, and as this bad tbe effect by way of rebutter of extinguishing tbe right of action of their heirs under tbe after-acquired title of 1815, or of passing this title to tbe grantee in tbe deed of 1812 by estoppel, tbe plaintiffs cannot maintain their action under tbe Newby title, and they must rely upon tbe proceeding in partition as an estoppel on tbe defendant.

When we come to consider tbe effect of tbe partition proceeding we are confronted by tbe fact tbat tbe plaintiffs have failed to show any estate of inheritance in their ancestors at tbe time tbe proceeding was instituted, nor have they shown tbat Mills and Josiah Biddick, under whom tbe defendant claims, bad an estate of inheritance, and in tbe •absence of proof of these facts tbe decision in Weston v. Lumber Co., 162 N. C., 165, and. Weston v. Lumber Co., 169 N. C., 399, in wbieb the same partition proceeding was considered, and in which it was held that it did not operate to estop the parties from denying that the several tenants in common had an estate in fee, is conclusive against the plaintiffs.

We are, therefore, of opinion that there was no error in the judgment of his Honor dismissing the action at the close of the evidence.

Affirmed.  