Best v. Garris

• Decision Date: 17 March 1937
• Docket Number: 233.
• Parties: BEST v. GARRIS et al.
• Court: North Carolina Supreme Court

190 S.E. 221

211 N.C. 305

BEST v. GARRIS et al.

No. 233.

Supreme Court of North Carolina

March 17, 1937

Appeal from Superior Court, Wayne County; Clawson L. Williams Judge.

Action by W. H. Best, Jr., administrator of T. H. Garris, deceased against Ralph Garris and others. From a judgment for plaintiff, defendants appeal.

Affirmed.

This is a petition to sell certain lands for assets to pay indebtedness amounting to some $480 brought by plaintiff against defendants.

There are five tracts sought to be sold. The value of the land is about $2,000. The defendants set up the plea practically of sole seizin and ask that the prayer of petitioner be denied. In the record is the following: "Both parties plaintiff and defendants having expressly waived trial by jury in open Court, and agreed that the Court may hear the evidence, find the facts and render judgment thereon in or out of term, in or out of the District."

The court below found the facts and based its conclusions of law thereon, and rendered the following judgment: "It is considered, Ordered and Adjudged that T. H. Garris, deceased at the time of his death was the owner of an undivided one-fifth interest in and to the lands described in the first four tracts set out in the petition filed herein; that the said T. H. Garris, at the time of his death, did not own or have any interest in the Fifth Tract (two parcels) described in said petition filed, the life estate held by him terminating at his death, that said T. H. Garris at the time of his death did not own any personal property which could be subjected to the payment of his debts admitted to be owing by him, that the respondents are the owners of an undivided four-fifths interest in and to the lands described as first four tracts, and of a fee simple interest in the lands described as Fifth Tract (two parcels) in the petition filed and that the plaintiff herein is entitled to have the aforesaid one-fifth interest in and to the lands described in the first four tracts in said petition sold to make assets with which to pay the indebtedness due by the estate of T. H. Garris, deceased, and that this cause be remanded to the Clerk for further proceedings as provided by law. This the 24th day of August, 1936. Clawson L. Williams, Judge of the Superior Court."

The defendants made the following exception and assignment of error and appealed to the Supreme Court: "Exception No. 1-is to the rendering, signing and entry of the judgment for that it is contrary to the law in the case insofar as it holds that: (a) Title to the first four tracts described in plaintiff's petition remained in Ransom Garris at the date of his death in 1922, and passed by descent to his heirs, and that T. H. Garris took an undivided interest therein and was owner of said interest at his death in fee, and that (b) Possession of said T. H. Garris, under the deeds, Exhibits A and B, was not such as to ripen title under color, or perfect title in said T. H. Garris and that the petitioner is entitled to have the said undivided interest of T. H. Garris in the said lands sold and proceeds applied to the discharge of the indebtedness due by his estate."

E. A. & Ambrose Humphrey, of Goldsboro, for appellants.

J. Faison Thomson, of Goldsboro, for appellee.

CLARKSON Justice.

N.C.Code 1935 (Michie), § 568, is as follows: "Trial by jury may be waived by the several parties to an issue of fact, in actions on contract, and with the assent of the court in other actions, in the manner following: 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent, entered in the minutes."

Section 569: "Upon trial of an issue of fact by the court, its decision shall be given in writing, and shall contain a statement of the fact found, and the conclusions of law separately. Upon trial of an issue of law, the decision shall be made in the same manner, stating the conclusions of law. Such decision must be filed with the clerk during the court at which the trial takes place, and judgment upon it shall be entered accordingly."

Section 570 relates to exceptions to decisions of court.

Nowhere in...