Allen v. Allen
| Decision Date | 23 March 1938 |
| Docket Number | 243. |
| Citation | 195 S.E. 801,213 N.C. 264 |
| Parties | ALLEN et al. v. ALLEN et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Yadkin County; John H. Clement, Judge.
Action by J. W. Allen and others against Eula Allen and others to have stricken from the record certain paper writing purporting to be deeds, and to have plaintiffs and defendants declared tenants in common of certain lands. Judgment for defendants, and plaintiffs appeal.
No error.
A "person interested in the event," within statute prohibiting such party from testifying as to conversations with deceased person in regard to a transaction of the deceased, is one who has a direct legal or pecuniary interest in the subject matter of the litigation. C.S. § 1795.
In action to declare void a deed which plaintiffs received from parents as their full share in parents' realty, where defendants were brothers and sisters of plaintiffs, testimony of husband of one of defendants, as to his relating to one of plaintiffs the statements made by deceased parent, was admissible, even if the husband were an interested party within statute prohibiting such party from testifying as to conversations with a deceased person. C.S. § 1795.
This is a civil action instituted by the plaintiffs to have stricken from the record certain paper writing purporting to be deeds executed by T. W. Allen and wife, E. J. Allen, both of whom are now deceased, for that said paper writings are null and void as deeds; and to have the plaintiffs and the defendants declared to be the owners as tenants in common of the lands described in the complaint, which are lands formerly owned by T. W. Allen, the father of the plaintiff J. W. Allen and the defendants, and the grandfather of the plaintiffs other than J. W. Allen.
In 1928 T. W. Allen and his wife, E. J. Allen, mother and father of the plaintiff J. W. Allen and the defendants, and grandparents of the plaintiffs other than J. W. Allen, agreed to pool their real estate and to divide it among their children before they should die. Pursuant to said agreement and in execution thereof on April 20, 1928, the said T. W Allen and E. J. Allen agreed upon a joint division of their holdings of real estate, and as a part thereof allotted and set apart to the plaintiff J. W. Allen and to their daughter Hester V. Hendricks, now deceased, who was their daughter and the mother of the plaintiffs John A. Hendricks, Elizabeth Hendricks Sheets, and Evelyn Hendricks Whitt, 379 acres of land owned by E. J. Allen. A deed therefor was executed by them and delivered to J. W. Allen and Hester V. Hendricks. At the time of the delivery of said deed, the grantees therein were fully informed as to the conditions upon which the deed was executed and delivered. The said T. W. Allen and E. J. Allen likewise allotted to each of their other children a share of the land, title to which was in T. W. Allen, and in evidence thereof they executed a deed to each of the defendants for his or her respective share under the division. The deeds executed to the defendants were tied in a bundle and placed in the safe of T. W. Allen and instructions were given to one J. N. Davis, who had access to the safe of T. W. Allen, to deliver said deeds at the death of the grantors, it being a part of the agreement of division that the grantees in said deeds should not receive their respective shares in the division until after the death of the grantors.
On a former appeal in this cause, Allen v. Allen, 209 N.C. 744, 184 S.E. 485, it was held that the said deeds to the defendants were ineffectual to pass title to the land therein described for the reason that they were deeds of gift and were not within two years after the making thereof proved in due form and registered.
On the former appeal this court did not undertake to adjudicate the rights of the parties in the lands formerly held by T. W. Allen. Issues of fact being raised by the pleadings, a new trial was ordered. When the cause came on to be reheard in the court below issues were submitted to and answered by the jury as follows:
"1. Were the deeds to the defendants executed by T. W. Allen and wife, E. J. Allen, as deeds of gift, during the lifetime of T. W. Allen and wife, E. J. Allen? Answer: Yes.
2. Were said deeds of gift delivered by T. W. Allen and wife, E. J. Allen, to J. N. Davis to be held in escrow until after the death of said T. W. Allen and wife, E. J. Allen, then to be delivered by the said J. N. Davis to the defendants in this cause? Answer: Yes.
3. Was said certificate of Oliver Long, Notary Public, adjudged to be in due form and according to law and the instruments, together with the certificate, ordered registered by J. L. Crater, Clerk of the Superior Court, and were said instruments registered within two years after the making thereof? Answer: No. 4. Did T. W. Allen and wife, E. J. Allen, on the 20th day of April, 1928, make a mutual division of their real estate among their children and grandchildren, to-wit: J. W. Allen, Hester Hendricks, Eula Allen, T. R. Allen, R. E. Allen, Mrs. Della E. Davis, Mrs. Alice Hauser, Aldeen Doub, and William Allen Doub and Edith Doub, children of Lillian Doub, and execute and deliver instruments in writing as a memorandum of said division? Answer: Yes.
5. Are the plaintiffs, J. W. Allen, John A. Hendricks, Elizabeth Hendricks Sheets, and Evelyn Hendricks Whitt, estopped from asserting any interest or title to the lands described in the complaint by reason of J. W. Allen and Hester Hendricks accepting the benefits of the mutual divisions of the property of T. W. Allen and wife, E. J. Allen, as alleged in the Amended Answer? Answer: Yes.
6. Are the plaintiffs and the defendants tenants in common of the lands described in the complaint? Answer: No."
Upon the coming in of the verdict the court below signed judgment declaring that the plaintiffs have no interest in the lands described in the complaint and that they take nothing by their action. The plaintiffs excepted and appealed.
C. F. Burns, Richmond Rucker, Hastings & Booe, and Peyton B. Abbott, all of Winston-Salem, for appellants.
Avalon E. Hall, of Yadkinville, and Grant & Grant, of Mocksville, for appellees.
There are 182 assignments of error, the mere statement of which consumes 38 pages of the record. As these multitudinous assignments are not grouped it is with considerable difficulty that we are able to fish out of the record the pertinent questions of law the plaintiffs seek to present for determination on this appeal. It is clear, however, that whether there was a division of the lands belonging to T. W. and E. J. Allen among their children is not the decisive feature of the case. Here, the controlling factor is the fact that a deed was tendered to J. W. Allen and Hester Hendricks for a tract of land belonging to Mrs. Allen as representing the full share of the grantees in the lands of both of their parents, and the grantees accepted the deed with full knowledge of the conditions and have disposed of the land, so that they cannot now return it or account for it. They accepted the benefits of the gift or advancement and must abide by the conditions upon which it was made.
The situation presented is more comprehensive and far-reaching than a mere execution of deeds of gift by T. W. Allen and his wife to their children, and the validity of the deeds to the defendants does not materially affect the question presented.
These deeds merely evidence and were in execution of an agreement entered into by and between T. W. Allen and his wife, E. J. Allen. The same question of estoppel would be presented by this record even if said deeds had not been executed. The real question presented is this: Where parents pool their real estate interests for the purpose of making an equitable partition thereof among their children, and actually partition and allot to each child the share they desire it to have in their real estate, and actually execute and deliver to two of the children a deed for the tract allotted to them jointly, which deed was accepted by the two children with full knowledge of the conditions upon which it was executed and with the information at the time that it was tendered to them as representing their full interest in the joint real estate holdings of their parents, will the acceptance of such deed by said children estop them from claiming any further interest in the estate of their parents other than personal property which was not then divided? We answer this question in the affirmative.
If, therefore, there was sufficient competent evidence to sustain the verdict, and there was no error in the trial, the judgment below must stand.
There is ample evidence in the record to sustain the finding of the jury that T. W. Allen and his wife entered into an agreement to pool their real estate holdings and to make a joint division of same among their children and that in the execution of said agreement and the partitioning of said land the plaintiffs received and accepted a deed for 379 acres of land, title to which was held in the name of E. J. Allen. The witness Long, who prepared the several deeds, was called in by the grantors in said deed and informed of the agreement and given information for the preparation of the deeds. In addition thereto there is supporting evidence of a number of other witnesses, who testified that the grantors told them of the agreement and division. To the same end is the testimony of J....
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