Anderson v. Anderson

• Decision Date: 07 May 1919
• Docket Number: 475.
• Citation: 99 S.E. 106,177 N.C. 401
• Parties: ANDERSON v. ANDERSON et al.
• Court: North Carolina Supreme Court

99 S.E. 106

177 N.C. 401

ANDERSON v. ANDERSON et al.

No. 475.

Supreme Court of North Carolina

May 7, 1919

Appeal from Superior Court, Davie County; Long, Judge.

Action by Annie E. Anderson against Henrietta Anderson and others. Judgment for plaintiff, and defendants appeal. No error.

In wife's action against deceased husband's heirs at law to set aside her deed to husband, where heirs claimed that wife had held interest in the property under a parol trust for the husband, such trust must be proved by clear and convincing evidence.

This was an action for the recovery of a tract of land containing 30 1/2 acres and to set aside a deed from plaintiff to her husband, Thomas M. Anderson, deceased, under whom the defendants claim upon the ground that said deed was void because not executed with the certificate of the officer as required by Rev. § 2107.

The defendants allege that the privy examination of the plaintiff in the deed to said Thomas M. Anderson was duly taken, but that by mistake and oversight he omitted to insert in his certificate that the deed was not unreasonable or injurious to her.

The defendants also allege that at the time the deed was executed by the plaintiff, Annie E. Anderson, to her husband, Thomas M. Anderson, the defendant's ancestor under whom they claim, the plaintiff held an undivided two-thirds in the 30 1/2 acre tract in trust for Thomas M. Anderson, and that the other one-third interest therein owned individually by the plaintiff had been conveyed to her husband in consideration of the contract whereby he built a house on her land, a tract separate and distinct from the land in controversy.

The plaintiff denied that there was any trust existing between herself and husband relative to the two-thirds interest in the land, or that there was any contract whereby she was to execute a deed to him for the other one-third interest in the land, in consideration of his building a house on a separate tract.

The jury found with the plaintiff on these contentions. The court rendered judgment in favor of the plaintiff, from which the defendants appealed.

Jacob Stewart, of Mocksville, and Holton, & Holton, of Winston-Salem, for appellants.

A. F Grant, Jr., and E. L. Gaither, both of Mocksville, for appellee.

CLARK C.J.

The defendants alleged in their answer that the plaintiff not only executed the deed to her husband freely and voluntarily her privy examination being taken, but that the officer found that the same was not unreasonable or injurious to her though by oversight and mistake he omitted to insert that finding in his certificate of probate. This was denied by the plaintiff. We cannot sustain the exception that the wife and the probate officer were permitted to testify as to what happened at the examination. This would have been competent in rebuttal if there had been evidence by defendants in support of their allegation, and, there being none, this evidence was immaterial and harmless.

The defendants also excepted to the withdrawal by the court of the fourth...