Artis v. Artis
| Decision Date | 14 April 1948 |
| Docket Number | 234. |
| Citation | 47 S.E.2d 228,228 N.C. 754 |
| Parties | ARTIS v. ARTIS. |
| Court | North Carolina Supreme Court |
Special Proceeding, No. 1525, instituted 3 January 1944, upon petition for actual partition of certain tract of land in Johnston County.
The petitioner Mark Artis, through his guardian, alleges in his petition that he and defendant, Ida Artis, are tenants in common, in and to a certain tract of land, containing thirty acres, more or less, 'allotted to Ida Artis and Mark Artis by deed dated December 15, 1928, and recorded in Register of Deeds of Johnston County in Book 211, page 568'; that petitioner is owner of one-half interest, and respondent Ida Artis owns a life estate in and to one-half interest in said tract of land; and that they desire to hold their interests in severalty in order that the petitioner may receive the rents and profits from said land as Ida Artis has received the rents and profits for said land for several years and has not accounted to the petitioner or his guardian therefor, etc.
The respondent, Ida Artis, answering, denies in the main the allegations of the petition, and for further defense she avers in substance: That she is the widow of the Archie Artis who was father of petitioner, Mark Artis; that when she married Archie Artis he was involved in debt; that there were mortgages and liens of record covering his other lands, including the locus in quo, and she had paid off and discharged various of said liens out of her personal estate that in consideration thereof Archie Artis executed and delivered to defendant and Mark Artis a deed conveying a tract of 30 acres of land which includes the home site, by the terms of which she acquired an undivided one-half interest in fee simple,--not just a life estate, as alleged in the petition; that she did not join in said deed conveying said tract of land, or any part thereof, nor has she conveyed, or consented to the conveyance by Archie Artis of the home site; and that in the administration of the estate of her deceased husband, Archie Artis, no dower has ever been set apart to her, and the value of the possession of this entire tract of 30 acres is not worth more than what would have been the reasonable value of her dower in the lands of Archie Artis if her dower had been actually set apart and allotted to her: Upon these averments she prays 'that it be adjudged by the court that she is the lawful owner of and entitled to the actual possession of all of said 30 acres of land, and that she is the lawful owner in fee simple of a one-half thereof, and for such other and further relief' etc.
Petitioner, replying to the further answer of defendant, denies the material parts thereof, and alleges that defendant Ida Artis could not take dower in this land, but that she is entitled to a life estate in one-half interest in said 30-acre tract; that she is estopped to claim dower; that she entered into a contract with Archie Artis and his heirs that she would take a deed which conveys a life estate in a one-half interest in said 30 acres; that she agreed also to pay her part of the encumbrance and taxes on said land, and Mark Artis, who owns one-half interest in and to said land, could have a home there in his old home; and that she is estopped to have dower allotted or that she take any other estate therein except a life estate in one-half interest in the same.
Thereafter the Clerk of Superior Court of Johnston County, after hearing upon the 'prayer for partition', the parties being represented by their respective counsel, and it being admitted that the real estate described in the original petition had been conveyed to the parties hereto, by a deed from Archie C. Artis, father of plaintiff, and husband of defendant, registered in Book 211 at page 568 of Registry of Johnston County, and after reciting the contentions of the parties respectively, entered a judgment under date of 18 July, 1944, in which it is held that plaintiff is entitled to the relief he seeks in this proceeding, that is, that 'he is entitled to have this proceeding go forward to the end that he may have his share in this real estate actually partitioned and assigned to him by metes and bounds by a committee duly appointed by the court, and in accordance therewith orders that a partition of the land be made', etc. The defendant appealed from this order to the Superior Court.
The parties stipulate that thereafter the heirs at law of Archie Artis, deceased, naming them, were made parties to this proceeding and served with summonses; that the minor defendants were properly represented by guardian ad litem, named and duly appointed and served; that Ida Artis took possession of the 30 acres of land in question after the execution and recording of the said deed; that Ida Artis has paid more than $1,000 for mortgages on 102 acres of land due by Archie Artis and Virginia Artis, former wife of said Archie Artis and had had said mortgages transferred to her and the deed for the 30 acres to her and Mark Artis was the consideration to her for the payments of the said $1,000 and the 30 acres were a part of the 102 acres; that the administration of the estate of Archie Artis had been closed and the estate fully settled prior to the institution of the action; that the land described in the deed in question embraces the home site of Archie Artis, deceased, the grantor in the deed. See Book 211, page 568 of Registry of Johnson County.
The answer of the guardian ad litem admits the allegations of the petition, and of the reply to the answer of defendant, and concurs in the prayer for relief as set out in the petition.
The record on this appeal contains as Exhibit A what purports to be the record in a partition proceeding entitled 'Wade Artis, et al, and Ida L. Artis, widow, heirs at law of Archie Artis, deceased, Ex Parte', the petition in which purports to have been verified 6 January, 1938, the substance of which appears in the finding of the judge hereinafter set out; and as Exhibit B, what purports to be the deed dated 15 December, 1928, from Archie C. Artis to Ida L. Artis and Mark Artis, duly acknowledged and probated, and registered in the office of the Register of Deeds for Johnston County in Book 211 at page 568, on 12 June, 1930, in which (1) the parties are 'Archie C. Artis * * * of the first part', and 'Ida L. Artis and Mark Artis * * * of the second part'; (2) the consideration is 'One Thousand Dollars * * * paid by Ida L. Artis and Mark Artis'; (3) the granting clause is: 'has bargained and sold, and by these presents doth grant, bargain, sell and convey to said Ida L. Artis and Mark Artis their heirs and assigns'; (4) there follows the description this language: 'At the death of Ida L. Artis, if no bodily heirs by Archie C. Artis, then the above lands or her part of same shall be divided between the Archie C. Artis heirs also Archie C. Artis holds his lifetime right to the above described property'; (5) the habendum is: 'To have and to hold the aforesaid tract or parcel of land * * * to the said Ida L. Artis and Mark Artis, their heirs and assigns, to their only use and behoof forever'; and (6) the covenantees in the warranty of seizin in fee, of right to convey in fee simple, of freedom from encumbrances, and of general warranty are 'said Ida L. Artis and Mark Artis' heirs and assigns'. These exhibits apparently were in evidence before the judge on hearing in Superior Court.
When the cause came on for hearing before judge of Superior Court, presiding at November Term 1947, the parties consented that the issues raised are matters of law rather than issues of fact, and all of the evidence consists of records, and a jury trial being waived by the attorneys for both petitioner and the defendant, and it being agreed that the judge consider the record evidence, the judge made the findings substantially as follows (numbering being inserted):
1. That it appearing to the court that this is a special proceeding brought by petitioner for partition of lands of both petitioner and defendant, Ida Artis, it being thirty acres in Ingram's Township, Johnston County, conveyed to petitioner and Ida Artis by Archie Artis, by deed dated 15 December, 1928, registered in Book 211 at page 568, registry of said county;
2. That it further appearing to the court that Archie Artis died intestate and left him surviving Ida Artis, as his widow, and the following children: Mark Artis, Ed Artis, Wade Artis, Milton Artis, and Inez Evans; that on 6 January, 1938, said children as his heirs at law, and Ida Artis, widow, instituted a special proceeding No. 1113 in Superior Court of Johnston County for the purpose of partitioning the entire body of 102 acres of land owned by Archie Artis at the time of his death, among said five children; that in the petition therein it is alleged, among other things, that 'the petitioner, Ida L. Artis, widow, is entitled to dower in the following described lands'; and then follows a description of the entire 102 acres by metes and bounds,--it being further alleged in said petition that there is expressly excepted from the partition of said lands the tract of 30 acres which had been conveyed theretofore by Archie Artis to Ida Artis and Mark Artis, as above set forth; and that it appears from the entire record in said 'S. P. 1113' that no dower was in fact set apart and allotted by the commissioners to Ida Artis, the widow, although as such she was entitled to have dower formally set apart to her; and that this proceeding went to final judgment 10 January, 1939; (A reading of the Commissioner's report indicates that the commissioners delineated and set apart to Ida Artis and Mark Artis the 30 acres above referred to, and partitioned the remainder among the five children);
4. That it...
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