Austin v. Staten

• Decision Date: 05 June 1900
• Citation: 36 S.E. 338,126 N.C. 783
• Parties: AUSTIN v. STATEN et al.
• Court: North Carolina Supreme Court

36 S.E. 338

126 N.C. 783

AUSTIN v. STATEN et al.

Supreme Court of North Carolina

June 5, 1900

Appeal from superior court, Union county; McNeill, Judge.

Action by M. C. Austin against E. M. Staten and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

R. B Redwine and Adams & Jerome, for appellant.

Armfield & Williams and A. M. Stack, for appellees.

FURCHES J.

This is an action for the possession of land commenced on the 23d day of May, 1896. The defendants rely on the general denial of the plaintiff's right to possession, in which the plaintiff's title and the defendants' possession under color of title are involved. The following issues were submitted without objection: "(1) Is the plaintiff the owner and entitled to the possession of the land described in the complaint? Ans. No. (2) What is the annual rental value of the said land? (3) What damage is the plaintiff entitled to recover?" The plaintiff and defendants both claim title under the same parties, to wit, W. H. Staten, J. F Staten, and J. B. Staten. The plaintiff claims under a deed dated March 31, 1896, and registered on the same day. The defendants claimed under a deed dated December 31, 1887, and registered May 31, 1897. It was admitted that the defendant E. M. Staten had been in the continuous possession of the land ever since the date of his deed in 1887. It was also in evidence that he was a neighbor of the defendant E. M Staten, know of the deed to said defendant, and of defendant's possession. The plaintiff's wife is a sister of the grantors, and a half-sister of the defendant. The evidence tended to show (and was not contradicted) that the defendant E. M. Staten was threatening to caveat and contest his father's will, and the other defendants conveyed him the land in controversy in consideration that he would not do so; that two of the grantors were minors under 21 years of age when the deed to the defendant was executed but had both reached the age of 21 more than three years before the date of the conveyance to the plaintiff, and before the commencement of this action. It was in evidence that the grantors were men of small means, and in debt; that on the day they made the deed to the plaintiff they went to the town of Monroe, and consulted an attorney as to whether they could recover the land in controversy from the defendant E. M. Staten, and under his advice they made the deed to the plaintiff, and he executed his note to them as the consideration therefor in the sum of $297.50, due one day after date, and dated March 31, 1896; that no part of said note has been paid, but it was offered in evidence on the trial by the plaintiff as evidence of consideration for the deed; and the grantors testified that the sale to the plaintiff was bona fide. This is substantially the case at the close of the evidence, and the plaintiff asked the court for the following special instructions: "(1) That the evidence is insufficient to show fraud in the procurement and execution of the deed under which the plaintiff claims title to the land mentioned in the complaint. (Refused, and plaintiff excepted.) (2) That there is no evidence to show fraud in the procurement and execution of the deed under which the plaintiff claims title to the land. (Refused. Plaintiff excepted.) (3) If the jury believe the evidence, they will find that the plaintiff is a purchaser of the land for value. (Refused, and plaintiff excepted.) (4) That, if the jury believe the evidence introduced by the defendant himself, then the plaintiff paid a valuable consideration for the land. (Refused, and plaintiff excepted.)" And the court charged the jury in part as follows: "The burden is upon the plaintiff to show that he is a purchaser for a valuable consideration, the defendant having shown a deed to the land older than the plaintiff's. He must show this by a preponderance of the testimony; that is, he must show you by a greater weight of the testimony that he paid for the land." The plaintiff excepted to this part of the charge. "If you should find from the evidence that the note given for the purchase money of the land was executed under an agreement, or with any understanding with the grantors in said deed upon the part of the plaintiff that the note was not to be paid unless the plaintiff recovered the land in this suit, in such case the plaintiff would not be a purchaser for value, and, should you find that there was such an agreement or understanding, you will answer the first issue, 'No."' The plaintiff excepted. "In this case the defendant contends that the transaction by the plaintiff and his grantors was one without a valuable consideration, and as to this the court has instructed you that the burden of proof is upon the plaintiff to show that he paid for the land, or gave a note without any understanding or agreement that it was not to be paid in case plaintiff should not recover in this suit." The plaintiff excepted. "The burden is upon the plaintiff to show the bona fides of the transaction,--that is, to show that he paid for the land; and in passing upon the question as to whether or not Austin paid or was to pay for the land without any condition you will consider all the circumstances surrounding the transaction." The plaintiff excepted. "The defendants contend that the fact that there has nothing been paid on the note; that no effort has been made to collect the note save a request to the attorney...