Baggett v. Jackson

• Court: North Carolina Supreme Court
• Writing for the Court: ALLEN, J.
• Citation: Baggett v. Jackson, 160 N.C. 26, 76 S.E. 86 (N.C. 1912)
• Decision Date: 30 October 1912
• Parties: BAGGETT et al. v. JACKSON et al.

76 S.E. 86

160 N.C. 26

BAGGETT et al. v. JACKSON et al.

Supreme Court of North Carolina

October 30, 1912

Appeal from Superior Court, Sampson County; Carter, Judge.

Partition proceeding by W. L. Baggett and others against D. D. Jackson and others. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.

Where a partition suit was transferred to the superior court in term it was immaterial whether it was properly instituted before the clerk.

This proceeding was commenced before the clerk, and, on issue joined, was transferred to the superior court, at term, to be tried.

The petitioners are seven children of Charles Baggett, including Anson Baggett, who allege that as heirs of Charles Baggett they are tenants in common of two tracts of land, one containing 42 acres, and the other 11 3/4 acres, subject to the dower right of the widow of Charles Baggett, the defendant M. A. Baggett. They further allege that Anson Baggett is not entitled to any part of said land, because he had been fully advanced by the conveyance to him by Charles Baggett and wife of 42 acres of land, not described in the petition; that the other defendant, D. D. Jackson, who is the son of M. A. Baggett by a former marriage, has no interest in said land; that he and his mother are in possession of all of said land; and that this possession is wrongful as to all except so much thereof as may be set apart for dower; and they ask that the dower be allotted and the land divided subject to the dower, into six shares, one share to be assigned to each of the petitioners, except Anson Baggett who joins in the petition.

The defendants deny the material parts of the petition, and allege that the defendant M. A. Baggett is the owner of a life estate in said land, and that the defendant D. D. Jackson is the owner in fee of the remainder.

When the proceeding was called for trial, and before any evidence was introduced, the defendants moved to dismiss, "for that this court has no jurisdiction to hear this proceeding, as it was started before the clerk, for partition, and plaintiffs allege that they are not in possession of said land." His honor overruled the motion, and defendants excepted.

It was admitted that, prior to the 24th day of August, 1897, Charles Baggett was the owner in fee of the land described in the petition, and that the petitioners are his heirs, and the defendant M. A. Baggett his widow. On the 24th day of August, 1897, the said Charles Baggett and wife, M. A. Baggett, conveyed said land in fee to the defendant D. D. Jackson, by deed, in which appears the following clause, immediately after the description of said land: "We do except our lifetime on said land." On the 13th day of July, 1906, the said D. D. Jackson and wife executed a deed to the said Charles Baggett, by which they purported to reconvey said land to him in fee, which deed was duly registered on August 15, 1906. It was also admitted that D. D. Jackson became 21 years of age on September 19, 1908; that Charles Baggett died on June 10, 1910; and that this proceeding was commenced on September 27, 1911.

The defendant Jackson testified as follows: "I was living with Charles Baggett when he died; made a crop there that year. Frank Williams stayed there 1909. I helped him once in a while when wanted. I lived on Mr. Martin Tew's land. I helped wait on Charles Baggett until his death. I left once for nine months, first at Robert Jackson's place, and then in Johnston county. In that time I did not work on the land; but I went with Charles Baggett to see a doctor and paid the doctor's bill. While I was off, my brother stayed there, and I went back. Charles Baggett knew I was going, and did not object. When I went off this time, two of the girls were married and moved off. Only one single, and she married during that nine months. A few years later I moved off on Mr. Tew's place, and tended one crop and moved back. I gave in the land for taxes after Charles Baggett died, and paid the taxes since." Cross-examination: "I used what was made in 1910 supporting the family. I shot Mr. Aulsey Tew's hog and paid him $5 for it, and left and went to Johnston county. I came back a great many times." Redirect examination: "I administered on Charles Baggett's estate. Mr. Cooper was my lawyer. I paid all the heirs their part of the personal property."

There was no evidence of a disaffirmance of the deed of D. D. Jackson, other than that set out.

His honor, being of opinion that the defendant M. A. Baggett was not the owner of a life estate under the exception in the deed from Charles Baggett and wife, but was entitled to dower, and the defendant Jackson having failed to disaffirm his deed for three years after he became 21 years of age, before the commencement of this proceeding, directed the jury to so find, and the defendants excepted. Judgment was rendered, declaring the interests of the parties, and appointing commissioners to allot dower and to divide the lands. The defendants again excepted, upon the ground that if the plaintiffs had any interest in the land it was a remainder interest after a life estate, and that such interest was not the subject of an actual partition.

Faison & Wright, of Clinton, for appellants.

Geo. E. Butler, of Clinton, for appellees.

ALLEN J.

The motion to dismiss was made before the introduction of evidence, and was necessarily based on the allegations of the petition, which are fully authorized by the provisions of section 2517 of the Revisal, allowing dower to be allotted and a partition among tenants in common in the same proceeding. The presence of the other defendant, Jackson, if not shown to be a necessary party by the petition, was immaterial, except as affecting costs. Ormond v. Ins. Co., 145 N.C. 142, 58 S.E. 997.

If, however, the proceeding was improperly instituted before the clerk, to which we do not give our assent, when it was transferred to the superior court in term, that court had jurisdiction to fully determine all matters in controversy. Faison v. Williams, 121 N.C. 153, 28 S.E. 188; Roseman v. Roseman, 127 N.C. 496, 37 S.E. 518; Luther v. Luther, 157 N.C. 502, 73 S.E. 102; Williams v. Dunn, 158 N.C. 402, 74 S.E. 99.

We are also of opinion that his honor held correctly that, although the defendant M. A. Baggett might be the owner of a life estate in the lands described in the petition, the petitioners could have actual partition of the remainder. The law was otherwise prior to chapter 214 of Laws of 1887, section 2 of which is copied in section 2508 of the Revisal, which reads as follows: "The existence of a life estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seised and possessed as if no life estate existed. But this shall not interfere with the possession of the life tenant during the existence of his estate."

The first part of the section is susceptible of the construction contended for by the defendants, that it applies...