Bargee v. Bumpass

• Decision Date: 31 March 1926
• Docket Number: (No. 336.)
• Citation: 132 S.E. 275
• Court: North Carolina Supreme Court
• Parties: BARGEE et al. v. BUMPASS et al.

132 S.E. 275

BARGEE et al.

v.BUMPASS et al.

(No. 336.)

Supreme Court of North Carolina.

March 31. 1926.

(191 N.C.)

Appeal from Superior Court, Durham County; Devin, Judge.

Civil action by Hosea Barbee, executor, and others, against E. M. Bumpass, administrator and others to quiet title and remove a cloud therefrom arising from claim of defendants under deeds executed by Jennie Barbee to her husband, February 19, 1913, without complying with requirements of C. S. § 2515, thus rendering them void. Judgment for plaintiffs on agreed statement of facts, and defendants appeal. Affirmed.

A. T. Johnson, of Durham, for appellants.

Victor S. Bryant, of Durham, for appellees.

STACY, C. J. [1] In the language of a Cherokee Indian, "the plaintiffs have lawed the defendants to kill a deed, " in fact two; or, in other words, the action is one brought under C. S. 1743, to quiet title or to remove a cloud therefrom, which, it is alleged, arises out of a claim by the defendants to the lands in question by reason of two deeds executed by Jennie Barbee to her husband, Green Bar-bee, February, 19, 1913, without complying, in either case, with the provision of C. S. 2515, requiring the probate officer, as a condition precedent to the validity of the conveyance, to certify in his certificate of probate, that, at the time of its execution and the wife's privy examination, such contract was not unreasonable or injurious to her. It is conceded that the failure on the part of the probate officer to observe this requirement of the statute rendered both deeds absolutely void. Davis v. Bass, 124 S. E. 566, 188 N. C. 200; Wallin v. Rice, 87 S. E. 239, 170 N. C. 417.

But the defendants, who are the lawful heirs of Green Barbee, and as such, or as devisees under his will, claim the land by, through, or under him, say that, notwithstanding the invalidity of these deeds, yet they were good as color of title, and that, as Green Barbee held the lands under such deeds from 1913 until his death in 1923, being more than 7 years under color, his claim thereto ripened into a perfect title, leaving him seized in fee of such lands at the time of his death, October 10, 1923. Norwood v. Totten, 82 S. E. 951, 166 N. C. 649.

The plaintiffs, on the other hand, who are the children and only heirs at law of Jennie Barbee, and who claim the lands by, through, or under her, say that, while it is true these deeds existed and were on record for more than 7 years prior to Green Barbee's death, yet his possession was not adverse, that Jennie Barbee and Green Barbee, her husband, continued to live together and occupied a part of said lands jointly, as their home, until March 17, 1916, the date of the death of Jennie Barbee and that Green Barbee, following the death of his wife, being advised by counsel learned in the law that the above deeds held by him were void, continued to occupy said lands as tenant by the curtesy, and did not pretend or claim to be the absolute owner thereof.

It is clear that the plaintiffs are...