Barton v. Barton

• Decision Date: 03 November 1926
• Docket Number: 357.
• Citation: 135 S.E. 296,192 N.C. 453
• Parties: BARTON v. BARTON et al.
• Court: North Carolina Supreme Court

135 S.E. 296

192 N.C. 453

BARTON v. BARTON et al.

No. 357.

Supreme Court of North Carolina

November 3, 1926

Appeal from Superior Court, Forsyth County; Webb, Judge.

Action by Mrs. Catherine A. Barton against Daniel Barton and others. Judgment of the county court for plaintiff, on appeal to the superior court, was reversed, and the cause ordered remanded for another hearing. From this order, plaintiff appeals. Reversed.

Civil action to correct error in deed, alleged to have been caused by mutual mistake or mistake of the draftsman, tried in the Forsyth county court on the following issues:

"(1) Was the deed executed by mutual mistake of Catherine A Barton and A. A. Barton, conveying a fee simple, except her dower interest, instead of a life estate, as alleged in the complaint? A. Yes.

"(2) If so, is the plaintiff estopped by her actions and conduct to contest such mutual mistake, as alleged in the answer? A. No.

"(3) Is the plaintiff's cause of action barred by the 3-year statute of limitations, as alleged in the answer? A. No.

"(4) Is the plaintiff's cause of action barred by the 10-year statute of limitations, as alleged in the answer? A. No."

On appeal to the superior court, the cause was remanded for another hearing for errors in the admission of evidence; and from this order, the plaintiff appeals, contending that no reversible error was committed on the trial in the county court. Defendants also gave notice of an appeal, but this was abandoned.

Parrish & Deal, of Winston-Salem, for appellant.

Swink Clement, Hutchins & Feimster, of Winston-Salem, for appellees.

STACY C.J.

The plaintiff, Catherine A. Barton, inherited several valuable pieces of real property from her father, Phillip Hopkins. In 1901, she conveyed to her husband, A. A. Barton, a life estate in one of these tracts of land. Later, this property was sold, and in 1912 the plaintiff conveyed another lot to her husband, intending to provide a home for him during his lifetime only, but, by mutual mistake or the mistake of the draftsman, the deed did not limit the estate conveyed to one for life. Upon its face, the deed conveys a fee simple. Plaintiff's husband died in 1925, without child or children him surviving. This action is brought by his widow against his heirs at law to reform the deed or to correct the mistake.

Plaintiff testified, over objection, that in 1912, when the deed in question was executed, she took the deed which she had executed in 1901, conveying a life estate to her husband in the first tract, to a justice of the peace and asked him to draw a deed for the second tract "just like the other one," and, upon assurance from the justice of the peace that the deed he had prepared was just like the first one and conveyed only a life estate to her husband, she signed the same, not knowing or thinking that it was a deed in fee simple.

Due to the admission of this evidence, over objection by the defendants, the superior court deeming it to be incompetent under C. S. § 1795, the cause was remanded for another hearing, as provided by the act creating the Forsyth county court. Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154; Smith v. Winston-Salem, 189 N.C. 178, 126 S.E. 514.

On cross-examination, and, of course, without objection, the plaintiff was asked if her husband was present at the time of her conversation with the justice of the peace. She answered in the affirmative. Then the following question was asked her:

"And you handed the deed to your husband after this conversation with Mr. Lehman (justice of the peace), didn't you?"

To which she replied, "Yes, sir." The cross-examination of the witness was first had in the absence of the jury and later offered in evidence by the defendants. There was other evidence tending to support the plaintiff's view of the case.

It will be observed that the plaintiff had testified to no personal transaction or communication between herself and her husband since deceased, until she was asked the direct question on cross-examination as to whether she handed the deed in question to her husband. In re Will of Mann, 192 N.C. 248, 134 S.E. 649. It is the holding of a number of cases, in keeping with the language of the statute, that the personal transaction or communication about which the interested witness may not testify is one between the witness and the deceased and not one between the witness and a third person, even...