Berrier v. Sink

• Decision Date: 09 December 1925
• Docket Number: 389.
• Citation: Berrier v. Sink, 190 N.C. 620, 130 S.E. 714 (N.C. 1925)
• Parties: BERRIER v. SINK.
• Court: North Carolina Supreme Court

130 S.E. 714

190 N.C. 620

BERRIER v. SINK.

No. 389.

Supreme Court of North Carolina

December 9, 1925

Appeal from Superior Court, Davidson County; Schenck, Judge.

Action by Triphenia E. Berrier (Cook) against Adam L. Sink. Judgment for plaintiff, and defendant appeals. Reversed.

Will held not to create condition subsequent.

Relevant facts: This action was brought by plaintiff against the defendant to recover the possession of 100 acres of land less 51 3/4, to wit, 48 1/4 acres. In the will of W. A Berrier, the material clauses are as follows:

"First. I give and bequeath unto my beloved wife Elizabeth all my real and personal property, to have the right to collect all debts coming to me, to pay all debts I owe, to sell real or personal property for her own use and benefit at my death to make sale, sell all loose property she doesn't need for her own use and benefit, the money for same to pay what I owe, if any left to her own use.

Second. I give unto my son D. T. Berrier and my daughter Triphenia E. Berrier 200 acres of land to be equally divided between them on the east run by a north and south line, then divided by east and west line, for David to have the south end provided he pay Triphenia $125.00 for to finish the house and dig a well, if David want to do that, for Triphenia, if David won't pay the $225.00 to Triphenia for her to pay it to same and for her to have the south piece for them both to see that their mother don't suffer their care, if either of them fail to take care of her for their part to go to some one who will care for her, for them their bodily heirs if any, if none to next of kin.

Third. I give to my daughter Mary D. Shoaf 65 acres of land on the southeast corner, run so as to include the house and spring known as the Robert house, and a cartway over the other lots to the public road.

Fourth. To Wm. H. Berrier the balance of my land what is more or less during his life, at his death to his bodily heirs, if none to next of kin, for him to have the accounts found against him at my death."

W. A Berrier died May 3, 1902. On October 19, 1904, Bettie Hepler (so designated in deed, now the plaintiff Triphenia E. Berrier Cook) and her husband, J. F. Hepler, Mary D. Shoaf, and W. H. Berrier, made, executed, and delivered to David T. Berrier a deed which was duly recorded June 29, 1905, in the register of deeds office for Davidson county, N. C., for 100 acres of land more or less setting forth the metes and bounds. The locus, 48 1/4 acres, in controversy is a part of the land. The deed had the following recitals:

"That said parties of the first part, in consideration of one dollar and the further consideration of a division of the lands of W. A. Berrier to him paid by said party of the second part, the receipt of which is hereby acknowledged. * * * This being the part of David T. Berrier in the division of lands of W. A. Berrier under will of said W. A. Berrier. * * * And the said parties of the first part covenant that they are seized of said premises in fee, except the interest of Mrs. W. A. Berrier under said will, and have right to convey the same; that the same are free and clear from all incumbrances and that they will warrant and defend the said title to the same against the claims of all persons whomsoever."

On June 29, 1905, David T. Berrier made, executed, and delivered a deed to Adam L. Sink, defendant, which deed was duly recorded in the office of the register of deeds of Davidson county, N. C., on the same date as deed. The consideration was $1,000 stated in the deed. The land conveyed was the 100 acres by metes and bounds (less 51 3/4) with recital:

"This being the part of David T. Berrier in the division of lands of W. A. Berrier under will of said W. A. Berrier. Less 51 3/4 acres sold to R. L. McCrary. For boundaries see Deed Book No. 58, page 277, in office of register of deeds for Davidson county, N. C."

The covenant is as follows:

"And the said parties of the first part covenant that they are seized of said premises in fee, except the interest of Mrs. W. A. Berrier under said will, and have the right to convey the same in fee simple; that the same are free and clear from all encumbrances and that they will warrant and defend the said title to the same against the claims of all persons whomsoever."

Elizabeth Berrier, wife of W. A. Berrier, died March 27, 1924, 88 years old. After the death of W. A. Berrier, his son David T. Berrier lived at the old home place, part of same now claimed by defendant Adam L. Sink. Elizabeth Berrier stayed with her son David T. Berrier at the old home place about a year after the death of her husband. David married, and his mother then went to live with the plaintiff and lived with her until her death. David lived on the old home place until 1905, when he sold part of it to defendant, who has been in possession ever since. Plaintiff can read and write. She never made claim on R. L. McCrary for the part of the 100 acres of land, to wit, 51 3/4, deeded him by David T. Berrier. She got a deed from David T. Berrier and the others at the time she and others made deed to David in the land settlement under the will.

Plaintiff testified:

'I never asked defendant for anything. He paid me some money every year. Paid the rent. * * * Neither D. T. Berrier nor defendant paid me $225 provided for in the will. * * * Defendant gave me a check for $25 a year. He did not say: 'Here is a check for your mother. I gave it in your name for I knew she was not able to get the check cashed.' Sometimes he would see me here in town. Never would bring it to me. Never did say what the check was for, and I did not ask him, and I cannot tell you how much it amounted to, but I reckon in all it would amount to $500 or $600 he paid in the time he had the land until mother's death."

Adam L. Sink testified, in part:

"I am in possession of the land conveyed by the deed of David T. Berrier to me, offered in evidence, and have been in possession of it for about 19 years. David T. Berrier was in possession of the land when I bought it. I don't suppose there is over 9 or 10 acres in cultivation. There is a very old dilapidated building on it. I have other land adjoining it. The rental value of the land I bought from David T. Berrier is worth about $25 per year. I bought the land. I don't know whether Elizabeth Berrier was living with David T. Berrier or Bettie Hepler (plaintiff). After I bought the land, I had an agreement with Bettie Hepler. plaintiff, as to taking care or assisting in taking care of her mother, Elizabeth Berrier. She was to care for her, support her, and anything that came up. I paid her the $25 in advance; I think probably in January, 1906. In consequence of this agreement, I paid Bettie Hepler and took her receipt, signed Bettie E. Hepler, W. H. Berrier, witness. Berrier is her brother. * * * Since that time I would make payments first of every year from 1906 to 1924. Never failed to pay it. Paid $25 a year, and from that I went to $50 a year. Last few years paid $60. Did not take receipts--only the checks. She said she would receipt me any time I called for it. I found some checks that I have paid last two years. I did not save the checks. Did not think of any dispute. It was perfectly agreeable and everything satisfactory. Bettie never asked me for anything further; always said it was a plenty; I had done my part. * * * I never paid any rent on the land. I was to pay so much for caring for her mother, and she never asked for a brownie more."

Defendant introduced the following:

"Lexington, N. C., Jan. 1, 1906.

Received Jan. 1, 1906, of A. L. Sink $25.00 dollars in full for all claims I have or may have against him for support of my mother to Jan. 1, 1907. The same is in lieu of David T. Berrier's part toward the support of my mother.

T. T. Hepler. [ Seal.]

Witness: W. H. Berrier."

"Lexington, N. C., No. 594.

January 31, 1922.

A. L. Sink, Grocer.

Pay to the order of Bettie Hepler Cook $60.00 for board & Dr. bill.

A. L. Sink.

To Commercial & Savings Bank,

Lexington, N. C."

Indorsed by Bettie Hepler Cook.

"Lexington, N. C., No. 38.

January 31, 1923.

A. L. Sink, Grocer.

Pay to the order of Bettie Cook $50.00 for her mother's support.

A. L. Sink.

To Commercial & Savings Bank,

Lexington, N. C."

Indorsed by Bettie Cook.

"Lexington, N. C., No. 482.

January 19, 1924.

A. L. Sink, Grocer.

Pay to the order of Bettie Cook $60.00 for mother's support in full--paid to January, 1925.

A. L. Sink.

To Commercial & Savings Bank,

Lexington, N. C."

Indorsed by Bettie Cook--W. H. Berrier.

Plaintiff, in her prayer for relief, demands judgment for the said land and so much per year for its retention, etc.

In reply to the answer, plaintiff demands judgment for the land; and if she is estopped by her deed from the recovery of the land, she prays for judgment for a lump sum and that it be declared a lien on the land.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Is the plaintiff the owner and entitled to recover of the defendant the lands described in the complaint? Answer: Yes.

(2) What amount, of rents, if any, is the plaintiff entitled to recover of defendant for the detention of said lands? Answer: Not any."

Other facts and pleadings necessary for decision of this case will be stated in the opinion.

Adams and Varser, JJ., dissenting in part.

J. R. McCrary and Raper & Raper, all of Lexington, for appellant.

Phillips & Bower and Walser & Walser and Z. I. Walser, all of Lexington, for appellee.

CLARKSON J.

The will of W. A. Berrier, which we are called upon to construe from its language seems to have been drawn inops con silii. In the first...