Bowman v. Howard

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Bowman v. Howard, 182 N.C. 662, 110 S.E. 98 (N.C. 1921)
• Decision Date: 14 December 1921
• Docket Number: 414.
• Parties: BOWMAN ET AL. v. HOWARD ET UX.

110 S.E. 98

182 N.C. 662

BOWMAN ET AL. v. HOWARD ET UX.

No. 414.

Supreme Court of North Carolina

December 14, 1921

Appeal from Superior Court, Scotland County; Ray, Judge.

Consolidated proceedings by Hattie Howard Bowman and husband against West Howard and wife and against Lizzie Howard London, for whom West Howard was substituted. Judgment for plaintiffs, and defendants appeal. No error.

The plaintiff Hattie Bowman instituted before the clerk two proceedings for a sale for partition of the lot in controversy. In February, 1916, Lizzie Howard London conveyed to West Howard a deed for said lot, and on the day following West Howard reconveyed a portion of said lot to his mother Lizzie Howard London. In one of these proceedings West Howard was defendant, and in the other Lizzie Howard London was defendant. Lizzie died intestate in June, 1920, leaving West Howard as her only heir at law, and he was made party defendant in the proceeding originally instituted against her. Upon a plea of sole seizin, the cases were transferred to the civil docket, and when called for trial were consolidated. The issues and the answers thereto are as follows:

"(1) Was Charlie Howard, at the time of his death, the owner and seized in fee simple and in possession of the lands described in paragraph 1 of the petition and amended complaint? Answer: Yes.

(2) Is the plaintiff Hattie Howard Bowman the sole heir at law of Charlie Howard, deceased? Answer: Yes.

(3) Is the plaintiff Hattie Howard Bowman the owner and entitled to the immediate possession of the lands described in paragraph 1 of the petition and amended complaint? Answer: Yes."

After judgment the defendants, having entered exceptions of record appealed.

Stacy J., dissenting.

Cox & Dunn, of Laurinburg, for appellants.

G. T. Goodwyn and Russell & Weatherspoon, all of Laurinburg, for appellees.

ADAMS J.

The plaintiff instituted two proceedings for a sale of land for partition. In each petition she alleged that Charlie Howard died intestate in January, 1916, seized and possessed of the lot in controversy, leaving surviving him as his only heirs at law two daughters, the plaintiff and Lizzie Howard London, the defendant's mother, and that the plaintiff and the defendant were tenants in common and entitled each to a one-half undivided interest. The defendant denied the material allegations; alleged that at the time of her death Lizzie held the title in fee, and that the defendant was sole seized. The cases were thereupon transferred to the civil docket, and when they were called for trial the court granted the plaintiff leave to reply. In each case the plaintiff filed a replication, which in effect contradicted her former allegation that she and Lizzie were cotenants, and admitted, as the defendant alleged, that Lizzie was not an heir of Charlie Howard. When the replications were filed the defendant asked leave to amend his answer so as to allege that he was, and the plaintiff was not, Charlie Howard's heir at law. The motion was disallowed, and the defendant excepted. The defendant then moved for leave "to reply to the replies," and excepted to the court's denial of the motion. The next recourse of the defendant--a demurrer ore tenus to the replies--the court held to be unavailing, and again exception was duly entered.

In "A Treatise on the Principles of Pleading," p. 135, Stephen says:

"On the whole, therefore, the author conceives the chief objects of pleading to be these: That the parties be brought to an issue, and that the issue so produced be material, single, and certain in its quality. In addition to these, however, the system of pleading has always pursued those general objects also which every enlightened plan of judicature professes to regard--the avoidance of obscurity and confusion, of prolixity and delay."

Regard for this familiar principle no doubt moved his honor to strike out the replications, and to make an order allowing the plaintiff to file a complaint with the usual allegations in ejectment, and allowing the defendant to file an answer thereto. To this order also the defendant excepted; but the court properly resolved to clear away the confusion produced by the inconsistent pleadings. The court, it will be noted, did not change the cause of action. The plea of sole seizin had already converted the proceeding into an action of ejectment (Sipe v. Herman, 161 N.C. 108, 76 S.E. 556), and the obvious purpose of the judge was "to bring the parties to an issue." The amended pleadings afforded ample opportunity to safeguard every right these exceptions were intended to preserve. For this reason exceptions 1, 2, 3, and 22 to 25, inclusive, are overruled.

The fourth exception was taken to his honor's conclusion that in the defendant's original answers there was not sufficient allegation that Lizzie Howard London, mother of the defendant, was an heir at law of Charlie Howard. This ruling was made, however, before the amended pleadings were filed, and was not intended to apply, and by its terms did not apply, to the complaint and answer upon which the consolidated cases were tried. The evidence tended to show that Lizzie was born in Virginia some time before her mother came to North Carolina, and of course before she made the acquaintance of Charlie Howard. Indeed, after the amended pleadings were filed the defendant's chief purpose seems to have been to show that the plaintiff was not the heir of Charlie Howard; and the trend of the defendant's evidence and the charge of the court indicate that the defense was based almost entirely on this theory. We are therefore satisfied that in the respect referred to the defendant was not materially prejudiced, and that the fourth exception cannot be sustained.

Exceptions 5 to 12, inclusive, impute error to the admission of D. A. Smith's testimony concerning the boundaries of the lot up to which Charlie Howard claimed title. The beginning corner of the lot in controversy was "at an iron stake, Duncan Smith's corner." The witness testified that he was the Smith referred to and knew the location of this corner; that at the time he purchased from McLaurin his land was surveyed, and McLaurin at that time "put down" the corner in controversy as a corner of the land sold to the witness.

Charlie Howard had no paper title. The plaintiff relied upon Howard's alleged adverse possession, and it was particularly important for her to show the "known and visible lines and boundaries" of the lot. The evidence excepted to was competent. Evidence that McLaurin had "put down" the corner was substantive, not hearsay, but, if it can be construed as a declaration tending to locate his own land, it was contemporaneous with the survey ( Cherry v. Slade, 7 N. C. 86), and, if as a declaration concerning the corner of an adjoining lot, it was likewise admissible (Mason v. McCormick, 85 N.C. 226; Fry v. Currie, 91 N.C. 439). Also the statement of the witness that Charlie Howard showed him the "common corner" is entirely too indefinite to constitute reversible error.

Exceptions 13 to 20, inclusive, assail the admissibility of Charlie's and Celie's declarations concerning the paternity of Hattie. There was evidence for the plaintiff which tended to show that Celie and Lizzie, her older daughter, were brought from Virginia to Rockingham in 1862, that after the custom of slaves Celie intermarried with Charlie Howard a few years afterward, and that Hattie was born after the marriage. C. S. § 2497; Bettis v. Avery, 140 N.C. 187, 52 S.E. 584; Erwin v. Bailey, 123 N.C. 628, 31 S.E. 844; Long v. Barnes, 87 N.C. 330. If the jury should accept this evidence, the declarations, made ante litem motam by the alleged father and mother, who have since died, were admissible without regard to section 279 of Consolidated Statutes. Family tradition or pedigree is a recognized exception to the rule which generally excludes hearsay evidence. Hodges v. Hodges, 106 N.C. 374, 11 S.E. 364; Rollins v. Wicker, 154 N.C. 560, 70 S.E. 934; Turner v. Person, 175 N.C. 219, 95 S.E. 362, L. R. A. 1918D, 1082; Moffitt v. Witherspoon, 32 N.C. 186.

In answer to the question whether he knew the reputed father of Hattie, a witness was permitted to testify over the defendant's objection that he knew her as Charlie Howard's daughter. Section 279 of Consolidated Statutes is as follows:

"When the mother of any bastard child and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall in all respects after such intermarriage be deemed and held to be legitimate and entitled to all the rights in and to the estate, real and personal, of its father and mother that it would have had had it been born in lawful wedlock."

In the case on appeal it is said:

"No contention as to the statute was made by the defendant except as to the construction of the words 'reputed father,' which the defendant contended should be construed to mean 'actual father.' "

The exception is not meritorious. The word "reputed" means considered, or generally supposed, or accepted by general or public opinion. 34 Cyc. 1625; Black's Law Dic. 1022; Pav. Co. v. Lyons (Cal.) 43 P. 599. In McBride v. Sullivan, 155 Ala. 174, 45 So. 904, Simpson, J., says:

"The use of the word 'reputed' was intended merely to dispense with absolute proof of paternity, so that, if the child is 'regarded,' 'deemed,' 'considered,' or 'held in thought,' by the parents themselves, as their child, either before or after marriage, it is legitimate."

The issues were framed so as to present the various...