Buchanan v. Clark

• Decision Date: 13 December 1913
• Parties: BUCHANAN v. CLARK ET AL.
• Court: North Carolina Supreme Court

80 S.E. 424

164 N.C. 56

BUCHANAN v. CLARK ET AL.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Avery County; Lyon, Judge.

Action by Desty C. Buchanan against W. C. Clark and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Clark C.J., dissenting.

This is an action for the recovery of land, and its decision turns upon the question whether a deed, or instrument in the form of a deed, and sufficient to convey presently a fee-simple title in the land to Raymond Buchanan by C. F. and R. E Franklin, had been delivered. A second deed was executed by the Franklins to the defendant W. C. Clark, at his request for the same land. Plaintiff, who is the sole heir at law of Raymond Buchanan, he having died some time between the dates of the two deeds, contends that the first paper was duly delivered to defendant W. C. Clark by the Franklins, the grantors, for Raymond Buchanan, and that Clark agreed to receive and did receive it for that purpose, and that the title thereby immediately passed to Buchanan; while Clark denies that there was such a delivery, and avers that he acquired the title. The parties agreed to waive a jury trial and that the judge should find the facts and state his conclusions of law thereon, and that judgment should be entered accordingly. The facts were found by the judge in accordance with the agreement of the parties, and it is sufficient to state that there was ample evidence, without setting it out, to support the said findings, which are as follows:

(1) That Raymond Buchanan was an illegitimate son of the plaintiff.

(2) That the defendant W. C. Clark was the father of said Raymond Buchanan.

(3) That the said Raymond Buchanan died intestate on the 15th day of May, 1911, leaving the plaintiff his sole heir at law.

(4) That on the 16th day of March, 1910, the defendants, W. C. Clark, and C. F. Franklin, and R. E. Franklin, made an exchange of land, and, in consideration of the conveyance of certain land to the defendants C. F. Franklin and R. E. Franklin, they, at the request of the said W. C. Clark, executed a deed in fee simple to said Raymond Buchanan for the lands in controversy, which deed was duly acknowledged by the said defendants Franklin before T. M. Vance, a justice of the peace, who took the acknowledgement of the said C. E. Franklin and wife, R. E. Franklin, and her privy examination; the said deed being in proper form, and signed and sealed by both the Franklins before said acknowledgment.

(5) That after the due execution of the deed by the Franklins, and the probate of the same by the justice of the peace it was delivered to the defendant W. C. Clark for Raymond Buchanan, who was then in the state of Kentucky.

(6) That Raymond Buchanan died before he was 21 years of age.

(7) That on the 21st day of November, 1911, after the death of Raymond Buchanan, and after defendants knew of his death, the Franklins, at the request of defendant W. C. Clark, executed a second deed for the property, and delivered the same to the defendant W. C. Clark, and in this second deed W. C. Clark was named as grantee.

(8) That during the month of April, 1912, W. C. Clark handed the first deed, in which Raymond Buchanan was named as grantee, to defendant C. F. Franklin.

(9) That thereafter, upon demand of plaintiff's attorney, the defendant C. F. Franklin delivered said deed to the plaintiff, and the same was registered in Avery county.

(10) That at the time of the execution of the second deed above mentioned the defendant W. C. Clark executed and delivered to the defendant C. F. Franklin a paper writing as follows:

"State of North Carolina, Avery County. This is to certify that I hereby bind myself, my heirs, and executors to pay to C. F. Franklin and wife any damages that may lawfully be awarded against them for making second deed for a piece of land, being a tract of land that said W. C. Clark intended to give to Raymond Buchanan. Witness my hand and seal this 21st day of November, 1911.

W. C. his X mark Clark. [ Seal.]"

(11) That the defendant Clark caused the said second deed to be registered before the registration of the first deed above mentioned.

(12) That there was no consideration for the execution and delivery of the second deed.

(13) That at the time of the execution of the first deed the grantors therein and the said W. C. Clark intended that the land in controversy should belong to Raymond Buchanan in fee simple.

(14) That the rents and profits derived from the land in controversy since the death of Raymond Buchanan are $25.

(15) That the defendant W. C. Clark withholds the land in controversy from the plaintiff, and has been in possession of the same, withholding the same from the plaintiff since the death of Raymond Buchanan on the 15th day of May, 1911.

The court thereupon adjudged, upon the facts so found, that plaintiff is the owner of the land, and entitled to the possession thereof, that defendants have no interest therein, and that the second deed of the Franklins to W. C. Clark be delivered up and canceled, and that the clerk of the court also cancel the same on the registry thereof, and also gave judgment against defendant for the costs. The defendant W. C. Clark excepted and assigned errors as follows: "(1) To the failure and omission of the court to find that it was the intention of W. C. clark to deliver the deed to Raymond Buchanan at the time of the death of the said Clark. (2) To the failure and omission of the court to find that it was the purpose and intention of W. C. Clark to make some provision for Raymond Buchanan so as to make him equal with his other children, and that this purpose was defeated by the death of the said Buchanan before the time at which the said Clark intended to deliver the deed. (3) To the judgment upon the ground that, on the facts found, it should have been rendered in favor of the defendant W. C. Clark."

S. J. Ervin, of Morganton, and W. C. Newland and Lawrence Wakefield, both of Lenoir, for appellants.

Harrison Baird, of Elk Park, L. D. Lowe, of Banners Elk, and Edmund Jones, of Lenoir, for appellee.

WALKER, J. (after stating the facts as above).

We are of opinion that the defendants in this case are completely foreclosed by the judge's findings of fact. Parties can have their causes tried by jury, by reference, or by the court. They may waive the right of trial by jury by consenting that the judge may try the case without a jury, in which event he finds the facts, and declares the law arising thereon. Revisal 1905, § 540. His findings of fact are conclusive, unless proper exception is made in apt time that there is no evidence to support his findings or any one or more of them. The present Chief Justice, in Matthews v. Fry, 143 N.C. 384, 55 S.E. 787, thus states the procedure in such cases: " 'The parties waived a jury trial, and agreed in writing that the judge should find the facts and enter judgment thereon, as upon the facts so found he might decide the law to be.' The judge found the facts and entered judgment thereon in favor of the defendant. * * * When the certificate of opinion was presented in the court below, the plaintiff moved for judgment in accordance therewith. The defendant resisted this judgment, and asked for trial de novo, and insisted that some of the findings of fact had been made by the judge without any evidence to support them. * * * The findings of fact by the judge when authorized by law or the consent of parties are as conclusive as when found by a jury, if there is any evidence"--citing Branton v. O'Briant, 93 N.C. 103; Roberts v. Insurance Co., 118 N.C. 435, 24 S.E. 780; Walnut v. Wade, 103 U.S. 688, 26 S.E. 526. The findings have the force and effect of a verdict. This is also the rule in other jurisdictions. Griffith v. Finger Mfg. Co., 115 Ga. 592, 41 S.E. 993.

The point was expressly decided with reference to the delivery of a deed in Avent v. Arrington, 105 N.C. 377, 10 S.E 991, where it was held that the finding as to delivery supported by some evidence was not reviewable here. This question is important, for a bare reference to the judgment will show at once that the judge has found that, in fact, there was a delivery of the deed by the Franklins to W. C. Clark for Raymond Buchanan. The following two findings, aside from others of equal force, may be selected as conclusive upon this question: "(1) That after the due execution of the said deed by the defendants Franklin, and the probate of the same of the said justice of the peace, the said deed was delivered to the said defendant W. C. Clark for said Raymond Buchanan, who was then in the state of Kentucky. (2) That at the time of the execution of the first deed the grantors therein and the said W. C. Clark intended that the land in controversy should belong to Raymond Buchanan in fee simple." Conceding, for the sake of discussion, that the defendant W. C. Clark has distinctly excepted, upon the ground that there is no evidence to sustain this finding, which may be questionable, we yet think that the evidence is sufficient for the purpose. The deed was prepared on March 16, 1910, actually delivered to defendant W. C. Clark on the same day for Raymond Buchanan, his son, after having been duly probated, and was registered May 8, 1912. C. F. Franklin testified that he delivered the deed to W. C. Clark, who had said that he "wanted the land deeded to Raymond." Mrs. Franklin testified that "W. C. Clark had them to make the deed to Raymond, so his other children could not knock him out of it," and, further, that W. C. Clark took the deed, said nothing about delivery, but that he wanted Raymond to have it. The second deed was executed by the Franklins to W. C. Clark after the death of...