Caudle v. Morris

• Decision Date: 30 October 1912
• Citation: 76 S.E. 17,160 N.C. 168
• Parties: CAUDLE et al. v. MORRIS et al.
• Court: North Carolina Supreme Court

76 S.E. 17

160 N.C. 168

CAUDLE et al. v. MORRIS et al.

Supreme Court of North Carolina

October 30, 1912

Appeal from Superior Court, Wake County; Peebles, Judge.

Action by W. H. T. Caudle and others against Mollie Morris and others. From so much of a judgment for plaintiffs as adjudged that defendant Morris was entitled to a homestead in the land in controversy, plaintiffs appeal. Modified and affirmed.

A defendant in ejectment is precluded from obtaining any right in land not pleaded.

See also 158 N.C. 594, 74 S.E. 98.

These issues were submitted by the court to the jury:

"1. Was the execution of the deed from A. B. Emery to his son Vance procured by fraud and undue influence? Answer: No.

"2. Did the defendant Bryant Smith acquire title to the lands in question under the deed from J. C. L. Harris, commissioner, to him? Answer: No.

"3. Is the plaintiff Mrs. Loretta Caudle, as devisee, entitled to recover the lands described in the complaint? Answer: No.

"4. Did A. B. Emery, at the time he signed the deed to A. Vance Emery, have mental capacity to make a deed? Answer: Yes.

"5. Are the plaintiffs Loretta Caudle, Sarah Smith, and Fannie Pulley the owners as tenants in common of the lands mentioned in the complaint, subject to the homestead of Vance Emery's widow? Answer: Yes.

"6. What damages, if any, are the above-named plaintiffs entitled to recover? Answer: One penny each.

"6a. Did the defendant Bryant Smith fraudulently receive and hold the deed from J. C. L. Harris, commissioner? Answer: No.

"7. If so, when did the plaintiffs first learn of such fraud on the part of said Smith? Answer: --.

"8. When did the plaintiffs first learn that Bryant Smith claimed the land in controversy as his own under the deed from J. C. L. Harris, commissioner? Answer: April term of court, 1908.

"9. When was this action commenced as against Bryant Smith in his individual capacity? Answer: June 10, 1911, as devisee of her father.

"10. Is the action of Loretta Caudle and husband as devisee of her father barred by the statute of limitations? Answer: Yes."

Whereupon the court rendered judgment that the plaintiffs herein, to wit, Mrs. Loretta Caudle, Mrs. Sarah Smith, and Mrs. Fannie Pulley, recover of the defendant Bryant Smith the lands described in the complaint, subject to the homestead of Mollie Morris, the widow of A. V. Emery, during its continuance. The said plaintiffs excepted to so much of the judgment as adjudged Mollie Morris to be entitled to a homestead in the lands in controversy, and appealed.

R. N. Simms and Douglass, Lyon & Douglass, all of Raleigh, for appellants.

R. C. Strong, of Raleigh, for appellees.

BROWN J.

This action was brought to recover possession of certain tracts of land from defendant Bryant Smith, to whom they were attempted to be conveyed by J. C. L. Harris, commissioner. The land was originally the property of A. B. Emery. The findings of the jury (not excepted to) confirm the title of his son A. Vance Emery and destroy the title of Bryant Smith.

It is admitted in the record that Vance Emery died intestate, leaving no child, and that the three feme plaintiffs, named in the judgment, are his heirs at law and next of kin, and that the defendant Mollie is his widow, and that defendant Bryant Smith is in possession of the land. Plaintiffs, by excepting to that part of the fifth issue, and also to the judgment exempting the homestead of Mollie Morris from their recovery, present the question on this appeal as to whether, under the pleadings, evidence, and the form in which this action is brought, his honor erred in adjudging that Mollie Morris is entitled to a homestead in the lands in controversy as against these plaintiffs. The exception is well taken.

1. As contended by the learned counsel for plaintiffs, there is no such claim or plea of homestead set up in the answer of either Bryant Smith or Mollie Morris. It has been uniformly held by this court that in an action to recover land, if the defendant desires to claim a homestead therein, he should assert his rights by proper averment in the answer. Wilson v. Taylor, 98 N.C. 279, 3 S.E. 494. In the opinion the court says: "No issue in regard to the homestead was raised by the pleadings, and there was no question in relation thereto as appears from the record till after the verdict. The issues are raised by the pleadings"--citing Hinson v. Adrian, 92 N.C. 121. The court further says: "In all the cases cited by counsel for the defendants, the claim to the homestead was presented by the pleadings." This case has been cited and approved in a number of cases given in the annotated edition of our Reports, and is directly in point, and determinative of this appeal.

2. There is not only a lack of allegata, but also of probata supporting the claim of homestead, and it has been repeatedly held that both are essential. There is not a scintilla of evidence in the record that Vance Emery owed any debts that his personal estate was insufficient to pay. The deed from J. C. L. Harris, commissioner, to Bryant Smith, who was the administrator of Vance Emery, refers to a proceeding to make real estate assets, instituted by said...