Chambers.,v,. Byers Et Al.

• Court: United States State Supreme Court of North Carolina
• Citation: 199 S.E. 398,214 N.C. 373
• Decision Date: 09 November 1938
• Docket Number: No. 392.,392.
• Parties: CHAMBERS. v . BYERS et al.

199 S.E. 398
214 N.C. 373

CHAMBERS.
v
. BYERS et al.

No. 392.

Supreme Court of North Carolina.

Nov. 9, 1938.

[199 S.E. 399]

Appeal from Superior Court, Iredell County; Wilson Warlick, Judge.

Action by Rebecca C. Chambers, administratrix of the estate of John R. Tucker, against Debora Tucker Byers and others for the sale of certain realty to make assets to pay debts of the plaintiff's intestate. From a judgment as of nonsuit as to the cause of action set up by the defendant Lucy Bowers Knight, the latter appeals.

Reversed.

This action was instituted by the plaintiff against the defendants for the sale of a certain tract of land, in Iredell County, N. C, containing 108 acres, more or less, to make assets to pay the debts of her intestate, John R. Tucker.

All of the heirs-at-law of John R. Tucker were duly made parties defendant. The defendant Lucy Bowers Knight, being in possession of the land and claiming the same, was also made a party defendant. In apt time, the defendant Lucy Bowers Knight filed an answer setting up that she was entitled to the land in fee simple, subject to the debts of John R. Tucker, deceased, under and by virtue of a valid written contract between her father, Charles M. Bowers, and John R. Tucker. Under her first cause of action she claims and alleges that she was entitled to said land under said written contract as the adopted daughter of the said John R. Tucker, and in her second cause of action she claims and alleges that she is entitled to said tract of land under said written contract on the ground that the said John R. Tucker, in writing, contracted and agreed to make her his sole and only heir. None of the defendants except the defendant Lucy Bowers Knight filed an answer. The plaintiff filed a reply denying the claims of the defendant Lucy Bowers Knight.

Exhibit A--"Article of Agreement between Charles Madison Bowers of the (1st) First part and John and Laura Isa-belle Tucker of the (2nd) Second part--

"To All Whom it May Concern, Greeting--Know all men by these Presents-- That I the said C. M. Bowers, of the (1st) first part, being the father of Lucy Bowers (a minor of the age of 3 yrs, 9 mos. and 16 days) Three years, nine months and sixteen days, do hereby give my full consent to her adoption as their own child and sole and only heir to the said John ana

[199 S.E. 400]

Laura Isabelle Tucker of the (2nd) second part--:

"And I the said C. M. Bowers of the (1st) first part, do hereby still further agree that the said John and L. Isabelle Tucker of the (2nd) second part shall have full and sole control of that part of the estate owned by (Jessie Watson) deceased, he being the father of Martha Elizabeth Watson deceased and wife of said C. M. Bowers of the (1st) first part, and mother of said Lucy Bowers (the minor herein mentioned) he being of the County of Wilkes and State of North Carolina.

"And I the said C. M. Bowers of the (1st) first part do hereby covenant and agree not to induce or cause to be induced, the said Lucy Bowers (herein mentioned) to leave the lawful custody of the said John and Isabelle Tucker of the (2nd) second part;

"And we the said John and Isabelle Tucker of the (2nd) second part do hereby covenant and agree to adopt the said Lucy Bowers (herein mentioned) as our own child, and that we will well clothe, feed and educate her, providing for all her temporal wants to the best of our ability. And we, the said John and Isabelle Tucker of the (2nd) second part do still further agree to make said Lucy Bowers (herein mentioned) our sole and only heir to what we, the said John and Isabelle Tucker of the (2nd) second part may die possessed of, and that any violation of the above on our part shall make this contract null and void.

"Granting permission to said C. M. Bowers of the (1st) first part to visit her at any time.

"Done this fifth day of March, 1885, one thousand eight hundred and eighty-five.

"Chas. M. Bowers (Seal).

"A. P. Sharpe--Being a Justice of the Peace in and for the said County and State of North Carolina.

"My hand and private seal.

"A. P. Sharpe J. P. (Seal).

"Signed J. R. Tucker.

"Feb. 5, 1885

"Attest: A. P. Sharpe

"Witness: "

The judgment of the Court below is as follows: "This cause coming on to be heard and being heard before His Honor, Wilson Warlick, Judge presiding at the May, 1938, regular Term of the Superior Court of Iredell County, and it appearing to the Court that this is an action instituted before the Clerk, as by statute required, by the administratrix of the intestate to impound the lands of the deceased to make assets to pay debts, and that all of the blood relationship, collateral and otherwise, of the intestate, were made parties defendant by the administratrix, and that subsequently an amendment to the petition was had and summons was ordered issued for the answering defendant, and that the cause coming on to be heard, after judgment to sell the land had been entered by the Clerk of the Superior Court against all the defendants save the defendant Lucy Bowers Knight; and it further appearing to the Court that in the trial of the action after reading of the...