Condry v. Cheshire

• Court: North Carolina Supreme Court
• Writing for the Court: ASHE
• Citation: Condry v. Cheshire, 88 N.C. 375 (N.C. 1883)
• Decision Date: 28 February 1883
• Parties: MARY M. CONDRY v. THOMAS CHESHIRE.

88 N.C. 375

MARY M. CONDRY

v.THOMAS CHESHIRE.

Supreme Court of North Carolina.

February Term, 1883.

EJECTMENT tried at Spring Term, 1881, of IREDELL Superior Court, before McKoy, J.

The plaintiff claimed under the following clause of John McLelland's will, which was put in evidence:

ITEM 5. “I give and bequeath to my neighbor and friend, R. H. Parks, two hundred and twenty-five acres of land, lying on the waters of Dutchman creek, being part of the plantation on which I formerly lived, including the dwelling and out-houses, in trust and confidence nevertheless for the sole use and benefit of Mary Condry, wife of Thomas Condry, and the heirs of her body, during her natural life, and at her death to the said heirs of her body to their own use, them and their heirs in fee simple forever.”

It was proved that her husband died in 1858, and the plaintiff also offered evidence of the value of the yearly rents, claimed in the action, and rested her case. The children and heirs of the plaintiff were made parties during the pendency of the action.

The defendants, Cheshire and R. Holmes, put in evidence the records of the court of equity for Iredell county, in which is set out in full an ex-parte petition of said Parks, trustee, filed at fall term, 1858, in which neither the said Mary nor her children were made parties, asking for a sale of the lands upon the ground that they were not yielding any rents beyond an amount sufficient to keep up repairs, and that the necessities of the said Mary and her children were great, and the interest of the purchase money would be more beneficial to them than the land. There was a decree of sale, and the land was bought by one Nathaniel Holmes at $775; report confirmed, purchase money paid, and a decree for title to be made to the purchaser.

It was also in evidence that Parks received the purchase money on the 8th and 9th of October, 1860, and loaned it out in good hands, but afterwards received the same from the borrowers in Confederate money, which he put into a safe, where it still remains. Parks is dead, and his heirs and executors were made parties defendant.

The deed from the clerk and master to the purchaser was put in evidence; also two deeds from him to the defendants, Cheshire (his son-in-law) and R. Holmes (his son), dated in 1872, for about one-half of the land to each, and reciting in each of the deeds the consideration of fifty dollars, the same being gifts or advancements of so much of his estate to them as his children.

The defendants offered to show the value of the annual rents, and permanent improvements put on the land by Cheshire, and that the same exceeded the rents in value, but on objection, the court refused to admit the evidence, on the ground that the improvements were not set up in the answer specifically as a counterclaim, and that in this action the remedy was by petition after judgment. Defendants excepted.

They then insisted that as the action is to recover the possession of land, and as the legal title was in the heirs of Parks, the trustee, who are parties defendant, and no judgment is demanded against them, the plaintiff should be nonsuited. But the judge held that under the will the plaintiffs had such title as enabled them to maintain the action, unless the same had been divested by the sale under the petition in equity, and not being parties to the petition, nor assenting to or opposing the sale in any way, they were not bound by the decree, and were therefore entitled to recover. Defendants excepted. The statute of limitations was not relied on.

The court having held that the plaintiffs were entitled to recover, the defendants, Cheshire and Holmes, asked for a decree substituting them to the rights of the plaintiffs, that they might follow the proceeds of the sale in the hands of their co-defendants, the executors of Parks. But the judge was of opinion, and so ruled, that the administrator of the purchaser, Nathaniel Holmes, deceased, and not Cheshire and Holmes who paid nothing for the land, was entitled to be substituted. Defendants excepted.

Verdict and judgment for plaintiffs, appeal by defendants. The grounds of appeal set out in the case are:

1. For that the court held that plaintiffs, upon the title under the said will, were entitled to recover in the present form and scope of the pleadings in this...