Crocker Ft Al v. Vann

• Decision Date: 27 October 1926
• Docket Number: (No. 84.)
• Citation: 135 S.E. 127
• Parties: CROCKER Ft al. v. VANN et al.
• Court: North Carolina Supreme Court

135 S.E. 127

(192 N.C. 422)

CROCKER Ft al.

v.VANN et al.

(No. 84.)

Supreme Court of North Carolina.

Oct. 27, 1926.

The lands in controversy were originally conveyed to Joseph Jordan, John Jordan, William Jordan, and Martha W. Jordan, who married A. I. Parker prior to 1873. The deeds made subsequent to 1873 were made to Joseph Jordan, John Jordan, William Jordan, and Martha W. Parker. The family lived together as one family and operated a hotel and carried on certain farming operations until about the year 1884, when Joseph Jordan married and moved away. Thereafter, six partition proceedings were brought to partition the land above referred to. These proceedings were brought in the name of William Jordan, A. I. Parker and Wife, Martha W. Parker, v. J. J. Jordan. John Jordan, the other tenant in common, died without issue, and his share descended to his brothers and sister. Orders of sale were duly made by the clerk directing a sale of all the land embraced in the six special proceedings and a division of the proceeds among the parties entitled thereto according to law. W. P. Shaw was appointed commissioner of the court to make the sale. The commissioner advertised the land and set the sale on 4, 1884. On that day the parties into a written contract as

follows, to

"In the matter of the sale of real estate advertised to be sold this day by W. P. Shaw, commissioner, the parties agree as follows:

"A. I. Parker, Mrs. Martha W. Parker, and Wm. Jordan shall become the purchasers of the following lots, being the whole property advertised by the said Shaw:

"The Old Town Farm, the Winton ferry, jail lots in Winton, courthouse lots. Northcott lot, Hotel Square, stable lots, Riddick land, and wharf property in Winton, at the aggregate sum of $18,000.00, as the value of the whole; and in order to determine the value of the separate parcels above mentioned, upon the basis of $18,000.00 for the whole, the appraisers shall be selected—one by J. J. Jordan, one by the parties hereto, and the third by the two appraisers selected as aforesaid. The property shall be reported by the said Shaw to the court as sold to the above named parties at the sum of $18,000.00 at the sums named by the said appraisers for the respective parcels and shall by consent be confirmed by the court and the parties respectively bind themselves, each to the other in the sum of one thousand dollars, that they will keep and perform the agreement fully and faithfully.

"It is further agreed that all the stock, farming utensils and crops at the old town and the growing crops on any of said land plantation, except one mule called 'Bet, ' is to become the property of the said A. I. Parker, Martha W. Parker and Win. Jordan and the said mule Bet shall become the property of the said J. J. Jordan. Neither party to be charged anything for said property.

"It is further understood and agreed that the rights of the respective parties hereto in the fund arising from said sale shall be in no way affected by this agreement, but each shall have the right to contest before the courts, asto his interest in the fund, arising from the sale of said land or any part thereof, as if this agreement had not been made and signed.

"The purchasers are to pay 6 per cent, interest upon their said purchase and are to pay over to J. J. Jordan the share to which he may be found entitled by January 1, 1SS5. A. I. Parker. [Seal.] Martha W. Parker. [Seal.] William Jordan. [Seal.] John Jordan. [Seal.] J. J. Jordan. [Seal.] Aug. 4—84. Witness: W. D. Pruden."

On October 20, 1884, the commissioner, W. P. Shaw, reported the sale to the court, stating in substance that on the day of the sale the parties had entered into a private agreement wherein it was stipulated that A. I. Parker, Martha W. Parker, and William Jordan should become the purchasers of the property for $18,000, and that "the property described in the complaints sold for the sum of $18,000 in the way in which the sale is heretofore explained."

J. J. Jordan died in 1890, leaving him surviving a widow, Mary Jordan, and Etta Jordan and Bettie Picot, his only children and heirs at law. Etta Jordan, daughter of J. J. Jordan, afterwards married Crocker, and is plaintiff in this John E. Vann and P. B. Picot were administrators of J. J. Jordan.

Nothing further was done in the matter until April, 1891, when Vann and Picot, administrators of J. J. Jordan, made a motion in the cause in each of the special proceedings, praying for a guardian ad litem for Etta Jordan and Bettie Picot, minor children of J. J. Jordan, deceased, and further requesting a confirmation of the sale of the property by W. P. Shaw, commissioner, in accordance with his report of October 20, 1884. On November 13, 1891, the clerk of the superior court confirmed the sale in each of said special proceedings and directed in each decree of confirmation that the commissioner "proceed to collect so much of said purchase money as is due to the administrators of said J. J. Jordan, and upon payment thereof to make title to the purchasers."

At this stage of the proceedings, all parties were brought in, and there were various contentions and controversies involving, the partnership business of Jordan & Parker, which are not pertinent to the decision of this case. Finally, at the spring term, 1893, of the superor court of Hertford county, the following judgment was entered:

"Wm. Jordan, A. I. Parker and Wife, Martha W. Parker, v. J. J. Jordan and Wife, Mary E. Jordan, Bettie Picot, Etta Jordan, G. H. Mitchell, Her Guardian ad litem, and John E. Vann, as Surviving Administrator of J. J. Jordan.

"It appearing to the satisfaction of the court that cases on the civil issue docket of this court for the spring term, 1893, numbered 11, 29, 30, 31, 32, 33, and 34, have been. compromised and settled upon terms that Wm. Jor dan and A. I. Parker and wife, Martha W. Parker, pay all the costs in all of said actions to be taxed by the clerk, including allowance to L. L. Smith as referee and W. P. Shaw as commissioner for selling the property mentioned in the six last named cases, and pay to John E.. Vann as surviving administrator of J. J. Jordan (P. B. Picot having died since this action was commenced), in full settlement of all matters litigated and set out either in the complaints or answers filed in such actions, and said compromise and settlement appearing to be fair and just settlement of the matters embraced therein, it is now by consent of all parties ordered and adjudged that the aforesaid seven cases be and they are hereby consolidated.

"It is further considered and adjudged that John E. Vann as surviving administrator of J. J Jordan, deceased, recover of the said Wm. Jordan and A. I. Parker the sum of $4,500, and the costs in the aforesaid seven cases to be taxed by the clerk, including allowances in No. 11 to L. D. Smith as refereee of $50, and allowance to W. P. Shaw as commissioner in the other six cases as is provided by the Code.

"It is further considered that said recovery is in full settlement and satisfaction of all matters involved in the seven oases before mentioned, and on payment of the said sum of $4,500 and interest from April 17, 1893, till paid and the costs of said actions as herein directed, all of the assets of the late firm of Jordan & Parker are to vest in and be the property of said Wm. Jordan and A. I. Parker, but nothing herein shall regulate in any way, effect the rights of said Wm. Jordan, A. I. Parker, and Martha W. Parker as among themselves. R. B. Peebles, Atty. for John E. Vann, as Surv. Adm'r of J. J. Jordan and Other Defendants. B. B. Winborne, Atty. for Plaintiffs. W. D. Pruden, Atty. for Plaintiffs. [Signed] John Gray Bynum, Judge Presiding."

Martha W. Parker died in 1914, intestate and without issue, and the plaintiff is one of her nieces. Her husband, A. I. Parker, died in January, 1920, leaving a last will and testament, naming John E. Vann as his executor and authorizing him to make sale, either publicly or privately, of all his real estate not specifically devised. None of the property involved in this action was specifically devised under said will except Dickinson's square, which was devised to the defendants John R. Jordan and W. Mills Jordan. The defendants John R. Jordan and W. Mills Jordan are the sons of William Jordan, who died intestate in 1913.

The cause came on for trial, and the judge directed the jury to answer the issues in favor of defendants. From judgment thereon plaintiffs appealed.

At the close of all the evidence, the plaintiffs stated and admitted in open court that the plaintiff Etta Jordan Crocker claimed no interest in said lands as an heir at law of her father, Joseph J. Jordan, and was claiming only as an heir of Martha W. Parker.

Bridger & Eley, of Winton, and Travis & Travis, of Halifax, for appellants.

Winston & Matthews, of Windsor, Stanley Winborne, of Murfreesboro, and W. D. Boone, of Winton, for appellees.

BROGDEN, J. The plaintiff claims a one-twelfth undivided interest in the land involved in this controversy as heir at law of her aunt, Martha W. Parker. The defendants claim the land under the will of A. I. Parker, the husband of Martha W. Parker. The first question therefore to be determined is whether or not Martha W. Parker, upon her death in 1914, owned an interest in said laud. If she did, the plaintiff is entitled to recover. If she did not, the plaintiff has no interest in the land and the judgment of the court was correct.

The record discloses that the land in controversy, except the Old Town Farm, was originally conveyed to Joseph Jordan, John Jordan, William Jordan, and Martha Jordan, who afterwards married A. I. Parker. After the special proceedings for partition were instituted, the contract of August 4, 1884, was duly entered into by the parties. On that date Martha W. Parker owned a one-fourth undivided interest in all the land except the Old Town Farm. There was a dispute as to whether or not the...