Culbreth v. Caison

• Citation: 18 S.E.2d 136,220 N.C. 717
• Decision Date: 07 January 1942
• Docket Number: 387.
• Parties: CULBRETH et al. v. CAISON et al.
• Court: North Carolina Supreme Court

18 S.E.2d 136

220 N.C. 717

CULBRETH et al. v. CAISON et al.

No. 387.

Supreme Court of North Carolina

January 7, 1942

Civil action in ejectment.

The case was heard on facts agreed; a jury trial was waived, and the matters at issue were submitted to the court for final determination and adjudication.

The title and right to possession of two tracts of land, a 49-acre tract and a 50-acre tract (mentioned in the record as "the 100-acre tract"), are at issue. The plaintiffs claim title under the will of their grandfather, Thomas Neill Culbreth, who died in 1903. The plaintiffs are the children of L. L. Culbreth, who died intestate in 1937.

The defendants claim under foreclosure in 1932 of indemnity deed of trust given by L. L. Culbreth and wife to M. T. Britt Trustee, and subsequent mesne conveyances.

From judgment for the plaintiffs, the defendants appeal, assigning error.

W H. Fisher, of Clinton, and J. Abner Barker, of Roseboro, for appellants.

Howard H. Hubbard, of Clinton, for appellees.

STACY Chief Justice.

On the hearing, the case was made to turn on the construction of the following items in the will of Thomas Neill Culbreth, late of Sampson County, this State:

"Item 1. I give and devise to my beloved children by my first wife to wit: Amelia W. Underwood, L. L. Culbreth, Anna A Culbreth, Rosa B. Martin, Mary Ellen Owen, Willie E Culbreth, my one half interest in the home tract commonly called the Owenville tract, upon which I now reside containing about 300 acres. I give this tract to these children exclusively because it was originally purchased with the money of their mother.

"Item 2. I give and devise all the remainder of my real estate wherever located to all my children share and share alike. My said children namely by my first wife are set out in Item one, and James Benton Culbreth, my child by my present wife, is to share equally with my other children in all my property except that set out in the first item.

"Item 3. I give and devise to all my children, share and share alike my lands near Bethel Church in Sampson County, known as the Cornelius Culbreth place, which includes also the original Cornelius Culbreth lands bought from O. P. White, containing about 600 acres, to hold to each one of them in equal parts for the life time of each one and when each one of my said children shall die his or her share in this tract of land shall descend and become the property of said dead child's child or children or issue of children. But if there shall be no living child or living issue of such child, then the share of such dead child shall pass to the living brothers and sisters of such dead child or living children of any deceased brother or sister. And the inheritance devolution under this item shall be per stirpes, not per capita. But each one of my said children shall have full right and power to convey their share to any other one or more of my said children in fee simple, but such purchasing child or children shall hold the part of his tract so purchased for life with remainder in fee to the children of said purchaser subject to the same principle of inheritance and devolution hereinbefore set out."

The property here in controversy is a part of the "Cornelius Culbreth place", specifically mentioned by the testator in Item 3 of his will. It is to be noted that the language of Item 2 is also broad enough to cover it. But more of this anon.

Following the death of the testator and the probate of his will, a special proceeding was duly instituted by his children for partition in kind of the lands devised to them. In this proceeding, L. L. Culbreth, one of the sons of the testator and father of the plaintiffs, was allotted a 49-acre tract, which is a part of "the 100-acre tract" in controversy, and Amelia Underwood, one of the daughters of the testator, was allotted a 50-acre tract, which goes to make up the other part of "the 100-acre tract" in controversy.

Thereafter, on February 5, 1905, Amelia Underwood sold to her brother, L. L. Culbreth, the 50-acre tract which had been allotted to her, and she and her husband executed deed therefor sufficient in form to convey a fee simple with full covenants of title and warranty.

In 1929, L. L. Culbreth and wife executed a deed of trust on both tracts, now regarded as a single tract of 100 acres, to secure a loan of $1,200 from the Atlantic Life Insurance Company. At the same time, L. L. Culbreth and wife executed a second...