Efland v. Efland

• Decision Date: 11 April 1887
• Citation: 1 S.E. 858,96 N.C. 488
• Court: North Carolina Supreme Court
• Parties: EFLAND v. EFLAND and others.

96 N.C. 488

1 S.E. 858

EFLAND

v.EFLAND and others.

Supreme Court of North Carolina.

April 11, 1887.

Appeal from superior court, Guilford county.

Scott & Caldwell, for plaintiff.

J. H. Dillard, Jr., and J. T. Morehead, for defendants.

DAVIS, J.

This was a civil action tried before CLARK, J., at February term, 1886, of Guilford superior court. Levi Efland died intestate in the county of Guilford in October, 1882, and the plaintiff is his widow, and the defendants are his children and heirs at law. The complaint alleges, among other things, that Levi Efland was, at the time of his death, and had been for several years previous thereto, in the undisturbed possession of two tracts of land described in the complaint; that one of said tracts was sold at public auction, about 10 years ago, by the executors of one George Armick, and bid off by the defendant George W. Efland, in pursuance of an agreement between him and his father, Levi, and paid for by the said Levi, and the deed made, by his direction, to the said George, for the use and benefit of the said Levi, who immediately took possession of the land, paid the taxes thereon, and used it as his own; that the said Levi was seized of the second described tract on the seventh day of March, 1881, on which day the sheriff of Guilford sold the same under execution against the said Levi, when the land was bought by the defendant George W. for his father, under an agreement theretofore made between them to that intent and purpose, and the said Levi paid the purchase money, and took a deed from the sheriff to the defendant Ellen Efland for said land, for his own use and benefit, as was understood and agreed by and between them, and the said Levi continued in the use and possession of the said land, as he had always done before, until the time of his death, without any claim by the said Ellen to hold the same for her own use or benefit; that, although the titles to the said tracts of land were made, one of them to the defendant George, and the other to the defendant Ellen, yet the said defendants never paid anything therefor; that neither of them had the means or ability to purchase and pay for said land, and that the equitable estate therein was in her husband at the time of his death; that the plaintiff is entitled, as the widow of the said Levi Efland, to have dower in said land, and has demanded of the defendants to allot and set apart to her her dower therein; but that they deny the equitable estate of the said Levi, claim to hold said land free from said equities, and refuse to allow her right to dower, and she asks that the said George and Ellen be declared trustees, etc., and that she be adjudged entitled to dower, etc.

The defendants, except John W. Efland and William Brown, answer the complaint and deny all the material allegations therein, and, among other defenses, say that small sums were advanced by Levi Efland to George W. and Ellen, but the deeds were made to them with a view, on the part of the father, of secreting the same, and to secure his estate and effects from his creditors, being at the time considerably indebted on his own account and as security, but with no purpose in any way to defraud this plaintiff; and the allegation that the “plaintiff has a right to dower in any of said land is denied, and the defendants aver that all sums of money advanced towards the payment for these two tracts of land were with view and purpose, on the part of the said Levi, to advance his said children, and to secure his estate from his creditors. For a second defense, relying on the first as if fully herein set out, the defendants suggest that this court has no jurisdiction of this cause, and demand judgment for costs.”

On the calling of the cause for trial, and after reading the pleadings, the defendants moved his honor, Judge WALTER CLARK, to dismiss the action by was of demurrer ore tenus, for that the claim of dower of plaintiff, if any she had, should have been made by a special proceeding returnable before the clerk, and not at term, and for that the complaint did not state facts sufficient in law to constitute a cause of action; and on consideration of said motion, after debate by counsel, the court overruled said motion, and ordered the trial to be had, and to this ruling of the court the defendants excepted.

Thereupon a jury was impaneled and sworn to try and true verdict give on issues submitted to them, which, together with the responses thereto by the jury, are in the following words and figures, to-wit: “(1) Was Levi Efland in possession of the two tracts of land described in the complaint at the time of his death? Answer. Yes. (2) Was the 42-acre tract of land bought for Levi Efland by Geo. W. Efland on agreement between them, and paid for by said Levi Efland? A. Yes. (3) Was the deed made to George for the benefit of said Levi? A. Yes. (4) Was the title so directed to be made to George to cover and protect the land from Levi's creditors? A. Yes. (5) Was the tract of 150 acres bid off at the sheriff's sale by Geo. Efland for his father, Levi, by agreement between them? A. Yes. (6) Was the said tract of 150 acres paid for by Levi Efland? A. Yes. (7) Was the deed taken in the name of Ellen Efland for the benefit of Levi Efland? A Yes. (8) Was the title so directed to be made to Ellen to cover and protect the land from Levi's creditors? A. Yes.”

Besides these issues and responses, the defendants proposed that another issue should be submitted to the jury as to whether...