Ellington v. Ellington

• Citation: 103 N.C. 54,9 S.E. 208
• Court: United States State Supreme Court of North Carolina
• Decision Date: 18 March 1889
• Parties: Ellington v. Ellington et al.

9 S.E. 208

(103 N.C. 54)

Ellington

v.Ellington et al.

Supreme Court of North Carolina.

March 18, 1889.

Limitation of Actions—Tenancy in Common.

1. The statute of limitations to an action by an heir to set aside a deed of his insane ancestor commences to run at the execution of the deed, and is a complete bar after the lapse of seven years, unless the action is brought within three years after the ancestor's death.

2. The fact that the plaintiff and the grantees are heirs of the grantor, and but for the deed would take the land as tenants in common, makes no dif-erence in the running of the statute.

Appeal from superior court, Vance county; Graves, Judge.

Action by a son and heir of Bevil Ellington, deceased, against Horace Ellington and William N. Ellington to set aside a conveyance of land and personalty to them by the said Bevil Ellington in his life-time, made when the grantor is alleged to have been insane. Verdict and judgment for defendants, on the issue of the statute of limitations, and plaintiff appeals.

Batchelor & Devereux, for appellant. E. C. Smith, for respondents.

Smith, C. J. The complaint filed in this action, which was begun on December 17, 1887, alleges that Bevil Ellington, being the owner of the tract of land therein described, made up of several parcels, and containing about 443 acres, by deed executed in October, 1865, conveyed the same to the defendants, Horace Ellington, a son, and William N. Ellington, the husband of his daughter, Polly, together with the stock, farming implements, and other articles of personal property on the plantation, upon the sole consideration of the support of the grantor and his wife during the residue of their respective lives. It avers further, in reiterated allegations, that the said Bevil was at the time advanced in age, of enfeebled mind and body, unable to understand and measure the con sequences of his act, to manage and dispose of his property from want of legal capacity, and was moreover susceptible to undue influence, taking advantage of which the defendants by false and fraudulent representations, and the exercise of that control which they had acquired over him, procured the making of said deed for the very inadequate consideration expressed therein. It states that thereafter the said Bevil broke up farming, and went himself to live with his son Horace, in whose house and with whose family he continued to reside until his death in August, 1869, while his wife went to and took up her abode with her daughter, Polly, where she remained until her death in 1867. The prayer of the plaintiff, also a son of the said Bevil, is that said deed be declared and adjudged void for the causes aforesaid, and he be admitted to share in the said property as in case of an intestacy, and for general relief. The answer distinctly and in detail controverts all the averments as to an unsound mind, and the want of legal capacity in the said Bevil to make an effectual disposition of his estate; denies the exercise of an attempt to exercise any undue or improper influence in procuring the deed, and the alleged inadequacy of the obligations assumed as the consideration of the deed; and sets up a defense under the statute of limitations to the action, and the possession under the deed, which, if invalid, is color of title, for more than seven years before the institution of the suit. The only issue submitted to the jury, and this without objection, was in these words: "Is the plaintiff's cause of action barred by the statute of limitations?" Under the instructions of the court as to the law arising upon the facts admitted as set out in the complaint for the purpose only of raising the question of the effect of the lapse of time, and reserving the other matters in controversy in the pleadings for further trial in the event of the defense under the statute, and from possession under the deed being overruled, the issue was found in the affirmative. Judgment being entered in conformity with the verdict rendered in pursuance of the...