Farabow v. Perry

• Decision Date: 07 April 1943
• Docket Number: 384.
• Citation: 25 S.E.2d 173,223 N.C. 21
• Parties: FARABOW v. PERRY.
• Court: North Carolina Supreme Court

25 S.E.2d 173

223 N.C. 21

FARABOW v. PERRY.

No. 384.

Supreme Court of North Carolina

April 7, 1943

The facts essential to a determination of this cause appear in the following parts of the judgment entered below:

"1. That the said Fred Hardy died intestate in Lenoir County on October 23, 1923, seized and in possession of that certain lot of land situated in the City of Kinston, Lenoir County North Carolina, and described in deed by J.A McDaniel and wife, to Fred Hardy, dated December 7, 1914, and recorded in the office of the Register of Deeds of Lenoir County in Book 46, at page 465. That the said Fred Hardy left surviving him as his sole heirs at law and next of kin a half-brother, James Worthington, and a sister, Sarah Hardy Mason, and his widow, Lucy Hardy. That after the death of the said Fred Hardy, his widow, Lucy Hardy, continued in possession of the said premises, living in the house located thereon without having her dower allotted.

"2. That on April 26, 1929, the said Lucy Hardy, widow, executed and delivered unto A.I. Gross and A.L. Pearson a mortgage deed, upon the said lot of land, to secure certain indebtedness as set forth in said mortgage deed, the same appearing of record in the office of the Register of Deeds of Lenoir County, in Book 106, page 174. That there was a purported foreclosure sale under the power of sale contained in said mortgage deed by said mortgagees on January 3, 1930 at which purported sale the said mortgagor in possession Lucy Hardy, became the last and highest bidder for said lands, and on January 14, 1930, the mortgagees executed and delivered a purported mortgagees' deed covering and purporting to convey unto her the lot of land in question. Said mortgagees' deed was filed for record in the office of the Register of Deeds of Lenoir County on January 15 1930, and appears of record in Book 105, page 457. The mortgagees on August 18, 1931, acknowledged the satisfaction of the mortgage on the margin of the record over their signatures.

"3. That on February 1, 1937, the said Lucy Hardy executed and delivered to George B. Greene, Trustee, for K.B. Farabow, a purported Deed of Trust upon the lot of land in question securing a purported indebtedness of $485.00, the same being filed for record on February 2, 1937, and recorded in the office of the Register of Deeds of Lenoir County in Book 153, page 277.

"4. That the said Lucy Hardy who had continued in uninterrupted possession of the said premises since the death of her husband, Fred Hardy, without her dower having been allotted, died intestate on December 22, 1939, leaving as her heirs at law certain brothers and sisters or issue of such. That one of her brothers, Richard Coley, on January 9, 1940, qualified as administrator of her estate and took possession of the premises in question, by renting the same and collecting the rents, and collected rents until on or about February 2, 1942, when the said administrator, through his attorney, attempted to foreclose the aforesaid deed of trust from Lucy Hardy to George B. Greene, Trustee, and, at said purported foreclosure sale, one, William Whitehead, became the last and highest bidder, and after ten days had elapsed, the said purported purchaser refused to take title under said purported sale. That on the 16th day of February, 1942, the administrator of Lucy Hardy's estate, filed his final account as administrator without taking any further action with respect to the premises in question.

"5. That on February 13, 1942, James Worthington and wife executed and delivered to the defendant, Ely J. Perry, their deed conveying unto him a one-half undivided interest in the premises in question. Said deed being filed for record on February 14, 1942, and recorded in the office of the Register of Deeds of Lenoir County in Book 197, at page 163; and on February 14, 1942, the said Sarah Hardy Mason and husband executed and delivered unto the defendant, Ely J. Perry, their deed conveying unto him a one-half undivided interest in the premises in question, which said deed was filed for record on February 14, 1942, and recorded in the office of the Register of Deeds of Lenoir County in Book 197, page 163. That the said Ely J. Perry, Grantee, in said deeds, took possession of the premises on February 14, 1942, from the administrator of Lucy Hardy, deceased, who had collected rents up to that date, and thereafter the said Ely J. Perry exercised full possession and control of the premises and collected rents, and is now in possession and collects said rents.

"6. That George B. Greene, Trustee in the aforesaid deed of trust from Lucy Hardy to K.B. Farabow, on March 28, 1942, purported to foreclose the premises under said power of sale and at said sale held at the Courthouse door, Lucy H. Farabow, the plaintiff, being the widow and administratrix of K.B. Farabow, deceased, became the last and highest bidder for said lot of land. That prior to said sale, the defendant, Ely J. Perry, delivered to the Trustee and caused to be read a written notice of his claim of ownership of the premises. That George B. Greene, Trustee, on April 15, 1942, executed and delivered unto the said Lucy H. Farabow a Trustee's deed for the premises. Pursuant to the purported sale the Trustee's deed was filed for record in the office of the Register of Deeds of Lenoir County on August 27, 1942.

"7. That after the death of the said Fred Hardy on October 23, 1923, and until the time of her own death on December 22, 1939, the said Lucy Hardy, widow, made no application to have dower assigned to her in the premises nor were any steps taken by anyone else to have such dower allotted and assigned, and no dower was assigned. That at the time of the death of the said Fred Hardy he and the said Lucy Hardy, his wife, resided in the residence on said lot of land, and after his death the said Lucy Hardy continued to reside in the said residence and was in possession of the said lot of land continuously and until her own death and her possession during all of said period was peaceable and undisturbed by any of the heirs at law of the said Fred Hardy, deceased, or anyone claiming under them, and no one except the said Lucy Hardy was in possession or exercised any control of same.

"Upon the foregoing facts and the agreed statement of facts, the Court is of the opinion, and now holds, that the defendant, Ely J. Perry, is the lawful owner and is entitled to the possession of the premises referred to, and, thereupon it is Ordered, Adjudged and Decreed by the Court as follows:

"1. That the defendant, Ely J. Perry, pursuant to the two deeds referred to herein in the findings of fact above set forth, is seized in fee simple and is entitled to the possession as owner of that certain lot of land situated in the City of Kinston, Lenoir County, North Carolina, and bounded as follows: ***

"2. That the plaintiff, Lucy H. Farabow, owns and holds no interest whatever in said lands by virtue of the Trustee's Deed from George B. Greene to her, hereinbefore referred to in the findings of fact in this judgment, and the plaintiff has no interest therein or right of...