Fitzgerald v. Shelton

• Decision Date: 31 October 1886
• Citation: 95 N.C. 519
• Court: North Carolina Supreme Court
• Parties: EMMA FITZGERALD et al. v. S. J. SHELTON.

95 N.C. 519

EMMA FITZGERALD et al.

v.S. J. SHELTON.

Supreme Court of North Carolina.

October Term, 1886.

CIVIL ACTION, tried at July (special) Term, 1885, of HAYWOOD Superior Court, before Graves, Judge.

The plaintiffs, the heirs at law of J. A. B. Fitzgerald, bring this action to recover the land described in the complaint. They simply allege title thereto in themselves, that the defendant is in possession thereof, and unlawfully withholds the same from them.

The defendant denies that the plaintiffs have such title, and that he unlawfully withholds possession of the land from them, and for further defence he alleges:

“I. That in the lifetime of plaintiff's ancestor, J. A. B. Fitzgerald, he conveyed the land in controversy to William and Margaret Swanger.

II. That said William and Margaret Swanger are now residents of the State of Tennessee, and are minors.

III. That said William and Margaret, as defendant is informed and believes, are the owners of said land.

That the defendant is the tenant of said William and Margaret, and he is informed and believes that they are necessary parties to this action.”

Issues were submitted to the jury, and there was a verdict in favor of the plaintiffs. The Court gave judgment for them, and the defendant appealed.

The following is a copy of so much of the case settled upon appeal as it is necessary to set forth here:

“The plaintiffs showed apparent title to the land described in the complaint in J. A. B. Fitzgerald, their ancestor. It was admitted that the defendant was in the possession of the land described in the complaint. The plaintiffs offered testimony to show the value of the rents and profits of the land.

The plaintiffs then rested.

The defendant then offered in evidence a deed duly proven and registered in Haywood county, from the said J. A. B. Fitzgerald to William and Margaret Swanger.

To this evidence plaintiffs objected, because, as they alleged, the grantor did not at the date of the alleged deed, have sufficient mental capacity to make a deed. The Court overruled the objection, and allowed the deed to be read in evidence, subject to the proof of the want of capacity. The deed was sufficient in form, and bore date ____, 1870.

The defendant closed his case.

The plaintiffs then offered to show that at the time of executing the alleged deed read in evidence by the defendant, J. A. B. Fitzgerald, the grantor, did not at the time of the alleged execution thereof, have sufficient mental capacity to make a deed.

The defendant objected that such evidence ought not to be received, for the defendant had set out in his answer that he held under the deed of the said J. A. B. Fitzgerald, and could not be dispossessed while he held under it, and that the plaintiffs could not be heard to prove want of mental capacity in their ancestor so as to avoid his deed, without allegation and notice to the defendant. The Court overruled the objected and the defendant excepted.

The plaintiffs then offered evidence tending to show a want of capacity, and S. L. Love, a physician of thirty years' practice, testified that in his opinion J. A. B. Fitzgerald was a monomaniac, especially on the subject of religion, under the deluson that it was his religious duty to give away all his property. That he first knew him as a lawyer, afterwards as a preacher. That about 1860 he retired from the public, and lived a secluded life. He educated his children under his own tuition. Other witnesses expressed the opinion that J. A. B. Fitzgerald was of unsound mind, and especially on religion and matters of that kind. That he gave away all his property, and left his children destitute. There was much evidence on the question of capacity, but it is not deemed material to set out any more of the evidence for plaintiffs.

It appeared in evidence, that at the date of the said deed, William and Margaret Swanger were infant children of one William Swanger, who died in the war, and that S. Fitzgerald was administrator on the estate of said Swanger, and as such had sold his land, and that at the sale J. A. B. Fitzgerald became the purchaser, and that plaintiffs still held the land so purchased. This was not the land in suit, but another tract known as mountain land.

The defendant was allowed to show the value of this tract sold by S. Fitzgerald and bought by J. A. B. Fitzgerald, and there was evidence tending to show that its present value is about five hundred dollars.

The defendant also offered a letter shown to be in the handwriting of J. A. B. Fitzgerald to E. P. Jones, grandfather of William and Margaret Swanger, in which he explained his reasons for making the alleged deed to said William and Margaret.

The defendant then offered to read in evidence the deed from S. Fitzgerald, administrator, conveying the mountain land, or Swanger land, to J. A. B. Fitzgerald, for the purpose of showing what price had been paid for it. The deed bore date 1867, and recited the land was sold in 1864 for $200.00. The plaintiffs objected, and the defendant added that he also offered the deed to show “that J. A. B. Fitzgerald was competent to purchase land, take a deed, and make a good bargain. That he got the land greatly under its value, and that the deed of 1870 was not the result of a religious hallucination and disordered mind, but was the result of a well balanced mind to recompense the said children for the advantage he gained in the...