Fleming v. Sexton

• Decision Date: 18 October 1916
• Docket Number: 130.
• Citation: 90 S.E. 247,172 N.C. 250
• Parties: FLEMING ET AL. v. SEXTON ET AL.
• Court: North Carolina Supreme Court

90 S.E. 247

172 N.C. 250

FLEMING ET AL. v. SEXTON ET AL.

No. 130.

Supreme Court of North Carolina

October 18, 1916

Appeal from Superior Court, Harnett County; Lyon, Judge.

Action by John M. Fleming, Sr., and others against C. H. Sexton and others. Judgment for defendants, and plaintiffs appeal. No error.

Where defendant claimed an estate by curtesy, the defendant and a nurse present at alleged birth of issue were not disqualified to testify by interest, which goes to weight of evidence and not to competency of witnesses.

This is an action to recover possession of the tract of land described in the complaint, the rents and profits thereof during its occupancy by the defendant, and damages for the cutting and sale of certain timber. The plaintiffs allege that they are the owners in fee of the land, and that the defendants are in the wrongful possession thereof, and these allegations are denied by the defendants.

It was admitted that the plaintiffs, claiming by inheritance through Irene McCoy, who intermarried with the defendant Sexton, were the owners in fee of said land, unless a child was born alive of the marriage of said Irene McCoy and the defendant Sexton and that if a child was born alive, that the defendant Sexton was entitled to a life estate in said land as tenant by curtesy. There was evidence of the birth of issue alive, and the jury so found.

It was admitted by the defendant that he sold the timber from said land of the value of about $1,100, but he contended that this was not waste and offered evidence tending to prove that the timber which he sold had reached its full growth and was deteriorating, that he sold the timber for the purpose of making permanent improvements on the land, and so used the proceeds, and that the inheritance had been increased in value.

The evidence offered by the defendants to prove the birth of issue alive was objected to by the plaintiffs upon the ground that the issue was not raised by the pleadings, and that the evidence itself was incompetent.

The plaintiffs also objected to the evidence offered by the defendant to prove that the land had increased in value, that the timber was cut and sold for the purpose of making improvements on the land, that it was so used, and that the inheritance had increased in value.

There was a verdict and judgment for the defendants, and the plaintiffs appealed.

B. C Beckwith, of Raleigh, and Baggett & Baggett, of Lillington for appellants.

Clifford & Townsend, of Dunn, for appellees.

ALLEN J.

This action was commenced to recover possession of the land described in the complaint, rents and profits during occupancy by the defendant, and damages for trespass in cutting and selling timber from the land. The plaintiffs proceed upon the theory that they are the owners in fee of the land through inheritance from Irene McCoy, who was the owner in fee and intermarried with the defendant Sexton, and that the possession of the defendant is wrongful.

The defendant filed answer denying the title of the plaintiffs, and on the trial offered evidence tending to prove that during his marriage with the said Irene McCoy a child was born alive of said marriage capable of inheriting, and therefore contended that he was the owner of a life estate in said land as tenant by curtesy.

If, therefore, the evidence offered by the defendant to prove the birth of issue was competent and sufficient to be submitted to the jury, it follows, as the four requisites to an estate by curtesy, marriage, seisin of wife, birth of issue capable of inheriting, and death of the wife, would be present, that the plaintiffs would not be entitled to recover the possession of the land nor would they be entitled to the rents and profits.

The words "capable of inheriting" are taken from the common law, and mean simply that the child shall be in the line of inheritance; and if the inheritance is in tail male the birth of a female child would not be sufficient to create the estate, and vice versa. This would leave open for investigation only the question of the liability of the defendant as life tenant for waste.

It must be kept in mind, however, that when the evidence was offered by the defendant as to the condition of the land and the improvements made, that the question of the birth of issue was then pending before the jury and had not been settled, and if the evidence was competent either upon the theory that the plaintiffs were the owners in fee absolute, or in remainder, there would be no error in admitting it.

Let us then see if any evidence of the birth of a child alive was admissible on the issues raised by the pleadings, and whether the evidence offered was competent, and of sufficient probative force to be submitted to the jury. The plaintiffs allege that they are the owners in fee, and entitled to immediate possession of the land described in the complaint, and the defendant denies both of these allegations. This raised an issue of title and of the right to possession, and under it the defendant had the right to offer evidence tending to prove a legal, as distinguished from an equitable, defense (Farrior v. Houston, 95 N.C. 580; Locklear v. Bullard, 133 N.C. 263, 45 S.E. 580), and the facts showing an estate by curtesy are legal and require no aid from a court of equity.

The case from New York, relied on by the plaintiffs, holding that a defendant cannot offer evidence of adverse possession under a general denial, is contrary to our decisions. Farrior v. Houston, 95 N.C. 578; Manf. Co. v. Brooks, 106 N.C. 112, 11 S.E. 456; Cheatham v. Young, 113 N.C. 161, 18 S.E. 92, 37 Am. St. Rep. 617; Shelton v. Wilson, 131 N.C. 501, 42 S.E. 937.

It has also been held, under certain conditions, that evidence of an estoppel may be offered by the defendant without pleading it (Weeks v. McPhail, 129 N.C. 73, 39 S.E. 732), and that it is competent, under a general denial, to show that any deed in the chain of title of the plaintiff is void because made contrary to statute, or by a grantor mentally incapable, or for fraud in the factum (Mobley v. Griffin, 104 N.C. 116, 10 S.E. 142; Averitt v. Elliot, 109 N.C. 564, 13 S.E. 785).

This rule prevails because the pleadings are general in actions to try title to land. The plaintiff alleges ownership, and under this allegation is permitted to establish his title in any legitimate way, by a connected chain of title or by adverse possession with or without color, by proof of tenancy, etc., and the same latitude is allowed the defendant in making his defense.

"Under the plea of the general issue the plaintiff is required to prove a present right to the premises in dispute. And consequently whatever will operate as a bar to the plaintiff's right of possession will cause him to fail in his proof, and entitle the defendant to a verdict upon the general issue. * * * So in those states which have adopted the code system it is usually held that the defendant may under the general denial prove any fact which will defeat the plaintiff's cause of action." 9 R. C. L. 897, 898.

The plaintiff carries the burden of proving his legal right to possession, and the defendant is permitted to prove facts which show that his possession is lawful.

The witnesses, who testified to the birth, were the defendant and the nurse, both of whom were present and purport to testify to facts within their knowledge, and as neither was testifying to a transaction with a deceased person, there was no disqualification to either except interest, which goes to the weight of the evidence, and not to the competency of the witness to testify.

The defendant, who was corroborated by the nurse, testified:

"During my married life there was a child born to me and my wife. That child was living at the time of its birth. I was present in the room with my wife at the time of the birth of the child. The midwife, Sue Williams, was also present. She is here to-day. There was no one else there at the time of

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