Garner v. Horner

• Decision Date: 07 April 1926
• Docket Number: 287.
• Parties: GARNER et al. v. HORNER et al.
• Court: North Carolina Supreme Court

132 S.E. 290

191 N.C. 539

GARNER et al. v. HORNER et al.

No. 287.

Supreme Court of North Carolina

April 7, 1926

Appeal from Superior Court, Cumberland County; Dunn, Judge.

Action by K. C. Garner and others against Mrs. Hattie B. Horner and others. Judgment for plaintiffs, and defendants appeal. New trial.

Annie Jane Garner, a widow with some children, who are plaintiffs in this action, married J. T. Horner. Thereafter, on February 28, 1907, for a recited consideration of $400, Andrew J Barrett conveyed to Annie Jane Horner (formerly Garner) the land in controversy. The deed was duly acknowledged and probated by the clerk of the court of Cumberland county, and recorded in Book of Deeds L. No. 6, at page 117. On November 30, 1912, Annie Jane Horner and J. T. Horner executed and delivered to G. W. Horner a deed for said land which was not registered until March 19, 1915, in said county in Book of Deeds W. No. 8, at page 516. On June 17, 1919, there was placed upon the records of said county in Book of Deeds No 252, at page 253, a deed from G. W. Horner and wife to J. T Horner for the land; said deed being dated February 26, 1913. Annie Jane Horner died intestate on the 26th day of April 1913. Therefore the deed from Annie Jane Horner and J. T. Horner to G. W. Horner, and the deed from G. W. Horner and wife to J. T. Horner, while purporting to have been executed during the lifetime of Annie Jane Horner, were not registered until after her death. After the death of Annie Jane Horner, J. T. Horner married Hattie B. Horner in 1914, and died intestate on the 23d of June, 1923, leaving him surviving his widow, Hattie B. Horner, and four minor children, to wit, Mable Horner, Winnifred Horner, Pauline Horner, and Tom Horner, and two children by his first wife (he, the said J. T. Horner, having been married three times). Thereupon the children of Annie Jane Horner (formerly Garner) brought this suit against the children of J. T. Horner by his first wife and the children of his third wife, Hattie B. Horner, and Hattie B. Horner, his surviving widow. The deed from Annie Jane Horner (formerly Garner) and J. T. Horner to G. W. Horner, above referred to, was not acknowledged in accordance with C. S. § 2515, because the justice of the peace before whom the deed was acknowledged, and who took the private examination of Annie Jane Horner, failed to state and set out in his certificate his finding of fact that the contract was not unreasonable or injurious.

The plaintiffs contend, therefore, that the deed from Annie Jane Horner and J. T. Horner to G. W. Horner is void, and therefore the title to said property remained in their mother, Annie Jane Horner, and as her heirs at law they are entitled to the same. The defendants, upon the other hand, contend that Annie Jane Horner was never the true owner of said land, but only held the same in trust for her husband, J. T. Horner.

The issues were as follows: (1) Are the plaintiffs the owners and entitled to the possession of the land described in the complaint? (2) What is the fair rental value of the land mentioned in the complaint?

The judge charged the jury as follows:

"If you find the facts to be true as testified to by the several witnesses, and as appears in the record, you will answer that first issue 'Yes."'

From the judgment on the verdict the defendants appealed.

Downing & Downing and Nimocks & Nimocks, all of Fayetteville, for appellants.

Averitt & Blackwell, of Fayetteville, and H. F. Seawell, of Carthage, for appellees.

BROGDEN J.

Failure to comply with C. S. § 2515, renders a deed void, although it...