Gibbs v. Higgins
| Decision Date | 08 March 1939 |
| Docket Number | 168. |
| Parties | GIBBS et al. v. HIGGINS et ux. |
| Court | North Carolina Supreme Court |
Civil action to set aside and cancel deed from J. N. Higgins to R L. (Bob) Higgins for alleged undue influence, and to declare heirs at law of J. N. Higgins owners of land in question.
Plaintiff Eva Higgins Gibbs and defendant R. L. (Bob) Higgins are children of J. N. Higgins, deceased, of Yancey County, and they with four others, and the children of two deceased children are the only heirs at law of said J. N. Higgins, who died on October 10, 1936.
J. N Higgins, being the owner of a tract of land on Jack's Creek in Yancey County, on May 26, 1935 executed a deed therefor to the defendant R. L. (Bob) Higgins.
Plaintiffs allege that this deed was executed by reason of "wrongful, fraudulent and undue influence exerted by the defendant Bob (R. L.) Higgins on the mind of said J. N Higgins" in certain respects under specified circumstances and sorroundings.
Defendants deny material allegations of the plaintiffs and plead sole seizin and res adjudicata.
The facts upon which defendants rest their plea of res adjudicata are not in controversy. They are substantially these: In April, 1937, the plaintiffs herein together with George Higgins, son of J. N. Higgins, instituted in the Superior Court of Yancey County, before the Clerk, a special proceeding for the partition of the lands in question. C. S. Sections 3213 and 3215. The defendants herein together with all others of the heirs at law of J. N. Higgins were made parties defendant and served with summons. In petition filed therein it is alleged, inter alia, that J. N. Higgins died intestate, seized of the lands in question; that J. N. Higgins left the petitioners and defendants as his only heirs at law; that they are tenants in common and in possession of said land; that Eva Higgins Gibbs owns one-eighth, Bob Higgins one-eighth, and others the remaining interests therein, in the proportions set forth; and that petitioners desire to hold their interests in severalty.
The defendants here, being defendants there, filed an answer in which, while not denying the allegation of the petition as to who are the only heirs at law of J. N. Higgins, they deny the other allegations and set up plea of sole seizin in themselves, non tenent insimul, under and by virtue of said deed from J. N. Higgins to the defendant R. L. (Bob) Higgins, dated May 26, 1935. The other defendants did not answer. Plaintiffs filed no reply.
The proceeding was thereupon transferred to the civil issue docket of the said Superior Court for trial during term upon issues raised by the pleadings. C.S. § 758. On trial at the June 1937 Term of said court, upon issue answered by the jury, judgment was entered declaring that the defendants "Robert L. Higgins and wife, Winnie Higgins" are the sole owners of the land in question. Petitioners appealed therefrom to the Supreme Court. A new trial was granted for that the court below, upon objection by defendants, excluded evidence offered for the purpose of attacking the said deed from J. N. Higgins to R. L. (Bob) Higgins upon the ground that J. N. Higgins was "without mental capacity to make a valid conveyance at the time he signed the said purported deed". Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159, 160.
Upon retrial at the January Term, 1938, the court submitted to the jury these issues:
1. Are the petitioners and respondents the only heirs at law of J. N. Higgins, deceased?
2. Did the deceased, J. N. Higgins, make and deliver a deed conveying the lands described in the petition to R. L. Higgins and wife, is alleged in the Further Answer and Defense?
3. Did the said J. N. Higgins at said time have sufficient mental capacity to execute the deed to R. L. Higgins and wife?
4. If not, did R. L. Higgins and wife have knowledge of said mental capacity?
The jury answered the first three issues in the affirmative, and judgment was rendered adjudging that the defendants "R. L. Higgins and wife, Winnie Higgins, are the sole owners" of the lands in question. Though petitioners gave notice of appeal, they failed to perfect same, and instituted the present action, which came on for hearing at the October Term, 1938, of said Superior Court of Yancey.
After finding facts substantially as above set forth, "the plaintiffs making no claim that the evidence upon which they now propose to proceed is newly discovered or that it was not available at the time of the former trial", the court below held as a matter of law that the cause is res adjudicata, and that the plea in bar ought to be and is sustained.
From judgment in accordance therewith, plaintiffs appeal to the Supreme Court, and assign error.
R. L. Whitmire, of Hendersonville, and Watson, Fouts & Watson, of Burnsville, for appellants.
Charles Hutchins and G. D. Bailey, both of Burnsville, for appellees.
When on trial in partition proceeding, defendants, having denied tenancy in common, plead sole seizin, non tenent insimul, by reason of deed to them from common source, and, the proceeding having been transferred to the civil issue docket for trial, plaintiffs fail before the jury in their attack upon that deed on the ground that the grantor did not have sufficient mental capacity, at the time, to execute it, and final judgment sustaining the plea of sole seizin is entered, is such judgment res adjudicata, and, when pleaded, a bar to prosecution of subsequent independent action to set aside and cancel the deed for undue influence exerted by the grantees?
The uniform decisions of this Court are consonant with an affirmative answer.
Tenancy in common in land is necessary basis for maintenance of special proceeding for partition by petition to the Superior Court. C.S. §§ 3213, 3215. Gregory v. Pinnix, 158 N.C. 147, 73 S.E. 814. When tenancy in common is denied and there is plea of sole seizin, non tenent insimul, the proceeding in legal effect is converted into an action in ejectment and should be transferred to the civil issue docket for trial at term on issue of title,--the burden being upon the petitioners to prove their title as in ejectment. C.S. § 758. Huneycutt v. Brooks, 116 N.C. 788, 792, 21 S.E. 558; Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748, 54 Am.St.Rep. 757; Bullock v. Bullock, 131 N.C. 29, 42 S.E. 458; Sipe v. Herman, 161 N.C. 107, 108, 76 S.E. 556; McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445; Ditmore v. Exford, 165 N.C. 620, 81 S.E. 994; Lester v. Harward, 173 N.C. 83, 91 S.E. 698; Moore v. Miller, 179 N.C. 396, 102 S.E. 627; Higgins v. Higgins, supra.
The doctrine of estoppel, with its conclusive effect, applies to proceedings in partition which are no longer merely possessory actions but are proceedings in which the title can be litigated. Armfield v. Moore, 44 N.C. 157; Carter v. White, 134 N.C. 466, 46 S.E. 983, 101 Am.St.Rep. 853; McCollum v. Chisholm, 146 N.C. 18, 59 S.E. 160; Buchanan v. Harrington, 152 N.C. 333, 67 S.E. 747; McKimmon, Currie & Co. v. Caulk, 170 N.C. 54, 86 S.E. 809; Southern State Bank v. Leverette, 187 N.C. 743, 123 S.E. 68; Wallace v. Phillips, 195 N.C. 665, 143 S.E. 244.
In McKimmon, Currie & Co. v. Caulk, Allen, J., said "The primary purpose of partition proceedings is to sever the unity of possession, but the parties may put the...
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