Hardy v. Mayo

• Decision Date: 01 November 1944
• Docket Number: 310.
• Citation: 31 S.E.2d 748,224 N.C. 558
• Parties: HARDY et al. v. MAYO.
• Court: North Carolina Supreme Court

31 S.E.2d 748

224 N.C. 558

HARDY et al. v. MAYO.

No. 310.

Supreme Court of North Carolina

November 1, 1944

Special proceedings, instituted 20 May, 1941, for the partition of a 35-acre tract of land situated in Greene County, in which the petitioners claim a one-half undivided interest. Respondent filed answer denying plaintiffs have any interest in the said land, pleads sole seizin, and alleges the conveyance from L A. and L. S. Mayo to the Macclesfield Company hereafter described, and upon which petitioners rely, as a link in the chain of their title, is null and void, and that the Macclesfield Company and subsequent purported holders of title through said Company hold the same in trust for the respondent. Additional facts pertinent to this appeal are as follows:

1. It is admitted that the respondent is the owner of a one-half undivided interest in the land in controversy.

2. In 1906 L. A. Mayo and his wife, L. S. Mayo, executed a conveyance to Macclesfield Company, a corporation, for a one-half undivided interest in the aforesaid tract of land which instrument was duly recorded as provided by law, 17 June, 1906. The deed contained the following provisions:

'Whereas Henry Clark Bridgers of Tarboro, North Carolina, is going to construct or cause to be constructed an extension of the East Carolina Railway from Farmville to Hookerton and it will cross the lands of L. A. Mayo. * * * And Whereas L. A. Mayo is desirous of giving to the said Henry Clark Bridgers or his heirs or assigns one-half interest which said interest is to be joint in thirty five acres of land which said thirty five acres of land is to be laid off and plotted into a town site and said lots are to be held in Joint interest by said L. A Mayo and said Henry Clark Bridgers or assignee and are to be (sold) at a price agreed on by said L. A. Mayo and said Henry Clark Bridgers. And the proceeds of said sale are to be divided equally between said L. A. Mayo and said Henry Clark Bridgers. And Whereas the said Henry Clark Bridgers is interested in and is an officer in the Macclesfield Company a Corporation. * * * Now therefore in consideration of the foregoing premises and the further consideration of One Dollar paid receipt whereof is hereby acknowledged and the further consideration of the said Henry Clark Bridgers * * * causing to be located a Station and a Station house built either on the hereinafter described land or on the lands adjoining it the said L. A. Mayo and L. S. Mayo his wife have given and granted bargained and sold aliened and conveyed and do by these presents give and grant bargain and sell and alien and convey unto the said Macclesfield Company.' etc. Thereafter the railroad was built as contemplated, the depot located on lands adjoining the above tract, and the land in controversy platted into lots.

3. The Macclesfield Company instituted a special proceedings against L. A. Mayo and wife L. S. Mayo for the partition of the property on 3 February, 1917. Answer was filed by respondents denying the petitioners owned any interest in the land by reason of the failure of the petitioners to develop the property as contemplated under the provisions contained in the aforesaid conveyance. Mrs. Mayo died intestate in the year 1918, and L. A. Mayo died intestate in the year 1920. The petitioners took a voluntary nonsuit at the December Term, 1921, of the Superior Court of Greene County.

4. The only children and heirs at law of L. A. Mayo and his wife, L. S. Mayo, were R. E. Mayo, L. A. Mayo, J. W. Mayo, W. L. Mayo and the respondent Mayona Mayo.

5. By special proceedings for partition, instituted in Pitt and Greene Counties, R. E. Mayo and W. L. Mayo were allotted a tract of land in Pitt County and J. W. Mayo, L. A. Mayo and Mayona Mayo were allotted the Whitley tract of 225 acres in Greene County.

6. In December, 1921, L. A. Mayo, guardian of J. W. Mayo, instituted a special proceedings in the Superior Court of Greene County and alleged in his petition that L. A. Mayo, J. W. Mayo and Mayona Mayo were the owners of and in possession jointly with J. H. Bridgers, or the Macclesfield Company, of the 35-acre tract near the Town of Maury; and further alleged that L. A. Mayo and Mayona Mayo had entered into an agreement with Bridgers, or the Macclesfield Company, to offer lots for sale included in the 35-acre tract, and owned by all of them, and prayed the Court for authority to execute deeds on behalf of said minor, J. W. Mayo. Judgment authorizing the sale of said lots and the execution of deeds on behalf of said minor was signed 15 December, 1921, by the Clerk of the Superior Court and affirmed by the Judge on 16 December, 1921. Thereafter, on 17 December, 1921, this respondent joined in the execution of a deed conveying a one-half undivided interest in three lots, situate within the boundaries of the 35-acre tract, to the Macclesfield Company, and the deed recites the Macclesfield Company is already the owner of the other one-half interest in said lots.

7. In the year 1922, L. A. Mayo, Mayona Mayo and J. W. Mayo, by his Guardian, L. A. Mayo, instituted a special proceedings to partition among themselves the Whitley land, of which the 35-acre tract in controversy is a part. It is expressly set forth in the proceedings that the petitioners own only a one-half undivided interest in the 35-acre tract and that 'the other one-half undivided interest being the interest of H. C. Bridgers.'

8. The respondent purchased her present interest in the 35-acre tract of land from one of the other Mayo heirs, and the same was conveyed to her by deed dated 16 November, 1934, and in which it is stated: 'The interest conveyed is a one-half undivided interest.'

9. The Macclesfield Company, on 1 July, 1932, executed a deed of trust to John Hill Paylor, Trustee, on certain lands including the one-half interest in the said 35-acre tract, which deed of trust was duly foreclosed and the petitioners purchased the property at the foreclosure sale. The following description appears in the deed of trust and in the Trustee's deed executed 1 December, 1934, to petitioners:

'Also one-half undivided interest in thirty-five (35) acres of land being part of the Old Whitley tract and joins the lands of J T. Frizzelle, Mrs. L. A. Spivey, T. M. Dail and others, said 35 acres beginning at the fork of the road on the west side of the Lizzie and Hookerton Road at a point where the Greenville and Snow Hill Road crosses the Lizzie and Hookerton Road and running in a direct line to where it will intersect...