Hilliard v. Oram

• Decision Date: 09 May 1890
• Citation: 11 S.E. 514,106 N.C. 467
• Parties: HILLIARD v. ORAM et al.
• Court: North Carolina Supreme Court

11 S.E. 514

106 N.C. 467

HILLIARD v. ORAM et al.

Supreme Court of North Carolina

May 9, 1890

Appeal from superior court, Jackson county; J. F. GRAVES, Judge.

Action by W. H. Hilliard, as guardian of W. H. Thomas, a lunatic, to declare void deeds from Thomas to F. F. Oram and John Tankin and from Oram and Tankin to D. D. Davis, and to recover possession of the land covered thereby. The issues submitted and the verdict, are as follows: "(1) Did W. H. Thomas at the time of the alleged execution of the deeds to Oram and the deed to Tankin, mentioned in the complaint, have mind and intelligence sufficient to reasonably understand what he was doing, and the consequences of his act? No. (2) Did F. F Oram, D. D. Davis, and John Tankin take advantage of the mental condition and lunacy of the said W. H. Thomas, and procure him to sign the said deeds of conveyance without paying him, the said W. H. Thomas, the value, or any part of the value, of the said lands described in said deeds? Yes. (3) Did D. D. Davis afterwards procure deeds of conveyance to himself for the lands to Oram and Tankin, with notice of the means by which, and the circumstances under which, said deeds were obtained? Yes. (4) Did the plaintiff institute this action within three years after the cause of action arose? No. (5) Has W. H. Thomas been continuously of unsound mind since the cause of action arose? Yes." Verdict of the jury was set aside, and a new trial granted as to the second issue, and judgment given declaring the deeds void, and ordering them canceled, and decreeing that the action was not barred. Motion for judgment for possession of the land upon the issues found, and not set aside, was refused. Defendants appealed.

Where a new trial is granted as to one issue submitted to the jury, an appeal from the interlocutory judgment entered on the other issues is premature.

M. E. Carter, Batchelor & Devereux, and E. C. Smith, for plaintiff.

Jones & Shuford and T. F. Davidson, for defendants.

CLARK J.

The court, on motion of defendants, set aside the verdict upon one of the issues, on the ground that it was against the weight of the evidence, and directed a new trial on that issue. The court refused the plaintiff judgment for recovery of the land sued for upon the issues found, and entered an interlocutory judgment. The appeal of the defendants is premature. They should have noted their exception, and, after the trial is...