In re Freeman's Heirs at Law

• Court: North Carolina Supreme Court
• Writing for the Court: VARSER, J.
• Citation: In re Freeman's Heirs at Law, 128 S.E. 404, 189 N.C. 790 (N.C. 1925)
• Decision Date: 03 June 1925
• Docket Number: 555.
• Parties: IN RE FREEMAN'S HEIRS AT LAW. v. RAMSEY ET AL. PRICE ET AL.

128 S.E. 404

189 N.C. 790

IN RE FREEMAN'S HEIRS AT LAW.

PRICE ET AL. v. RAMSEY ET AL.

No. 555.

Supreme Court of North Carolina

June 3, 1925

Appeal from Superior Court, Madison County; Ray, Judge.

Action in ejectment and for mesne profits by Vira Price and others heirs at law of D. E. Freeman, deceased, against C. H. Ramsey and others, who claim under Garrett Ramsey, deceased, to recover lands designated as the dower of the widow of Daniel E. Freeman. Judgment for defendants on motion to nonsuit, and plaintiffs appeal. New trial awarded.

Description held sufficient to give widow life estate in land when properly located.

This is an action in ejectment and for mesne profits in which the title to the lands in controversy is the chief question at issue. The evidence for plaintiffs shows that Daniel E Freeman died June 5, 1873, leaving him surviving his widow Nancy Freeman. Nancy Freeman, before her marriage to Daniel E. Freeman, was the widow of one Patton, and, after Freeman's death, she married J. M. Revis, and, after the death of Revis, she married Jim Warren, and she died September 26, 1923.

The provision for what is called dower for Nancy Freeman in the will of Daniel E. Freeman, deceased, is as follows:

"And to Nancy Freeman, let her have at least 75 acres of land to be left her in during her life time, and household and kitchen furniture as is common to be allotted by law in such cases, and other out property and such provisions as will last her at least one year from the time this will take effect, her land to include the dwelling house and to be located as she may want it to be, and as near four-square as is consistent."

Plaintiffs introduced deeds to Daniel E. Freeman and evidence as to location, tending to show that Daniel E. Freeman claimed, and was in possession of, 600 acres of land, used by him as one tract, prior to the date of the deed of trust from Daniel E. Freeman to Farnsworth, trustee, under which the defendants claim. This evidence further tends to show the location of the dower lands within this 600-acre tract, at the place where Daniel E. Freeman lived and died.

Plaintiffs introduced in evidence a deed from the widow of Daniel E. Freeman (then Revis) and husband, Marion Revis, to D. D. Lunsford, dated February 3, 1876, registered March 9, 1893. This deed recites that it conveys "all their interest, right, and title to a certain piece or parcel of land on which the parties of the first part now reside, and upon which the said Nancy C. Revis was assigned dower as the widow of Daniel E. Freeman, deceased. The said interest hereby conveyed being the life estate of said Nancy C. Revis as widow aforesaid; the said tract of land is known as the Freeman land, and adjoins the lands of Garrett Ramsey, George Ramsey, Daniel Payne, and others. * * * Supposed to contain 62 acres, more or less." The habendum clause in this deed is "for the natural life of the said Nancy C. Revis." With a covenant of a "right to convey the same for the time specified."

The evidence further tends to show that Lunsford, grantee in the Revis deed, was the son-in-law of Garrett Ramsey; that the agreement between Lunsford and Garrett Ramsey was that Garrett Ramsey, soon after the execution of the Revis-Lunsford deed, took possession of the lands described therein under Lunsford, and that the Revis-Lunsford deed was delivered by Lunsford to Garrett Ramsey, and that on March 1, 1893, D. D. Lunsford executed to Garrett Ramsey a deed, drafted either at the instance of or by Garrett Ramsey, and its description is as follows:

"Beginning on Frank Davis Division Corner and runs with said division line north 25 west 240 poles more or less; thence west with the Kilgore tract line 30 poles more or less to said Kilgore corner; thence south with Kilgore line 240 poles more or less, to a stake, then with Kilgore line to the beginning, containing 70 acres, more or less. The same being the lifetime dower bought from Nancy Freeman by said David Lunsford."

The habendum in this deed is: "During the life of Nancy Freeman," and the warranty is: "During the lifetime of Nancy Freeman, and no longer," and that this deed was duly registered at the instance of Garrett Ramsey.

The evidence further tends to show that Garrett Ramsey, and those claiming under him, including the defendants, have been in the possession of the lands in controversy since about two years after Lunsford purchased from Nancy Freeman Revis.

The witness D. D. Lunsford testified that the land described in the Revis-Lunsford deed is the land that he purchased from Nancy Revis and her husband, and that after he purchased it he took possession of it and moved right on it and stayed there a while. "I don't think I made any crop on it, but I rented it to George Freeman the first year. He cultivated it. After I bought the land I had a talk with Garrett Ramsey, my father-in-law, about it. After I bought the land from Nancy Freeman or Nancy Revis and her husband, I kept it something like two years. I rented it to George Freeman. I sold it then to Garrett Ramsey."

It was admitted by defendants that the land described in the Lunsford deed is the same land as described in paragraph 1 of defendants' further answer, which pleads the record in the case of Garrett Ramsey against G. W. Freeman and Benjamin Freeman.

The motion for judgment as upon nonsuit was allowed at the close of the evidence.

There was much evidence tending to locate the Freeman dower land, as contended for by plaintiffs, and there was much evidence tending to show that it could not be so located, and that the lands claimed by plaintiffs as the dower lands, if located by them as contended, was included within defendants' chain of title from Daniel E. Freeman, through a deed and bond for title from A. E. Baird to Garrett Ramsey, under the Farnsworth deed of trust. There was evidence tending to show that the Baird deed did not cover the land in controversy, and evidence tending to the contrary.

The defendants introduced, over exception, the record in a suit instituted by Garrett Ramsey against G. W. Freeman and Benjamin Freeman in Madison superior court. In this complaint Garrett Ramsey alleged:

"That he is the owner and entitled to the possession of two tracts of land, the first described as follows: 'Beginning on Frank Davis division corner and runs with said division line 25 deg. west 240 poles more or less; then west with the Kilgore tract line 30 poles more or less to said Kilgore corner; thence south with Kilgore's line 240 poles more or less, to a stake; then with Kilgore's line to the beginning, containing 70 acres more or less'; and that the defendants were in the wrongful and unlawful possession thereof, to his damage, in the sum of $200."

The answer denied each allegation of the complaint.

The verdict was as follows:

"(1) Is the plaintiff the owner and entitled to possession of the lands in dispute? Answer: Yes.

(2) What damage is the plaintiff entitled to? Answer: $70."

The judgment rendered at July term, 1895, after reciting the issues, omitting the formal parts, adjudged that plaintiffs recover of the defendants Benjamin Freeman and George W. Freeman "the possession of the land described in the complaint," excepting therefrom the conveyance to George W. Freeman by Daniel E. Freeman, and provided that the defendants be ejected and the plaintiffs put in possession of this land, and for recovery of the damages assessed by the jury.

The court below, closing the evidence, held, and so decreed, that this record estopped the heirs at law of Benjamin Freeman and George W. Freeman to question the ownership of the lands in controversy. George W. Freeman and Benjamin Freeman were sons of Daniel E. Freeman, deceased, and their heirs at law included among the plaintiffs as heirs at law of Daniel E. Freeman, deceased. The trial court further held, upon defendants' motion for judgment of nonsuit that "in no view of the case were the plaintiffs entitled to recover, as there was no legal evidence to be submitted to the jury that any dower had been legally assigned or legally allotted to Nancy Freeman."

The plaintiffs assigned errors as follows: (1) To the exclusion of the evidence offered by the witness Frank Patton that he was present when his mother's dower was allotted, in the presence of George Freeman, executor of Daniel E. Freeman, and that Nancy Freeman, mother of the witness, lived on the dower until she sold it to David Lunsford. (2) The trial court sustained the defendants' objection to the question put to the witness Goforth asking whether the witness had examined the record of deeds to ascertain tracts that Garrett Ramsey held in the source of his title. (3) That the trial court admitted in evidence the record in the case of Garrett Ramsey v. Benjamin Freeman and George W. Freeman. (4) In rendering the judgment dismissing the action.

John A. Hendricks, of Marshall, and G. M. Pritchard, of Asheville, for appellants.

Guy V. Roberts, of Marshall, and Martin, Rollins & Wright, of Asheville, for appellees.

VARSER J.

Plaintiffs' first exception is to the exclusion of the evidence of Patton, son of Nancy Freeman, by her first marriage, as to the laying off by three men of what the witness calls his mother's dower; that George Freeman, an heir of Daniel E. Freeman, was there; that it was in 1873; and that the land was allotted to her "as her dower," and witness gave one of the lines of the dower as "the conditional line between Daniel E. Freeman and Garrett Ramsey," and said "my mother lived on the dower until she sold it to David Lunsford."

We think this evidence is competent. It was not, strictly speaking, the laying off or admeasurement of dower, as in cases or when the widow...