Jernigan v. Jernigan

• Decision Date: 20 March 1946
• Docket Number: 237
• Citation: 37 S.E.2d 493,226 N.C. 204
• Parties: JERNIGAN et al. v. JERNIGAN et al.
• Court: North Carolina Supreme Court

37 S.E.2d 493

226 N.C. 204

JERNIGAN et al. v. JERNIGAN et al.

No. 237

Supreme Court of North Carolina

March 20, 1946

Petition to sell land for partition.

It is alleged that the feme petitioners and respondents, as the only children and heirs at law of Susan Jernigan, deceased are tenants in common by inheritance of a tract of land in Johnston County, containing 88 1/2 acres, which their mother left undevised at the time of her death, October 27, 1943.

The respondents denied the cotenancy and pleaded sole seizin, R A. Jernigan to part of the land under deed from his father and mother, and Minnie (Jernigan) Raynor to the remainder consisting of 42 3/4 acres, under deed executed by her widowed mother May 26, 1941, and registered the same day.

The petitioners replied and attacked the validity of both deeds on the ground of alleged undue influence in their procurement. The claim of R. A. Jernigan was settled by consent judgment. The case was then tried out on the issue raised by the feme respondent's plea.

The jury returned the following verdict:

'1. Was the execution of the deed from Susan Jernigan to Minnie Raynor, dated May 26, 1941, procured by undue influence exerted by the said Minnie Raynor upon the said Susan Jernigan as alleged in the plaintiffs' pleadings? Answer No.'

From judgment on the verdict adjudging the respondent, Minnie Raynor, to be the owner of the 42 3/4 acres in question, the petitioners appeal, assigning errors.

Parker & Lee, of Smithfield, for petitioners-appellants.

Wellons, Martin & Wellons, of Smithfield, for respondent-appellee.

STACY, Chief Justice.

The first question arises upon the challenge to the sufficiency of the record to support the judgment.

The petition to sell the land for partition among the alleged tenants in common was duly filed with the clerk of the Superior Court of Johnston County on April 20, 1945. The feme respondent denied the cotenancy and pleaded sole seizin to a part of the land under a deed from the common ancestor, dated May 26, 1941. The petitioners replied and attacked the validity of respondent's deed. The matter was transferred to the civil issue docket for trial during term as in other special proceedings. G.S. s 1-399. For all practical purposes, this converted the proceeding into an action to try title to the land claimed by the respondent, with the burden on the petitioners as in ejectment. Gibbs v Higgins, 215 N.C. 201, 1 S.E.2d 554; Bailey v. Hayman, 218 N.C. 175, 10 S.E.2d 667; Id., 222 N.C. 58, 22 S.E.2d 6; Ditmore v. Rexford, 165 N.C. 620, 81 S.E. 994; McIntosh on Procedure 1060. Specifically, the burden was on the petitioners to show title as alleged, i. e., title by tenancy in common. Sipe v. Herman, 161 N.C. 107, 108, 76 S.E. 556; Alexander v. Gibbon, 118 N.C. 796, 24 S.E. 748, 54 Am. St.Rep. 757; Huneycutt v. Brooks, 116 N.C. 788, 21 S.E. 558. See Bailey v. Hayman, 220 N.C. 402, 17 S.E.2d 520.

When the petitioners offered the respondent's deed in evidence for purpose of attack, Higgins v. Higgins, 212 N.C. 219, 193 S.E. 159, and failed to make good the attack, they thereby fell short of showing the alleged tenancy in common. Huneycutt v. Brooks, supra. In fact, they regarded it as showing just the reverse. And while the issue submitted to the jury deals only with the allegation of undue influence in the procurement of respondent's deed, the verdict seems sufficient to support the judgment when considered in the light of the record and the theory of the trial. McKeel v. Holloman, 163 N.C. 132, 79 S.E. 445. It is stated in the case on appeal that, after a consent judgment was entered as to R. A. Jernigan, 'the question of the sufficiency of the deed to Minnie Raynor * * * was left to be tried. ' This was the battle ground selected by the petitioners and accepted by the respondent. Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339. Having thus proceeded in the trial court, the appeal ex necessitate rests upon the same premise. Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644; Gorham v. Pacific Mut. Life Ins. Co., 214 N.C. 526, 200 S.E. 5; Apostle v. Acacia Mut. Life Ins. Co., 208 N.C. 95, 179 S.E. 444.

It is the rule with us, both in civil and criminal actions, that a verdict may be given significance and correctly interpreted by reference to the pleadings, the facts in evidence, admission of the parties, and the charge of the court. Pierce v. Carlton, 184 N.C. 175, 114 S.E. 13; Kannan v. Assad, 182 N.C. 77, 108 S.E. 383; Howell v. Pate, 181 N.C. 117, 106 S.E. 454; Reynolds v. Adams Express Co., 172 N.C. 487, 90 S.E. 510, Ann.Cas.1918C, 1071; Fourth Nat. Bank v. Wilson, 168 N.C. 557, 84 S.E. 866; State v. Cody, 224 N.C. 470, 31 S.E.2d 445; State v. Morris, 215 N.C. 552, 2 S.E.2d 554; State v. Whitley, 208 N.C. 661, 182 S.E. 338. Tested by this rule, it would seem that the exception addressed to the alleged inadequacy of the verdict to support the judgment should be overruled. Pierce v. Carlton, supra. It was conceded on the hearing, and at the bar here, that unless respondent's deed was procured by overreaching or undue influence, it conveys the 42 3/4 acre tract. The petitioners say in their brief: 'Under the rule applicable in an action of ejectment, when an instrument relied upon is introduced as part of the chain of title, it is then open to attack for all purposes on the general issue, regardless of whether the instrument is introduced by the plaintiff for the purpose of attack. Higgins v. Higgins, 212 N.C. p. 220 .' The verdict, then, was intended to establish, and does establish, the validity of respondent's title.

Nor is the case of Lester v. Harward, 173 N.C. 83, 91 S.E. 698, presently helpful to the petitioners, for, there, the single issue of sole seizin was answered against the respondents, without any further matters appearing of record to support the judgment quod recuperet. Newbern v. Gordon, 201 N.C. 317, 160 S.E. 182.

Secondly, the petitioners contend that they were not allowed the benefit of a factual presumption of fraud or undue influence which arises from the relationship of the parties, to wit, parent and child. McLeod v. Bullard, 84 N.C. 515, 516; Lee v. Pearce, 68 N.C....