Keel v. Bailey

• Decision Date: 20 September 1944
• Docket Number: 99.
• Citation: 31 S.E.2d 362,224 N.C. 447
• Parties: KEEL v. BAILEY.
• Court: North Carolina Supreme Court

31 S.E.2d 362

224 N.C. 447

KEEL v. BAILEY.

No. 99.

Supreme Court of North Carolina

September 20, 1944

Civil action for recovery of land and for damages.

Plaintiff alleges (1) ownership in fee of a certain tract of land in Wilson County, North Carolina, (2) unlawful possession thereof by defendant, and (3) damages. Defendant denies title of plaintiff as well as other material allegations, and by way of further answer and defense sets up various grounds,--estoppel, etc.

Upon the trial below the evidence offered by the parties shows these undisputed facts:

1. Both plaintiff and defendant claim title to land in question from a common source, Robert Bailey and wife, Bettie Bailey who held the title as tenants by the entirety.

2. In 1931 Bettie Bailey executed a deed to Robert Bailey covering the land in question. This deed was acknowledged in compliance with provisions of G.S.§ 52-12, formerly C.S. § 2515.

3. Thereafter, on January 25, 1932, Robert Bailey alone executed a deed to his wife, Bettie Bailey. This deed, registered January 25, 1932, recited that the consideration for it is the cancellation of a judgment in the principal sum of about $6,900 taken before the clerk of Superior Court of Nash County in favor of his wife, Bettie Bailey, and 'with the intent and purpose of paying and discharging the said judgment above referred to and of conveying to and vesting in her * * * an estate in fee and severalty in said lands freed from all incidents of the joint estate or the estate by the entirety.' And the deed is in fee-simple form but contains no covenants of warranty.

4. Bettie Bailey died on July 15, 1935, leaving a last will and testament in which after providing for payment of all her just debts, she devised and bequeathed all of the property, real, personal and mixed, of which she should die sized and possessed, wherever situate, in equal shares to her daughter, two sons, including defendant, and a foster son for and during the term of their natural lives, with the provisions as to the remainder which are not necessary to be stated here.

5. On August 22, 1935, Robert Bailey instituted two actions, one in Nash County Superior Court and the other in Superior Court of Wilson County, against the devisees under the will of Bettie Bailey, including defendant, and the administrator of her estate, for the purpose of vacating upon the ground of fraud the judgment, the cancellation of which was the consideration for his deed to Bettie Bailey, described in paragraph above, but which had not been cancelled of record and to vacate that deed for failure and lack of consideration and other causes. The action in Wilson County related to land in question. Defendants therein, after being served with summons, answered denying the allegations upon which the cause of action was based. And thereafter at November Term 1935, of Wilson County Superior Court, judgment was entered dismissing the action. In this judgment it is recited that 'it appearing to the court that the plaintiff desires to take a voluntary nonsuit in this case and further, as evidenced by his signature hereto, he agrees that he will not in the future prosecute any action or proceeding whatsoever against the defendants, their heirs, assigns, executors or administrators on account of any of the matters and things set forth in the complaint or involved in this action'.

6. Thereafter, to wit, on March 30, 1936, there was entered of record a deed of trust from Robert Bailey to C. C. Pierce, trustee, bearing date August 17, 1935, and purporting to convey the land in question as stated in brief of plaintiff, as security for two notes for $500 each payable to his several counsel representing him as fees in two actions including that referred to in preceding paragraph.

7. Pursuant to foreclosure of the deed of trust described in preceding paragraph C. C. Pierce, trustee, executed a deed to plaintiff Page C. Keel, dated January 4, 1941, and registered August 25, 1941.

Defendant offered the oral testimony of def...