Lafoon v. Shearin

• Decision Date: 31 October 1886
• Citation: 95 N.C. 391
• Court: North Carolina Supreme Court
• Parties: POLLY ANN LAFOON v. ELIZA SHEARIN.

95 N.C. 391

POLLY ANN LAFOON

v.ELIZA SHEARIN.

Supreme Court of North Carolina.

October Term, 1886.

1. A judgment of nonsuit against a portion of the plaintiffs, terminates the action as to all.

2. Where it is desirable or necessary to continue the action as to some, and discontinue it as to the other plaintiffs, the proper course is to permit or order a withdrawal of those who go out.

3. Whether the jury, having retired under instructions to which there was no exception, shall be recalled for further directions, is within the discretion of the Court, and not reviewable.

4. It is not error to refuse to allow a deposition read upon the trial, to be taken into the jury room, upon the request of only one of the jurors.

5. Where the contention was whether the disputed land was embraced within the boundaries of another and larger tract, and there was conflicting evidence, it was proper to submit the facts to the jury.

6. The testimony of a juror will not be received in support of a motion to set aside a verdict in which he has joined.

7. Where a portion of the plaintiffs have been compelled to withdraw from the action upon their refusal to file a prosecution bond, it is not erroneous to enter judgment against them for costs.

( State v. Royal, 90 N. C., 755; and State v. Brittain, 89 N. C., 481, cited and approved).

CIVIL ACTION, tried before Clark, Judge, at August Civil Term, 1885, of WAKE Superior Court.

The facts are stated in the opinion.

Messrs. D. G. Fowle, J. B. Batchelor and Jno. Devereux, Jr., for the plaintiffs .

Mr. E. C. Smith, for the defendant .

SMITH, C. J.

This action was prosecuted to recover possession of part of a tract of land, devised in 1837 to the plaintiff by her grandfather, John Shearin, which she alleges is wrongfully withheld by the defendant.

The complaint avers that the plaintiff, at the age of sixteen years, intermarried with one Jas. Lafoon, who died in August, 1878.

All the material statements in respect to the subject matter in controversy made in the complaint, are denied in the answer. In the progress of the cause, the plaintiff died, and her heirs-at-law were made parties to the action in her place, as to a portion of whom, according to the record, a nonsuit was entered, (or, as we must understand, a withdrawal from the action by request, since a nonsuit terminates the same, and must be the result common to all), and the action was carried on by the five that remained.

The usual issues were submitted to the jury as to the plaintiff's right to recover possession of the premises, and the wrongful detention by the defendant, and both were answered in the negative.

Judgment thereupon being rendered against the plaintiffs, they appealed.

Upon the trial the plaintiffs exhibited in evidence the will of John Shearin, who died in 1837, wherein are contained the following dispositions:

“3d. I give unto my grandson, Aaron Shearin, son of Drewry Shearin, deceased, a certain tract of land in Granville county, adjoining the lands of Geo. Brogden and others, containing one hundred acres, be the same more or less. But my son, Bartholomew Shearin, is to have the privilege of living on it until he and his wife both die, to him and her forever.

12. I give unto my beloved granddaughter, Polly Ann Shearin, the daughter of John Shearin, all the balance of my estate not heretofore disposed of, to-wit: the tract of land on which I now live, with all the improvements, &c., containing four hundred acres, more or less, adjoining the lands of Thomas D. Bennehan and others, also my negroes,” (naming three of them), “with all the balance of my estate not heretofore disposed of, and the expense of settling my estate.”

A succession of deeds, beginning in 1783, and extending down to the testator, showed the transmission of the title and the vesting of it in him. The tract of one hundred acres, in possession of the defendant, was claimed by the plaintiffs to be a part of the four hundred acres devised to their ancestor, and testimony was introduced tending to support the contention; while evidence to the contrary was offered by the defendant and heard, and to this no exception was taken by the plaintiffs.

The plaintiffs asked the Court to charge that “if the one hundred acre tract, now in defendant's possession, belonged to John Shearin at his death, it vested in Polly Ann Lafoon.”

Whilst defendant's counsel was arguing the case to the jury, and just before concluding, the Court remarked to the plaintiff's counsel: “I cannot give the charge as asked, but will give it with words added, ‘and was not the Aaron Shearin land.’ ” Thereupon the counsel addressed, suggested that two persons of that name had been spoken of, and it might confuse the jury, unless the words were inserted “in which Bartholomew had a life estate,” and as thus amended the instruction was given, and in such case the Court said “the plaintiffs were entitled to recover,” that is, in more appropriate words, as we have often remarked, the response to the first issue should be in the affirmative.

The Court further charged, that although but five of the thirteen tenants in common were prosecuting the suit, this did not affect the controversy with the defendant, and these would be entitled to recover possession as much as...