Lee v. Parker

• Decision Date: 15 March 1916
• Docket Number: 210.
• Citation: 88 S.E. 217,171 N.C. 144
• Parties: LEE ET AL. v. PARKER.
• Court: North Carolina Supreme Court

88 S.E. 217

171 N.C. 144

LEE ET AL. v. PARKER.

No. 210.

Supreme Court of North Carolina

March 15, 1916

Appeal from Superior Court, Duplin County; Connor, Judge.

Action by Sarah E. Lee and another against G. D. B. Parker. Judgment for plaintiffs, and defendant appeals. Affirmed.

Where a writing purporting to be a deed has been admitted to record there is a presumption that it was properly executed.

In an action to recover land alleged to be owned by plaintiffs and defendant as tenants in common, plaintiffs, who claimed that the purported deed of their mother was not signed by her, had the burden of proof.

The action was brought to recover the interest of the plaintiffs in a tract of land which they alleged is owned by them and defendant as tenants in common. It was admitted that if plaintiffs own any interest in the land it is three-eighths the defendant owning the remaining five-eighths.

The decision of the case turns upon the validity of a deed purporting to have been made on September 7, 1905, by Mary E Wade to Clark M. Wade and wife, Kizziah Wade, and Harriet M Wade and Bertha Wade for the "Sand Hill tract of land," upon a consideration of $50. Mary E. Wade, called Bettie, was a daughter of Clark M. Wade by his first wife, Sarah E. Wade. His second wife was Kizziah Wade, by whom he had two children, Bertha Wade and Harriet Wade. On the day the deed from Mary E. Wade is alleged to have been executed, she was living on the land with her father, and at the time was tenant in common of the land with her father and her brother, in the proportion of three-eighths and five-eighths thereof. She had been in feeble health for some time before the date of the deed, and on that day was bedridden. One of plaintiffs' witnesses (Mrs. Sarah Garvey), who was present when the deed is alleged to have been signed and delivered, testified:

"In 1895 I lived near Sand Hill in Duplin county, about 200 or 300 yards from Clark M. Wade's. I knew him and his daughter, Mary E. Wade. She died during the month of July, in her father's home, on the land in controversy. Her physical condition for several weeks before her death was bad. She could not lie down at all, on account of shortness of breath.

She could move her body a bit, but could not get up and walk about, she was swollen so. She was in this condition a month or two before her death. A short time before her death--a week or two--I was at Mr. Wade's home. Mary's condition was bad that day. She could move her hands and arms, but could not get up or walk. Mr. Burton was there that day. Mr. Wade and Mr. Burton came into the room where Mary was. Mr. Wade said, 'Bettie, I am ready for you to sign this deed,' and he reached and took her hand and put it to the deed, and he said, 'Joe, make her mark,' and he made the mark. Mr. Burton had the deed when they came into the room. He held the pen to the deed. Mary Wade never said anything when her father took her hand from her lap and held it to the pen while Mr. Burton was making the mark. I was sitting near enough to her to take hold of her. Immediately prior to the time when her father and Mr. Burton came into the house with the paper, she told me that he was trying to make her sign away her right in the land. She said he wanted it for his two children, Bertha and Harriet. She said, 'I don't want to do it, but if I don't he will drive me away; he won't let me stay here.' And about that time they came in, and she never said any more. I saw Mary Wade nearly every day from this time until her death. She never could get up or move about. She had two children at this time, Sarah and Hattie, the plaintiffs. Mr. Wade's children and mine were there when this took place. I am no kin to plaintiffs. I was there that day to see Mary Wade because she needed waiting on. Her condition was as good, to all appearances, as it was any time that summer. I do not know what the paper was, or what was in it. I knew Mr. Burton. I always took him to be a perfect gentleman. Mary Wade and Mr. Wade's family were all staying there in the same house. Mr. Burton was a magistrate. He is dead. Mary Wade lived a little while after that--maybe a month. She went there in May of that year. She was about 35 years old. Mary Wade could write her name. She had a right good education. She tried to get a school to teach one time, but never got it. My boy, Levy, is 31 years old. When her father put her hand to the pen, Mary just dropped her head, with her arms folded in her lap. She did not put her fingers to the pen. Her father just took her hand and put it there. Mr. Burton did not ask her any question. I was sitting near enough to her to touch her."

Levy Garvey testified:

"I am 31 years old. Mrs. Sarah Garvey is my mother. I remember being with her at Clark Wade's that day when Mr. Burton was there. Mr. Wade and Mr. Burton went in there where Miss Mary Wade was sitting on the edge of the bed. Mr. Burton had the paper. Mr. Wade told her he wanted her to sign it. She never made any move at all. He took hold of her hand and laid it on the pen and said, 'Here, Joe, make her mark.' I don't know what became of the paper. I was 10 or 12 years old at this time. Don't remember what month it was, but it was warm weather. I just went there that day with my mother. I was playing with the children. I don't know whether Mr. Wade or Mr. Burton held the pen. I remember seeing the pen, but do not know which one had it. I do not know what the paper was. It was white."

Amos Hall testified:

"I am 33 years old. Clark Wade's second wife was my mother. He was not my father. I remember the day Mr. Joe Burton came to Clark Wade's house with a paper. They called it a deed. He told her that she must sign the paper when Mr. Burton came, and if she didn't sign it he would put her out of the house. When Mr. Burton came I was out in the yard."

A. J. Sumner testified:

"I am 72 years old. I knew Mary Wade; she was called 'Bettie.' I raised one of her children, Sarah. I took her when she was two or three years old; she is older than Hattie. Hattie lived with Mr. Wade until she was married. Neither I nor my wife are related to them. I know the Sand Hill tract. A fair rental value of the land in 1905 was $20 to $30."

D. B. Rhodes testified:

"I cultivated the Sand Hill tract in 1902 and 1903. I knew Mary Wade. Her condition in 1895 was very bad. She was swollen mighty bad in her body and her legs. She could not get about, but her hands were not swollen. She had a fair education--could read, and wrote a nice hand."

Defendant objected to some of this testimony. The deed from Mary E. Wade to Clark Wade and others was probated September 7, 1905, on the oath of David Burton as to the handwriting of J. L. Burton, the subscribing witness, and was registered on the same day.

C. M. Wade and wife, Kizziah Wade, and Henry H. Wade conveyed the land on September 1, 1905, to the defendant G. D. B. Parker, by deed, which was registered on March 6, 1906, and on January 24, 1910, Harriet M. Wade and Bertha (Wade) Smith conveyed the land to the defendant, by deed registered August 17, 1910. On December 8, 1913, Harriet (Wade) Smith and Bertha (Wade) Smith and their husbands Isaac and Isaiah Smith conveyed the land to the defendant by deed registered December 16, 1913. This action was commenced December 3, 1913. It was admitted that on December 3, 1913, the plaintiffs, Sarah E. Lee, formerly Sarah E. Wade, was about 22 years of age, and Hattie Howard, formerly Hattie Lee, was about 19 years old, they being the illegitimate children and heirs at law of Mary E. Wade.

Clark M. Wade and Mary E. Wade were in actual possession of the land until Mary's death in 1895, and after her death Clark M. Wade continued in possession of the land until September 1, 1905, when he conveyed the land to the defendant, who at once entered into possession of the same and has continued in the sole and exclusive possession thereof since that time. Defendant tendered the following issues:

"(1) Was the deed from Mary E. Wade to Clark M. Wade and others procured by the fraud and duress of the said Clark M. Wade, as alleged in the complaint?

(2) Are the plaintiffs the owners of any part of the lands in controversy, and if so, what part?

(3) Is the claim of plaintiffs barred by the statute of limitations?"

The court submitted issues, which with the answers thereto are as follows:

"(1) Is the paper writing, a copy of which is attached to the complaint, marked Exhibit C, and which is recorded in the office of the register of deeds of Duplin county, in Book No. 91, at page 443, the act and deed of Mary E. Wade? Answer: No.

(2) If so, was the execution of the said deed procured by the fraud, force, undue influence, and duress of Clark M. Wade, as alleged in the complaint? Answer: ______.

(3) Are the plaintiffs Sarah E. Lee and Hattie Howard the owners of the land described in the complaint, or of any interest therein, and if so, what interest? Answer: Yes; three-eighths interest.

(4) What is the reasonable annual rental value of said land? Answer: $15."

The court then charged the jury upon the first issue as follows:

"You will answer this issue upon the facts as you find them to be from the evidence which has been introduced, and according to the instructions which the court will give you. The plaintiff contends that you should answer this issue 'No'; the defendant contends that you should answer this issue 'Yes.' I instruct you that the paper writing purporting to be a deed from Mary Wade to Clark M. Wade and others, having been admitted to record and offered in evidence in this case, the law presumes that the said paper writing was properly executed by Mary E. Wade, the grantor named therein. Therefore, the burden of...