Lee v. Thornton

• Decision Date: 16 October 1918
• Docket Number: 261.
• Parties: LEE v. THORNTON ET AL.
• Court: North Carolina Supreme Court

97 S.E. 23

176 N.C. 208

LEE v. THORNTON ET AL.

No. 261.

Supreme Court of North Carolina

October 16, 1918

Appeal from Superior Court, Wake County; Ferguson, Judge.

Actions by Elwood H. Lee against F. J. Thornton and others to set aside certain deeds, and by Elwood H. Lee against J. W. I Mason and wife for possession of land, and petition by Ella Lee against Elwood H. Lee for allotment of dower. From an order referring all the matters in controversy in all of such proceedings to one referee, to be heard at the same time Elwood Lee appeals. Reversed and set aside.

See also, 174 N.C. 288, 93 S.E. 788.

This is an appeal from an order made in two actions and in a special proceeding pending in the superior court of Wake county. The first action was commenced on January 16, 1914, by Elwood H Lee, as heir of James Lee, for the purpose of setting aside certain deeds executed by said James Lee to the defendants, on the ground that James Lee did not have sufficient mind to execute a deed and that the deeds were procured by fraud and undue influence. The second action was commenced on April 23, 1915, by the said Elwood Lee against the defendants Mason and wife, for the purpose of recovering possession of the land described in the complaint in the first action, the said defendants having entered into possession of said land since the institution of the first action. The first action was tried at January term, 1917, of the superior court, and a jury having found all the issues in favor of the plaintiff, a judgment was entered thereon declaring the deeds void and setting them aside, because they were procured by fraud and undue influence.

On December 5, 1917, the widow of James Lee filed her petition against the said Elwood H. Lee, asking that dower be allotted to her in said land, and the said defendant filed an answer to said petition, setting up as a defense that the said widow had committed adultery in the lifetime of the said James Lee and was not living with him at his death. At the April term, 1918, of said court, an order was entered over the objection of the said Elwood Lee, entitled as of each of the three proceedings hereinbefore referred to, and referring all matters in controversy in all of said proceedings to one referee, to be heard at the same time. The said Elwood Lee excepted to said order and appealed.

S. W. Eason and Peele & Maynard, all of Raleigh, for appellant.

Douglas & Douglas, of Greensboro, for appellees.

ALLEN J.

One who is not in possession of land may bring an action to set aside a deed for fraud and undue influence, and in the same action recover possession of the land and the rents and profits, as was done in Reed v. Exum, 84 N.C. 430, or, whether in possession or not, he may prosecute his action to set aside the deed, and, upon a decree being rendered in his favor, apply to the court by supplemental petition for such writ as will render the decree effective, usually a writ of assistance, which was the course pursued in Root v. Woolworth, 150 U.S. 401, 14 S.Ct. 136, 37 L.Ed. 1123.

"The power to issue the writ results from the principle that the jurisdiction of the court to enforce its decree is coextensive with its jurisdiction to determine the rights of the parties, and the court will carry its decrees into full execution, where it can do so justly, without relying on the co-operation of any other tribunal. This is a rule of such practical utility in promoting the ends of justice, preventing unnecessary suits, saving expense, and avoiding delay as commends itself strongly to the approbation of the courts of equity." 2 R. C. L. 728.

"It has been said that the most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage. Harding v. Harker, 17 Idaho, 341, 105 P 788, 134 Am. St. Rep. 259; Jones v. Hooper, 50 Miss. 513. The writ is not limited, however, to cases of the foreclosure of mortgages, but extends to all actions brought for the purpose of determining the rights of the litigants to the title or possession of real estate after judgment declaring such rights. Schenck v. Conover, 13 N. J. Eq. 223, 78 Am. Dec. 95; Knight v. Houghtalling, 94 N.C. 408; Stanley v. Sullivan, 71 Wis. 585, 37 N.W. 801, 5 Am. St. Rep. 245. See, also, Yates v. Hambly, 2 Atk. (Eng.) 362; Adamson v. Adamson, 12 Ont....