Lewis v. Furr
| Decision Date | 29 October 1947 |
| Docket Number | 383 |
| Parties | LEWIS v. FURR et al. |
| Court | North Carolina Supreme Court |
Civil action to determine controversy between plaintiff and defendant Furr as to ownership of proceeds of one-sixth interest in certain land claimed by each of them.
When the cause came on for hearing in Superior Court of Cabarrus County, and after hearing the evidence introduced, the court being of opinion, and holding that no issue of fact arises on the pleadings, or the evidence that the jury is competent to pass on, it was agreed by counsel for both plaintiff and defendant that the judge take the papers and records and consider the case and render his decision while presiding in the Fifteenth District, out of term, out of the county and out of the District.
From the evidence introduced, the court finds these facts pertinent to the controversy, briefly stated:
1. That the heirs at law of J. R. Blackwelder, who died in the year 1913, filed a petition to allot to his widow, Sarah E Blackwelder, her dower in his real estate and to divide the remainder among his children, and lot No. 1, containing 111 acres, was allotted to Sarah E. Blackwelder, and lot No. 4 was assigned and allotted to Ida Lewis, one of the children of J. R. Blackwelder, by metes and bounds, containing 65 1/2 acres, valued at $1.965 and a charge of $602.07 to be paid by Sarah Furr, another child, and $154.39 to be paid by Zelia Blackwelder, another child, making a total valuation thereof in the sum of $2,721.46.
2. That thereafter on 15 August, 1914, the said Ida Lewis and husband, R. M. Lewis,--the latter being the plaintiff in this action,--made a deed for said lot No. 4, 'together with her boot money, or owelty', to D. V. Furr, the defendant in present action, for the consideration of $2,721.46, with the usual covenants of warranty. That this deed contained the following description: 'Fourth lot in the division of lands of J. R. Blackwelder, deceased: Lying and being on No 2 Township, Cabarrus County, North Carolina * * * described as follows': (Specific description by metes and bounds) . Following the description, there is an assignment and conveyance to D. V. Furr of 'any and all boot money due us, or either of us, in the division of the lands of the said J. R. Blackwelder, deceased * * * in our place and stead', and authorizing him 'to receipt for the same in our place and stead'.
3. that thereafter the said Ida Lewis died on 21 August, 1914, leaving a last will and testament, dated August 7, 1914, containing the following clause: 'I do hereby give, bequeath and devise unto my beloved husband, the said R. M. Lewis, all my property, real, personal and mixed, wheresoever situated, to have and to hold the same unto him and his heirs and assigns absolutely and forever in fee simple'.
4. That Sarah E. Blackwelder, widow as aforesaid, died on or about November 29, 1944, and thereupon the heirs at law of J. R. Blackwelder, including plaintiff and defendant, filed an Ex parte proceeding to sell the land formerly laid off to Sarah E. Blackwelder as her dower, and set out in the petition the interests of the petitioners, among others, the following: 'R. M. Lewis or D. V. Furr owns the one-sixth interest in said lands, it being the undivided interest which Ida Lewis inherited from her father * * * etc. ',--R.M.Lewis claiming under the will of Ida Lewis by virtue of the above quoted clause thereof, and D. V. Furr, claiming under the deed of August 15, 1914, from Ida Lewis and her husband, R. M. Lewis, as hereinabove set forth; and, further, that both R. M. Lewis and D. V. Furr consent that said interest be sold under the proceeding and that the one-sixth of proceeds, representing the Ida Lewis interest in the dower tract as aforesaid, be paid into the office of Clerk of Superior Court of Cabarrus County 'to be paid to such person or persons as may be legally entitled thereto'.
5. That the dower tract of land was sold under order of court in the Ex parte proceeding, and the said one-sixth interest in the proceeds amounted to $4,091.90, and same has been paid into office of Clerk of Superior Court, and the Clerk is stakeholder, and does not claim the money.
From these facts, the judge recites that 'the question presented to the court is: Does the description in the deed from Ida Lewis and husband, R. M. Lewis, to D. V. Furr, as set out herein, convey her interest in the dower tract? ' The court being of the opinion, concluded 'that the clause following the description by metes and bounds in the deed from Ida Lewis and husband, R. M. Lewis, had reference solely to the 65 1/2 acres tract allotted in the special proceeding introduced, and that, therefore, by virtue of the will of Ida Lewis to her husband, R. M. Lewis, it conveys her interest in the tract containing 111 acres allotted to her mother, widow of J. R. Blackwelder, and the funds derived therefrom are the property of R. M. Lewis, and that he is entitled to recover the same in this action '. In accordance therewith, the court entered judgment in which it is adjudged that plaintiff R. M. Lewis recover the $4,091.90, in the hands of Clerk of Superior Court, and that defendant D. V. Furr pay the cost of the action. Defendant Furr appeals therefrom to Supreme Court, and assigns error.
Hartsell & Hartsell, of Concord, for plaintiff-appellee.
B. W. Blackwelder and W. S. Bogle, both of Concord, for defendant-appellant.
Appellant presents for decision on this appeal four questions; in three of which, in the view we take of the case, he is interested:
First: Did the court err in holding that the pleadings raised no issue of fact to be submitted to the jury? The question raised is one of law,--the interpretation of the description in the deed from Ida Lewis and husband, R. M. Lewis, to D. V. Furr. As presented here, that is a question of law for the court, and not an issue of fact for the jury.
Second Does the description in the deed above, set out in the foregoing statement of facts, convey the interest of Ida Lewis in the dower tract? In other words, is the particular...
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