Lineberger v. Tidwell

• Decision Date: 14 January 1890
• Citation: 10 S.E. 758,104 N.C. 506
• Parties: LINEBERGER et al. v. TIDWELL et ux.
• Court: North Carolina Supreme Court

10 S.E. 758

104 N.C. 506

LINEBERGER et al. v. TIDWELL et ux.

Supreme Court of North Carolina

January 14, 1890

This was a civil action brought to recover possession of land tried at the August term, 1889, of the superior court of Cleveland county, before CONNOR, Judge. The plaintiffs allege title in themselves, and wrongful possession and damage on the part of defendants, in the usual form, and then aver more specifically that the defendants executed a mortgage deed to J. W. McMassay & Co. in 1887, conveying the land in dispute to secure the payment of a sum of money due, and on their failure to perform the conditions the land was sold according to the terms of the deed, when plaintiffs became the purchasers, and said J. W. McMassay & Co. conveyed to them in the year 1888, before this action was brought. The defendants rely in their answer, further, on the ground that as they allege, the land was the separate property of the feme defendant; and that the mortgage deed to McMassay through which plaintiffs claim, was signed by her husband the male defendant, without previous consultation with or notice to her; and that thereupon the justice, (Bostic,) by whom her privy examination was taken, came to her house, leaving her husband in Shelby, several miles distant, and induced her to sign the mortgage deed, previously signed by her husband; and that she is an ignorant woman,--cannot read or write,--and did not understand that she was binding her land to pay her husband's debt, but thought she was only conveying the crops for the year 1887.

"The defendants tendered the following issues: (1) Was the land the separate property of the wife, the feme defendant? (2) Was there a joint execution of the instrument by the husband and the wife before the privy examination of the wife was had? (3) Was there a joint acknowledgment of the instrument by the husband and the wife before the privy examination of the wife was taken? (4) Did the feme defendant ever sign or execute or acknowledge the execution of the instrument in her husband's presence before her privy examination was taken? (5) Did the feme defendant ever give her voluntary assent to the instrument separate and apart from her husband?

"The plaintiff tendered the following issues: (1) Are the plaintiffs the owners of the land described in the complaint? (2) Are the defendants in the wrongful possession thereof? (3) What damage have plaintiffs sustained?--which were submitted to the jury, and defendants excepted. The plaintiffs offered in evidence a note and mortgage deed, describing the land in controversy, from F. A. Tidwell and wife to J. J. McMurry & Co., dated January 12, 1887, probate bearing same date, and recorded January 27, 1887. The defendants objected for that (1) there was no proper acknowledgment of execution or probate of same; (2) that the certificate of probate by the justice of the peace had no seal to it, official or private; (3) that said mortgage was not entitled to registration. The court overruled the objection, and admitted the mortgage. Defendants excepted. Plaintiffs introduced deed from J. J. McMurry & Co. to J. D. and J. W. Lineberger, dated December 16, 1887. J. D. Lineberger testified that the plaintiffs bought the land at public sale, after advertisement. It was admitted that the land conveyed in the mortgage and deed was the separate estate of the feme defendant, Sarah E. Tidwell.

"The plaintiffs rested, and defendant F. A. Tidwell was introduced, and testified: 'On the day the mortgage was executed I was in Shelby. My wife was at home. I had said nothing to her about the mortgage before leaving home that morning. I saw her next, that evening about sundown. The land belonged to my wife. I owed McMurry & Co. the note. After signing the mortgage, I acknowledged it, and gave it to Mr. Bostic, and had him to go out and get my wife to sign it if she would. That I did not know whether she would sign it.' Sarah E. Tidwell was sworn, and testified: 'Mr. Bostic brought the mortgage to my home for me to sign. I thought it was on the crop. No one was present except Mr. Bostic. My husband left home that morning. I did not know that it was a mortgage on my land. I cannot read and write. I had executed a former mortgage to Mr. Lineberger, but did not know what it was. Mr. Bostic read a part of the mortgage to me. Did not read it all. I did not comprehend anything about it.' The plaintiffs introduced J. T. Bostic, who testified: 'I am the justice of the peace who took the examination of Mrs. Tidwell. Mr. Tidwell signed the mortgage in McMurry's store in my presence. I wrote his name, and he made his mark. He acknowledged it, and told me to go out and get his wife to sign it. That he had told her all about it, and it was all right. She was at home, two miles from town. I went there, and told her that I had a mortgage that Mr. Tidwell wanted her to sign to Mr. McMurry. That it was for an amount, which I named to her. That it was on all of her land,--on her home place. I then read the mortgage over to her. She said that Mr. Tidwell had told her about it, and that it was all right; that she wanted the debt paid. She signed it, and I made the examination, and put the certificate on it after I came back to town. I am satisfied that she understood what she was to sign. I have taken her examination before. No one else was present.' Mrs. Tidwell was recalled, and testified: 'I did not tell Mr. Bostic that my husband and I had a conversation about the mortgage. I had no such conversation.' The feme defendant requested the court to instruct the jury that, upon the whole evidence, there had been no lawful execution of the mortgage. The court declined to do so, and instructed the jury that if they believed, upon the evidence, that the feme defendant, at the time she signed the mortgage, knew and understood what she was doing,--what the mortgage contained, what land she was conveying, to whom and for what purpose she was conveying the land, and that the privy examination was taken as testified to by the justice of the peace,--the mortgage was executed according to law, and they should find the first issue in the affirmative. Defendants except. There was a verdict as set out in the record, and judgment accordingly. Motion for new trial for error in admitting the mortgage in evidence, and for error in declining to instruct the jury as requested in the instructions given. Defendants appealed."

The certificate of J. T. Bostic, the order of the clerk, and the certificate of the register of deeds attached to said mortgage deed were as follows: "Be it known that on the 12th day of January, A. D. 1887, personally came before me F A. Tidwell and wife, S. L. Tidwell, the signer and sealer of the foregoing mortgage deed, and acknowledged the same to be their own free act and deed; and S. L. Tidwell, wife of the said F. A. Tidwell, upon examination by me separate and apart from her husband, acknowledged that she executed the same freely and of her own accord, for the purpose and intent therein expressed, and without any fear or compulsion from anyone, and that she doth still voluntarily assent thereto. Therefore let this mortgage deed, with this certificate, be recorded. J. T. BOSTIC, J. P." "The foregoing certificate of J. T. Bostic, a justice of the peace in Cleveland county, is adjudged to be correct. Therefore let this mortgage deed, with the certificate, be recorded. This 27th day of January, 1888. T. D. LATTIMORE, Clerk Superior Court." "I hereby certify that the within mortgage deed was filed in this office...