Linker v. Linker

• Decision Date: 16 December 1914
• Docket Number: 492.
• Parties: LINKER ET AL. v. LINKER ET AL.
• Court: North Carolina Supreme Court

83 S.E. 736

167 N.C. 651

LINKER ET AL. v. LINKER ET AL.

No. 492.

Supreme Court of North Carolina

December 16, 1914

Appeal from Superior Court, Cabarrus County; Adams, Judge.

Action by Sam A. Linker and others against Nancy E. Linker and others. Judgment for the plaintiffs, and defendants appeal. Affirmed.

This is a civil action, tried at August term, 1914, Cabarrus superior court, Adams, Judge, upon these issues:

(1) Did Jackson Linker sign and deliver to Paul Linker the deed set out in the complaint, dated September 25, 1912? Answer No.

(2) If so, did said Jackson Linker have sufficient mental capacity to understand what property he was disposing of the person to whom he was selling it, and the purpose for which he was disposing of said property?

From the judgment rendered, the defendants appealed.

H. S Williams and J. Lee Crowell, both of Concord, for appellants.

W. G. Means and L. T. Hartsell, both of Concord, for appellees.

BROWN J.

This action is brought to set aside a deed made by Jackson Linker and wife on September 25, 1912, to Paul Linker, conveying a certain tract of land therein described for the recited consideration of $400: First, upon the ground that the said deed, although duly registered on October 11, 1912, after the death of Jackson Linker had in fact never been executed and delivered; second, upon the further ground that at the time of the alleged execution of the said deed the said Jackson Linker did not have sufficient mental capacity to execute the said deed. There was a further allegation of fraud and undue influence upon the part of Paul Linker which his honor held was not supported by any evidence, and which it is not necessary for us therefore to consider.

The defendants except to the submission of the first issue upon the ground that no such issue was raised by the pleadings. We see no ground upon which to base such contention. In the complaint, the plaintiffs allege, after reiterating the facts set forth in paragraphs 1 and 2 of their first cause of action, that the said alleged deed was never in fact or law executed by the said Jackson Linker.

It is true this allegation is made upon information and belief. An allegation made upon information and belief raises an issue, when denied by the answer, as this is, as readily as when made upon the pleader's own knowledge. So we find the question of the execution and delivery of the deed directly raised by the allegation of the complaint and the specific denial in the answer. Of course, his honor therefore very properly submitted the first issue.

The defendants except because the court excluded the testimony of Paul Linker as to a conversation between him and his father, Jackson Linker, as to the consideration of the deed and Jackson Linker's intention to make it. This is a transaction between Paul Linker and the deceased, Jackson Linker, which the former was incompetent to testify to under section 1631 of the Revisal. Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043; Smith v. Moore, 142 N.C. 277, 55 S.E. 275, 7 L. R. A. (N. S.) 684; Bonner v. Stokesbury, 139 N.C. 6, 51 S.E. 781.

Upon examination of the charge of the court, we find that...