Love v. Mcclure

• Decision Date: 23 April 1888
• Citation: 6 S.E. 247,99 N.C. 290
• Court: North Carolina Supreme Court
• Parties: Love et al. v. McClure.

6 S.E. 247

(99 N.C. 290)

Love et al.

v.McClure.

Supreme Court of North Carolina.

April 23, 1888.

Parties—Necessary Parties.

In ejectment by the heirs of the vendor against the vendee's widow, in possession as doweress, where the evidence shows that the vendor had paid the full purchase price, but had failed to secure a deed, the refusal of the court to render judgment for defendant because the heirs of the vendee had not been made parties defendant is erroneous, they not being necessary parties in a suit to determine the widow's right of possession.

Appeal from superior court, Haywood county; Graves, Judge.

Action for the recovery of land by the heirs of J. R. Love against Nancy L. McClure. Motion of defendant for judgment in her favor being refused, defendant appeals.

Strong, Gray & Stamps and G. S. Ferguson, for appellant.

G. H. Smathers and R. D. Gilmer, for respondents.

Davis, J. Civil action for the recovery of land, tried before Graves, J., at spring term, 1887, of Haywood superior court. The plaintiffs are the heirs at law of J. It. Love, deceased, and allege that they are the owners of the land described in the complaint, and that the defendant is in possession thereof, and wrongfully withholds the same, etc. The defendant, Nancy L. McClure, denies the allegations of the complaint, and as a defense to the action of the plaintiffs, and for affirmative relief, alleges that J. R. Love, the ancestor of the plaintiffs, in 1858 executed to William McClure, now deceased, a bond for title to certain lands described in the answer and the bond for title, fully set out therein, and that the land mentioned in the complaint is included in the land so mentioned in the bond for title, and that William McClure, in his lifetime, fully paid off and discharged the notes mentioned in said bond for title, as the price of said land and was entitled to a deed in fee from said J. R. Love therefor; that William McClure died in 1866, intestate, leaving the defendant, Nancy L. McClure, his widow, and the children named in the answer, as his heirs at law, "and the defendant was entitled to dower in said land, and now holds the same as widow of the said William McClure, " etc.; that J. R. Love died in 1863, leaving a last will and testament, which was duly proved, and the executors therein named duly qualified; that the bond for title was duly registered in the register's office of Haywood county on the 15th of January, 1867; that J. It. Love, in his life-time, and his personal representatives since, have sold portions of the land mentioned in the bond for title, as set out in the answer. She asks that the surviving executors of J. It. Love (who are named) be made parties plaintiff, and that the heirs at law of William McClure (who are named) be made parties defendant, that a decree be made requiring the executors of J. It. Love and the plaintiffs to convey the lands mentioned in the bond for title to the heirs at law of William McClure, and if they cannot convey the whole of said land, then for damages for so much as they may be unable to convey, and for such further relief as she may be entitled to.

At the special term, July, 1885, it was by the court referred to J. K. Boone, clerk of the superior court, to ascertain and report upon certain facts, and tostate an account. At the same term the following entry was made: "Leave granted to make the executors of J. R. Love, parties plaintiff, and the heirs of William McClure, deceased, parties defendant, and pleadings to be amended accordingly." The referee made his report to the spring term, 1886, which, with the defendant's exceptions thereto, 20 in number, is fully and at length set out in the record, but in the view taken by this court it is only necessary to mention that the referee reported that J. R. Love executed to William McClure, the husband of the defendant, the bond for title, etc., as alleged in her answer, that the purchase money had not been paid, and that the eighteenth and twentieth exceptions to the report were as follows: "18. That the referee erred in finding as a legal conclusion or fact that the purchase money for the land had not been paid, or any part thereof, as there was no testimony to warrant such finding. * * * And the defendant asks that a jury pass upon the issue of payment, and such other issue as may be necessary to determine the merits of this action." Upon the hearing of the report of the referee and the exceptions thereto at said term of the court, Avery, J., rendered the following judgment: "This cause, coming on to be heard, and being heard on exceptions to the report of the referee made to this term, the exceptions filed by defendant from number 1 to number 19, both inclusive, are overruled by the court, and defendant excepts to the ruling of the court. It appear-ing to the court that the defendant has demanded a jury trial in exception number 20, the court holds that the defendant, by virtue of said last-named exception, is entitled to have the issue of payment of the notes mentioned in the bond for title passed upon by a jury, and that the burden will be upon the defendant to show affirmatively the actual payment of the notes mentioned in said bond for title. Defendant excepts. The following issues are framed, to be submitted to a jury at the next term of the court, involving only the question of payment: (1) Have the notes mentioned in the bond for title, executed by testator of plaintiffs to defendant's husband, William McClure, been actually paid in full? Answer. ——. (2) If not, what sum has been actually paid by defendant or her said husband, or any agent of either, on the $477 note? A. ——. (3) What sum has been paid on the $823 note? A. ——. (4) What sum has been so paid on the $150 note? A. ——. Defendant excepts.

At the spring term, 1887, these issues were submitted to a jury, and the response to the first was in the affirmative, which rendered an answer to the others unnecessary. The...