Martin v. Bundy

• Decision Date: 24 November 1937
• Docket Number: 315.
• Citation: 193 S.E. 831,212 N.C. 437
• Parties: MARTIN et al. v. BUNDY et al.
• Court: North Carolina Supreme Court

193 S.E. 831

212 N.C. 437

MARTIN et al. v. BUNDY et al.

No. 315.

Supreme Court of North Carolina

November 24, 1937

Appeal from Superior Court, Pitt County; E. H. Cranmer, Judge.

Action by W. W. Martin and another against W. J. Bundy, trustee John W. Martin, W. J. Carson, Baugh & Sons Company, and others. From the judgment rendered, named defendants appeal.

Reversed.

This is an action brought by plaintiffs against certain of the defendants to restrain the sale of land (describing same), in which plaintiffs with their brothers and sisters (afterwards made parties defendants) claim a one-fifth interest. The restraining order was continued to the hearing. The facts of record are as follows: (1) W. G. Whichard of Pitt county N.C., died about 1875 intestate, seized and possessed of some 500 acres of land in Pitt county, known as his "home place." He left surviving him five children, Ashley Whichard, W. A. Whichard (who married J. G. Taylor), M. L Whichard (who married John W. Martin), and M. R. Whichard (who married J. J. Jones), and F. M. Whichard. On December 7 1882, Ashley Whichard and wife conveyed their interest in the land to John W. Martin, the deed being duly recorded.

It is alleged in the answer of appealing defendants: "That in the early Fall of 1885, the children of W. G. Whichard above named, except Ashley Whichard, and John W. Martin, entered into an agreement to divide the W. G. Whichard land among the said children of W. G. Whichard and John W. Martin, the said John W. Martin taking one share or a child's part, he having purchased the share and interest of Ashley Whichard in said W. G. Whichard land. That they agreed to make a mutual partition or division among themselves, and to pass deeds to each other, instead of partition by special proceeding in Court. That pursuant to said agreement the said children and John W. Martin called in Willis Whichard, a prominent citizen of the County and who was also a surveyor, and Marcus Manning, a surveyor, and had them to survey and divide said land equally and fairly among said children and John W Martin, he representing one share and interest as above stated. That they proceeded to divide said land in 5 shares or lots, each share adjoining or running to the run of Grindal Creek on the north, and said shares or lots were numbered 1, 2, 3, 4 and 5. That said children and John W. Martin drew for said land and John W. Martin drew lot 1; W. A. Whichard drew lot 2; M. R. Whichard drew lot 3; M. L. Martin (who married John W.

Martin) drew lot 4; and F. M. Whichard drew lot 5. That the said Willis Whichard drew the said division deeds and all of said children including M. L. Martin signed the said deed to John W. Martin for lot 1; and all of said children, including John W. Martin and wife signed a deed to W. A. Whichard for lot 2; and all of said children, including John W. Martin and wife M. L. Martin signed deed to M. R. Whichard for lot 3; and all of said children, including John W. Martin signed deed to M. L. Martin for lot 4; and all of said children, including John W. Martin and wife M. L. Martin, signed deed to F. M. Whichard for lot 5. The said deeds were all executed on September 9, 1885, and all acknowledged before E. A. Moye, C.S.C., on the same day and ordered recorded by him; and all of said deeds recorded in Book I-4 of the Pitt County Registry. * * * The plaintiffs contend that the defendant's title is defective, for that the certificate of probate of E. A. Moye, Clerk of the Superior Court of Pitt County, in probating the deed of F. M. Whichard, M. L. Martin, et als, to John W. Martin, recorded in Book I-4, page 505, of the Pitt County Registry, does not show that M. L. Martin was privately examined, nor that the Clerk found the facts required to be found by section 2515 of the Consolidated Statutes of North Carolina. Defendant John W. Martin, opposing defendants' contentions, alleged that it was not necessary to put title in John W. Martin, as he took a child's part from Ashley Whichard and wife by deed, as above set out, and this particular deed did not pass title to John W. Martin, it simply allotted to him and fixed his possession and restricted his possession to that which was already his; and that was the case with the other tenants in common receiving deeds. That M. L. Martin took and accepted a deed for lot No. 4 signed by John W. Martin and the other tenants in common, and she joined in the deeds to the other tenants in common, and she was bound by her action, and was estopped to claim any part of Lot No. 1 deeded and assigned to John W. Martin, as long as she took and held Lot No. 4, which she did and her children, including the plaintiffs, are estopped to now question or attack said deed or to claim any interest in the land described and allotted and conveyed in said deed; and the defendant pleads the said action of M. L. Martin as a complete bar and estoppel against the plaintiffs and the other children of M. L. Martin to claim or recover anything in this action."

Thereafter, on January 15, 1895, the said M. L. Martin conveyed her said tract No. 4 to J. J. Jones. "That said deed was for a valuable consideration set out in said deed, that her husband, John W. Martin, joined with her in said conveyance, that it was duly probated with her private examination and recorded, and the grantee went in possession under said deed and he and his assigns have since held said land. That the said M. L. Martin having entered into said partition agreement with her co-tenants in common, as above set out, and having executed deeds to her said co-tenants in common, including the deed to John W. Martin, the deed in question, and having accepted deed from her co-tenants in common for lot No. 4, said W. G. Whichard land, and having accepted the same and held the same for more than 7 years, nearly 10 years, and having then sold the same by proper deed to J. J. Jones, she estopped herself to claim any right or interest in lot No. 1 coveyed to John W. Martin, or to claim any right or interest in the lots of land conveyed and allotted to the other tenants in common, and she never did claim or assert any right or interest in Lot 1 assigned and deeded to John W. Martin, nor to any of the other lots assigned and deeded to the other tenants in common, and she died in 1902. That the plaintiffs and the other children of M. L. Martin are likewise estopped by the said action of M. L. Martin above set out to claim or hold any rights or interests in the said lot No. 1 allotted and deeded to John W. Martin as above set out; and the defendant pleads such acts and deed of M. L. Martin as a complete bar and estoppel against the plaintiffs and the other children of M. L. Martin to maintain this action. That the defendant John W. Martin has held the land in question in absolute and adverse possession in his own right and under known and visible lines and boundaries for 50 years, and under colorable title during said term of 50 years, and he pleads such adverse possession under known and visible lines and boundaries and under colorable title in bar to any recovery against him in this action. And on account of the adverse possession of the defendant for the term above set out, he pleads the 20 year statute of limitations and the 7 year statute of limitations in bar of any recovery by the plaintiffs or any of the children of M. L. Martin."

The defendant John W. Martin, together with his wife, Laura Martin, whom he married after the death of M. L. Martin (his first wife), made a deed of trust to W. J. Bundy, trustee, to secure certain indebtedness. The defendants Baugh & Sons Company and W. J. Carson are holders of notes secured by the deed of trust.

Defendants pray, in part: "That the action be dismissed at the cost of the plaintiffs, and that the defendant John W. Martin be adjudged the sole and absolute owner in fee simple of the tract of land in controversy, subject to the deed of trust in question."

The judgment of the court below was as follows: "This cause coming on to be heard before His Honor, E. H. Cranmer, Judge Presiding, and a jury, at the April Term, 1937, of the Pitt Superior Court, and being heard, and upon the reading of the pleadings and argument of counsel for plaintiffs and defendants, it appearing to the Court that the deed from M L. Martin and others to the defendant John W. Martin, of record in Book I-4, at page 505 of the Pitt County Public Registry was void for the reason that same was not acknowledged in the manner provided for by law, as set out in C.S. § 2515. Now Therefore, it is, upon motion of plaintiff, Ordered, Adjudged and Decreed, that the plaintiffs W. W. Martin and Callie M. Beach, together with John W. Martin, Lela Fleming, Katie Beach, John D. Martin, C. W. Martin and H. W. Martin are owners in fee of a one-fifth undivided interest in and to the land described in the complaint, subject only to the life estate of their father, J. W. Martin, as tenant by the courtesy thereon. That the defendant W. J. Bundy, Trustee, be and he is hereby forever restrained from selling the reversionary interest in the said one-fifth undivided interest in said tract of land to satisfy the lien of the deed of trust of record in Book S-18, at page 306 of the Pitt County Public Registry. It is further ordered and adjudged that the defendants Jno. W. Martin, W. J. Carson, Baugh & Sons Company and W. J. Bundy, Trustee, pay the costs of this action to be taxed by the Clerk. It is Further Ordered and Adjudged that the said deed of trust as to the four-fifths undivided interest in favor of John W. Martin and as to the life estate of John W. Martin upon the remaining one-fifth undivided interest be and the same is hereby foreclosed, etc. * * * And this matter is retained for the...