McCullen v. Durham
| Decision Date | 10 November 1948 |
| Docket Number | 386 |
| Citation | 50 S.E.2d 511,229 N.C. 418 |
| Parties | McCULLEN v. DURHAM et al. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Appeal by defendant, the Standard Fertilizer Company, from Edmundson, Special Judge, and a jury at the June Term, 1947 of the Superior Court of Sampson County. The signing of the judgment was postponed until February 14, 1948, pursuant to the recorded consent of the plaintiff and the appellant authorizing the trial judge to decide certain motions and enter judgment out of the term and outside of the county and district.
The plaintiff brought this action to quiet her alleged fee simple title to 50 acres of land in Piney Grove Township in Sampson County, and to remove as clouds thereon specified adverse claims of the defendants to estates or interests therein. All of the defendants except the Fremont Oil Company and the Standard Fertilizer Company suffered judgment to be taken against them without answer. The Fremont Oil Company did not seek a review of the decree rendered against it after the trial in the court below. In consequence, this Court is concerned solely with the conflictive claims of the plaintiff and the Standard Fertilizer Company.
Since no substantial dispute exists with respect to the salient facts provoking this litigation, it will aid clarity of understanding to state them at this point. As revealed by all the testimony at the trial, these facts are summarized below.
The plaintiff, Mary F. McCullen, originally owned the 50 acres in question. On February 19, 1930, she attempted to transfer the property to her husband, Junius McCullen, by the deed pointed out by the first issue. This purported conveyance was unquestionably invalid, however, for the reason that the notary public making the privy examination of the plaintiff did not certify that the deed was 'not unreasonable or injurious to her' as required by the statute now embodied in G.S. s 52-12 relating to contracts between husband and wife affecting the corpus of the estate of the wife.
On January 31, 1941, the plaintiff and her husband, Junius McCullen, executed to their daughter, Maurice Durham, the deed designated in the second issue. This instrument recited that it was based on '$10.00 and other valuable considerations' moving from the grantee to the grantors. It contained the covenants of seizin, right to convey against encumbrances, and warranty customarily inserted in deeds of bargain and sale, and was sufficient in form to convey the 50 acres in controversy to Maurice Durham in fee simple absolute. The execution of this deed was acknowledged by the plaintiff and Junius McCullen before Inez Hopkins, a notary public, who made certificate in due form as to the acknowledgment of both of the grantors and as to the private examination of the plaintiff. But the notary did not incorporate in her certificate any conclusion that the instrument was 'not unreasonable or injurious' to the plaintiff. Registration of this deed was had seven days after its execution.
On August 26, 1941, Maurice Durham and her hubsand, P. P Durham, executed to Junius McCullen the deed specified in the third issue. This instrument was made and recorded in the manner prescribed by relevant statutes, and recited that it was supported by '$10.00 and other valuable considerations' moving from the grantee to the grantors. It was in tenor a deed of bargain and sale with the usual covenants, and was sufficient in form to vest the land in question in Junius McCullen in fee simple absolute.
In the meantime, certain judgments were entered against Junius McCullen. On September 28, 1931, I. F. Faison recovered judgment against him for $175 with interest and costs, and on April 3, 1939, the defendant, Standard Fertilizer Company, obtained judgment against him for $265.15 with interest and costs. The last named decree is that designated in the sixth issue. Each of these judgments was docketed in the Superior Court of Sampson County on the day of its rendition.
On October 19, 1931, an execution upon the Faison judgment was placed in the hands of the Sheriff of Sampson County, who assumed that Junius McCullen had acquired title to the land described in the pleadings under the deed of February 19, 1930, and summoned appraisers to lay off a portion of such land as the homestead of Junius McCullen. On November 6, 1931, the appraisers allotted 31 acres of the property to Junius McCullen as his homestead, and declared the other 19 acres excess property subject to sale. The Sheriff then levied the execution on the 19 acres, but for some undisclosed reason proceeded no further.
At a later date, to wit, on August 21, 1941, Isabelle Faison, the administratrix of I. F. Faison, procured a second execution to be issued upon the Faison judgment. Junius McCullen thereupon brought an action against such administratrix and C. C. Tart, Sheriff of Sampson County, alleging that he owned the 50 acres in fee simple and that the homestead allotted to him on November 6, 1931, was valid and subsisting, and praying that the administratrix and the Sheriff be enjoined from selling the 31 acres embraced within the alleged homestead for the satisfaction of the Faison judgment.
Junius McCullen obtained an order of court restraining the sale of the 31 acres in accordance with his prayer, and the Sheriff levied the execution upon the 19 acres which the appraisers had adjudged to be excess property. After due advertisement, the 19 acres were sold under the execution by the Sheriff on September 22, 1941, to the defendant, the Standard Fertilizer Company, as the highest bidder, for $60, which was subsequently applied on the costs and the Faison judgment. The execution sale was held open for ten days under G.S. s 45-28, but no advanced bid was received.
According to its recitations, the second execution was returnable 'on or before the 30 day of September, 1941. ' The Sheriff did not prepare, execute, and deliver to the Standard Fertilizer Company his deed for the 19 acres until May 25, 1942, and did not make formal return to the court as to his proceedings under the execution until June 12, 1942. Soon thereafter Isabelle Faison, Administratrix of I. F. Faison, assigned any remainder due on the Faison judgment to a trustee for the benefit of Maurice Durham for a consideration of $300, which was equal to the principal, interest, and costs due on the judgment after the application of the net proceeds arising from the execution sale.
Junius McCullen died intestate July 20, 1943, survived by his widow, the plaintiff, and an only child, Maurice Durham, and thereafter, to wit, on April 25, 1946, the plaintiff commenced the present action.
In her complaint, the plaintiff alleged that her ownership of the 50 acres existed throughout the period set forth above; that Junius McCullen, the judgment debtor, did not have title to such land any time during such period; and that on account of the lack of title of the judgment debtor the Sheriff's deed to the Standard Fertilizer Company for the 19 acres was invalid and the docketed judgment of the Standard Fertilizer Company against Junius McCullen did not constitute a lien upon the residue of the 50 acres. The complaint also alleged that the sale of the 19 acres under execution was not consummated within ten years from the date of rendition of the Faison judgment and that by reason thereof the Sheriff's deed was void. The plaintiff further averred in her complaint that her assertion that she owned the land in controversy in fee and that the claims of the Standard Fertilizer Company to estates or interests therein constituted clouds on her title were not affected adversely by the deeds of January 31, 1941, and August 26, 1941, for the reason that her husband, Junius McCullen, held such title as he acquired under these deeds as a trustee for her benefit. The plaintiff based her contention in this respect upon these allegations: (1) That Maurice Durham paid plaintiff nothing for the deed of January 31, 1941, and accepted it upon the express agreement that she would hold the 50 acres for the benefit of the plaintiff until a loan was obtained thereon and would then reconvey the property to the plaintiff; and (2) that Maurice Durham executed and delivered the deed of August 26, 1941, to Junius McCullen before obtaining a loan thereon in breach of her express agreement with the plaintiff and without receiving any consideration from Junius McCullen. While the complaint did not state that the alleged agreement between plaintiff and Maurice Durham rested in parol, such fact did appear when the plaintiff undertook to establish her allegations by evidence at the trial.
In its answer, the Standard Fertilizer Company denied the plaintiff's claim of title to the 50 acres; alleged that the Sheriff's deed vested in it title in fee to the 19 acres and that its docketed judgment of April 3, 1939, constituted a lien upon the residue of the 50 acres; pleaded certain matters as estoppels in pais against plaintiff and Maurice Durham; and prayed by way of cross-action or counterclaim declarations that the liens of the judgments in controversy had attached to the 50 acres as property of Junius McCullen and that the Sheriff's deed for the 19 acres was valid in all respects.
Both the plaintiff and the Standard Fertilizer Company presented evidence at the trial sufficient to establish the uncontroverted facts heretofore stated. The plaintiff did not offer any other evidence of a material nature, except the oral testimony of Maurice Durham, which the Court excluded tending to show that nothing was paid for the deeds of January 31, 1941, and August 26, 1941, and that she accepted the deed of January 31, 1941, upon a parol agreement that she would hold...
To continue reading
Request your trial