McDowell v. Staley

• Decision Date: 02 November 1949
• Docket Number: 389
• Citation: 55 S.E.2d 798,231 N.C. 65
• Parties: McDOWELL et ux. v. STALEY et ux.
• Court: North Carolina Supreme Court

55 S.E.2d 798

231 N.C. 65

McDOWELL et ux. v. STALEY et ux.

No. 389

Supreme Court of North Carolina

November 2, 1949

This was a petition for partition of a tract of land containing 41 acres. Plaintiff Jesse J. McDowell alleged title to a one-thirteenth undivided interest in this land as son and one of the heirs at law of J. Riley McDowell who died seized thereof in 1936. It was alleged that defendants owned the remaining twelve-thirteenths interest in said land. In their original answer, in the third paragraph, defendants admitted that plaintiff was one of the heirs of J. Riley McDowell who died seized of the land described and was entitled to a one-thirteenth interest in all the lands descended from his father, but in an amended answer defendants denied plaintiffs' title to any interest in the land and alleged title to the entire interest therein in themselves under a deed from P. W. Hulin and wife in 1943.

Plaintiff Jesse J. McDowell testified he had never made any conveyance of his interest in the land described. He also offered in evidence paragraph 3 of the original answer, and so much of paragraph 3 of the amended answer as admitted that J. Riley McDowell died seized of the lands described. Plaintiffs also offered the deed from Hulin and wife to the defendants which recited that the land had been conveyed to Hulin and wife by Val McDowell, Lizzie McDowell and C. L McDowell. Hulin's grantors were some of the heirs of J Riley McDowell. One issue was submitted to the jury and answered as follows: 'Is the plaintiff the owner of 1/13 interest in the lands described in the complaint? Answer Yes.'

From judgment on the verdict defendants appealed.

H Wade Yates, Asheboro, for plaintiffs appellees.

J. G. Prevette, Asheboro, for defendants appellants.

DEVIN Justice.

The defendants in their appeal raise two questions:

1. Did the court err in admitting only a portion of paragraph 3 of defendants' amended answer? As the admission was of a distinct fact, to-wit, that the ancestor from whom plaintiff derived title died seized of the land described, it was competent for the plaintiff to offer this without adding the other allegations in the paragraph in which defendants asserted title in themselves to the entire interest in the land. Lupton v. Day, 211 N.C. 443, 190 S.E. 722; Sears Roebuck & Co. v. Rouse Banking Co., 191 N.C. 500, 132 S.E. 468.

2. Were defendants entitled to the allowance of their ...