Melvin v. Bullard

• Decision Date: 31 January 1880
• Court: North Carolina Supreme Court
• Parties: IRVIN MELVIN and others v. J. J. BULLARD and wife.

82 N.C. 33

IRVIN MELVIN and others

v.J. J. BULLARD and wife.

Supreme Court of North Carolina.

January Term, 1880.

SPECIAL PROCEEDING for Partition of Land commenced in the probate court, and tried at Fall Term, 1879, of CUMBERLAND Superior Court, before Seymour, J.

The facts appear in the opinion. Verdict for plaintiffs, judgment, appeal by defendants.

Mr. B. Fuller, for plaintiffs :

Cited and commented on James v. James, 76 N. C., 331; Bradsher v. Cannady, Id., 445; Wilkinson v. Wilkinson, 2 Dev., Eq., 376.

Messrs. Guthrie & Carr, for defendants :

Whether a gift is an advancement or not, depends upon the intention of the parent at the very time the gift is made. Osgood v. Breed's Heirs, 17 Mass., 357; Riddle's Estate, 19 Penn., 431. Every gift of a substantial character (education and maintenance excepted) is by Rule 3, chapter 36, of Battle's Revisal, an advancement, unless it appears at the time of making it, the parent intended it should not be such. The controlling idea in Rule 3 is to secure equality. Johnston v. Johnston, 4 Ired. Eq., 9; Headen v. Headen, 7 Ired. Eq., 159. See also especially Bridgers v. Hutchings, 11 Ired., 68; Hanner v. Winburn, 7 Ired. Eq., 142. And as to the question of estoppel in pais, see Bigelow on Estoppel 480.

SMITH, C. J.

The plaintiffs allege that they are tenants in common with the feme defendant, their sister, of the four several parcels of land descended from their intestate father, Robert Melvin, and described in their complaint, each being entitled to one-fourth part thereof, and they demand partition and an assignment of their respective shares in severalty. The defendants deny the tenancy of the plaintiff, Irvin Melvin, and aver that he was advanced by a conveyance made by the intestate in his life time of real estate equal in value to one-third of that proposed to be divided, and is thereby excluded from any share in the said inherited lands, and has waived all right thereto. To determine the matters of defence, certain issues were framed and transmitted to the superior court for trial, the substance of which, without needless verbiage, is embodied in the following:

1. Is the plaintiff, Irvin, a tenant in common with the others, his sisters, in the said descended lands?

2. Did Robert Melvin, their father, in his life time, settle upon or advance to said Irvin the real estate described in the answer?

3. Has the said Irvin waived or abandoned all claim to share with the other heirs in the descended lands aforesaid?

Upon the trial the defendants introduced a deed from the intestate to said Irvin, reciting a consideration of four hundred dollars paid by the latter and conveying the tract of land set out in the answer, and to show this to be a gift and an advancement, proved by a witness, Howard Smith, that he was consulted by said Irvin previous to the making the conveyance as to the effects of a deed in form, a gift, or a bargain and sale, and advised said Irvin that land conveyed by bargain and sale would not have to be accounted for, while as a gift it would; and suggested to him that money should pass between them as the consideration, or a note given for the amount, and either could be afterwards returned to him.

The defendants offered to prove declarations of the intestate, subsequent to the execution of the deed and while his son was in possession, as to the consideration of it, and this evidence on objection was ruled out.

It was proved that at a division among the three sisters the said Irvin was present, made no objection, and said he should claim no part of the land. Similar and repeated declarations of said Irvin, to the same import, were proved by different witnesses for the defendant.

The plaintiffs offered testimony tending to prove the payment of a full consideration for the land, and a witness present at the delivery of the deed saw a note therefor passed from the son to the father.

Upon this showing His Honor intimated an opinion that the defendants' evidence tended to prove that if no consideration of value passed between the parties it was in consequence of an arrangement between them by which the transaction was to be treated, as in form it was, a bargain and sale and not a gift; and in such event the land would not have to be accounted for.

The defendants' counsel then insisted that, in that aspect of the case, the surrendered note would be an advancement in personalty. To this suggestion His Honor replied that if the return of his note to the son was part of the arrangement by which the land was to be given, so that in form the deed would upon its face purport to be for a valuable consideration, while in truth it was a gift, the return of the note to the maker, in pursuance of the common understanding, would not be in law an advancement. The jury under these instructions found the issues for the plaintiffs. The several exceptions presented on the record will in their order be considered and disposed of:

1. The defendants except to the rejection of the declarations of the intestate as to the consideration of the deed, made after its execution. The reasons assigned for the exclusion by the court are two-fold: first, because they are offered “as a narrative of a past fact,” and are hearsay merely; secondly, they do not proceed from a person in possession, and are not therefore connected with a possession to qualify or explain it. The ruling of the court is correct, and there is no ground upon which the evidence could be admitted. The incompetency of a party who has conveyed property and delivered the possession to impeach his own deed or to impair its force and efficiency by his own subsequent words or acts, is...