Newby v. Edwards

• Decision Date: 29 September 1910
• Citation: 68 S.E. 1062,153 N.C. 110
• Parties: NEWBY et al. v. EDWARDS.
• Court: North Carolina Supreme Court

68 S.E. 1062

153 N.C. 110

NEWBY et al. v. EDWARDS.

Supreme Court of North Carolina

September 29, 1910

Appeal from Superior Court, Craven County; Peebles, Judge.

Ejectment by Polly Newby and others against Shade Edwards. Judgment for plaintiffs, and defendant appeals. New trial.

In a suit by an heir to recover property claiming it to have been transferred to her intestate, Julia A. Edwards, while defendant claims that it was transferred to intestate's unborn child, Julia C. Edwards, who was never born, the court's instruction that if intestate was sometimes called Julia Caroline, and sometimes called Julia Ann, then the finding must be that the conveyance was to intestate and not to her unborn child, as the middle name is of no importance, and the law presumes that the conveyance was intended to be made to a living person, and not to one not in existence, was erroneous as depriving defendant of the benefit of his testimony explaining why the conveyance was not to intestate, but was to her unborn child.

In a suit by an heir to recover property claiming it to have been transferred to her intestate, Julia A. Edwards, while defendant claims that it was transferred to intestate's unborn child, Julia C. Edwards, who was never born, the court's instruction that if intestate was sometimes called Julia Caroline, and sometimes called Julia Ann, then the finding must be that the conveyance was to intestate and not to her unborn child, as the middle name is of no importance, and the law presumes that the conveyance was intended to be made to a living person and not to one not in existence, was erroneous, as depriving defendant of the benefit of the argument, that intestate was one of the grantors in the conveyance, and would not likely have attempted to deed property to herself.

These issues were submitted:

"(1) Is feme plaintiff the owner on fee simple and entitled to the possession of the lands described in the complaint? Answer: Yes.

"(2) Does defendant wrongfully withhold the possession of the land from the plaintiff? Answer: Yes.

"(3) If so, what damages, if any, is plaintiff entitled to recover of the defendant for wrongfully withholding possession of the land from feme plaintiff? Answer: $2.50 for whole rent, $4.16 for plaintiff."

Simmons, Ward & Allen, for appellant.

W. D. McIver, for appellees.

BROWN J.

The feme plaintiff claims the land in controversy as the heir at law of Julia, the deceased wife of defendant, Shade Edwards, who died intestate without having given birth to a child.

The land was purchased by defendant from W. G. Brinson, and conveyed by a deed dated February 11, 1891, wherein said Brinson, Shade Edwards, and his wife, Julia A. Edwards, are grantors and Julia C. Edwards grantee. Defendant Shade Edwards testified that he was married to Julia A. Edwards in 1875, and lived with her for 24 years; that he had never heard her called by any other name than Julia A. Edwards that he purchased this land from W. G. Brinson; that prior to this purchase he had made over most of his property to his wife, Julia A. Edwards, as he was a drinking man, and was afraid that he might incumber his property while under the influence of whisky; that he and his wife agreed that they would have the lot described in the complaint deeded to...