Owens v. Phelps

Decision Date31 October 1886
Citation95 N.C. 286
CourtNorth Carolina Supreme Court
PartiesHENRY B. OWENS et al. v. URIAH H. PHELPS et al.

CIVIL ACTION, tried before MacRae, Judge, and a jury, at Fall Term, 1886, of DAVIE Superior Court.

This case was before the Court on the plaintiffs' appeal, at February Term, 1885, but not upon the points presented in the present transcript.

The case is simply this: William A. Owens, the ancestor of the plaintiffs, his heirs-at-law, in his lifetime entered into an agreement with the defendant Uriah H. Phelps, for the purchase of the tract of land described in the complaint, for which, in 1857, he gave his three several notes, payable at one, two and three years, each for the sum of $600, and took from the vendor his bond to make title when the purchase money was paid, entering at once into possession. He paid off two of the notes in full, and a part of the other, previous to his death in the year 1859. Letters of administration on his estate thereafter issued to his brother, A. J. Owens, who paid the residue due on the third note. Unable to obtain title from Phelps to the heirs-at-law of the intestate, the administrator attempted to rescind the contract made with Phelps, and accepted from him notes in return for the purchase money paid, and in place of the obligation to convey the land.

In 1868, Phelps having resumed possession, sold and conveyed one moiety of the land, for the consideration of $1,300, to the defendant J. Harvey Sparks, and mortgaged the other moiety to the defendant F. M. Phillips, each of whom, it is alleged in the complaint, took the title with notice of the facts upon which the plaintiffs' equity rests. The action seeks to have the attempted rescission of the agreement and what was done under it, declared a nullity, and the heirs-at-law, upon whom the intestate's equitable estate descended, reinstated in all the rights they before possessed under and by virtue of the title bond.

The defendants, who answered, deny that they or either of them, had such notice before and when the deeds were made to them, and defend against the present demand, by alleging that the plaintiffs have ratified and made valid the rescinding contract made by the administrator, and have elected to take the money paid by Phelps in lieu of the land; and further, that the contract of sale of the widow and heirs to Fannie Williams, whereby their several interests have vested in her, and she has become sole proprietor, is champertous and void.

The issues tendered by the plaintiffs, to be submitted to the jury, were as follows:

“1. Did J. H. Sparks have notice of plaintiffs' equity in the lands in controversy, as alleged in plaintiffs' complaint, before his purchase from Uriah H. Phelps?

2. Did F. M. Phillips have notice of plaintiffs' equity in the lands in controversey, as alleged in plaintiffs' complaint, before his purchase from Uriah H. Phelps?

3. Had the purchase money agreed to be paid by W. A. Owens to Uriah H. Phelps for the lands in controversy been paid before the commencement of this action?”

The following issues were tendered by the defendants, and submitted to the jury, after objection by plaintiffs, and plaintiffs excepted.

“4. Did the plaintiffs, the widow and heirs-at-law of W. A. Owens, or either of them, ratify the rescission of the contract between U. H. Phelps and W. A. Owens, as alleged by defendants?

5. Was the contract of sale from the widow and heirs to Fannie Williams champertous?”

The jury returned an affirmative response to the first three issues; to the fourth, “Yes, all of them,” and answered the fifth in the negative.

The Court instructed the jury at length upon all the issues, to which no exception was taken, except to the charge in reference to the fourth issue. Upon this the Court said to the jury: “I will present you this issue, with the instructions asked for by both parties, for there is no great difference between them, as to the law bearing upon the matter.”

These instructions, presented by the plaintiffs, were as follows:

“That the attempted rescission of this contract by A. J. Owens, as the administrator of W. A. Owens, and Uriah H. Phelps, was without authority of law, and a nullity so far as the heirs of W. A. Owens were concerned, and did not affect them nor their rights to the land in controversy, unless they afterwards ratified and affirmed the same; and nothing they said or did before they were twenty-one years of age, or after they were married (if girls), and while their husbands were still living (unless the husband assented thereto with full knowledge of the facts, or with knowledge of such facts as ought to have put him upon inquiry), could ratify the attempted rescission of A. J. Owens and Uriah H. Phelps.

That defendants allege, that the heirs of W. A. Owens have ratified the attempted rescission of the contract by A. J. Owens, as the administrator of W. A. Owens, and Uriah H. Phelps, and, as they have made the allegation, it devolves upon them to prove that it is true, or it cannot benefit them in this action; and to do this, they must prove to your satisfaction that the heirs of W. A. Owens, after they arrived at the age of twenty-one years, and when not under coverture, (that is, if they are girls, it must be after they are twenty-one years of age and before they are married), that they expressly ratified this attempted rescission, or that they have done some act inconsistent with their rights to enforce the contract made by Uriah H. Phelps to sell said land to their father, W. A. Owens, and that they knew when they did said act, that they had the right to enforce said contract, and that said act would prevent them from afterwards doing so; and if defendants have not so satisfied you by a preponderance of evidence, you should find the...

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6 cases
  • Griffin v. United Services Life Ins. Co.
    • United States
    • North Carolina Supreme Court
    • December 12, 1945
    ...Court will remand for a new trial. Holler v. Tel. Co., supra; Hatcher v. Dabbs, 133 N.C. 239, 45 S.E. 562; Brown v. Ruffin, supra; Owens v. Phelps, 95 N.C. 286; v. Barber, supra. In view of the disposition we have made of this appeal we do not deem it necessary to discuss other exceptive as......
  • Gaskins v. Mitchell, (No. 97.)
    • United States
    • North Carolina Supreme Court
    • September 28, 1927
    ...126 S. E. 613, where it is said that when a material defense is pleaded, it is proper for the court to submit an issue on it. Owens v. Phelps, 95 N. C. 286. Where liability either upon contract or in tort involves material facts, alleged by one party and denied by the other, in the pleading......
  • Brown v. Ruffin
    • United States
    • North Carolina Supreme Court
    • March 11, 1925
    ...to present these matters to the jury. "When a material defense is pleaded, it is proper for the court to submit an issue on it." Owens v. Phelps, 95 N.C. 286. deed executed by J. F. Whedbee and wife and the defendants was sufficient to convey to plaintiff a good title to the land, subject o......
  • W. F. Main Co v. Fields
    • United States
    • North Carolina Supreme Court
    • April 9, 1907
    ...the jury, and this applies to new matter alleged in the answer and not mentioned in the complaint. Shaw v. McNeil, 95 N. C. 535; Owen v. Phelps, 95 N. C. 286. An examination of the answer discloses that the matters embodied in the issues submitted are all pleaded with particularity in the a......
  • Request a trial to view additional results

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