Pearson v. Pearson, 596,

• Decision Date: 11 December 1946
• Docket Number: No. 596,,596,
• Parties: PEARSON et al. v. PEARSON.
• Court: North Carolina Supreme Court

40 S.E.2d. 477
227 N.C. 31

PEARSON et al.
v.
PEARSON.

No. 596,

Supreme Court of North Carolina.

Dec. 11, 1946.

[40 S.E.2d. 478]

Appeal from Superior Court, Richmond County; Felix E. Alley, Judge.

Action by Alexander Pearson and others against Pearl G. Pearson, individually, and as executrix of the estate of W. S. Pearson, to try title to realty and to have the defendant declared the holder of the title thereto as trustee for the use and benefit of the plaintiffs. From a judgment dismissing the action, the plaintiffs appeal.

Judgment reversed.

Action to try title to land and to have defendant Pearl G. Pearson declared the holder of the title thereto as trustee for the use and benefit of plaintiffs.

W. S. Pearson, the testator of defendant executrix, was administrator d.b.n., c.t.a. of A. L. Pearson. While acting as such and while in possession of the locus, farming the same under order of court, he purchased the land at a foreclosure sale. He left a will in which he devised the land to his wife, the defendant. She assumed possession, claiming the same as her own. Thereupon this action was instituted by devisees and the representatives of deceased devisees under the will of A. L. Pearson.

Defendant pleads (1) the three-year, seven-year, and ten-year statutes of limitations, (2) estoppel by release, (3) seven years' possession under color, and (4) laches.

In the trial below plaintiffs offered certain evidence appearing of record and rested. The court sustained defendant's motion to dismiss as in case of nonsuit and entered judgment dismissing the action. Plaintiffs excepted and appealed.

Fred W. Bynum and George S. Steele, Jr., both of Rockingham, for plaintiffs appellants.

McLeod & Webb, of Rockingham, and Varser, McIntyre & Henry, of Lumberton, for defendant appellee.

BARNHILL, Justice.

Plaintiffs' evidence tends to show the following facts:

W. S. Pearson was appointed administrator d.b.n., c.t.a. in 1925 to succeed J. R. Bennett, resigned executor. He went into possession of the locus in the spring of

[40 S.E.2d. 479]

1925 under an order of court permitting him to continue the farming operations. At that time the mortgage indebtedness on the eight-horse farm containing 330 acres was $1,900. Other indebtedness, including over $2,000 due W. S. Pearson, amounted to approximately $5,350. He never thereafter filed an account of his administration. In 1927 he told Moncu Chavis (excluded by the court below) "he was not going to pay the mortgage--he was going to let the...