Peel v. Corey
| Decision Date | 26 September 1928 |
| Docket Number | 50. |
| Citation | 144 S.E. 559,196 N.C. 79 |
| Parties | PEEL et al. v. COREY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Martin County; Clayton Moore, Special Judge.
Action by Fannie M. Peel and others against Alton B. Corey and another. Judgment for plaintiffs, and defendants appeal. No error.
Requirement that devisee elect between will and his own property devised to another held inapplicable to claimants of interest in land devised through testatrix's co-owners.
This is an action involving the title to about 150 acres of land, on the west side of the Jamesville and Washington road in Martin county, N.C. It was alleged in the complaint that the plaintiff, Fannie M. Peel, was the owner of a one-third undivided interest, the other plaintiffs are the owners of a one-third undivided interest, and the defendant Alton B Corey is the owner of a one-third undivided interest. The defendants plead sole seizin, adverse possession for the statutory period, and estoppel. The action was instituted to restrain defendants from cutting and removing timber from the land. It was tried on the theory as an action for partition.
Jesse Hardison owned about 1,300 acres of land on both sides of the Jamesville and Washington road in Martin County. On September 5, 1858, he executed a will leaving this real property (after the life estate to his wife) to his two grandsons, David R and Jesse H. Hardison. After the death of Jesse Hardison, the will was duly probated in 1859. David R. and Jesse H Hardison went into possession of the land. The grandson Jessie H. Hardison never married and died intestate. He left surviving him David R. Hardison, the owner of one half interest in the land, and as his heirs at law to the other half (1) David R. Hardison and his sisters, (2) Mary Emily Hardison, (3) Sallie Ann Hardison, (4) Hannah Daniel, and a half-brother (5) John Edward Cook. Their mother married a Cook and had one child, John Edward Cook, and then married James Hardison, son of Jesse Hardison, and had the children above mentioned. James Hardison was the father of David R. and Jesse H. Hardison and was living at the death of his father Jesse Hardison, who made the will and left the land to his two grandsons, David R. and Jesse H. Hardison.
It appears that Sallie Ann Hardison died intestate. John Edward Cook died intestate leaving as his heirs at law John S., T. C., and H. D. Cook. Then David R. Hardison died intestate some 6 or 7 years ago, leaving (1) Mary Emily Hardison, (2) Hannah Daniel, who married W. H. Daniel, and (3) the children of John Edward Cook. After David R. Hardison's death, the two surviving sisters lived on the place. Mary Emily Hardison died leaving a will dated June 26, 1923, probated September 3, 1923. In item 2 of the will, she devised to Alton B. Corey, defendant, "all of the land on the west side of the Jamesville and Washington road, it being the residence on which I now live, including all of the buildings." In item 3 she says:
"I leave the remainder of my land to be equally divided between all of the children of W. H. and Hannah Daniel and John Edward Cook."
At that time she owned the interest in the land which she inherited from her brothers and sister. Hannah Daniel thereafter died, leaving a will, dated February 5, 1925, probated February 1, 1926. In it she gives to her seven living children and the child of her deceased son, James A. Daniel, "all my interest in David R. Hardison and Jesse Hardison tracts of land." On December 24, 1925, John S., T. C., and H. D. Cook and their wives (the heirs of John Edward Cook) conveyed all of their interest in the entire 1,300 acres to Noah T. Daniel and others, and on March 25, 1927, Noah T. Daniel and others conveyed to Fannie M. Peel, the plaintiff, an undivided one-third interest in the lands on the west side of old Jamesville and Washington road, the land in controversy. On May 19, 1927, this action was brought alleging a tenancy in common, as follows: One-third in Fannie M. Peel, one-third in Noah T. Daniel and others, and one-third in Alton B. Corey in the land on the west side of the Jamesville and Washington road.
The issue submitted to the jury and their answer thereto was as follows:
The court below instructed the jury that if they believed the evidence and found the facts to be as testified to they would answer the issue "Yes"; otherwise "No." Numerous exceptions and assignments of error were made by defendant. The material ones and other necessary facts will be set forth in the opinion.
A. R. Dunning, of Williamston, for appellants.
Ward & Grimes, of Washington, N. C., and B. A. Critcher, of Williamston, for appellees.
From a perusal of the record the only material propositions of law that seem to be involved: (1) Is the estoppel plead by the defendants good in law? (2) Under the facts in this action, the chain of plaintiff's title, is a deed duly acknowledged before a notary public in due form, but not attested by his notarial seal, competent as evidence tending to show title? (3) Do the children of John Edward Cook, the half-brother (half-blood), inherit equally with those of the whole blood?
From the record plaintiffs' contention is that the land in controversy was owned by (1) Mary Emily Hardison, (2) Hannah Daniel, (3) John Edward Cook's children as tenants in common; that Mary Emily Hardison owned a third interest and she willed all her interest in the land on the west side of the Jamesville and Washington road to defendant Alton B. Corey, and that on the east side (or remainder) to the children of W. H. and Hannah Daniel and John Edward Cook. Plaintiffs claim that they are the owners of the two-thirds interest through Hannah Daniel and John Edward Cook. From the language in the will of Mary Emily Hardison, we can see nothing that would estop plaintiffs from making the claim. Nor do we think the evidence of the fact that Hannah Daniel was present when the will of Mary Emily Hardison was read and executed and what she said, if competent, indicated that the devise to the children of Hannah Daniel was conditioned upon Hannah Daniel surrendering to defendant Alton B. Corey her (Hannah Daniel's) interest in the land on the west side of the Jamesville and Washington road. The testimony on the subject, if competent, indicated only that Hannah Daniel and her husband "had talked it over and that was their mind, to give him the west side of the road anyhow, if they had anything to do with it." There is no sufficient language in the will, or otherwise, to base an estoppel.
The doctrine of estoppel is at some length set forth in Winstead v. Farmer, 193 N.C. at page 410, 137 S.E. 181. It is there said:
"The doctrine of estoppel by conduct as extracted from Pickard v. Sears, 6 A. and E. 469, and Freeman v. Cooke, 2 Ex. 654, may, without attempting scientific precision, be thus stated: Where one person by his words or conduct represents a certain state of things to exist, and thereby induces-no matter whether he intended it or not-another to alter his position, that other is not to be prejudiced by the perfidy or fickleness of the first person." Cook v. Sink, 190 N.C. 620, 130 S.E. 714; Meyer v. Reaves, 193 N.C. 172, 136 S.E. 561; Trust Co. v. Collins, 194 N.C. 363, 139 S.E. 593.
We do not think, from the facts, the principle of election applies. The principle is thus stated in 28 R. C. L. "Wills," § 318:
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