Perry v. Bassenger
| Decision Date | 28 June 1941 |
| Docket Number | 99. |
| Citation | 15 S.E.2d 365,219 N.C. 838 |
| Parties | PERRY et al. v. BASSENGER et al. |
| Court | North Carolina Supreme Court |
Petition for partition.
Petitioners as the last surviving children, and the grandchildren of Annie L. Owens, deceased, under and by virtue of her last will and testament, claim title to certain land situated in Washington County, North Carolina, adjoining the town of Plymouth, and lying on both sides of the public road leading from said town to Mackey's Ferry.
Respondents also claim title to said land, and plead sole seizin thereof under and by virtue of mesne conveyances from L. L. Owens and wife, Mary Owens, to whom H. S. Ward, Commissioner, executed a deed purporting to convey same pursuant to an order entered in January, 1910, in a proceeding in the Superior Court of said county to which the children named in the will of Annie L. Owens, all of whom survived her, and her grandchildren then in being were named as parties. As against them the present petitioners, some of whom were not then born, attack the sufficiency of that proceeding to pass title to L. L Owens and wife, Mary Owens.
Respondents further assert that they, and their predecessors in title have been in open, notorious, continuous and adverse possession of the lands claimed by them, respectively, under known and visible boundaries and under color of title for more than twenty years, and plead the seven and twenty years statutes of limitation, C.S. §§ 428 and 430; in bar of petitioners' right to recover in this action, and also plead the three year statute of limitation. C.S. § 407.
When the case came on for trial the parties waived jury trial and agreed that the court might find the facts and, upon the facts found, enter judgment. Pursuant thereto the parties submitted an agreed statement of facts and evidence substantially as follows:
I Annie L. Owens died on 31 December, 1909, seized and possessed in fee simple of the lands in controversy, and leaving a last will and testament, pertinent portions of which are these:
On the date when the will was signed, 17 April, 1902, three of the children of the testatrix, to wit: L. L. Owens, Clyde W. Owens and Mabel Owens, had no children. However, the testatrix was survived by her husband, Benjamin F. Owens, who died 30 October, 1912, and by all the children named in her said will, each of whom then had one or more children in being.
II. After the probate of the will of Annie L. Owens and in January, 1910, an action or proceeding was instituted in the Superior Court of Washington County entitled: "H. S. Owens, Claudia Read and her husband, J. W. Read, L. L. Owens, C. W. Owens, Lucille Murphy, and her husband, C. L. Murphy, Annie B. Dupree and her husband, A. R. Dupree, Mabel Leggett and her husband, C. R. Leggett, Effie B.
Owens, minor, John L. Owens, minor, Doris Evelyn Owens, minor, Lou C. Read, minor; Jack W. Read, minor, Brook F. Read, minor; Dave Taylor Read, minor; Marion V. Owens, minor; Clyde Latham Owens, minor; Mary Jarvis Murphy, minor; B. F. Owens Dupree, minor; Allen Dupree, minor; Elizabeth Dupree, minor; Raymond Leggett, minor, and C. W. Owens, executor of Annie L. Owens, deceased."
The petitioners in this proceeding, H. S. Owens, Claudia Read, L. L. Owens, C. W. Owens, Lucille Murphy, Annie B. Dupree and Mabel Leggett, are the children of Annie L. Owens named in her said will. Of the other petitioners therein, all of whom were then minors, Effie B. Owens, now Effie O. Perry, and John L. Owens are the children of Henry S. Owens; Doris Evelyn Owens, now Doris Owens parrish, is the child of L. L. Owens; Lou C. (Luther C.) Read, Jack W. (Jack) Read, Brook F. (B. F.) Read and Dave Taylor (Taylor) Read are the children of Claudia Owens Read; Marion V. Owens, now Marion Owens Whitson, and Clyde Latham (Clyde L.) Owens are the children of Clyde W. Owens; Mary Jarvis Murphy, now Mary E. Blount, is the child of Lucille Owens Murphy; B. F. Owens (B. O.) Dupree, Allen (A. R., Jr.) Dupree and Elizabeth Dupree, now Brown, are the children of Annie O. Dupree, and Raymond Leggett is the child of Mabel Owens Leggett.
In verified petition filed in said proceeding it is alleged: That the minor children above named are represented "by Clarence Latham as their next friend who has been thereunto duly appointed by the court"; (the record contains an order to that effect); that after the death of the testatrix the petitioners H. S. Owens, Claudia Read and her husband, J. W. Read, Clyde W. Owens, Lucille Murphy and her husband, C. L. Murphy, Annie B. Dupree and her husband, A. R. Dupree, and Mabel Leggett and her husband, O. R. Leggett, believing that under the said will of Annie L. Owens that they, in common with L. L. Owens, were owners in fee of the said land, covenanted and agreed to sell their interest therein, and to convey a fee simple title therefor to the said L. L. Owens for the sum of $4360, which is "a full and fair value of said land, subject to the life estate of B. F. Owens"; that after said contract was executed they were advised by counsel that the children of the said parties, to wit: the minors above named, who represent all of the parties in interest to this cause, own a present vested interest in said property under said will; that the interest of the several minors would be materially promoted by a sale of said property for the reason that their interests cannot vest in possession during the life of their several parents, and same can represent no present income, and the character of the property, being farm property on which are situated a dwelling house and out-houses, is such as to require constant repairs; and that the petitioners believe that a public sale of the property would not yield as large an income as the amount agreed to be paid by said L. L. Owens, because of the "super-incumbent life-estate of B. F. Owens, the said L. L. Owens being the son of B. F. Owens, and all of said petitioners are anxious that said contract be consummated". Whereupon the petitioners pray the court to order a private sale of the said property through a commissioner in accordance with contract above stated.
The said next friend of the above named minors filed a supplemental petition in which it is stated: That he is personally acquainted with the property described in the above petition, and believes that a sale in accordance with the prayer of petitioners would materially promote the interest of said minors; that he is advised and believes that said minors have a present vested interest in said property, and asks that the court adjudge their several rights and interests, and order the payment therefor into the court "as in such cases provided by law".
Thereupon, on 6 January, 1937, the clerk of the superior court signed an order in which, after reciting that the cause coming on for hearing before him upon the petition, and all the parties being regularly before the court, "the minors by their next friend, Clarence Latham, who has filed a supplemental petition", and that "it appearing to the court that a sale of the land, in accordance with the agreement of sale set out in the petition would materially promote the interest of said minors", it is "ordered, adjudged and decreed that H. S. Ward be and he is hereby constituted and appointed commissioner of this court, without fee or compensation as such *** and authorized and empowered to sell the lands and property described in the petition, by a private sale, and to execute a title deed therefor, in fee simple, subject to the life estate of B. F. Owens, and to report the said sale to this court". The order further directed the commissioner "to deposit the proceeds of the said sale in the Bank of Plymouth to await the judgment of this court, as to the several rights of the minors and this cause is continued to await the judgment of this court upon a construction of their rights under said will". And it is further ordered and decreed therein that Clarence Latham be, and he is thereby appointed trustee for any and all unborn children of the first named devisees, to wit, H. S. Owens, L. L. Owens, Claudia Read, C. W. Owens, Lucille Murphy and Annie Dupree, and that C. R. Leggett be and is appointed trustee for unborn children of Mabel Leggett.
Thereafter on 11 January, 1910, G. S. Ferguson, Judge Riding the First Judicial District, entered an order in said proceeding, in which after reciting that "this cause coming now before me at chambers, upon the foregoing petition and affidavit, and that the court finds as a fact, that the interest of the minors would be materially promoted by a sale of said property", it is adjudged "that the foregoing decree of *** clerk of the superior court, be and the same is hereby in all respects confirmed".
Thereafter on 14 January, 1910, H. S. Ward, commissioner, reported "To the Honorable, the Superior Court", that pursuant to decree of 6 January, 1910, he had...
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