Pope v. Pope

• Decision Date: 23 October 1918
• Docket Number: 290.
• Citation: 96 S.E. 1034,176 N.C. 283
• Parties: POPE v. POPE ET AL.
• Court: North Carolina Supreme Court

96 S.E. 1034

176 N.C. 283

POPE v. POPE ET AL.

No. 290.

Supreme Court of North Carolina

October 23, 1918

Appeal from Superior Court, Cumberland County; Devin, Judge.

Action by Henry Pope against W. R. Pope and others. From an adverse judgment, plaintiff appeals. Affirmed.

Plaintiff sued for the recovery of several tracts of land described in his complaint, and specially relied on a deed of W. B. Pope and wife to him, dated December 12, 1881. The defendants claimed under W. B. Pope and wife, and attacked their deed to the plaintiff upon the ground of duress and fraud, and in support of their allegations they alleged, and introduced evidence tending to show, that at the time the deed was executed, on December 12, 1881, plaintiff held a mortgage on the property for $400, which had been reduced to $300 establishing the relation of mortgagor and mortgagee between the parties, and that there was really no consideration for the deed, though one was recited in it, and that it was not fairly obtained from the grantors by the plaintiff, but, on the contrary, was procured by duress and fraud, W. B. Pope having been plied with whisky by the plaintiff and being, at the time, in a state of intoxication from the use of it, and besides that, while in that condition, he was threatened and cajoled and deceived by the plaintiff into executing the deed. Defendants also alleged that they had been in the possession of the land since the deed was made, and for more than seven years, holding and claiming the same in their own right, and notoriously, continuously, and adversely for that length of time. Plaintiff replied and alleged that the possession of defendants was held in subordination to their right and title, and not adversely, up to the time when Mrs W. B. Pope, who survived her husband, died, which occurred within a year or two before this action was commenced; that when the deed of December 12, 1881, was executed, a life estate was expressly reserved by parol to Mrs. W. B. Pope and that she therefore held possession, under this reservation, not against the plaintiff, but by his express oral permission, and therefore the statute of limitations had not run so as to defeat his title or bar his right of possession.

Mrs. L B. Raynor, in her own behalf and as a witness for the other defendants, was permitted to testify, over plaintiff's objection, to certain transactions or communications between plaintiff and her father, W. B. Pope, at the time or just before the deed was executed, tending to show duress, and a want of consideration for the deed, and plaintiff, in his own behalf, proposed to testify that the consideration recited in the deed was made up of a cash payment of $100, two notes one of which was for $200 and the other for $300, the amount of the mortgage ($400) which was canceled, and the payment of a mortgage on the land to Lewis Tew of $150, and that the two notes given by him to W. B. Pope were paid when they matured. In regard to this testimony the record states:

"W. B. Pope came to see me about selling the land and offered to sell it to me for $1,150, and I bought it from him at that price. I went over to W. B. Pope's house with I. W. Godwin, justice of the peace, in accordance with agreement with W. B. Pope, and the deed was prepared and signed. I paid him $100 cash and gave him two notes, one for $200 due 60 days after date, and one for $300 due the following fall, and receipted for the $400 mortgage which I had against W. B. Pope, and agreed in addition to take up a mortgage of approximately $150 which Lewis Tew held against W. B. Pope, and I paid the notes which I gave him when they were due and paid the Tew mortgage."

The foregoing testimony by Henry Pope was objected to by the defendants, the objection was sustained, the court restricting plaintiff's testimony as to personal transactions with W. B. Pope, deceased, to those concerning which defendants had offered evidence, and plaintiff excepted. The same may be said as to the testimony of another of the defendants, Troy L. Pope, so that the two exceptions will be considered together, as they involve the same question. There are some other exceptions, which will be noticed hereafter.

The jury returned the following verdict:

"(1) Was the conveyance of the land described in the complaint by deed from W. B. Pope and wife to Henry Pope, dated December 12, 1881, without oppression to said W. B. Pope, and for a fair consideration? Answer: No.

(2) What consideration, if any, was paid for the conveyance of said land? Answer: None.

(3) Was the said deed from W. B. Pope and wife to Henry Pope procured by fraud and undue influence? Answer: Yes.

(4) Was the mortgage debt due plaintiff fully paid? Answer: Yes.

(5) After the execution of December 12, 1881, did W. B. Pope and wife remain in possession of said land and hold adversely to the plaintiff up to the death of Mrs. Susan Pope? Answer: Yes.

(6) Has plaintiff been in possession of said land within 20 years before the commencement of this action? Answer: No.

(7) Has W. R. Pope been in possession of the 93-acre tract of land under known and visible lines and boundaries, and colorable title, for 7 years before the commencement of this action? Answer: Yes.

(8) Is the plaintiff the owner and entitled to the possession of any part of the land described in this complaint, and, if so, what part? Answer: None.

(9) Are the defendants or any of them in the wrongful possession of any part of the said land? Answer: No.

(10) What damages, if any, is plaintiff entitled to recover therefor? Answer: None."

Judgment was entered upon the verdict, and plaintiff appealed.

Sinclair & Dye and Rose & Rose, all of Fayetteville, and E. F. Young and N. A. Townsend, both of Dunn, for appellant.

C. W. Broadfoot, of Fayetteville, John G. Shaw, and J. C. Clifford, of Dunn, for appellees.

WALKER, J. (after stating the facts as above).

There is one fatal defect in the objection of the plaintiff to the testimony of Mrs. L. B. Raynor and Troy L. Pope. It was taken "to all of the foregoing testimony," that is, to the same as a mass, and not to the separate parts thereof. Some of the testimony is plainly competent, and, even if the other part is not so, the objection fails, as it did not point out the incompetent testimony, or separate it from the competent testimony, and assign error only as to it. Railroad Co. v. Manufacturing Co., 169 N.C. 165 169, 85 S.E. 390; State v. Ledford, 133 N.C. 714, 45 S.E. 944; Bank v. Chase, 151 N.C. 108, 65 S.E. 745; State v. Stewart, 156 N.C. 639, 72 S.E. 193; Ricks v. Woodard, 159 N.C. 647, 75 S.E. 735; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713. There is some of this testimony which did not disclose any transaction or communication between the witness and the deceased party, and for the most part it refers to what the plaintiff himself said or did, and he has had full opportunity, in this respect, to reply and...