Ray v. Pearce

• Decision Date: 31 January 1881
• Citation: 84 N.C. 485
• Court: North Carolina Supreme Court
• Parties: N. W. RAY, Adm'r v. OLIVER W. PEARCE and others.

84 N.C. 485

N. W. RAY, Adm'r

v.OLIVER W. PEARCE and others.

Supreme Court of North Carolina.

January Term, 1881.

SPECIAL PROCEEDING to sell land for assets commenced before the clerk, and tried at Fall Term, 1880, of CUMBERLAND Superior Court, before Avery, J.

The plaintiff, administrator of J. W. Pearce, in his application for a decree of sale of the land of his intestate for the payment of debts, specifies among others a tract known as the “Pearce Mill Place,” of an undivided moiety of which he alleges the intestate to have been seized and possessed at the time of his death, and which descended to the defendants, his children and heirs at law. The defendants deny the allegation and set up title in themselves under the will of Ann Pearce, their aunt.

The land in controversy belonged to Thomas C. Hooper, who, on the 1st of August, 1820, conveyed it in fee to Clarissa Pearce, the mother of the intestate and the said Ann Pearce. She on the same day executed a mortgage deed therefor to Cyrus Dyer to secure her three several bonds of that date, drawn payable to him and endorsed for her benefit, each in the sum of $233.33, maturing at six, twelve and eighteen months respectively, with condition to be void if the mortgagor paid the debts as they became due, and she fully indemnified the said Dyer, her surety, in the premises. Clarissa afterwards intermarried with one Howell and resided on the land with said Ann, until her death in 1853.

The bonds were produced in evidence for the defendants. On the back of that first maturing is a partly obliterated acknowledgment of full payment in 182 , the last figure torn off. On the second is endorsed under date of June 1st, 1821, a partial payment of $137.22, and an undated receipt in full. On the third are three credits--$100 paid by J. W. Howell, September 11th, 1822; $20 by the same, March 10th, 1824; $50, by whom paid does not appear, March 29th, 1825; and there is an anterior entry endorsed in these words, “Received the within of C. Dyer,” signed by Thomas C. Hooper.

The defendants, to show sole seizin in their testatrix who devised all her real estate to them, proposed to prove by Ella, one of their number, that the bonds and mortgage deed were kept among the valuable papers of the testatrix and in her exclusive possession up to the death of her mother; that J. W. Pearce, her brother, while managing the farm professed to be acting for said Ann, and that both Clarissa and her husband, Howell, declared that the land belonged to Ann Pearce, and she had sufficient means to take up the mortgage bonds. It was in proof that J. W. Pearce and Ann Pearce died in 1879, and that Howell was dead at the institution of the suit. It was admitted that the mortgage had been foreclosed.

The court held that the offered testimony, if received, was insufficient to show title exclusively in the testatrix, and refused to admit it. There was a verdict against the defendants on the issue, and from the judgment thereon they appealed.

Messrs. Hinsdale & Devereux, for plaintiff .

Messrs. McRae & Broadfoot, for defendants .

SMITH, C. J.

The equitable right to have the legal estate restored upon payment of the encumbering debt remained in Clarissa, the mortgagor, after the making of her deed and after default, and such payment is presumed from the lapse of time since forfeiture, or the last payment reduced to ten years under the statute. Rev. Code, ch. 65, § 19. More than thirty years had passed since the forfeiture, and nearly that period since the last known payment on the...