Roberts v. Dale

• Decision Date: 10 May 1916
• Docket Number: (No. 480.)
• Citation: 88 S.E. 778
• Court: North Carolina Supreme Court
• Parties: ROBERTS et al. v. DALE.

88 S.E. 778

ROBERTS et al.

v.DALE.

(No. 480.)

Supreme Court of North Carolina.

May 10, 1916.

Appeal from Superior Court, Caldwell County; Shaw, Judge.

Partition by Jeff P. Roberts and others against E. E. Dale. Judgment for plaintiffs, and defendant appeals. No error.

W. C. Newland and Squires & Whisnant, all of Lenoir, for appellant Edmund Jones and Wakefield & Williams, all of Lenoir, for appellees.

CLARK, C. J. This was a petition for partition which upon the plea of sole seisin was transferred to the civil issue docket at term. At the close of the evidence the court refused the motion to nonsuit, and charged the jury that there was but one issue, "Are the plaintiffs and defendant tenants in common of the land in controversy as alleged in the peti-tion?" and instructed them that the plaintiffs alleged that they owned two-thirds of the land and the defendant one-third, and that if the jury found the facts to be as testified to by the witnesses, to answer the issue, "Yes." This presents the entire matter for our consideration.

Hosea Tilley executed a deed for this land to his wife, Nancy Tilley, February 11, 1852, which was recorded December 22, 1914, before the beginning of this action. It was in evidence that she was in possession of the land in controversy from the date of the deed to her from her husband till she conveyed the land to Sarah Roberts, March 18, 1898. Sarah Roberts died in the fall of 1902 intestate, leaving her surviving Jeff P. Roberts and Vance Roberts and Margaret Walker. Jeff P. Roberts, one of the plaintiffs and an heir at law of said Roberts, went into possession of the land in the spring of 1903, and remained in open and continuous possession until the beginning of this action December 22, 1914. He and his sister, Mrs. Walker, are the plaintiffs. Vance Roberts, by deed November 25, 1911, conveyed his entire interest in said land to one Beall, in trust to secure the payment of a debt. The property was sold under said trust deed, and was conveyed to the defendant Dale October 6, 1913.

There is evidence of the division of the lands of Hosea Tilley by his five heirs at law April 25, 1889, but at that time the title to this tract was in Nancy Tilley, and she was not a party to the division of Hosea Tilley's land in which this tract of land was allotted to Ed Tilley. His mother, Nancy Tilley, was still living, and this proceeding among the heirs at law of. Hosea Tilley was res inter alios acta, and in no wise affected the title to this land. Ed Tilley was not In possession of the land, though he lived there, according to the evidence, with his mother. He was an unmarried man, and died before his mother.

There was also evidence that W. J. Dula, as administrator of Ed Tilley, filed a petition and caused this tract of land to be sold to make assets to pay the debts of Ed Tilley, at which sale Vance Roberts bought. But this proceeding was a nullity as to these plaintiffs for the reason above given.

When Vance Roberts conveyed this tract of land he conveyed, and could convey, only what interest he had in the land, which was one-third. Shannon...