Rowland v. Rowland

• Decision Date: 31 October 1885
• Citation: 93 N.C. 214
• Court: North Carolina Supreme Court
• Parties: B. G. ROWLAND et al. v. JOHN B. ROWLAND.

93 N.C. 214

B. G. ROWLAND et al.

v.JOHN B. ROWLAND.

Supreme Court of North Carolina.

October Term, 1885.

This was a SPECIAL PROCEEDING for Partition commenced before the clerk of the Superior Court of ROBESON county, and carried by appeal to the Superior Court, where it was tried before MacRae, Judge,, at Spring Term, 1885.

The plaintiff complained as follows, to-wit:

1. That on the 25th day of August, 1865, John S. Rowland, the father of the plaintiffs, B. G. Rowland and Eliza W. Fuller, and of the defendant John B. Rowland, conveyed to John B. Rowland, the defendant, and his sister, Ophelia Rowland, also a daughter of said John S. Rowland, five hundred acres of land in said county on the west side of Lumber river, the same tract on which said John S. Rowland then resided, and the same lands on which the defendant now resides, by deed, a copy of which is hereto annexed, marked ““Exhibit A,” which plaintiffs ask may be taken as a part of this complaint.

2. That on the ...... day of November, 1867, the said Ophelia Rowland died in said county intestate, leaving as her only heirs-at-law her brothers and sisters, B. G. Rowland and Eliza W. Fuller of the plaintiffs, the defendant John B. Rowland and Susan S. Rowland.

3. That on the ...... day of May, 1872, the said Susan S. Rowland died intestate, leaving as her only heirs-at-law the said B. G. Rowland, John B. Rowland and Eliza W. Fuller.

4. That the said A. W. Fuller and Eliza W. Fuller intermarried on the 22d day of July, 1858.

5. That the defendant has been in the sole and exclusive enjoyment of the rents and profits of said lands since the death of the said Ophelia, to-wit: in the year 1867.

6. That plaintiffs and defendants are tenants in common of said lands, the said plaintiffs B. G. Rowland and Eliza W. Fuller, being entitled each to one-sixth thereof, and the defendant to two-thirds, or the remainder, and that the plaintiffs desire to hold and enjoy their parts of said land in severalty.

Wherefore they pray that commissioners may be appointed by the Court for the division of said lands, and for such and further relief as to the Court will seem meet and proper.

The deed was as follows:

“This indenture, made and entered into this twenty-third day of August, in the year of our Lord one thousand eight hundred and sixty-five, between John S. Rowland of the one part, and his two children, John B. Rowland and Ophelia Rowland of the other part, all of the county of Robeson and State of North Carolina: Witnesseth, that the said John S. Rowland, for and in consideration of the natural love and affection which he has and bears to his said two children, John and Ophelia, and for their mutual advancement in life, and for the further and special consideration to provide a certain home for his said daughter Ophelia, who is blind and helpless, has given, granted, bargained, sold, remised, released and forever quit claimed, and does hereby give, grant, bargain, sell, remise, release and forever quit claim unto the said John B. Rowland and Ophelia Rowland, and to the heirs of each of them forever, a certain piece or parcel of land in the county of Robeson aforesaid, on the west side of Lumber river and on both sides of Aaron swamp, situate and bounded as follows: on the north, by Richard Townsend's line; on the west, by said Townsend and John Thompson's line; on the south, by William Price's (now Martha Ann Inman's) and McKellar's lines; and on the east, by McMillan and John Taylor's line, containing five hundred acres, more or less, and being the same tract on which the said John S. Rowland now resides, and which was conveyed by Edmund P. Ashley to said John S. Rowland by deed dated the 22d day of December, 1855, and duly registered in Book D. D., page 604, of the records of deeds in the Register's office of Robeson county. To have and to hold the same to the said John B. Rowland and Ophelia Rowland and their heirs as aforesaid, as tenants in common; and upon the death of either one, then to the survivor and his or her heirs forever.”

To which complaint the defendant demurred in the following words:

The defendant demurs to the complaint herein for the ground that it appears upon the face of the complaint--

1. That the said defendant is seized in fee simple of all the land described in the said complaint.

Wherefore the defendant prays the judgment of the Court that this action be dismissed at the plaintiff's cost.

The following proceedings were had before the Clerk: “This cause coming on to be heard on the complaint and demurrer, both parties being represented by counsel, the demurrer was sustained. Judgment accordingly. Appeal craved by the plaintiff, which was granted; notice waived. By agreement of counsel original papers to be sent up.”

From this judgment the plaintiffs appealed to the Judge of the Superior Court, who at the Spring Term, 1885, of said court, rendered the following judgment:

“Judgment of the Clerk reversed. Demurrer overruled. Defendant demurs, ore tenus, upon the ground that the plaintiffs in their complaint failed to state that they were tenants in common, and in possession of the land described in the complaint. Demurrer overruled, and Clerk directed to proceed, from which judgment the defendants appealed to the Supreme Court.”

Mr. Frank McNeill, for plaintiffs .

Messrs. French & Norment and John D. Shaw, for defendant .

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

The first point presented for our consideration, is the proposition contended for by the plaintiffs' counsel, “that the act of 1784 abolished the jus accrescendi in joint estates, and that there is no such thing recognized by our law, as survivorship.” But this is a mistake. Joint tenancies were not abolished by the act of 1784. Vass v. Freeman, 3 Jones Eq., 227, and Powell v. Allen, 75 N. C., 450--454.

In the latter case, it was held that the act did not abolish joint tenancies, but only took away from such estates, held in fee, the right of survivorship, and that the act had no application to joint estates for life, nor did it have any application to estates given to husband and wife-- Den ex demise Motley v. Whitemore, 2 D. & B., 537--and the reports are full of cases where this Court has given effect to the term survivor in numerous cases, and especially in Vass v. Freeman, supra, Southerland v. Cox, 3 Dev., 394; Murchison v. Whitted, 87 N. C., 465. We have cited these cases, and we might refer to others, where the word survivor is used, without being affected by the act of 1784. The term has all the signification and effect since that act that it had before, except in its application to joint tenancies held in fee.

We would not have noticed this subject, if it had not been seriously argued before us, for we think it has no application whatever to this case. The estate created by the deed of J. S. Rowland to Ophelia and John B. Rowland, created in them, by its express terms, a tenancy in common, and the Court cannot in their construction of deeds, do violence to these clearly expressed terms, even for the purpose of effectuating the known intentions of the grantor.

We must assume that the deed was duly registered, as there was no objection to its being offered in evidence.

In the deed in question, the estate is given to John B. and Ophelia Rowland, and to the heirs of each of them; and then follows, after a description of the land, the words “to have and to hold the same to the said John B. Rowland and Ophelia Rowland and their heirs as aforesaid, as tenants in common; and upon the death of either one, then to the survivor and his or her heirs.”

In the interpretation of a deed, the first thing to be considered is, to ascertain the intention of the parties, and give it such a construction as will carry out...