Sears v. Braswell

• Decision Date: 09 October 1929
• Docket Number: 57.
• Parties: SEARS et al. v. BRASWELL et al.
• Court: North Carolina Supreme Court

149 S.E. 846

197 N.C. 515

SEARS et al. v. BRASWELL et al.

No. 57.

Supreme Court of North Carolina

October 9, 1929

Appeal from Superior Court, Nash County; Small, Judge.

Suit by C. W. Sears and others against Mrs. Alice S. Braswell and others, in which defendants counterclaimed. Decree for defendants, and plaintiffs appeal. No error.

Refusal of plaintiffs' request to restrict evidence introduced by plaintiffs of deeds on which defendants relied to proof of title from common source held not error.

Material facts:

In the course of the trial it was admitted of record by all parties:

(a) The land in controversy is the identical tract of land described in the deed from Robert D. McIlwaine and others to Wells Draughan, recorded in Book 26, p. 559, Nash County Registry and described in the seventh item of the will of Wells Draughan, recorded in Will Book 9, p. 277, of the clerk's office in Nash county, and is the same land as described in the deed from James W. Draughan, executor, to Richard H Jones, recorded in Book 28, p. 246, Nash Registry, and in deeds from Richard H. Jones and wife, to Thomas P. Braswell Book 28, p. 11, and to H. E. Odom, Book 26, p. 602, and from H. E. Odom, trustee, to Thomas P. Braswell, Book 38, p. 46 of Nash County Registry.

(b) That Thomas Sears, mentioned in the seventh item of the will of Wells Draughan above referred to, died on the -- day of April, 1926, never having married and never having had any lawful issue or heir of his body.

(c) That the plaintiffs in this action are all surviving heirs of Delphia Sears, deceased.

(d) That the interest of Thomas P. Braswell in the above-described land passed by his will, recorded in the clerk's office of Nash county, to his three sons, M. C., M. R., and J. C. Braswell, and that, by deed of M. R. and J. C. Braswell to M. C. Braswell, 140 acres of said land was conveyed, and the remaining 45 acres continued to be held in common; that, upon the death of M. C. Braswell, intestate, in 1922, his interest in all the aforesaid land, the entire 185 acres, descended to the defendants Vivian Braswell, Mattie May Gorham, Alice Bryan Braswell, and Elizabeth Braswell, subject to the dower of Mrs. Alice S. Braswell, widow of M. C. Braswell, deceased, the defendants in this action.

Upon evidence introduced by both sides, the following issues were submitted to the jury, the first four being answered by the jury and the last two by the court, to wit:

"1. Did Wells Draughan enter into a contract in writing binding himself, his heirs and assigns, to convey the lands in question to said Richard H. Jones, as alleged in the answer? Answer: Yes.

"2. Did Richard H. Jones contemporaneously with the execution of said contract execute and deliver to Wells Draughan purchase money notes for the purchase price of said land, as alleged in the answer? Answer: Yes.

"3. Did Richard H. Jones subsequently pay said purchase money notes to the legal holder thereof? Answer: Yes.

"4. Have defendants and those under whom they claim, been in quiet and undisturbed possession of said land since 1872 under said contract? Answer: Yes.

"5. Is defendants' counterclaim to remove plaintiffs' claim as a cloud upon their title, barred by the Statute of Limitations? Answer: No (Answered by the Court).

"6. Are plaintiffs the owners of and entitled to possession of lands described in the complaint? Answer: No (Answered by the Court)."

(e) The seventh item of the will of Wells Draughan is as follows: "I give and devise unto Thomas Sears child of Charles E. Sears and Delphia Sears his heirs and assigns a tract of land situated in Nash County on the north side of Swift Creek which I purchased of McIlwaine and Company of Petersburg, Virginia, formerly owned by Col. Rowland. Richard Jones now lives on said land. In case the said Thomas Sears should die without lawful heirs of the body the said tract of land shall be divided among the surviving heirs of the said Delphia Sears."

(f) Plaintiffs introduced in evidence the following:

Deed from James W. Draughan, executor, to Richard H. Jones, recorded in Book 28 at page 246, Nash County Registry, which reads as follows:

"This indenture made this the 13th day of November, A. D., 1872, between James W. Draughan, Executor, of Wells Draughan, deceased, of one part, and Richard H. Jones of the other part, Witnesseth that whereas the late Wells Draughan gave the said Richard H. Jones and obligation binding him the said Wells Draughan his heirs, executors and administrators to execute and deliver to said Richard H. Jones, his heirs and assigns a good and fee simple deed to the following described tract of land, upon the payment to him the said Wells Draughan or his executors or administrators of three separate notes of five hundred dollars each, bearing interest from January 1st, 1870, and due respectively Jany. 1st, 1871, January 1st, 1872 and January 1st, 1873, and whereas the said R. H. Jones has paid off and satisfied said notes. Now this Indenture further witnesseth, that in consideration of the payment of said notes with interest on same to the said J. W. Draughan, Executor aforesaid, he, the said James W. Draughan has this day sold and conveyed and delivered and by these presents does sell, convey and deliver to said Richard H. Jones, his heirs and assigns forever, the land above mentioned and described as follows, being situated in the County of Nash and State of North Carolina, on or near the road leading from Hilliardston to Battleboro; adjoining the lands of Dr. R. H. Marriott, E. Boddie Hilliard, the lands of late Joseph Turner and others, containing one hundred and eighty-five acres, more or less, being the land purchased by W. H. Rowland, of Jas. Turner, and by H. G. Williams of said Rowland and by A. H. Williams of said H. G. Williams and by McIlwaine & Co. of said A. H. Williams, to have and to hold the same unto him the said Richard H. Jones his heirs and assigns forever, and the said James W. Draughan, as executor aforesaid hereby warrants and defends unto said Jones and his heirs a good right and title to said land against the claims of any and all persons whatsoever.

"In witness whereof the said James W. Draughan has hereunto set his hand and seal, the day and date above written.

"James W. Draughan, Executor. [Seal.]

"Witness: H. G. Williams.

"Nash County. In the Probate Court, February 10th, 1874.

"The execution of the foregoing Deed was duly proven before me by the oath of H. G. Williams, the witness thereto. Register it.

"Registered June 13, 1874.

"J. P. Jenkins, Probate Judge.

"William T. Griffin, Reg. of Deeds."

Deed from Richard H. Jones and wife to Thos. P. Braswell, recorded in Book 28 at page 11, Nash County Registry. The material parts of this deed are as follows: Dated November 13, 1872, acknowledged November 15, 1872, recorded May 6, 1873. Consideration $500, containing by estimation, 140 acres, more or less, and being a part of the McIlwaine tract. "The following described tract or parcel of land situate in the County of Nash, State of North Carolina, being a part of the tract purchased by said Jones of Wells Draughan, deceased, the whole of which tract was purchased by said Wells Draughan of McIlwaine" (the tract in controversy). Contains general warranty.

Mortgage, Richard H. Jones to H. E. Odom, recorded in Book 26, at page 602, Nash County Registry. The material parts of said mortgage are as follows: Dated November 13, 1872, acknowledged November 27, 1872, and recorded January 2, 1873, mortgage recites: "Witnesseth, that whereas, said H. E. Odom is security for Richard H. Jones on a certain bond due James W. Draughan for the purchase of the following described tract or parcel of land given this day and due January 1st, 1874, and bearing interest from January 1st, 1873, the amount of principal of said bond being Seven Hundred and Seventy Dollars and whereas the said Richard H. Jones and Harriet A. are desirous of securing and saving the said H. E. Odom on account of said securityship, so that he will not be loser thereby," etc., containing 45 acres, more or less, and being the balance of the McIlwaine tract. This description begins: "The tract of land on which R. H. Jones now resides purchased by him of the late Wells Draughan with the exception of that part sold to Thos. O. Braswell this day, the part hereby conveyed and sold to said Odom being bounded as follows." The land described is part of the land in controversy.

Deed, H. E. Odom, mortgagee or trustee, to Thos. P. Braswell, Book 38, p. 46, Nash County Registry.

The evidence was introduced by plaintiffs to show defendants' chain of title from a common source.

Plaintiffs' counsel dictated to the record the following statement: "All of the evidence introduced showing defendants' chain of title was introduced for the purpose of showing title from common source, and that plaintiffs' title from that source is superior to defendants' title from that source, and evidence restricted to that purpose." Motion by defendants to strike from record the above statement and restrictions. Motion allowed; (1) plaintiffs except and assign error.

Defendants' evidence, in part:

Defendants introduced in evidence a certified copy from Edgecombe superior court, of the qualification of James W. Draughan, executor of Wells Draughan, deceased.

"Tarboro, N. C., Sept. 24, 1872.

"In the Matter of the Will of the late Wells Draughan of this County:

"The last will and testament of the late Wells Draughan of this County having this day been admitted to probate in this County and James W. Draughan having applied for leave to qualify as one of the executors mentioned therein--

"It is ordered by the Court that he have leave to do

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