Sherrill v. Connor

• Decision Date: 22 December 1890
• Citation: 12 S.E. 588,107 N.C. 630
• Parties: SHERRILL et al. v. CONNOR.
• Court: North Carolina Supreme Court

12 S.E. 588

107 N.C. 630

SHERRILL et al. v. CONNOR.

Supreme Court of North Carolina

December 22, 1890

This was a civil action, tried at the September term, 1890, of the superior court of Lincoln county, before BROWN, J. The complaint is as follows:

The statute of limitations runs against liability for permissive waste, though it is continuous in its character; and the tenant in dower is liable for such waste only as has been suffered during the three years before the bringing of the action.

"Plaintiffs above named, complaining of the defendant, allege: (1) That Henry W. Connor, late a resident of said county of Lincoln died in said county intestate on the 15th day of January 1866, leaving the defendant, Mary L. Connor, his widow, and seised and possessed of a large amount or real estate, of which the following described land was duly allotted and set apart to said defendant, his widow, on her dower, to-wit: The 'homestead tract, including the tract in the forks of the road, containing five hundred and sixteen (516) acres homestead five hundred and fifty-six (556) acres, in all ten hundred and seventy-two acres, included in the deeds made to said H. W. Connor, lying and being in the said county of Lincoln, on the west side of the Catawba river, valued at twenty-five thousand ($25,000) dollars,'--said tracts of land situated immediately near Beattie's Ford, in said county, and known as the 'H. W. Connor Home Place,' and upon which he lived at the time of his death, now adjoins lands of Fannie Burton, other lands of the defendant, lands of Isaac Lowe, deceased and others, and upon which defendant now lives. (2) That in the year 1866 the defendant entered upon and was possessed of said land above described as her dower, and is still in possession thereof as such. (3) That said H. W. Connor, at the time of his death left him surviving, as his only heirs at law, his son, Henry W. Connor, Jr., who was entitled to one-third (1/3 part of his real estate aforesaid; and his daughter, plaintiff Annie V. Ivey, who was entitled to, and still is the owner of, one-third (1/3) part of said real estate; and his three (3) grandchildren, to-wit, plaintiffs T. F. Connor, Etta Connor, (who has since intermarried with W. L. Sherrill, plaintiff) and Charlie E. Connor, (who has since intermarried with plaintiff W. B. Ramsey,) who, each, were then and still are entitled to and the owners of one-ninth (1/9) part of the real estate aforesaid. (4) That said Henry W. Connor, Jr., afterwards, to-wit, on the 17th day of March, 1873, died, having first made and published his last will and testament, which was duly proven and admitted to probate in the proper court, and by which he devised all his interest in the said land hereinbefore described to plaintiff A. V. Ivey and her two children, to-wit, Lucy, now the wife of plaintiff E. R. Avery, and Jennie Johnston Ivey, equally, one-third (1/3) to each. (5) That said Jennie Johnston Ivey, on 22d of September, 1876, died intestate, leaving plaintiffs Lucy Avery and James M. Ivey her only heirs at law. (6) That said plaintiff James M. Ivey is a minor, and plaintiff A. V. Ivey is his guardian. (7) That the said plaintiffs were, at the times hereinbefore mentioned, and at the times of the committing the grievances and damages hereinafter mentioned, and still are, the reversioners in interest, as hereinbefore stated, of the dower land hereinbefore described. (8) That, as the plaintiffs are informed and believe, the defendant Mary L. Connor wrongfully, and with intent to injure the plaintiffs in their said reversionary interests in said land, and without authority, began a short time after she took possession of said land as her dower, and has continued to the present time, to cut and destroy the timber and wood growing thereon, and has cut and destroyed, burned and wasted, large amounts of said original timber and woodland at various parts of the plantation which was not needed for repairs or firewood, and thereby destroyed about three hundred acres of valuable timber and wood land, to the great damage of plaintiffs. (9) That, as plaintiffs are informed and believe, at the time defendant took possession of said land as her dower, as aforesaid, there was situated upon said land a valuable dwelling-house, the family mansion, and which was then worth about six thousand dollars, or more, and which was then in perfectly good condition and repair, and that the said defendant has negligently and wrongfully and maliciously permitted the same to decay, and become ruinous and damaged, for want of proper and needful attention and repairs, and that she has wrongfully broken and caused to be broken and torn away the plastering in some of the rooms, and used the same as depositories in which to hang her meat, store grain, and other improper purposes, by which the same have been greatly damaged, and that she has also used part of said dwelling-house as a stable at times, and as shelter for cattle and hogs, and has permitted cattle and hogs to be inside thereof, and thereby, and by her other negligence in care of said house, and other positive damage which she has done or caused to be done thereto, the same has been greatly and permanently damaged, and rendered at the time of the commencement of this action almost ruinous and valueless. (10) That, as plaintiffs are informed and believe, at the time the defendant took possession of said land, as aforesaid, there were good outhouses and fences and shade trees thereon and around said dwelling-house, and that the defendant has wrongfully and negligently permitted the same to be wasted and destroyed, and has wasted and destroyed the same, and carried away and sold, or otherwise disposed of, brick from some of the chimneys, and that the value of said plantation is thereby greatly reduced, and the plaintiffs thereby greatly damaged in their reversionary interest. (11) That, as plaintiffs are informed and believe, the said plantation, at the time the defendant became possessed thereof, as aforesaid, as her dower, was in good condition and repair, was very valuable, and was estimated by the jury who allotted it to her as dower and was reasonably worth twenty-five thousand dollars, and that the defendant has so negligently and wrongfully wasted and damaged the same, and permitted the same to become wasted and damaged, as hereinbefore alleged, and by cutting and destroying and carrying away valuable timber growing thereon, and by failing and neglecting to provide proper ditches and drainage of said land, and by her negligent and improper mode of cultivating the same, and by permitting and directing clearing original timbered land which was not needed for cultivation, and by negligently and wrongfully damaging and destroying and permitting to be damaged and destroyed the dwelling-house, outhouses, and fences situated thereon, and by her negligent and willful failure to use the said plantation in a proper and prudent manner, the same has been thereby greatly and permanently injured, and the reversionary interests of plaintiffs therein greatly and seriously damaged and reduced in value. (12) That, as plaintiffs are informed and believe, the grievances and damages hereinbefore complained of have been permitted and done by the defendant prior to the institution of this action, and that the plaintiffs, the reversioners, have been thereby greatly damaged, and to the amount of ten thousand dollars; wherefore plaintiffs pray judgment against the defendant--First, for thrice the amount of said damages hereinbefore alleged, and that said plaintiffs recover the place wasted, to-wit, the plantation hereinbefore described, if the said judgment shall not be paid on or before a short day, to be fixed by the court; second, for the costs of this action, to be taxed by the clerk; third, and for such other and further relief as they may be entitled to in the premises."

Answer "(7) As to the seventh paragraph of the complaint, the defendant answers that it is true, as she is informed and believes, that the plaintiffs in this action are the owners, in reversion, of the land which she now possesses for life as dower; but as it is not specifically set forth in said paragraph when the plaintiffs, respectively, became entitled to the reversion, or when and where the alleged acts of waste and damages occurred, or which of the plaintiffs sustained injury and damage, and when, the defendant cannot admit the other allegation of the complaint in that paragraph set forth. (8) As to the eighth paragraph of the complaint, the defendant answers and says: That it is utterly untrue that she ever willfully, or with intent to injure the plaintiffs in their reversionary interest, or, as she believes, unlawfully, committed any of the waste and damage therein set forth; and alleges that it is true that, since the defendant became possessed of said land as her dower, she has, as the exigencies of the farm required, cut and cleared a part of the woodland on said farm, in all, as she believes, not exceeding 125 or 150 acres in the twenty-three years since dower was assigned her, that there are yet over three hundred acres of virgin and good timbered land untouched upon the premises, and ample for all the needs of the reversioners. She denies that, in cutting, she burned, destroyed, and wasted the timber, or otherwise cut and used the same than as she believed she had a right to do, or as the necessities of prudent farming authorized her to cut and use it; that her purpose ever was to make the land more valuable, both to herself and the reversioners, and not less valuable. Further answering this paragraph of the complaint, the defendant says that her husband, for several years immediately preceding his death, was an invalid, and mostly...