Sims v. Ray
| Decision Date | 21 May 1887 |
| Citation | 96 N.C. 87,2 S.E. 443 |
| Court | North Carolina Supreme Court |
| Parties | SIMS and others v. RAY. |
OPINION TEXT STARTS HERE
Appeal from superior court, Durham county.
R. C. Strudwick, for plaintiffs.
Graham & Ruffin and Batchelor & Derereux, for defendant and appellant.
This was a civil action, tried before CONNOR, J., upon complaint, answer, and demurrer, at October term, 1886, of the superior court of Durham county. The plaintiffs allege that they are the heirs at law of Mary Ray, late wife of the defendant, Tyrea Ray; that Mary Ray died in August, 1884, intestate, and seized and possessed of the land described in the complaint; that she never had issue by the said Tyrea Ray; and that the said Tyrea Ray is in possession of the said land, and wrongfully withholds possession from the plaintiffs. The answer of the defendant, so far as is material to this case, denies that Mary Ray died seized and possessed of the land mentioned. On the contrary, “the said Mary Ray, on the seventeenth day of December, 1881, did by her deed, duly executed, which has been admitted to probate and registered, convey the said tract of land to the defendant, her husband, for and during his natural life;” a copy of which is annexed as a part of the answer. The said deed, so far as is material to this action, recites that “the said Mary Ray, in consideration of the sum of one dollar to her paid by the said Tyrea B. Ray, the receipt of which is filed and hereby acknowledged, and also the further consideration of the affection which she bears towards the said Tyrea B. Ray, her said husband, has bargained and sold, and by these presents does bargain, sell, and convey, to said Tyrea B. Ray, for and during his natural life, a tract of land, [describing it;] to have and to hold,” etc.
The probate is as follows:
“ State of North Carolina, Durham County: I, Geo. W. Jones, justice of the peace, do hereby certify that Mary Ray, wife of Tyrea B. Ray, personally appeared before me this day and acknowledged the due execution of the within deed of conveyance; and the said Mary Ray, being by me privately examined, separate and apart from her said husband, touching her voluntary execution of the same, doth state that she signed the same freely and voluntarily, without fear or compulsion of her said husband or any other person, and that she doth still voluntarily assent thereto.
“Witness my hand and seal this seventeenth day of December, A. D. 1881.
“G. W. JONES, J. P. [Seal.]
“ State of North Carolina, Durham County: The foregoing certificate of G. W. JONES, a justice of the peace of Durham county, is judged to be in due form and according to law. Therefore let the same, with this certificate, be registered.
“ This seventh day of March, 1882.
“J. J. FERRELL, Clerk of Superior Court.”
The said deed was duly registered on March 7, 1882. To the answer the plaintiffs filed a demurrer, and for cause of demurrer say “that the deed mentioned in said answer under which defendant claims is void in law.” The court adjudged “that the deed set up in the defendant's answer is void and inoperative to divest the estate of Mary Ray in the land in controversy, and that the demurrer to the said answer be sustained,” and adjudged that the plaintiffs recover, etc. From this the defendant appealed, and the only question presented for our consideration is as to the validity of the deed from Mary Ray to the defendant.
The plaintiff relies on Taylor v. Eatman, 92 N. C. 607; Norfleet v. Hawkins, 93 N. C. 392; and Walton v. Parish, 95 N. C. 259. In the first of these cases it was held that a feme covert was competent to execute a power, whether collateral, appurtenant, or in gross, without the concurrence of her husband, and that she might execute it even in his favor; and the same was held in Norfleet v. Hawkins, in which case it was said: “In the execution of a power there is no contract between the donee of a power and the appointee, and, when the appointment is made, the...
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