Sipe v. Herman
| Decision Date | 04 December 1912 |
| Parties | SIPE et al. v. HERMAN et al. |
| Court | North Carolina Supreme Court |
SIPE et al.
v.
HERMAN et al.
Supreme Court of North Carolina.
Dec. 4, 1912.
1. Ejectment (§ 55*)—Burden of Proof.
Where, in partition, defendants denied that plaintiffs were tenants in common, and pleaded sole seisin in themselves, without praying for the reformation of a deed on which they relied to support their plea of sole seisin, the case was, in effect, converted into an action of
[76 S.E. 557]ejectment with the petitioners as plaintiffs and their adversaries as defendants, and the burden was on plaintiffs, and defendants were required to give bond on filing their answer.
[Ed. Note.—For other cases, see Ejectment, Cent. Dig. § 304; Dec. Dig. § 55.2-*]
2. Ejectment (§ 95*) — Evidence — Prima
Facie Case.
Where an action for partition was in effect converted into an action of ejectment, and plaintiffs proved that they and their cotenants, defendants, being the cotenants, inherited the lands from their mother, and it appeared that defendants claimed under the will of a third person, to whom defendants alleged the land had been conveyed by plaintiffs, so that the defendants claimed under plaintiffs, and showed no superior title and none acquired by themselves, plaintiffs established a prima facie case entitling them to judgment, unless the deed by plaintiffs could be sustained.
[Ed. Note.—For other cases, see Ejectment, Cent. Dig. §§ 280-295; Dec. Dig. § 95.*]
8. Husband and Wife (§ 194*) — Separate Property of Married Women — Conveyances—Validity.
A deed conveying land of a married woman which purports to be signed by her and her husband, but which contains no privy examination of her, is void as to her.
[Ed. Note.—For other cases, see Husband and Wife, Cent Dig. § 726; Dec. Dig. § 194.*]
4. Frauds, Statute of (§ 56*)—Parol Evidence—Conveyances—Validity.
A defendant in an action for partition converted in effect into an action of ejectment who relies on a deed conveying land of a married woman, purporting to be signed by her and her husband, but containing no privy examination of her, may not prove title by parol, and may not prove orally even by the married woman as a witness that he acquired the fee from her and her husband.
[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 83-89, 136-138; Dec. Dig. $ 56.*]
5. Ejectment (§ 90*) — Evidence — Admissibility.
Where, in an action in partition, converted in legal effect into an action of ejectment, defendants claimed sole ownership under a deed executed by plaintiffs, husband and wife, conveying her separate property by deed purporting to be signed by her and her husband, but containing no privy examination as to her, a registry of the deed was properly excluded, since the deed was not evidence as to the wife, and since defendants could obtain no judgment against her or right of possession to oust her; the husband being merely joined permissibly under Revisal 1905, § 408.
[Ed. Note.—For other cases, see Ejectment, Cent. Dig. §§ 254-277; Dec. Dig. § 90.*]
6. Husband and Wife (8 136*)—Right of Husband in Separate Estate of Wife.
A husband's right in the separate real estate of his wife is a freehold estate, though Const. art. 10, § 6, has abolished the estate of a husband as tenant by the curtesy initiate, but his right is based on the conjugal relation, and a stranger may not oust him against the wife's consent.
[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 508-511; Dec. Dig. § 136.*]
Appeal from Superior Court, Catawba County; Adams, Judge.
Action by C. F. Sipe and another against Thomas Herman and another. From a judg ment for plaintiffs, defendants appeal. Affirmed.
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