Skipper v. Yow

• Decision Date: 15 October 1958
• Docket Number: No. 180,180
• Citation: 105 S.E.2d 205,249 N.C. 49
• Parties: Mary S. SKIPPER and husband, N. R. Skipper, K. C. Sidbury and Charity Sidbury, his wife, Murray G. James, Trustee, and Winston Williams and Others (the Heirs at Law of the late Elijah B. Williams), Petitioners, v. E. L. YOW and wife, Mrs. E. L. Yow, and Cicero Yow and wife, Mrs. Cicero Yow, Defendants.
• Court: North Carolina Supreme Court

Page 205

105 S.E.2d 205

249 N.C. 49

Mary S. SKIPPER and husband, N. R. Skipper, K. C. Sidbury and Charity Sidbury, his wife, Murray G. James, Trustee, and Winston Williams and Others (the Heirs at Law of the late Elijah B. Williams), Petitioners, v. E. L. YOW and wife, Mrs. E. L. Yow, and Cicero Yow and wife Mrs. Cicero Yow, Defendants.

No. 180

Supreme Court of North Carolina.

Oct. 15, 1958

J. T. Gresham, Jr., Nere E. Day, Jr., and Nere E. Day, Jacksonville, for petitioner appellants.

Beasley & Stevens, Kenansville, for respondent appellees.

RODMAN, Justice.

This is a partition proceeding instituted 21 April 1958. A prior proceeding for the same purpose involving the same land resulted in an involuntary nonsuit which was affirmed on appeal. Skipper v. Yow, 238 N.C. 659, 78 S.E.2d 600; Id., 240 N.C. 102, 81 S.E.2d 200.

The petition alleges that petitioners and defendants are the owners of a tract of land there described which, it is alleged, was surveyed by A. Cheney in July 1926. Following the description of the property alleged to be owned by petitioners and defendants is this allegation: 'That the ownership of the defendants in said tract of land is subject to numerous conveyances they have made from the above bounds, as petitioners are informed and believe, and also to final determination of the number and identity of the heirs at law of the late Dempsey Williams, as to some of whom there seems to be some controversy and from two of whose heirs at law (as alleged, John Williams and Jane Williams Cummings) the late G. S. Gray obtained a conveyance reciting that the interest conveyed was 2/96 of the whole tract.' It is then averred: 'Subject to conditions stated in the foregoing section of this petition * * *' Then follows an averment that defendants own 31/48 of the land, petitioners K. C. Sidbury and wife own 77/256, Mary S. Skipper, 11/256, Winston Williams and others, the heirs at law of the late E. B. Williams, 1/96 of the land.

The petition on its face presents serious questions with respect to the power of the court to enter a decree directing partition. The petition should describe the land owned by petitioners and defendants as tenants in common. Here by express language the petition negatives the idea that defendants were at the time of the filing of the petition cotenants of all the land as to which partition was sought. What area petitioner asserts defendants presently own an interest in as cotenants is left in the realm of speculation. Not only should the petition adequately describe the very land with respect to which cotenancy exists, but it should affirmatively appear that all parties who claim an undivided interest in the property are properly before the court before it proceeds to direct partition. Alsbrook v. Reid, 89 N.C. 151; Ledbetter v. Gash, 30 N.C. 462; Richardson v. Barnes, 238 N.C. 398, 77 S.E.2d 925; Lockleair v. Martin, 245 N.C. 378, 96 S.E.2d 24; 68 C.J.S. Partition §§ 90, 92, pp. 140, 145, 146; 40 Am.Jur. 52.

Defendants did not elect to challenge by appropriate motions the sufficiency of the petition. They answered and denied that petitioners owned any interest in the land described. The answer had the effect of converting a special proceeding for partition into a civil action to try title. Murphy v. Smith, 235 N.C. 455, 70 S.E.2d 697; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554.

The burden is on petitioners to establish that they own some interest in the land which entitles them to the present right to possession. They do not have to establish that they are the owners of the exact interest claimed in their pleading. If the evidence is sufficient to permit a jury to find that petitioners in fact own some share, they are entitled to have the issue of ownership submitted to the jury.

Petitioners here elected to establish their title and right to possession by the sixth method enumerated in Mobley v. Griffin, 104 N.C. 112, that is, by tracing their title and defendants' title to a common source. Petitioners, to succeed, must establish not only that the parties trace their titles to the same person but trace title to the same land to the same person. The trial court, when plaintiffs rested, was of the opinion that the evidence was insufficient to be submitted to the jury and therefore sustained defendants' motion to nonsuit. We are now called upon to answer the same questions stated in the opinions rendered on appeal in the prior proceeding, but the answers now given must be in the light of the evidence appearing in the present record.

The land in controversy is situate on the Atlantic Ocean, having, according to petitioners' contention, a frontage on the ocean of approximately 9,800 feet. It is situate between the ocean and Stump Sound. It is, petitioners contend, the land originally owned by M. L. F. Redd, who on 19 March 1870, by deed recorded Book 31, p. 9, conveyed an undivided one-half interest therein to Elijah Williams. Petitioners assert (1) they are the heirs of Elijah Williams and acquired an undivided interest by descent, and (2) they have purchased additional undivided interests from other heirs of Elijah Williams. Thus they say they have traced their title to M. L. F. Redd. They assert that certain of the heirs of Elijah Williams conveyed to G. S. Gray and that defendants purchased the Gray title. They assert that the only heir of M. L. F. Redd conveyed to Gray and that defendants acquired this interest from Gray. Thus they assert that they have established their title tracing back to Elijah Williams and his grantor, M. F. L. Redd, and have shown defendants' title, which they likewise trace back to their ancestor, Elijah Williams and also to Elijah Williams' ancestor, M. L. F. Redd. The evidence must establish both the descent and identity of property. If either fails, the nonsuit was correctly entered.

Reviewing the evidence to find the answer to each question, we deal first with the question of descent.

Petitioners offered parol evidence to the effect that Mary S. Skipper and K. C. Sidbury were descendants of Henrietta Sidbury, who prior to marriage was Henrietta Williams. Henrietta Williams was a sister of Elijah Williams.

Winston Williams is a grandson of Dempsey Williams. Dempsey Williams was a descendant of John Williams. John Williams and Jane Williams Cummings are children of Dempsey Williams and grandchildren of John Williams. There is no parol evidence tending to establish the relationship of John Williams to Elijah Williams. The parol evidence enumerates all of the descendants of Henrietta Sidbury. All except Mrs. Skipper have conveyed what they assert is the land in controversy to K. C. Sidbury. He has conveyed to his wife, Charity Sidbury.

The parol evidence is sufficient to establish that Mary S. Skipper and K. C. Sidbury and his grantors are collateral relations of Elijah Williams, but that fact does not suffice to show that they inherited the property of Elijah Williams. Real property passes to collateral relations only in the absence of lineal descendants. G.S. § 29-1, Rules 1, 3, and 5. Death being established, there is a presumption of law that the deceased died intestate. Barham v. Holland, 178 N.C. 104, 100 S.E. 186, cited with approval in Skipper v. Yow, 240 N.C. 102, 81 S.E.2d 200. There is, however, no presumption as to how the inheritance is cast. Did he leave descendants? That is a question which must be established by proof. Murphy v. Smith, supra; Wachovia Bank & Trust Co. v. Deal, 227 N.C. 691, 44 S.E.2d 73.

Petitioners, to establish inheritance by the brothers and sisters, rely on recitals contained in a deed which they offered in evidence. This deed, made by descendants of Henrietta Sidbury, a sister of Elijah Williams, to petitioner K. C. Sidbury conveys grantors' interest in land which is asserted to be the land now in controversy. The deed is dated 12 July 1926. It recites: 'That, whereas, the late Elijah Williams died in Onslow County on or about the----day of----, 1876, intestate and seized of a certain undivided interest in the tract of Beach and Marsh land hereinafter described, as by reference to deed from M. L. F. Redd to Elijah Williams, recorded in Book 30, page 9, of the registry of deeds for Onslow County, will more fully appear; and, whereas, the said Elijah Williams was unmarried and his interest in said land hereinafter described descended to his next of kin, to wit, Kitty Ennett, wife of John S. Ennett; Henrietta Sidbury, wife of the late Richard W. Sidbury; John Williams and Ben Williams, sisters and brothers respectively, of said Elijah Williams * * *' Are the recitals in this deed competent as evidence which a jury could accept as establishing the fact that Elijah Williams had no descendants but did have brothers and sisters who survived him? If so, petitioners have made a prima facie showing of inheritance to some interest in the land which Redd conveyed to their ancestor in 1870. Attention was directed to this question, but it was left unanswered in Skipper v. Yow, 240 N.C. 102, 81 S.E.2d 200. Attention was then pointedly directed to the fact that a material difference exists between recitals in an ancient document and recitals in an instrument which fails to meet the qualifications requisite to classify it as an ancient document.

We reach the conclusion that the recitals here in question are competent evidence. It has been established by parol evidence that the persons who made the declarations are the nephews, nieces, and great-nephews of the person with whom the relationship is asserted. They were qualified to speak with respect to family history. Ashe v. Pettiford, 177 N.C. 132, 98 S.E. 304. It affirmatively appears that at least some of those who spoke through the recitals are dead. It is not suggested that any controversy existed at the time they spoke with respect to the facts which entitled them to inherit from their uncle Elijah. The instrument containing the statement was,...