Smith v. Creech
| Decision Date | 03 October 1923 |
| Docket Number | 91. |
| Citation | 119 S.E. 3,186 N.C. 187 |
| Parties | SMITH v. CREECH. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; J. Lloyd Horton, Judge.
Controversy submitted without action between Ina V. Smith, guardian, and W. H. Creech. From a judgment for defendant, plaintiff appeals. Reversed.
On the hearing it appeared that John R. Smith, now deceased, having mortgaged a piece of land (that now in controversy) to plaintiff to secure a debt of $1,500, and default having been made, plaintiff, mortgagee, under powers contained in the instrument, on February 19, 1923, after due advertisement sold said land at public auction, when defendant became the purchaser at the price of $6,100. That it having been rumored that the title of John R. Smith conveyed in the mortgage was in part defective, the land was sold and bid in by defendant with the understanding that the title in question should be investigated, and if the same proved defective as suggested the purchase price agreed upon would be proportionately reduced. That John R. Smith had died, and his wife Ophelia was devisee of the land under his will. The court being of opinion that the title to the land was defective to the 42/175 interest, entered judgment for the amount of bid, less the proportion indicated, and plaintiff excepted and appealed.
D. H. Bland, of Goldsboro, for appellant.
Teague & Dees, of Goldsboro, for appellee.
From the pertinent facts as set forth in the case agreed, it appears that:
"The title to said property on the 23d day of September, 1876, was in Mary A. Smith, C. A. V. Smith, M. T. A. L. Smith, Louvenia Smith, and Susan E. Smith, as tenants in common, in fee simple. The said tenants in common were all sisters, and no one of them was ever married, and all died prior to the year 1910, leaving no issue. That such title as John R. Smith owned in said lands and premises was acquired by him under the following instruments:
A. The will of C. A. V. Smith, dated August 11, 1877, probated May 17, 1879, and recorded in Will Book No. 1, at page 152, in the office of the clerk of the superior court for Wayne county, the part of the will pertaining to the lands in controversy being as follows: 'I give and devise to my sisters, Mary A. Smith, M. Tabitha A. Smith, Louvenia E. Smith, and Susan E. Smith, all of my real and personal estate (together with my accounts) during their single lives, to share and share alike, but in case any one of them should marry, I give to the unmarried living sisters my entire estate, both real and personal, during their unmarried life, and so on to the last single sister, and should all of my sisters marry, then it is my will that my estate be equally divided between the surviving sisters or their lawfully begotten heirs.'
B. The will of M. Tabitha A. Smith, dated August 14, 1877, admitted to probate October 31, 1881, and recorded in the office of the clerk of the superior court for Wayne county in Will Book No. 1, page 215, the part of the said will pertaining to this controversy being as follows: 'I give and devise to my sisters, Mary A. Smith, C. A. V. Smith, Louvenia E. Smith and Susan E. Smith, all of my real and personal estate during their single life, to share and share alike, but in case any one of them should marry, then I give to the unmarried living sisters my entire estate, both real and personal during their unmarried life, and so on to the last single sister, and should all my sisters marry, then it is my will that my estate should be equally divided between my surviving sisters, or their lawfully begotten heirs.' It will be noted that this will is dated practically at the same time as the will referred to in the preceding paragraph, and that substantially the same provisions are set forth therein. C. A. V. Smith died before M. Tabitha A. Smith.
C. The Will of Mary A. Smith, dated the 17th day of November, 1881, admitted to probate May 24, 1892, in the office of the clerk of the superior court for Wayne County in Will Book No. 1, page 566; that portion of said will bearing upon this controversy being as follows: 'I give, devise and bequeath to my sisters, Louvenia E. Smith, and Susan E. Smith, all of my estate and property, real, personal and mixed, during their single life, to share and share alike; but in case any one of them should marry, then I give, devise and bequeath to the unmarried living sister my entire estate and property; but in case both of them should marry, then such estate and property is to be equally divided between them, and should either of my said sisters die before I do, my will and desire is that such share of such estate and property as would have belonged to such deceased shall be the property of such survivor.'
D. The will of Susan E. Smith, dated May 18, 1892, admitted to probate September 26, 1903, in the office of the clerk of the superior court of Wayne county in Will Book No. 2, at page 457, the part of said will relating to this controversy being as follows: 'I give, devise and bequeath to my sister Louvenia E. Smith all of my estate and property, real, personal and mixed, forever."
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