Smith v. Suitt

• Decision Date: 16 June 1930
• Docket Number: 331.
• Citation: 153 S.E. 602,199 N.C. 5
• Parties: SMITH v. SUITT et al.
• Court: North Carolina Supreme Court

153 S.E. 602

199 N.C. 5

SMITH v. SUITT et al.

No. 331.

Supreme Court of North Carolina

June 16, 1930

Appeal from Superior Court, Durham County; Harris, Judge.

Action by Mrs. Amanda C. Smith against F. L. Suitt and others. From an adverse judgment, the defendants appeal.

Affirmed.

Complaint is not demurrable, if any one of the causes of action is good.

The plaintiff owns a life estate, a dower interest duly allotted to her, in certain lands of her husband, John W. Smith, in the city of Durham, N. C.: (1) 408 East Main street, and the defendants, the remainder. When her dower was laid off, she was allotted the "Home Place." On the homestead was an old dwelling house. The plaintiff alleges that this was in very bad condition, and in order to make the house habitable and rentable the plaintiff at various times has had to make permanent improvements on the property, and has spent, in making said permanent improvements, at least the sum of $9,566.47, and in all probability a larger amount; that this sum does not include necessary expenses for repairs and upkeep on the property, but is for permanent improvements and as such added to the value of the property and benefitted the defendants at least the amount expended. (2) No. 414 and 416 West Main street was allotted to her, and is valuable as rental property--necessary permanent improvements had to be made at a cost of $3,511.84. (3) The property known as No 211 East Main street was allotted to her, and during said period she has received, after paying insurance, repairs, and taxes, a net income of $9,886.61.

It is further alleged that, "after said improvements were made, and prior to the institution of this action, the plaintiff notified the defendants of the amounts that she had spent by way of permanent improvements on the property and requested the defendants to pay their part of said improvements. That the defendants have refused and still refuse to pay for any portion of said permanent improvements necessary to be made on either of the said pieces of property."

"That on all of said property for said period the plaintiff has received a total income of $28,386.00 and has expended $27,570.85, or, in other words, after owning the property for approximately five years, she has paid out by way of improvements, taxes and repairs the entire income except $815.15, or a net annual return of approximately $165.05 on property conservatively worth $175,000.00.""

The prayer of plaintiff is as follows:

"(1) For the recovery from the defendants of the sum of $13,078.31, with interest thereon from the 1st day of April, 1929, or for such proportionate part of said sum as she will be entitled, under the law, to receive.

"(2) That an order be made authorizing and directing the sale of the three parcels of land described in paragraph 3 of this complaint, and in order that said decree might be made effective, that a commissioner be appointed by the Court to make said sale and report his proceedings.

"(3) That the Court order the net proceeds derived from the sale of said property distributed among the life tenant and the remaindermen in the manner prescribed by law for the distribution of such proceeds, the amount of the recovery asked for in paragraph 1 of the relief to be deducted from the share due the defendants.

"(4) That if, for any reason, the Court cannot order a sale and division of the proceeds of the property the Court appoint a commissioner who shall be authorized and directed to sell said property, and after paying to the plaintiff the amount of any judgment obtained by the plaintiff against the defendants reinvest the net proceeds derived from said sale under the direction of the court, with the income on the same to be paid to the plaintiff during her lifetime and at her death the remainder of said proceeds to be paid to the defendants.

"(5) For the costs of this action, and for such other and further relief as the plaintiff may be entitled to have."

The defendants filed the following demurrer: "The defendants in the above entitled action hereby demur to the complaint and petition filed in said action for that said complaint does not state facts sufficient to constitute a cause of action for that: 1. The plaintiff has no cause of action for the recovery of money spent by her in making repairs and improvements upon property held by her as tenant for life, and held with the full knowledge of her interest in said property. 2. The plaintiff has no cause of action to enforce partition, or sale for partition, of any property held by her as tenant for life. Wherefore, the defendants pray that this action be dismissed at the cost of the plaintiff."

The judgment of the court below was as follows: "This cause coming on to be heard upon the demurrer filed by the defendants in the above entitled action on the ground that the complaint did not show that the plaintiff had a cause of action, and having been heard, and it being hereby found as a fact that the complaint does state a cause of action: Now, therefore, it is hereby ordered, considered and adjudged that the demurrer be, and the same is hereby overruled, and the defendants are allowed thirty days from this date in which to file answer."

The defendants duly excepted, assigned error, and appealed to the Supreme Court.

Basil M. Watkins, of Durham, for appellants.

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