Sparks v. Sparks

• Decision Date: 12 October 1949
• Docket Number: 236
• Citation: 55 S.E.2d 477,230 N.C. 715
• Parties: SPARKS v. SPARKS et al.
• Court: North Carolina Supreme Court

55 S.E.2d 477

230 N.C. 715

SPARKS v. SPARKS et al.

No. 236

Supreme Court of North Carolina

October 12, 1949

This is an appeal from a decision upon a demurrer and necessitates an analysis of the complaint.

When its particularized allegations are properly construed and reduced to ultimate averments, the complaint alleges that the plaintiff is the owner in fee simple of certain pertinently described land in Mitchell County, North Carolina; that the plaintiff is in the actual possession of the land; that the defendants assert a claim to the land adverse to plaintiff's fee simple title, i. e., that the defendants Grady Sparks, and Bell Henline, whose spouses are also made parties to the action, inherited the lands from their mother the plaintiff's deceased wife, Mattie Sparks, and by reason thereof own the land in fee as tenants in common subject, however, to the right of plaintiff to occupy the land during his natural life as tenant by the curtesy consummate; that such adverse claim of the defendants is wrongful for the reason that plaintiff owned the land in fee simple at the time of his wife's death and she then had no interest therein; and that such wrongful claim of the defendants constitutes a cloud on plaintiff's fee simple title. The prayer of the complaint is, in substance, that plaintiff's title to the land in controversy be quieted, and that the adverse claim of the defendants to the property be removed as a cloud thereon.

As originally filed, the complaint contained an additional paragraph, which was designated as Paragraph 8 and which sets forth these matters:

'8. That the defendant, Bell Henline, is further estopped from asserting or claiming any title, right or interest in said land for the reason that on July 5, 1933, the plaintiff and his wife, Mattie Sparks, executed and deeded 37 acres of land to Nelson Henline and wife, Bell Sparks Henline, with the distinct understanding and agreement that the said 37 acres of land should be the full and complete share of said Bell Sparks Henline in the estate of the said Thomas J. Sparks and wife, Mattie Sparks, and that the said Bell Sparks Henline accepted said deed and had the same recorded in Book 93, page 5, office of Register of Deeds for Mitchell County, and is asked to be made a part of this amended complaint the same as if specifically alleged herein.'

The defendants demurred to the complaint for misjoinder of parties and causes. Upon the hearing, the court permitted the plaintiff to amend his complaint by the withdrawal of Paragraph 8 in its entirety, and entered an order overruling the demurrer and authorizing defendants to plead to the complaint as amended. The defendants excepted and appealed.

Fouts & Watson, Spruce Pine and Burnsville, for defendants, appellants.

Hall & Zachary, Yadkinville, for plaintiff, appellee.

ERVIN Justice.

The order allowing plaintiff to amend his complaint was authorized by G.S. s...