Sprinkle v. City of Reidsville

• Decision Date: 27 February 1952
• Docket Number: No. 22,22
• Parties: SPRINKLE et al. v. CITY OF REIDSVILLE et al.
• Court: North Carolina Supreme Court

Page 179

69 S.E.2d 179

235 N.C. 140

SPRINKLE et al. v. CITY OF REIDSVILLE et al.

No. 22

Supreme Court of North Carolina.

Feb. 27, 1952

Rufus W. Reynolds, Greensboro, and J. C. Johnson, Jr., Mayodan, for the plaintiffs-appellees.

Scurry & McMichael, Reidsville, for the corporate defendant, City of Reidsville, appellant.

P. T. Stiers, Reidsville, for the individual defendants and the executors, appellees.

ERVIN, Justice.

In its written brief and oral argument, the appellant follows the precedent set by the Walrus in Lewis Carroll's pleasing fantasy entitled 'Through the Looking-Glass.'

'The time has come,' the Walrus said,

'To talk of many things:

Of Shoes--and Ships--and sealing-wax--

Of cabbages--and Kings--

And why the sea is boiling hot--

And whether pigs have wings.'

As a consequence, the appellant debates many intriguing legal propositions not sanctioned by the exceptions noted by it at the trial. For example, it asserts with much earnestness and eloquence that the testimony of the plaintiffs does not suffice to support the findings of fact of the presiding judge. This interesting question is not before us. The appellant did not except to any of the findings. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Smith v. Davis, 228 N.C. 172, 45 S.E.2d 51, 174 A.L.R. 643; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601; Riddick v. Farmers' Life Association, 132 N.C. 118, 43 S.E. 544. Moreover, as hereafter appears, the assignment of error based on the denial of its motion for a compulsory nonsuit is legally ineffectual.

Under the rules of practice in this court, the questions arising on an appeal are those defined by appropriate exceptions taken by the appellant in the superior court. Rules 19(3) and 21, 221 N.C. 554, 558; Wilson v. Beasley, 192 N.C. 231, 134 S.E. 485; Harrison v. Dill, 169 N.C. 542, 86 S.E. 518.

The City of Reidsville noted exceptions in the court below to the admission of certain testimony tendered by the plaintiffs, to the denial of a motion for a compulsory nonsuit made by it at the close of the plaintiffs' evidence, and 'to the rendering and signing of the judgment.'

An examination of the record shows that there can be no reasonable doubt of the propriety of any of the challenged rulings admitting testimony except those permitting the plaintiffs' surveyor, A. N. Mattocks, to testify as to the location of the parcels of land mentioned in the findings of fact. The appellant lost the benefit of the exceptions covering the receipt of this particular evidence, however, by allowing the same witness to give virtually the same testimony without objection in other portions of his examination. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56; Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844; White v. Disher, 232 N.C. 260, 59 S.E.2d 798.

A somewhat similar observation applies to the exception to the denial of the motion for compulsory nonsuit. The appellant moved to nonsuit at the close of the plaintiffs' evidence, the motion was refused, and the appellant noted the exception in question. The appellant thereafter introduced evidence, and neglected to renew its motion for nonsuit at the conclusion of all the evidence. The statute expressly provides that 'if the defendant introduces evidence he thereby waives any motion for dismissal or judgment as of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal.' G.S. § 1-183 as rewritten by Chapter 1081 of the Session Laws of 1951.

The remaining exception, i. e., the exception 'to the rendering and signing of the judgment,' does not bring up for review the findings of fact or the evidence upon which they are based. Russos v. Bailey, 228 N.C. 783, 47 S.E.2d 22. It presents for decision the solitary question whether error appears on the face of the record. Brown v. L. H. Bottoms Truck Lines, 227 N.C. 65, 40 S.E.2d 476; King v. Rudd, 226 N.C. 156, 37 S.E.2d 116; Crissman v. Palmer, 225 N.C. 472, 35 S.E.2d 422.

B. F. Sprinkle was alive at the time of the execution of the deeds of May 24 and October 8, 1900. Seven of his nine children were then living. His other two children were born between that time, and the termination of Ida A. Sprinkle's precedent life estate. Since the statute codified as G.S. § 41-6 prescribes that 'a limitation by deed, will, or other writing to the heirs of a living person, shall be construed to be to the children of such person, unless a contrary intention appear by the deed or will', the deeds of May 24 and October 8, 1900, operated as a conveyance of the remainder in the land in controversy to the nine children of B. F. Sprinkle as a class. Cooley v. Lee, 170 N.C. 18, 86 S.E. 720; Condor v. Secrest, 149 N.C. 201, 62 S.E. 921. As a consequence, these nine children became entitled to the actual enjoyment of the land in question immediately after the death of Ida A. Sprinkle, the life tenant. Subsequent to that event one of them, namely, Philip E. Sprinkle, transferred his interest in the property to another, namely, Mrs. Minnie V. Pettigrew. These things being true, the presiding judge did not err in adjudging that the plaintiffs and the individual defendants own the land in dispute in fee simple and are entitled to its immediate possession. His findings of fact support and require that adjudication.

In reaching this conclusion, we necessarily reject the contentions of the appellant on this phase of the case. Two of these contentions merit some elaboration.

It is asserted that the plaintiffs and the individual defendants are the heirs at law of the life tenant, Ida A. Sprinkle, and her husband, B. F. Sprinkle, and that as such heirs at law their action for the land in controversy is barred or rebutted by the warranty in the deed from their ancestors to the...