Stocks v. Stocks

• Decision Date: 03 March 1920
• Docket Number: 186.
• Parties: STOCKS v. STOCKS.
• Court: North Carolina Supreme Court

102 S.E. 306

179 N.C. 285

STOCKS v. STOCKS.

No. 186.

Supreme Court of North Carolina

March 3, 1920

Appeal from Superior Court, Pitt County; Connor, Judge.

Action by Ada Stocks against Joseph Lee Stocks. From order overruling demurrer to the complaint, defendant appeals. Affirmed.

This action was brought to set aside a judgment entered at August term, 1914, of the superior court of Pitt county, in a case entitled "Joseph Lee Stocks v. Ada Stocks," which judgment was taken by default, and purports to vacate and set aside a certain proceeding in which dower was allotted to Ada Stocks, the plaintiff therein.

On the 21st day of January, 1887, one Jesse A. Stocks executed to Redding S. Stocks, his son, a deed for 25 acres of land in Pitt county, N. C.; the portion of said deed necessary to present the question of construction raised in this case being as follows:

"To have and to hold the same to him, the said Redding S Stocks, during his natural life, and then to his bodily heirs, if there be any at his decease, and, if there be none, then to the lawful heirs of the said Jesse A. Stocks. I, the said Jesse A. Stocks, do by these presents agree to warrant and defend the right and title of the aforesaid land to the said Redding S. Stocks and his heirs forever against the lawful claims of any person whatsoever."

Redding S. Stocks died and left him surviving one child, Jos. L Stocks, the defendant in this action, and a widow, Ada Stocks, the plaintiff herein.

Shortly after the death of Redding S. Stocks to wit, on the 4th day of July, 1907, his widow, Ada Stocks, commenced a proceeding before the clerk of the superior court of Pitt county (which is referred to in the complaint filed in this cause) in which she asked that dower be assigned to her in the lands conveyed by Jesse A. Stocks to her husband Redding S. Stocks, and covered by the deed above referred to; and in that proceeding it appears that the defendant, Joseph L. Stocks, who was at that time a minor, was regularly made a party defendant.

It further appears from the complaint that Jos. L. Stocks was represented in the dower proceeding by a guardian ad litem, and that the guardian ad litem filed an answer on behalf of the said Jos. L. Stocks, his ward, in which he admitted that Ada Stocks, widow of Redding S. Stocks, was entitled to dower in the 25 acres of land conveyed to Redding S. Stocks in the deed referred to and made a part of the complaint in this cause.

It also appears that dower was assigned to Ada Stocks, the widow, in said proceedings by commissioners appointed for that purpose, that a report was filed by them allotting the dower, which was confirmed, and no exception was taken to the report by Jos. L. Stocks through his guardian ad litem, or in any other way, and that the judgment therein still is unreversed.

Plaintiff alleges in her complaint, among other things, that after dower had been allotted to plaintiff as above set out, and after plaintiff had taken possession and the use and benefit of it, the defendant, Joseph L. Stocks, on the 7th day of August, 1914, brought an action in the superior court of Pitt county for the unlawful and wicked purpose of defrauding plaintiff of her right of dower and her dower in the land above described; that the summons purports to be returnable to the 24th day of August, 1914, but that no summons was ever served upon plaintiff in this case and the defendant in that case; that, notwithstanding the fact the summons was never served upon the plaintiff in this action, who was the defendant in that action, there was a judgment entered at August term of court purporting to deprive plaintiff of her dower in the tract of land herein described and adjudging Joseph Lee Stocks to be the owner in fee of the same and entitled to the immediate possession of the same, which judgment was recorded in the clerk's office of Pitt county.

The plaintiff further alleges that she was never served with process of any kind in the second suit, which was just described, and that she was informed that some sort of proceeding had been brought against her, when she spoke to Joseph Lee Stocks about it, and he falsely, and with intent to deceive and defraud her, stated to her that there was nothing in it, that she could not be hurt, as there was a proceeding commenced, but it had been withdrawn, but nothing had been done or nothing would be done to prejudice her right, and finally that "she need not bother herself any more about it"; that, as Joseph Lee Stocks was her son, she relied upon what he had said, as it was natural for her to do, and did not therefore give it any other thought or concern, until a few months ago, when her son, Joseph Lee Stocks, took unlawful possession of the dower land against her will, and asserted title to it under what purports to be a judgment in the proceeding, which he told her did not exist, and had actually caused it to be adjudged that her husband, Redding S. Stocks, had only a life estate in the tract of land from which her dower was set off, when in fact he had a fee simple; that in the alleged proceeding under which the defendant claimed his right to the possession of the land it was not alleged that the former proceeding for dower was fraudulent, and no ground, either legal or equitable, was stated for setting aside the judgment therein.

The plaintiff prayed that the pretended judgment in Joseph Lee Stocks v. Ada Stocks be declared void and of no effect, and that the first proceeding, allotting her dower, be declared valid and in full force, and that she have immediate possession of her dower, which she acquired by and under the same. The defendant demurred because the complaint does not state a cause of action for these reasons:

First. The deed executed by Jesse A. Stocks to Redding S. Stocks attached to the complaint herein filed, and under which the plaintiff claims dower interest, when properly construed, conveys to Redding S. Stocks, husband of plaintiff, a life estate only in said land.

Second. That, Redding S. Stocks...