Strickland v. Shearon

• Decision Date: 07 April 1926
• Docket Number: (No. 249.)
• Citation: 132 S.E. 462
• Parties: STRICKLAND et al. v. SHEARON et al.
• Court: North Carolina Supreme Court

132 S.E. 462

STRICKLAND et al.

v.SHEARON et al.

(No. 249.)

Supreme Court of North Carolina.

April 7, 1926.

(191 N.C.)

Appeal from Superior Court, Franklin County; Midyette, Judge.

Suit by Sallie S. Strickland, in her own right and as guardian for her minor children, against R. N. Shearon and others. Judgment for plaintiffs, and defendants Fuller and Alford appeal. Reversed.

A. P. Strickland died on July 15, 1920, seized in fee and in the possession of a tract of land, situate in Franklin county, containing 127 acres more or less He left surviving plaintiff Sallie S. Strickland, his widow, and her coplaintiffs, his heirs at law, each of whom is a minor. Sallie S. Strickland has been duly appointed and has duly qualified as guardian of said minors.

On March 17, 1924, plaintiffs herein commenced a special proceeding ex parte, before the clerk of the superior court of Franklin county, by filing a verified petition, in which they alleged that they were the owners of a certain tract of land in said county containing 135 acres, more or less, being the tract of land conveyed to A. P. Strickland by S. W. Fuller and wife by deed dated August 20, 1906, duly recorded in Book 158, at page 48, Public Registry of Franklin County, less 7⁷/₈ acres subsequently conveyed by A. P. Strickland and wife to Henry Crudup; that upon the said tract of land is situate certain timber, to wit:

"All the pine and poplar timber situate upon the above described tract, situate, lying and being east of the branch known as the Fish Pond Branch, also all the pine and poplar timber situate upon said tract lying north of a hedge-row running from the aforesaid Fish Pond Branch in a southwesterly direction to the Louisburg and Tarboro road, which according to the best information of your petitioners has reached its maturity and at present is in its best salable condition."

It is further alleged in said petition that the petitioners have been offered "for all of the above described pine and poplar timber measuring 8 inches or over at the stump, when cut 8 inches above the ground, by Messrs. B. S. Alford and W. H. Fuller, the sum of $850 cash, the said timber to be cut and removed within two years from the date of the delivery of deed" therefor. The petitioners pray that an order be made by the court authorizing and directing the sale of said timber to said B. S Alford and W. H. Puller in accordance with their offer, and that a commissioner be appointed to convey said timber to the purchasers upon their compliance with their offer.

An affidavit, signed by three residents and freeholders of Franklin county, was filed with said petition, in which each stated that he was familiar with the timber on the lands described in the petition, and was of opinion that $S50 was a full and fair price for the same, and that a sale of the said timber at said price would best serve the interests of the infant petitioners.

On March 20, 1924, an order was made by the clerk of the superior court of Franklin county, in which it is recited that the court finds as a fact that a sale of the timber described in the petition will best serve the interests of all the petitioners, and that $850, offered for same, is a full and fair price for the said timber. E. H. Malone was appointed commissioner for the purpose of conveying said timber; he was authorized, empowered, and directed to execute and deliver to the said B. S. Alford and W. H. Fuller, upon their compliance with the terms of their offer, a deed conveying to them all the standing pine and poplar timber described in said petition. The order and judgment of the clerk was examined and approved by Hon. Henry A. Grady, judge of superior court, holding the courts of the Seventh judicial district, on March 22, 1924.

Thereafter, on March 26, 1924, E., H. Malone, commissioner, pursuant to the judgment therein, in consideration of the payment to him of the sum of $850, conveyed by deed to B. S, Alford and W. H. Fuller "all the standing pine and poplar timber measuring 8 inches or over in diameter, at the stump 8 inches from the ground, when cut, lying and being east of the Fish Pond Branch, and all of the standing pine and poplar timber of the above mentioned size and dimensions lying and being north of a hedgerow running from the aforesaid Fish Pond Branch in a southwesterly direction to the Louisburg-Tarboro road, being that certain parcel of land in Franklin county, North Carolina, owned by A. P. Strickland at the time of his death, containing about 135 acres." Subsequently, defendants B. S. Alford and W. H. Fuller conveyed the said timber by deed to their codefehdant, R. N. Shearon, who was cutting and removing the same at the date of the commencement of this action on January 24, 1925.

Plaintiffs allege in their complaint herein that at the date of the filing of their petition for the sale of the timber described therein there were situate upon said land "two blocks or parcels of timber that had attained its full growth; one of said blocks consisted of about 15 acres and growing within the pasture, and the other block consisting of 3 Or 4 acres, and lying outside the pasture; besides this old and fully grown timber, there is upon said tract of land 35 or 40 acres of thrifty, growing pines, with a few poplars, not yet of a size suitable for sawmill purposes, but which promises to grow into timber of much value. This young growth lieswholly outside of the pasture and on the east end of the plantation."

Plaintiffs allege that defendants Alford and Fuller offered for the timber on said two blocks the sum of $850 in cash, and that plaintiff Sallie S. Strickland, acting in her own right as widow, and as guardian, agreed to report said offer to the court, and to ask for an order for the sale of said timber to said defendants for said sum. It is alleged that in the negotiations for the purchase of said timber "there was a perfect understanding and agreement between her (the said Sallie S. Strickland) and the defendants Fuller and Alford that she was selling and they were buying only the two blocks of old timber which was fully grown; that the language used in the petition and in the commissioner's deed did not and does not express the real contract and intention of the parties, but was inserted in said petition and deed by the mutual mistake of the parties, or by the mistake of the draftsman."

Plaintiffs pray that the petition and order of sale in the special proceedings and the deed of the commissioner be reformed to the end that the timber authorized to be sold in the order pursuant to the petition and conveyed by the deed shall be described and designated therein as the old timber on the two blocks, in accordance with the true intention of the parties. Defendants deny in their answer the allegations as to mutual mistake or mistake of the draftsman; they allege that the timber described in the petition, order, and deed is the identical timber for which they offered to pay and did pay the sum of $850.

Issues submitted to the jury were answered as follows:

"(1) Was the true agreement between Mrs. Sallie S. Strickland and the defendants, Alford and Fuller, that there was being sold only the timbers within the pasture and four or five acres of old timber outside and adjoining the timber within the pasture? Answer: Yes.

"(2) Was there by mutual mistake of the parties, or the mistake of the draftsman included in the petition, order, and commissioner's deed other timbers not intended to be sold or to be included in said petition, order, or deed? Answer: Yes."

From judgment upon this verdict, defendants Alford and Fuller appealed.

Wm. H. Ruffin and W. M. Person, both of Louisburg, for appellants.

Ben T. Holden, W. H. Yarborough, Jr., and E. F. Griffin, all of Louisburg, for appellees.

CONNOR, J. We need not consider or pass upon defendants' first assignment of error based upon their exception to the refusal of the court to submit the issues tendered by them and also to the issues as submitted to the jury. Nor is it necessary to consider or pass upon the numerous exceptions to the overruling of defendants' objections to the admission of testimony. The assignment of error, upon which defendants chiefly rely upon their appeal from...