Tankard v. Tankard

• Decision Date: 30 June 1878
• Court: North Carolina Supreme Court
• Parties: WILLIAM M. TANKARD v. SALLIE A. TANKARD and others.

79 N.C. 54

WILLIAM M. TANKARD

v.SALLIE A. TANKARD and others.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION to recover Land, tried at Spring Term, 1878, of BEAUFORT Superior Court, before Henry, J.

The facts stated in the opinion are deemed sufficient to present the points decided by this Court. The plaintiff moved for judgment, but His Honor held that the issues were confused and that he could not render judgment thereon, and ordered them to be reformed and granted a new trial, from which ruling the plaintiff appealed.Messrs. J. E. Shepherd and G. H. Brown, Jr., for plaintiff .

Mr. D. M. Carter, for defendants .

FAIRCLOTH, J.

His Honor ordered a new trial on the ground that the issues were confused, and he could render no judgment. From this order the plaintiff appealed, and says he is entitled to a judgment according to the verdict on the second and third issues, notwithstanding the verdict on the other issues and the facts admitted in the pleadings. Some of the issues submitted were badly constructed, and, with a single response, are without meaning. For example--“Did said O. H. P. Tankard purchase said land for benefit of said Ransom Tankard and his family, under an agreement with Ransom to that effect, and did said Ransom remain in possession under that agreement as long as he lived, or was the possession of said Ransom and his family permitted by said Oliver, as a gratuity on the part of said Oliver?” Answer--“Yes.”

But this is not the principal difficulty in the way of the plaintiff. It appears from the findings on the issues that the vendor of the plaintiff in 1849 attended the sale of his brother's land, and by his representations suppressed bidding, and by express agreement purchased the land in trust for the benefit of his brother and family, and if we understance the substance of the findings, this agreement and understanding existed between the two brothers until Ransom's death, in 1872.

The verdict on the second and third issues, on which plaintiff demands judgment, is, that the plaintiff's vendor has not been paid the purchase money and charges on the land, and that the plaintiff is a bona fide purchaser for value, and without notice of defendants' equities. The plaintiff purchased in 1869. It is admitted by plaintiff in his replication that said Ransom was in possession of the land, cultivating and otherwise using it from 1849 until his death in 1872, and that since his death the defendants have...