Tarlton v. Griggs

• Decision Date: 05 November 1902
• Citation: 42 S.E. 591,131 N.C. 216
• Parties: TARLTON v. GRIGGS et al.
• Court: North Carolina Supreme Court

42 S.E. 591

131 N.C. 216

TARLTON v. GRIGGS et al.

Supreme Court of North Carolina

November 5, 1902

Appeal from superior court, Anson county; McNeill, Judge.

Special proceedings for dower by Sarah Jane Tarlton against Mary Ann Griggs and others. From a judgment for defendants, plaintiff appeals. Reversed.

The acknowledgment of a husband and acknowledgment and privy examination of the wife to the "due execution of the foregoing deed" raised no presumption of delivery of the deed.

Plaintiff is the widow of Willis R. Tarlton, from whose will she dissented, and filed her petition in this special proceeding praying to be endowed of the land whereof he was seised and possessed during their coverture, and alleging that her husband died seised and possessed of the land in controversy described in the petition. Defendants, who are his devisees in their answer aver that said Willis R. Tarlton duly conveyed by deed, in which plaintiff joined in relinquishment of her dower, the land of which she asks to be endowed, to the defendants J. B. Tarlton and others, and plead the said deed as an estoppel in bar of her recovery. Plaintiff replying, says that the deed so signed and acknowledged before a justice of the peace by her said husband and herself, whose privy examination was taken, was never delivered by her said husband, or any other person under his direction, to the grantees named in said deed, nor to any one for them, and that the same passed no title to the grantees, and is of no effect and void; that her said husband was at the time of signing the same, and continued so to be up to and at the time of his death, in possession of the land described therein, cultivating and paying the taxes on the same. The issue joined is, "Is plaintiff entitled to dower in the land described in the complaint?" The exceptions relied upon by plaintiff are to the refusal of the court to give, among others, the following instructions: "(5) That a deed is not considered executed, and the courts will not enforce the same, when the maker has not gone so far with its execution that he cannot recall or control it; and if the jury shall find from the evidence that the maker, W. R. Tarlton, could control and recall said deed, they will answer the issue, 'No.' (6) That a deed is only operative from the time of actual delivery; and if the jury shall find from the evidence that there was no actual delivery of said deed until after the death of the maker, W. R. Tarlton, said delivery cannot defeat the right of the widow to dower in said land, and they will answer the issue, 'No."' The evidence relating to the delivery is as follows: The deed, in due form, signed: "W. R. Tarlton. [ Seal.] S. J. Tarlton. [ [Seal.]" Then follows the acknowledgment and privy examination of plaintiff, in the statutory form, taken before Z. T. Redfearne, justice of the peace, under his seal. Z. T. Redfearne, introduced by plaintiff, testified: "Several years prior to the 26th November, 1895, Shepherd, a son-in-law of W. R. Tarlton, came to me and said that Tarlton wanted me to go over to his house and fix up some papers. I went, and drew several deeds for him, and a will. The deeds were executed by him and his wife, and the will by him. Tarlton told me to keep the deeds and will, and, if not called for during his life, to deliver them after his death. Two or three years afterwards, Shepherd came for me again. He wanted me to go again to Tarlton's to fix up some papers. I went, and Tarlton said that he had deeded some of the land, and wanted to make some changes in the papers that I had previously prepared for him. He then destroyed the first deed prepared by me under his direction. I drew a consolidated deed to all his children, except Eliza Tarlton. I then drew a deed for Eliza, conveying 50 acres of land to her; then a deed conveying ten acres to Tarlton's wife, Sarah Jane Tarlton. Tarlton signed all the deeds. Mrs. Tarlton signed the first,--the consolidated deed, dated November 26, 1895, to J. B. Tarlton and others; and, when asked to sign the deed to Eliza, she declined to do so. Then W. R. Tarlton said: 'If I cannot make deeds to all my children, I will not make deeds to any of them.' Mrs. Tarlton retired, and Mr. Tarlton told me that his wife was out of humor that day, and for me to carry them home with me, and that he thought she would consent to sign them in a few days, and, if she did consent, he would carry her over to my house to sign them. I kept the papers for several years just as they were. I thought of leaving the state, and sent word to him to know what disposition he desired me to make of his papers; and Shepherd, his son-in-law, came for them, and I let him have them. I knew nothing more of them until after Tarlton's death. At the time of drawing them, I was an acting justice of the peace." Allen Watson, introduced by the plaintiff, testified: "A bundle of papers was placed in my hands by Shepherd some time before Tarlton's death. I was requested to keep them. I did not know what the bundle contained until after Tarlton's death. I was told to keep the papers, without further directions. After Tarlton died, Mr. C. C. Griggs came to me and inquired if I had any of Tarlton's papers. I told him that I did, and gave the bundle of papers to him. Tarlton never spoke to me about the papers, and I have never received any instructions from him, one way or the other." Frank Shepherd, introduced by defendants, testified: "I was present at the time the deed dated November 26, 1895, was made. This was the deed from Willis Tarlton to J. D. Tarlton and others. Z. T. Redfearne, Mr. and Mrs. Tarlton, were the only ones present. Mr. Tarlton told Redfearne to take the papers and keep them till his death, and then to deliver them to his executor. I married the daughter of Tarlton, and she and I are parties to this action. I afterwards got the papers from Redfearne, and carried them to Watson, and he kept them until after Tarlton's death. I went after Redfearne at each of the times that he prepared papers for Tarlton. Redfearne drew no deed when he made the will. The will was drawn in 1890. He sold me a part of the land that was divided in the will. Tarlton had this joint deed drawn, dated November 26, 1895, and a deed to his daughters, and one to his wife. His wife signed the joint deed and the one to herself, but refused to sign the deed to his daughter. He never said that he did not want to make deeds to a part of his children unless he could make deeds to them all. He did not say that his wife was out of humor that day, and that she would get all right, and that he would carry her over to Redfearne's to sign the other deeds. Tarlton did not destroy any papers." C. C. Griggs, introduced by defendants, testified: "I am son-in-law of Willis R. Tarlton, deceased, and one of the defendants in this action. The deed from Willis R. Tarlton to J. B. Tarlton, dated November 26, 1895, conveys all the land that Willis R. Tarlton was possessed of at the time of his death, except about 50 acres. I got the deed from Allen Watson on Saturday after Tarlton's death, which was on Thursday before. The grantees have been in possession of the land since Tarlton's death. I went to Watson and asked him if he had Tarlton's papers, and he gave me a bundle of papers. This deed was found in the bundle. I didn't know that Tarlton had this deed, and didn't know at that time that it was in this bundle of papers. I do not know that Watson was the agent of Tarlton, or that he held the papers in the capacity of his agent. I brought the deeds to the courthouse and had them recorded. and have had them in my possession since." Verdict and judgment for defendants, and plaintiff appealed.

Robinson & Caudle, for appellant.

Jas. A. Lockhart, for appellees.

COOK J. (after stating the case).

Plaintiff was clearly entitled to have the instructions prayed for given to the jury. We...