Taylor v. Taylor

• Decision Date: 31 October 1885
• Citation: 93 N.C. 418,53 Am.Rep. 460
• Court: North Carolina Supreme Court
• Parties: SARAH TAYLOR v. LEROY TAYLOR et als.

93 N.C. 418

53 Am.Rep. 460

SARAH TAYLOR

v.LEROY TAYLOR et als.

Supreme Court of North Carolina.

October Term, 1885.

SPECIAL PROCEEDING, heard on appeal from an order of the clerk, by Philips, Judge, at Spring Term, 1885, of the Superior Court of RUTHERFORD county.

The plaintiff alleged in her complaint that she was the widow of W. W. Taylor, who died on the 9th day of October, 1883; that she was married to the said W. W. Taylor in the year 1852, and lived and cohabited with him for sometime thereafter; that she was divorced from him a mensa et thoro, by a decree of the Superior Court of Rutherford county, at the Spring Term, 1856, of which the following is a copy, to-wit: “This cause coming on to be heard upon the petition and answer, former orders, and finding of the jury, on motion of counsel and with consent of parties, it is ordered, adjudged and decreed, that the parties be, and they are hereby, divorced from bed and board, which shall continue until a reconciliation shall take place between them; and it is further ordered, adjudged and decreed, that the plaintiff shall have power to sue and be sued as a feme sole, and that she may, and is hereby invested with power to acquire, retain and dispose of property in her own name, by purchase, gift, devise or descent, free and discharged from every and all liability whatever; and it is further ordered, adjudged and decreed, that the defendant pay his costs incurred in this Court in defence of this suit, to be taxed by the clerk, and that he pay the further sum of two hundred dollars to the plaintiff as alimony, in consideration of which he is hereby discharged and acquitted from all liability to maintain, support and provide for the plaintiff in future.”

That the said W. W. Taylor, at the time of his death, was seized and possessed of two tracts of land lying in the county of Rutherford, containing about four hundred and twenty-two acres; that he made a last will and testament which was duly admitted to probate, in which he devised the said land to the defendant Leroy Taylor, and from which she entered her dissent.

The defendants demurred to the complaint of the plaintiff, and alleged as ground therefor, “that the complaint does not state facts sufficient to constitute a cause of action, in this: that according to plaintiff's own showing, on the face of the complaint, the defendants' testator, W. W. Taylor, was by decree of the Court, and with the consent of the plaintiff, discharged and acquitted from all liability to maintain, support, and provide for plaintiff in future.”

The demurrer was overruled by the Clerk. The defendants O. P. Taylor and Leroy Taylor moved through their counsel for leave to answer. The motion was refused by the Clerk, and judgment given that a writ of dower be issued, from which the said defendants Leroy and O. P. Taylor appeal to the Judge of the Superior Court, and his Honor adjudged that the judgment of the Clerk of the Superior Court, in overruling the demurrer, be sustained. From which judgment the said defendants appealed to this Court.

Mr. J. A. Forney, for the plaintiff .

No counsel for the defendants.

ASHE, J., (after stating the facts).

The Judge, on the appeal from the Clerk, sustained his judgment in overruling the demurrer, but omitted to adjudicate upon the question whether the defendants, upon overruling the demurrer, had the right to answer the complaint, so that the only question presented by the record upon the appeal from the judgment of his Honor is, was there error in his judgment in sustaining the judgment of the Clerk?

The defendants' counsel contended that by the decree of divorce, a sum in gross was awarded the plaintiff, which was paid by...