Turlington v. Neighbors

• Decision Date: 17 March 1943
• Docket Number: 235.
• Citation: 24 S.E.2d 648,222 N.C. 694
• Parties: TURLINGTON et al. v. NEIGHBORS et al. SAME v. TURLINGTON et al.
• Court: North Carolina Supreme Court

24 S.E.2d 648

222 N.C. 694

TURLINGTON et al. v. NEIGHBORS et al.

SAME v. TURLINGTON et al.

No. 235.

Supreme Court of North Carolina

March 17, 1943

Civil actions to set aside, cancel of record and declare void two deeds of gift executed by Virginia A. Turlington.

Sidney Turlington is the grantee in one of the deeds in controversy and Pearl Neighbors is grantee in the other. Both deeds are dated January 8th, 1926, were acknowledged February 13th, 1926, and filed for registration February 13th, 1928. The grantor reserved a life estate in both deeds.

Pearl Neighbors died December 16th, 1928, leaving one son, the defendant Ray Neighbors.

Virginia A. Turlington died February 12th, 1942, leaving as her sole heirs at law the following children: Paul E. Turlington Silas E. Turlington, Fred A. Turlington, Sidney Turlington and one grandchild, Ray Neighbors.

By consent of all parties the cases were consolidated for trial. Trial by jury was waived, and it was agreed that his Honor might hear the evidence, find the facts and render such judgment as in his opinion was proper.

After hearing the evidence, his Honor found as a fact, that while both deeds bear the date of January 8th, 1926, that they were not delivered to the grantees until the day they were acknowledged, towit, February 13th, 1926, before Jesse B Lee, Notary Public of Harnett County; and, as the record shows, both deeds were filed and recorded on February 13th 1928, the deeds were recorded within two years from the making thereof, as required by C.S. § 3315, and are therefore, valid.

Judgment was entered accordingly. Plaintiffs appealed to the Supreme Court, assigning error.

Neill McK. Salmon, of Lillington, and J.R. Young, of Dunn, for plaintiffs.

Dupree & Strickland, of Angier, and I.R. Williams, of Dunn, for Ernest Neighbors and Myrtle L. Turlington, defendants.

L.M. Chaffin, of Lillington, for Ray Neighbors, defendant.

DENNY Justice.

The first assignment of error is to findings of fact numbered two and five. These findings of fact are to the effect that Virginia A. Turlington, owner of the lands in controversy, acknowledged the deeds in question February 13th, 1926, before Jesse B. Lee, Notary Public for Harnett County, and delivered said deeds to the grantees therein named, on the same day they were acknowledged.

The second assignment of error challenges the competency of the evidence of Ernest Neighbors, father of the defendant, Ray Neighbors, on the ground that his testimony is inadmissible by reason of the provisions of C.S. § 1795. Unquestionably the first assignment of error cannot be sustained if the testimony of this witness is competent. The witness testified substantially, as follows: That his first wife, Pearl Neighbors, died December 16th, 1928. She was the daughter of Virginia A. Turlington, who died February 12th, 1942. Sheriff Byrd came to his house on the 12th or 13th day of February, 1926, and inquired if Mrs. Virginia A. Turlington was there. She was there and he heard Sheriff Byrd tell her he had the deeds ready for her, and that she had to take them before a Notary Public and have them signed. Sheriff Byrd delivered the deeds to Mrs. Turlington. Mrs. Turlington and his wife Pearl Neighbors took the deeds to Dunn that day to have them signed. When Mrs. Turlington returned she said she had signed the deeds and gave them to Pearl and she read them in his presence and in the presence of Mrs. Turlington. About a year later Mrs. Turlington came back and asked if the deeds had been recorded, and, upon finding they had not, said "She had better have Stewart Turlington take them to Lillington and have them recorded." The witness testified he had been blind for 27 years.

There is nothing in the testimony of this witness relative to the execution of the deeds in question that discloses a personal transaction or communication between the witness and the deceased, if we should concede him to be an interested party. Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475; and the cases there cited. But, the witness has no interest or title in the property conveyed to bring his testimony within the prohibitions of C.S. § 1795. His wife died prior to the termination of the life estate, and his son, Ray Neighbors, is the sole owner of the property and the witness has no curtesy in the land conveyed. In re Dixon, 156 N.C. 26, 72 S.E. 71. The evidence was properly admitted and neither of these exceptions and assignments of error can be sustained.

The third assignment of error is to the refusal of the Court to permit Sidney Turlington, the grantee in one of the deeds, to testify as to when the deeds were made. We think his evidence on this question clearly inadmissible. Suppose his Honor had found upon his evidence that the deeds in question had been signed, sealed and delivered more than two years prior to their registration, as required by the statute; then the testifying witness would inherit a one-fifth undivided interest in the lands conveyed to Pearl Neighbors. The objection was properly sustained. C.S.1795; Allen v Allen, 213 N.C. 264, 195 S.E. 801; Honeycutt v. Burleson, 198 N.C. 37, 150 S.E. 634. However, if the evidence had been competent, plaintiffs could not complain for the witness was afterwards permitted to testify without objection that the deeds...