Wessell v. Rathjohn

Decision Date31 October 1883
Citation89 N.C. 377,45 Am.Rep. 696
CourtNorth Carolina Supreme Court
PartiesCHARLES H. WESSELL and wife v. MARTIN RATHJOHN and wife.

SPECIAL PROCEEDING commenced in the probate court and tried at Fall Term, 1882, of NEW HANOVER Superior Court, before MacRae, J.

This proceeding was instituted by the plaintiffs to obtain partition of certain lots in the city of Wilmington, of which John H. Heins is alleged to have died seized and possessed, and the feme plaintiff Anna S. Wessell and the feme defendant Margaret E. Rathjohn are his only children and heirs-at-law, and are jointly seized of the descended property.

In answer to the plaintiffs' petition, it is alleged that the feme defendant is the sole owner of the property under a deed from her father, and in reply the plaintiffs say that said deed is not the act and deed of John H. Heins, for the reason that at the time of its execution he was not of sound and disposing mind, and that the making of the same was procured by undue influence exerted by the feme defendant, and the plaintiffs therefore ask for a decree of cancellation and that the land be divided.

Thereupon the following issues were framed and submitted to the jury:

1. Was John H. Heins of such unsound mind, at the time of the execution of the deed, as to render him incapable of executing a deed? Answer, No.

2. Did the feme defendant Margaret procure its execution by exerting an undue influence over her father, the said John H. Heins? Answer, No.

The plaintiffs and defendants introduced a number of witnesses: the testimony of the former tended to support the allegation of a want of soundness of mind of the grantor, caused by protracted ill health; and that of the latter, to support the contrary.

The plaintiffs requested the court to charge the jury, “that in order to enable a man to make a deed of his property so as to pass the title, he must have sufficient mental capacity to understand the nature of the act in which he is engaged, in its full extent and effect, and this capacity must exist at the time of the act performed; if it does not then exist, the act would not be valid, although the party might thereafter recover such capacity.” This was given, and His Honor added, “unless he acquiesced in it or ratified it afterwards,” to which addition the plaintiffs excepted. The substance of other instructions of the plaintiffs which were refused by the court below, is stated in the opinion of this court.

Under the charge of the judge, the jury responded to the issues as indicated above, and the plaintiffs appealed from the judgment rendered.

Messrs. MacRae & Strange, for plaintiffs .

Messrs. E. S. Martin and Junius Davis, for defendants .


1. The appellants insist in this court that this is a case exclusively within the equitable jurisdiction of the superior court, and, therefore, that court ought to have proceeded to hear and determine it as a case in equity; and they suggest that it be remanded with instructions to that court to so treat it.

We are not prepared to admit that this is a case exclusively equitable in its nature; but if it were, it appears that the appellants consented, first in the court of probate and afterwards in the superior court, to have the issues of fact arising in their action tried by a jury in the ordinary method of procedure. Equitable rights may be settled and administered, and actions purely equitable in their nature may be tried under this method, and when the parties choose at first to proceed in that way, they cannot afterwards, certainly not without the common consent of all the parties and the assent of the court, change the method of procedure to that of the court of equity, as established in this state before the present method of code-procedure was established, or some other like it. Indeed, the legislature has not provided for any exclusive equitable jurisdiction under the present constitution of the state. To what extent and how this court, or the superior court, has power to ascertain and prescribe such a jurisdiction in pursuance of article four, section eight, of the constitution, has not been settled; and we do not deem it proper or expedient to undertake, in the absence of any legislation on the subject, to indicate a method of procedure in equity, until a case shall arise requiring us to do so. When such a case presents itself, we will feel called upon to decide a grave constitutional question, perhaps more than one, not at all free from embarrassment.

We have said as much in Leggett v. Leggett, 88 N. C., 108, and we have no disposition to modify what was there said.

This court cannot examine and consider the evidence submitted upon issues before a jury, for the purpose of setting aside or modifying their verdict, if in any case, certainly not when and after litigants have consented to a trial by jury in the ordinary way. It does not comport with the propriety, fairness and integrity of judicial proceedings to allow litigants to test their fortune in one competent jurisdiction, under one method of procedure, and failing in that, to try another method before the same tribunal. Leggett v. Leggett, supra; Shields v. Whitaker, 82 N. C., 516.

2. As to the first exception specified in the record, the court gave the special instruction prayed for by the appellants, and added, “unless he acquiesced in it, or ratified it afterwards.”

This addition was proper and just, if not really necessary, because there was evidence tending to prove that after the deed was executed, the maker thereof repeatedly knew of, recognized and acquiesced in and was satisfied with the deed. The court is not bound in all cases to give the instruction as prayed for; indeed, it ought not to be so, when facts are in evidence bearing upon the instruction given, which the jury ought to consider in connection with it. To give the...

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  • Mann v. Prouty
    • United States
    • North Dakota Supreme Court
    • 19 Julio 1917
    ... ... Justice, N.J.Eq. , 18 A. 674; Re Flagg, ... 27 Misc. 401, 59 N.Y.S. 167; Toms v. Greenwood, 30 ... N.Y.S. R. 478, 9 N.Y.S. 666; Wessell v. Lathjohn, 89 ... N.C. 377, 45 Am. Rep. 696; McAdams v. McAdams, 80 ... Ohio St. 232, 88 N.E. 542; Kime v. Addlesperger, 24 ... Ohio C. C ... ...
  • Jernigan v. Jernigan
    • United States
    • North Carolina Supreme Court
    • 20 Marzo 1946
    ... ... ' ... Gerringer v. Gerringer, supra [223 N.C. 818, 28 ... S.E.2d 503] ...          The law ... on the subject was announced in Wessell v. Rathjohn, ... 89 N.C. 377, 45 Am.Rep. 696, as follows: ...          'It ... may be that there are cases where a parent conveys ... ...
  • Smith v. Smith
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    • Missouri Supreme Court
    • 19 Julio 1921
    ... ... Wilkinson, 147 Ill. 370; McCord ... v. McCord, 136 Iowa 53; Cooper v. Moore, 55 ... Misc. 102; Teter v. Teter, 59 W.Va. 449; Wessell ... v. Rathjohn, 89 N.C. 377; Townson v. Moore, 173 ... U.S. 17; Prescott v. Johnson, 91 Minn. 273; ... Rader v. Rader, 108 Minn. 139; ... ...
  • In re Craven's Will
    • United States
    • North Carolina Supreme Court
    • 6 Octubre 1915
    ...are many and harmonious. Myatt v. Myatt, 149 N.C. 137, 62 S.E. 887, and cases cited; Horah v. Knox, 87 N.C. 490; Wessell v. Rathjohn, 89 N.C. 382, 45 Am. Rep. 696; Wright v. Howe, 52 N.C. 412; In re Will, 146 N.C. 273, 59 S.E. 700. In Wright v. Howe, supra, Judge Manly said, at page 413 of ......
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