Wetherington v. Williams

• Decision Date: 01 March 1904
• Parties: WETHERINGTON et al. v. WILLIAMS et al.
• Court: North Carolina Supreme Court

46 S.E. 728

134 N.C. 276

WETHERINGTON et al. v. WILLIAMS et al.

Supreme Court of North Carolina

March 1, 1904

Appeal from Superior Court, Craven County; Moore, Judge.

Action by M. C. Wetherington and others against Mary Williams and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. D McIver, for appellants.

D. L Ward, for appellees.

WALKER J.

This is an action by the plaintiffs to recover their interest as tenants in common with the feme defendants in a tract of land which was formerly owned by Lewis Wetherington. The latter was married twice. The plaintiffs M. C. and G. L Wetherington are children of the first marriage, and the plaintiff Stephen Oliver, who has died since the action was commenced, without issue, was a grandchild. The feme defendants Cornie Wetherington and Mary Williams are children of the second marriage, and the plaintiff Hyman Stubbs is a grandchild, he being the child of Leah Wetherington, who intermarried with Levi Stubbs. The plaintiffs allege that M C. and G. L. Wetherington and Hyman Stubbs and the feme defendants are tenants in common of the tract of land described in the complaint in equal shares, and that the defendants are in possession of the land, claiming title to the whole thereof. These allegations are denied by the defendants in their answer. There was no evidence introduced by the plaintiffs to show that the defendants were in possession of the land at the time the action was brought. On the contrary, their own witness Gaston Wetherington testified that Mary Wetherington, the widow of Lewis Wetherington, was in possession. Before a tenant in common can bring an action against his co-tenant to recover his share in the land, he must allege and prove that he has been ousted by the latter. If the co-tenant is shown to be in possession of the land and in his answer denies the plaintiff's title, he thereby admits an ouster; at least for the purpose of the action. Halford v. Tetherow, 47 N.C. 393; Day v. Howard, 73 N.C. 1; Withrow v. Biggerstaff, 82 N.C. 82. The plaintiffs brought this suit, not only for the purpose of establishing their title to the shares in the land which they allege are owned by them, but also for the purpose of being let into possession with the defendants. This relief cannot, of course, be granted, unless the defendants are in the possession, and certainly not when a third person, who is not a party to the action, is shown to be in possession of the land. But perhaps the case as it was tried below comes within the provisions of chapter 6, p. 37, of the Acts of 1893, which is entitled "An act to determine conflicting claims to real property," and we may therefore consider the case so far as it is necessary to decide whether the plaintiffs have any interest in the land, or whether by any erroneous ruling of the court they have been prevented from showing that they have an interest. The court submitted to the jury the following issue: "Are the plaintiffs and defendants tenants in common of the lands described in the complaint, as alleged in said complaint?" The plaintiffs alleged that Lewis Wetherington died seised and possessed of the land in dispute, and that it descended to his children, who are his heirs, as tenants in common. The defendants introduced in evidence a deed from Lewis Wetherington and wife, Mary Wetherington, to the defendants Cornie Wetherington and Mary Williams. The execution of this deed was acknowledged by the wife, Mary Wetherington, on January 29, 1898, which was after the death of her husband, and was proven as to Lewis Wetherington by G. S. Wilcox, the subscribing witness, on October 11, 1902, and was registered on that day. The said G. S. Wilcox, who was a witness of the plaintiffs, testified that he wrote the deed, and his recollection was that the names of the three daughters of Lewis Wetherington by his second marriage, namely, Mary, Leah, and Cornie, were in it; that the deed was signed by Lewis Wetherington, and then witnessed by him, and returned to Lewis Wetherington, or to his wife, or to some member of his family, but that he did not remember who took it from his hands, or who kept it. He did not see the deed again until after the death of Lewis Wetherington, when it was handed to him by some member of the family to be registered. The name of Leah had been erased. He proved the execution of the deed as subscribing witness before the clerk of the court, and it was registered. The name of Leah Wetherington, afterwards Leah Stubbs, was not in the deed when he proved it. The certificate of probate annexed to the deed shows that the execution of the deed was proven before the clerk by the oath and examination of G. S. Wilcox, the subscribing witness thereto. The defendants introduced as a witness Mary Wetherington, the widow of Lewis Wetherington, who testified that her husband, who had the deed in his possession, handed it to his daughter, Mary Wetherington, now Mary Williams, one of the defendants, and "told her to take Leah's name off, and she did so. He said Stubbs was a dissipated man, and he did not wish him to handle anything he had. Leah was dead at that time. After he had Leah's name erased, he gave the deed to Mary, and told her to have it registered." The plaintiff objected to this evidence upon the ground that Mary Wetherington was not a competent witness, under section 590 of the Code, to testify concerning the matters stated by her. The witness is not a party to the action, and we do not see how she is interested in its event. If the deed is effectual as to her, she has conveyed away all of her interest; that is, her dower or right of dower. If it is not valid as to her, she is entitled to dower in the land, but this will be in no way affected by the result of this suit. If the defendants recover, they will become the sole owners in fee of the land,...