Whitehurst v. Hinton
| Decision Date | 02 March 1949 |
| Docket Number | 21 |
| Parties | WHITEHURST et al. v. HINTON et al. |
| Court | North Carolina Supreme Court |
Civil action to restrain defendants from committing waste, cutting timber, and to recover for waste committed by them on that certain tract of land in Newland Township Pasquotank County, North Carolina, known as the John Louis Hinton homeplace.
Plaintiffs allege in their complaint in brief these facts:
That they, owning not less than an undivided one-sixth interest and defendants, with others, are the owners in fee as tenants in common of said tract of land, which together with other lands, is embraced within and is a part of the subject matter of that certain action or proceeding for partition and other relief, heretofore instituted by plaintiffs herein against defendants herein and others, and still at issue upon the docket of the court; that defendants, either in person or through their agents, servants and employees, have wrongfully and unlawfully committed waste, etc.; and that defendants are threatening to continue said waste, and if not restrained plaintiffs will be irreparably damaged.
Defendants answering, deny title of plaintiffs and plead sole seizen. They admit, however, the pendency of a special proceeding instituted 4 February, 1922, entitled 'Mrs. A. V. Whitehurst, and others, vs. R. L. Hinton, and others' to which defendants here as widow and minor children of C. L. Hinton, deceased, were named among others as defendants there, but they aver that said minors were not properly and legally parties to said proceeding. And they further admit that they have cut and removed timber from said lands, for which they stand ready to account if the court shall hold they are accountable therefor, etc.
And defendants, for further answer and defense, pleaded the three-year statute of limitation as to timber cut more than three years prior to institution of the action, and twenty years adverse possession, under known and visible lines and boundaries, and seven years adverse possession under color of title, in bar of this action and of any recovery by the plaintiffs herein, etc.
Plaintiff replying, allege that their ownership of an undivided interest in said land and premises is res judicata by virtue of the judgment rendered by Honorable W. A. Devin, Judge Presiding at June Term 1934 of Pasquotank Superior Court, and of the opinion of the Supreme Court in Whitehurst v. R. L. Hinton, reported in 209 N.C. 392, 184 S.E. 66, the judgment roll in the case, including Supreme Court opinion, being by reference made a part thereof, and plead in bar of and as res judicata of any and all affirmative allegation in defendants' answer to the effect that they are the sole owners of the land and premises described in the complaint herein, or that they or some of them were not and are not properly before the court in the aforesaid former suit or action, etc.
Thereafter the parties waived a jury trial and agreed to submit the cause to the resident and presiding judge of the First Judicial District, upon case agreed, for his consideration and determination of the controversy, either in or out of the county and in or out of term and render a judgment as to him may seem proper, to which either or both parties may except and appeal to the Supreme Court as they may be advised.
Former decisions of this Court relating to matters pertinent to this appeal are these: In re Will of Hinton, 180 N.C. 206, 104 S.E. 341; Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66; and Whitehurst v. Hinton, 222 N.C. 85, 21 S.E.2d 874. The records and opinions in these cases are referred to in statement of agreed facts, upon which the judgment below is predicated.
These, and the statement of agreed case, briefly stated, present these pertinent facts:
1. John L. Hinton, at the time of his death in January 1910, was seized in fee of the land the subject of this action.
2. That on 1 June, 1910, Mary L. Hinton, daughter of John L. Hinton, and one of the devisees named in a paper writing proponded as his will, together with the other persons therein named as such devisees, other than C. L. Hinton, executed and delivered to C. L. Hinton a deed for 'their entire rights and interests heired from their father John L. Hinton' in certain lands, including the John Louis Hinton homeplace.
3. Thereafter the paper writing, probated in common form and recorded as the last will and testament of John L. Hinton, deceased, upon caveat filed, was set aside, See In Re Will of Hinton, supra.
4. Plaintiffs in the present action, children and heirs at law of John C. Hinton, son of John L. Hinton, who predeceased his father, were the feme caveators filing the caveat aforesaid, and C. L. Hinton, son of John L. Hinton, and one of executors named in the purported will, and father and husband of defendants in the present action, was a party to, and died pending the said caveat proceeding.
5. On 4 February, 1922, after the purported will of John L. Hinton was set aside, the plaintiffs in the present action, joined by their respective spouses, instituted a proceeding in Pasquotank County for the partition of all the lands of which John L. Hinton died seized, including the John Louis Hinton homeplace, and for accountings for rents and profits. The record of this proceeding shows: (a) Among the defendants named in the title of the action or proceedings were 'Mrs. Ruth Morgan Hinton and Sophia, Charles L. and John L. Hinton, minors, and Mrs. Ruth Morgan Hinton, guardian ad litem of Sophia,Charles L. and John L. Hinton, minors.'
(b) The pertinent portion of the return of the sheriff as to service of summons that it was 'Served Feb. 6, 1922 by reading to and leaving a copy with * * * Mrs. Ruth Morgan Hinton, Charles L. Hinton, Sophia Hinton, John L. Hinton, Mrs. Ruth Morgan Hinton, guardian ad litem of her children.'
(c) The appointment of Mrs. Ruth Morgan Hinton as guardian ad litem of her infant children, Sophia, Charles L. and John L. Hinton; and
(d) Answers and demurrers filed by defendants.
The action was referred. The report of the referee is set out in full in Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66, 69, supra. Among the findings of fact of the referee is this:
'(9) The plaintiffs and the defendants, who are the only heirs at law of John L. Hinton, deceased, living at the date of the commencement of this action, are as tenants in common seized in fee, and in the possession of all the lands owned by John L. Hinton at the date of his death' (exception not pertinent here).
And in his conclusions of law the referee declared the interests owned by the plaintiffs therein and by Ruth Morgan Hinton (now Alley), and her said minor children--defendants herein.
The record on appeal in the proceeding shows Mrs. Ruth Morgan Alley filed exceptions to the report of the referee, among which is exception 'to so much * * * as finds that this defendant and her children, Sophia, Charles L. and John L. Hinton, were parties to the caveat proceeding or have been made, or have become parties in this action or proceeding and that pleadings were filed herein on behalf of all defendants and that the heirs at law of C. L. Hinton are properly before the court in this proceeding,' for that 'said findings are not supported by any competent or proper evidence, are contrary to the evidence, and are erroneous.'
When the cause came on for hearing before judge holding the June Term 1934 of Pasquotank County Superior Court, on exceptions to report of referee, the Judge, W. A. Devin, entered judgment which is shown in full in the report of Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66 supra. This judgment has these pertinent findings and rulings: ...
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