Williams v. Herring
| Decision Date | 23 August 1972 |
| Docket Number | No. 724SC370,724SC370 |
| Citation | 190 S.E.2d 696,15 N.C.App. 642 |
| Court | North Carolina Court of Appeals |
| Parties | Katie H. WILLIAMS v. Oliver HERRING, Individually and As Co-Executor of the Estate of Sara E.Herring, Deceased, et al. |
Kornegay & Bruce, by George R. Kornegay, Jr., Mount Olive, for petitioner-appellee, Katie H. Williams.
Chambliss, Paderick & Warrick by Benjamin R. Warrick, Clinton, for respondent-appellee, Bobby Herring.
Vance B. Gavin, Kenansville, for respondent-appellee, Oliver Herring.
Rivers D. Johnson, Jr., Warsaw, for respondent-appellants, Retha Mae Smith, Clara Pearl Lynn, and Velma Wray Howard.
Turner & Harrison, by Fred W. Harrison, Kinston, for respondent-appellants, the Miller children.
Appellants argue that five of grantor's six living children failed to sign the deed. The record on appeal is conflicting on this point. The copy of subject deed as recorded by the Register of Deeds which is incorporated as an exhibit in the record on appeal fails to reflect a signature for five of the living children of Sarah E. (B) Herring. However, the notary certificate recites that five of the six children appeared on 3 January 1968 and acknowledged the due execution of the deed. The only one of the six children of Sarah E. (B) Herring who failed to acknowledge execution (and whose signature is not reflected on the exhibit) is Oliver Herring.
There is no pleading stipulation, or other explanation of the conflict in the record before us.
Appellants argue that all of the twelve Miller children, with the exception of one, accepted by signing the deed. However, we note from the exhibit in the record on appeal that five of the Miller children's signatures are not reflected, and there is no acknowledgment for these five.
Even if the record bore out appellants' assertion that only one of the six children of Sarah E. (B) Herring signed the deed, and that all but one of the twelve Miller children did sign the deed, appellants' argument blows hot and cold. We understand appellants' argument to be as follows: (1) Because of the failure of five of the six children of Sarah E. (B) Herring to sign the deed, his or her stated interest was not conveyed by Sarah E. (B) Herring; but, (2) even though one of the twelve Miller children failed to sign the deed, this one's stated interest was nevertheless conveyed.
Another point of interest which is not explained by the pleadings, stipulations, or argument relates to the dates of acknowledgments of signatures before notaries public. The dates of the acknowledgments are 18 December 1968, 30 December 1968, 3 January 1968 (sic), and 1 February 1969. The deed was then filed for recording on 3 February 1969. There is no explanation as to by whom or why the deed was filed for recording so immediately after the 1 February 1969 acknowledgment, when signatures were still missing. Did someone cut off the opportunity for the remainder of the grantees to sign the deed?
It appears to us that some of the appellants, namely Retha Mae Smith, Clara Pearl Lynn, and Wray Herring Howard, three of the six children of Sarah E. (B) Herring, are arguing that they are entitled to a judgment which is less favorable to them than the one which was entered. They do not allege, argue, or contend that they wish to refuse or reject benefits which the deed might have granted to them. 23 Am.Jur.2d, Deeds, § 127, p. 176. Quaere, are they aggrieved parties who are entitled to appeal?
One further observation and we will proceed to a determination of the merits of the...
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