Wood v. Wilder

Decision Date03 March 1943
Docket Number93.
PartiesWOOD et al. v. WILDER et al.
CourtNorth Carolina Supreme Court

The plaintiffs described their suit as an action to remove a cloud from their title, but it may be construed and treated as an action in ejectment. It is here upon appeal from a successful demurrer to the complaint made ore tenus as not stating a cause of action.

Substantially the complaint sets up the following facts, in which is incorporated a history of the plaintiffs' alleged title:

John R Hemphill died intestate June 15, 1889, the owner in fee of a tract of land containing one hundred and twenty-five acres situated in Buncombe County. He left surviving him, as his heirs at law, five children: John R. Hemphill, T.C. Hemphill Catherine E. Wood, Mary C. Ballard and Othena Herron. It is alleged that Othena Herron, because of previous advancements received by her by conveyance of other lands, laid no claim to any part of the one hundred and twenty-five acre tract and was, therefore, not considered in the partition of the land subsequently made. The amended pleadings, however, set up as an independent allegation that Othena Herron is, by reason of the said advancement, not entitled to any portion of the lands in controversy.

The other four children held the lands as tenants in common until October 3, 1901, when they agreed to partition the lands and thereafter hold their shares in severalty. In pursuance of this agreement they divided the lands into four parts, agreed upon the allotments, and consummated the partition by deeds. The precise mode adopted was peculiar; each of the four received a deed to his or her share, executed by the other three. It is stated in the complaint that the forms of the deeds are similar. When, however, they came to the share of Mary C. Ballard, the lands here in controversy, the other three heirs and cotenants named executed and delivered a deed thereto to the said Mary C. Ballard and her husband, R.S. Ballard, in the form of a conveyance in fee, with covenants and warranties of title and citing a consideration of $200. The plaintiffs allege that R.S. Ballard was made one of the grantees through error.

Mrs. Ballard died January 28, 1930, intestate and leaving no children; none were born of the marriage with R.S. Ballard. It is stated in plaintiffs' pleadings that after the death of his wife, R.S. Ballard attempted to convey the lands to his nephew, W.D. Wilder, without consideration.

While the parties were impleading each other and after answer had been made to the complaint, the defendants made a motion to render judgment against the plaintiffs Catherine E. Wood and John R. Hemphill on the grounds of alleged "admissions and allegations not denied" which would estop the plaintiffs by their record from maintaining this cause. It is not stated in this motion what these admissions and allegations are. The motion was denied, and thereafter the plaintiffs were permitted by order of court to file an amended complaint, in which substantially the foregoing allegations were reiterated and additional matter was inserted intending to exclude any rights which Othena Herron might have had and pleading advancements made to her.

Thereupon, the defendants demurred ore tenus for that the complaint failed to state a cause of action, and the demurrer was sustained. From this order plaintiffs appealed, assigning error.

T.B. Galloway, of Asheville, for plaintiffs-appellants.

E.L. Loftin, of Asheville, for defendants-appellees.

SEAWELL Justice.

The allegations of the complaint do not permit us--at least for the purpose of this review--to regard the deed made to Mary Ballard and her husband as a separate, detached transaction, and to draw certain inferences from its form which, without attending circumstances, might defeat the action and sustain the demurrer. The plaintiffs allege that at the time this deed was made there were other deeds of similar purport and purpose executed and exchanged between the parties as a part of the same transaction,--a transaction which, as they allege, explains and characterizes the deed under consideration.

It is alleged that the lands to which these deeds refer were component parts of a tract of land inherited from the deceased father and held in common. It is further alleged that the tenants in common had agreed to divide the land by voluntary partition, and had determined upon the moiety which each was to receive, and that the sole purpose of these deeds, including the Ballard deed, was to make effectual this partition, and set apart the parcel which each of the tenants in common might thereafter hold and enjoy in severalty. They contend, therefore, that the deeds should be construed together in the light of the attendant circumstances and the purpose for which they were made and exchanged. Millard v. Smathers, 175 N.C. 56, 94 S.E. 1045; Jelly v. Lamar, 242 Mo. 44, 145 S.W. 799; Casstevens v. Casstevens, 227 Ill. 547, 81 N.E. 709, 118 Am.St.Rep. 291; 40 Am.Jur. p. 15, Sec. 17; 47 C.J. 274, Sec. [ 19] 2.

Upon the alleged facts of the complaint, the case falls within the principle expressed in Sprinkle v. Spainhour, 149 N.C. 223, 62 S.E. 910, 25 L.R.A.,N.S., 167; and Speas v Woodhouse, 162 N.C. 66, 77 S.E. 1000; Jelly v. Lamar, supra. Speaking to the question in Sprinkle's case and construing a deed similar in form and made under like circumstances, Brown, J.,...

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