17 S.E.2d 482 | N.C. | 1941
This is a civil action brought by plaintiff, administrator of John M. Privette, against defendants to have a certain deed made by John M. Privette, who died intestate, on 26 August, 1940, set aside and declared null and void.
On 18 March, 1937, a deed was made by John M. Privette to defendants, who agreed to support him the balance of his life — on failure the deed to become null and void. The plaintiff contends that the conditions of the deed were breached and John M. Privette was put in the Mecklenburg Sanatorium, where he died indebted to the Sanatorium in the sum of $1,324.40. "Wherefore, plaintiff prays judgment that the *343 deed set out in paragraph 4 be set aside and declared null and void to the end that said property may be sold to make assets and for judgment against the defendants for the amount of the rents and profits less any sums expended by the defendants for the care and support of the said John M. Privette."
The defendants denied that they had breached their contract and that the deed was null and void. They allege that they are absolute owners of the real estate conveyed by the deed in fee simple. The defendants further demur ore tenus to the complaint.
The judgment of the court below was as follows: "This cause coming on to be heard before the undersigned, at which time a jury trial was waived and the entire matter submitted to the court to determine the rights of the parties; after hearing the pleadings and the evidence offered by both parties the court finds the following facts: That J. M. Privette was a man of some years of age, having a son and daughter, both of whom are living in some western state. He had no other kinsmen in North Carolina; that he was the owner of some real estate on the Statesville Road, near the City of Charlotte, worth anywhere from $650.00 to $1,000.00; that on the 18th day of March, 1937, he conveyed this property to the defendants, Thomas and Helms, by an absolute deed with the following in the face of the deed:
"`The sole consideration of this conveyance is the agreement of the parties of the second part to give the party of the first part a home with said parties of the second part and support and take care of the said party of the first part for and during the remainder of his natural life, and should they, the said parties of the second part, hereafter refuse or fail to carry out or perform said agreement, then this conveyance shall thereupon become null and void and the party of the first part is entitled in any such event to the immediate possession and use of said property, but due the parties of the second part reasonable compensation for all expenditures and services rendered theretofore on account of this conveyance, less the amount of the worth of the use of said property while in the possession of the said parties of the second part.'
"That immediately thereafter the said Privette went into the home of the defendants, Thomas and Helms, Thomas being a widower, and Mrs. Helms being his daughter, all living in one household; that the said Privette remained in said home until about the middle of April, 1938, when it was noticed that he was coughing a great deal, not resting well at night, etc., and upon advice of friends, Mrs. Helms took him to the Mecklenburg Sanatorium, the same being a public institution run by the County of Mecklenburg for the treatment of tuberculosis, and under the supervision of Dr. Seay. When Dr. Seay examined the said Privette, he found that he was suffering from a far advanced case of tuberculosis, *344 and advised that for his own health and the health of the public that the said Privette should be committed to said hospital, and there remain for treatment. He further advised that all members of the Thomas and Helms household, having been exposed to the sputum of the said Privette, should be examined and see whether or not they had contracted tuberculosis; that thereupon, about the 14th day of April, 1938, the said Privette entered said Sanatorium and remained there until August 26, 1940, when he died as a result of tuberculosis, the sanatorium being unable to arrest the ravages of the disease.
"That when Privette entered the hospital the superintendent in charge of the said hospital was advised that he was without means, and thereupon agreed to take him in to the hospital without pay, but did state that he thought that his friends should pay his laundry bill, which would amount to approximately one dollar per month; that thereafter, and prior to the death of the said Privette, the court being unable to find the exact date, the sanatorium was advised of the conveyance hereinbefore mentioned, but no effort was made on the part of the sanatorium, and no effort was made on the part of the said Privette, to have said conveyance canceled, during the lifetime of the said Privette, and the court is unable to find that Privette ever did request that the property be reconveyed to him or that there had been a failure in consideration.
"The court further finds as a fact that the defendants herein were never forwarded any bills by the sanatorium for any amount other than the laundry bill of the said Privette, and the court further finds that such necessities as a set of false teeth, some pajamas and other things that the said Privette needed personally were furnished to him by the defendants when requested either by Privette or by the hospital, and that the defendants paid such bills as were rendered to them by the sanatorium.
"As above stated, the said Privette died on or about August 26, 1940, in the sanatorium, and thereafter, to wit: upon March 7, 1941, Brock Barkley was duly appointed administrator of his estate by the clerk of the Superior Court of Mecklenburg County and the sanatorium filed with him its bill for $1,323.40, the same being a charge of $1.50 per day for the time that the said Privette was in the said sanatorium, plus certain X-rays and other incidents necessary to his treatment; that no such bill was ever rendered to the defendants during the life of the said Privette.
"The court further finds as a fact that the said Privette was carrying certain insurance in a fraternal order, which insurance had been allowed to lapse, and the defendants paid the back dues to reinstate said insurance, and kept the payments of the same up until his death, which amounted to $ ......., as shown by the receipts produced by the defendant *345 Thomas, and as a result thereof, enough money was received from said insurance to properly and decently bury the remains of the said Privette without expense to Mecklenburg County or anybody else.
"Upon these facts the court is of the opinion and so holds that the plaintiff is not entitled to recover, and the action is dismissed. This 8th day of August, 1941. A. Hall Johnston, Judge presiding."
To the signing of the foregoing judgment and the judgment itself, plaintiff excepted, assigned error, and appealed to the Supreme Court. In the record is the following: "A jury trial was waived and the entire matter submitted to the court to determine the rights of the parties."
In Blackburn v. Woodmen of the World,
We think, on the facts found by the court below, there being competent evidence to sustain them, that there is no error in the judgment. The property in controversy is real estate. If there was a forfeiture the property would descend to the heirs at law of John M. Privette. To sell land to make assets to pay debts, the method is set out in the statutes as follows:
N.C. Code, 1939 (Michie), sec. 79: "The petition, which must be verified by the oath of the applicant, shall set forth, as far as can be ascertained: 1. The amount of debts outstanding against the estate. 2. The value of the personal estate, and the application thereof. 3. A description of all the legal and equitable real estate of the decedent, with the estimated value of the respective portions or lots. 4. The names, ages and residences, if known, of the devisees and heirs at law of the decedent."
Section 80, in part: "No order to sell real estate shall be granted till the heirs or devisees of the decedent have been made parties to the proceeding, by service of summons, either personally or by publication, as required by law," etc.
In Neighbors v. Evans,
The provision in the deed was a condition subsequent. Helms v. Helms,
In Brittain v. Taylor,
The only question on this aspect: Was there sufficient evidence to show a violation of the condition subsequent? We think not. The court below found the facts on competent evidence. "The sanatorium was advised of the conveyance hereinbefore mentioned, but no effort was made on the part of the sanatorium, and no effort was made on the part of the said Privette, to have said conveyance canceled, during the lifetime of the said Privette, and the court is unable to find that Privette ever did request that the property be reconveyed to him or that there had been a failure in consideration."
C. S., sec. 159, is not applicable under the record facts in this case.
On the entire record we think the facts found by the court below on competent evidence supports the judgment rendered.
For the reasons given, the judgment of the court below is
Affirmed. *348