12 S.E. 434 | N.C. | 1890
1. We can see no error in the ruling of the court upon the trial of the issue submitted to the jury. It was very properly held that there was not sufficient evidence to show that the deed was not written as the parties intended. Indeed, the evidence does not at all suggest that a clause of defeasance was ever contemplated by the parties, and was omitted by reason of "ignorance, mistake, fraud or undue influence," and this it was necessary to prove before the deed could be corrected. See this case, reported in
The fact that the deed was drawn by one who was "not conversant with legal forms" does not meet the indispensable requirements of a Court of Equity in granting such relief, and this seems to be the only evidence, in addition to that which was introduced upon the former trial.
2. We are of the opinion, however, that his Honor should have allowed the motion to dismiss. This motion was not made at the former hearing, and was therefore not passed upon by the court.
The petitioner, as the administrator of Mark P. Jones, alleges that there is outstanding a judgment in favor of one Cheatham against his intestate; that the personal assets are insufficient to pay the same, and that a sale of the land is necessary. The land described in the complaint was set apart to the intestate as his homestead, and afterwards conveyed by him to John E. Boyd, who subsequently conveyed it to the widow and children of the said intestate. These facts appear upon the face of the petition, and it is not alleged that conveyance to Boyd and the conveyance by him to the defendants were made with intent to defraud the creditors of the intestate. Neither does it appear that the intestate had any equitable interest in the land at the time of his death; for, taking the answer to be true, that Boyd held the land in trust for him, and conveyed it, at his instance, to his wife and (290) children, the presumption of a resulting trust would be met — in the absence of any testimony rebutting it — by the counter presumption that the land was intended as a provision or advancement for his wife and children. Adams Eq., 35; Bispham Eq., 84.
It being manifest, then, that the intestate had no legal or equitable interest in the land at his death, it must follow that it could not be sold upon the petition of the administrator, and that the clerk had no jurisdiction. Mauney v. Holmes,
In Lee v. Eure,
Action dismissed.
Cited: Stainback v. Harris,
(291)