109 S.E. 834 | N.C. | 1921
Civil action, tried and determined on case agreed. From the facts and admissions properly presented, it appears that on 9 December, 1907, Mrs. Nancy C. McGlammery, then wife of L. M. McGlammery, owner of the land in controversy, and who had been properly constituted a free trader, pursuant to the statute, undertook to convey said land, by written deed, to her husband. Said deed was (633) in due form to convey real estate, containing the usual covenants, and with acknowledgment and privy examination taken in ordinary form, but without certificate as required by C.S. 2515, Rev. 2109, to the effect that the conveyance was not "unreasonable or injurious to her." That on 27 December, 1907, said Nancy C. McGlammery died leaving five children of the marriage, her heirs at law, and subsequently one of the children, Vernon McGlammery, died without issue. That on 10 February, 1915, L. M. McGlammery and his second wife, Hettie, and the four surviving children, including Annie Lizzie McGlammery, since intermarried with one Foster, conveyed the land by deed, with full covenants to defendant E. V. Williams for the purchase price of $8,000, the consideration being paid to the father, L. M. McGlammery, except $1,000, evidenced by note to L. M. McGlammery, and as to payment of said note, there is now a dispute pending between the administrator of *677
L. M. McGlammery and E. V. Williams. That on 31 August, 1918, said E. V. Williams, by written deed with full covenant, conveyed the property in dispute to defendant Branson Benton for $10,000, of which $3,000 was paid, and the balance secured by deed of trust on the property in favor of the vendor, E. V. Williams, and that at the time of the purchase of said land by said Benton, and the payment of the $3,000 thereon, the taking of the deed referred to vendee, Benton, was without notice or knowledge of any infirmity in the title by reason of the claims of plaintiff. On the hearing it was further admitted that plaintiff Annie Lizzie McGlammery, now Foster, at the time of signing the deed to E. V. Williams, was living on the lands in the house with her father, L. M. McGlammery. That the delivery of the deed was by said L. M. McGlammery, and the settlement was made with him, and that no part of the purchase money was paid her; that the day after the execution of the deed to Mr. Williams, said Annie L. McGlammery, then aged 19, was married to her present husband, C. M. Foster, and since that time has resided in West Virginia. It further appeared that plaintiff, said Annie McGlammery, within three years after arriving at the age of 21, instituted the present suit, seeking a partition of the property in accord with her interest in the tract presented, to wit, one-fourth of all the lands contained in the deed of her mother, Nancy C. McGlammery, except 95 acres in which said mother owned only an undivided half interest, and as to the plaintiff, a one-eighth interest; and it is admitted by the parties that if plaintiff has any interest in the land it is one-fourth of all the lands embraced in the deed from her mother, except the 95-acre tract, and in this plaintiff has a one-eighth interest. Upon these facts the court declared his conclusions of law as follows: "That Annie Lizzie McGlammery Foster is the owner of a one-fourth interest in and to all the lands described in the complaint, and the defendant Branson Benton is the owner of the other three-fourths, except Annie McGlammery Foster (634) owns only a one-eighth interest in 95 acres of said land, which boundary is described as the fourth tract in the deed from Nancy C. McGlammery to L. M. McGlammery, and referred to as the Jesse McGlammery home place, and the said Branson Benton is the owner of the other seven-eighths interest therein. E. V. Williams having conveyed said land to Branson Benton before the commencement of this action, and the said Branson Benton having purchased said land without notice that Annie McGlammery Foster was under age at the time she executed the deed to E. V. Williams, and having paid $3,000 and still owes $7,000 of the purchase price, the court is of the opinion, and so holds, that the said lands cannot be actually partitioned by reason of the conveyance as aforesaid to Branson *678
Benton. The defendant having agreed that Branson Benton is still due E. V. Williams $7,000 on the original purchase price of said land, the court is of the opinion, and so holds, that the plaintiff is entitled to recover of the defendants the present market value of her undivided interest in and to the lands described in the complaint, together with her pro rata of the annual rental value of said land from 26 August, 1917, to 30 May, 1921, with interest on said annual sum. less her pro rata part of the annual taxes on said land during said period, and that said sum should be paid to her out of the remainder of the purchase price due by Branson Benton to E. V. Williams. That the defendants are not liable for rents on the said lands up to 26 August, 1917, the date of the death of L. M. McGlammery, for that the said L. M. McGlammery was entitled to the possession of his wife's land during his life as tenant by the curtesy. The defendant Branson Benton having purchased the lands as described in the complaint for the price of $10,000, and having paid $3,000 of the purchase price before notice that plaintiff was a minor at the execution of the deed to E. V. Williams, the court is of the opinion, and so holds, that the defendant Branson Benton was to that extent an innocent purchaser for value and without notice of the plaintiff's right, and that the land cannot, therefore, be actually partitioned. As to the remaining $7,000 of the purchase price, the defendant Branson Benton is not an innocent purchaser for value and without notice of the plaintiff's rights." And thereupon adjudged that the plaintiff was the owner of the one-fourth and one-eighth interests respectively. That she was not entitled to actual partition by reason of the fact that defendant Branson Benton had bought the land and paid $3,000 thereon before action commenced, and before notice that plaintiff was a minor at the time of the execution of the deed. That plaintiff be awarded the present market value of her interest, together with her proportion of the rents from the time of her (635) father's death, less a proper deduction for taxes, etc. That the amount awarded her be declared a lien on the balance dues for purchase money, etc.
Our decisions have very insistently and uniformly held that in order to a valid conveyance of a married woman's real estate there must be the written assent of her husband and her privy examination had pursuant to the law, appertaining to the question. 1 C.S. 997; Stallings v. Walker,
The question sometimes presented as to whether, in actions of this kind, based on avoidance of his deed, an infant is required to restore the consideration is not raised in this record, as it appears by admission of the parties that no part of the consideration was paid to the present claimant, but all of it was received by the father except $1,000, and that was evidenced by note to him. And the authorities are to the effect, also, that the right of an infant to avoid his deed within three years after his becoming of age is not affected by reason of the adverse interest of one purchasing without notice but the claimant is entitled to the land, or his interest in it that the facts may disclose. Jackson v. Beard,
Plaintiff, then, being a tenant in common to the extent of her established interest, is entitled to a division of the property as of right, either by sale or actual partition, as the facts may appear, and the portion of the decree by which this right has been denied her will be reversed. Holmes v. Holmes,
Plaintiff's appeal reversed.
Defendant's appeal affirmed.
Cited: Best v. Utley,
(637)
