111 S.E. 180 | N.C. | 1922
Dora Nobles and her sister, Denny Nobles (the husband of each being a party), instituted before the clerk a special proceeding against the defendant (their brother) for partition of land and accounting for advancements. The plaintiffs alleged that their father, S. H. Davenport, conveyed to Denny Nobles and to the defendant each a tract of land as an advancement, and that the petitioner, Denny, was willing to account. The defendant filed an answer denying that he had been advanced, and the case was transferred to the civil docket. The cause was heard in term before Bond, J., and a jury, at the June Term, 1921, of Lenoir. The following issue was submitted to the jury: "Was the conveyance of land by deed, referred to in the pleadings in this cause, from S. H. Davenport to the defendant W. H. Davenport a settlement and advancement to said defendant?" His Honor instructed the jury, upon all the evidence, to answer the issue "No." Judgment for defendant; plaintiffs appealed. S. H. Davenport, father of the plaintiffs and the defendant, died intestate, 8 September, 1919, and his wife, in January, 1909. On 13 October, 1905, he and his wife executed and delivered to Denny Nobles, one of the plaintiffs, a deed for ninety-seven acres of land, designated a deed of gift, reserving to the grantors a life estate. This conveyance was duly acknowledged before a justice of the peace in October, 1905, and in November, 1919, it was duly probated and registered. All the parties admit that it was intended as an advancement. On 13 October, 1905, S. H. Davenport and his wife signed and acknowledged before the same justice of the peace another deed, likewise designated a gift, purporting to convey to the defendant a tract of land *223 containing one hundred and two acres, and reserving a life estate to the grantors. This deed has never been registered. In each deed the consideration recital is natural love and affection. On 15 November, 1910, S. H. Davenport, reserving a life estate, executed (209) and delivered to the defendant another deed for said one hundred and two acres, reciting as the consideration natural love and affection, and $700 paid by the grantee. This conveyance was acknowledged by the grantor in March, 1911, and registered in the following November. Simultaneously with the execution of this deed the defendant executed and delivered to S. H. Davenport a mortgage on said land, reciting an indebtedness to the mortgagee of $700, evidenced by three notes. The mortgage was acknowledged on 10 May, 1911, probated and registered on 29 March, 1913, and marked satisfied on 20 December, 1918. On 26 December, 1916, S. H. Davenport executed and delivered to the defendant a release of his reserved life estate in the land described in the deed and mortgage.
His Honor's instruction cannot be sustained if the evidence, construed most strongly for the plaintiff, will warrant an affirmative answer to the issue; and we are of opinion that the evidence thus construed should have been submitted to the jury.
In its legal sense an advancement is an irrevocable gift in praesenti of money or property, real or personal, to a child by a parent, to enable the donee to anticipate his inheritance to the extent of the gift; or, as somewhat differently defined, a perfect and irrevocable gift, not required by law, made by a parent during his lifetime to his child, with the intention on the part of the donor that such gift shall represent a part or the whole of the portion of the donor's estate that the donee would be entitled to on the death of the donor intestate. 18 C. J. 911; 1 R. C. L. 653; Thompson v. Smith,
Applying these principles, although the plaintiffs declare only on the deed of 1910, we conclude that his Honor should have submitted to the jury any competent evidence relating to the alleged delivery and acceptance of the deeds of 1905; relating to the actual consideration of the deed and mortgage of 1910; to the value of the land conveyed; to the circumstances under which the mortgage was canceled; and to the grantor's release of his life estate, together with any other relevant evidence tending to show the intention of the grantor at the time he executed the deed of 1910. For these reasons we hold that the plaintiffs are entitled to have the issues determined by another jury.
There are exceptions to evidence which may not arise in another trial; but it is not inappropriate to say that in our opinion the proposed testimony of Benjamin Nobles and Benjamin Davis, as presented in the record, was properly excluded. In the circumstances disclosed it was not competent either as a part of the res gestae or as a declaration against the interest of the grantor. Hicks v. Forrest,
The plaintiffs are entitled to a new trial. Let this be certified to the Superior Court of Lenoir County.
New trial.
Cited: Paschal v. Paschal,