137 S.E. 322 | N.C. | 1927
The plaintiff instituted a proceeding before the clerk for the partition of land and alleged that he and the defendants, Laura G. Davis, W. B. Blades, George J. Brooks, C. R. Wheatley, and J. F. Duncan, were the owners and in possession; that his interest was three-eighths, Mrs. Davis's one-half, and that the other defendants one-eighth; and that the land could not be divided to advantage and should be sold for partition.
Mrs. Davis filed an answer denying the plaintiff's allegations and pleading sole seizin. There was evidence that Mrs. Rhodes and her husband, Mrs. Shelton and her husband, and Mrs. Laura C. Davis (Hamlin) executed a power of attorney constituting J. H. Davis their attorney in fact to sell and convey their real estate. He signed a paper-writing purporting to be a deed executed "by J. H. Davis, attorney in fact for Fanny Rhodes and husband, and Laura C. Davis," etc., to *396 Laura G. Davis. The paper "witnesseth, that J. H. Davis, attorney in fact," etc., sells and conveys the land; "J. H. Davis, attorney in fact, etc., covenants," etc.; and "J. H. Davis, attorney in fact," signed his name under seal.
The appellant admits that he has no interest in the land if the title of Fanny Rhodes and Laura C. Davis (Hamlin) was conveyed by the alleged deed; but he contends that it does not purport on its face or by its terms to be the deed of the principals and that their interest in the land was not conveyed to the defendant Laura G. Davis. On appeal from the clerk the trial judge held that Laura G. Davis is sole seized and gave judgment accordingly. The plaintiff excepted and appealed.
The decision in Cadell v. Allen,
See, also, Woodbury v. King,
The appellees contend that if this be granted, the defective instrument operates as a contract to convey and vests in the grantee an equitable title to the land. It is true that equity, regarding that as done which ought to be done, will protect and enforce rights arising from instruments which are defectively executed on the ground that they may operate as contracts to convey. Willis v. Anderson,
Reversed.