Todd v. Zachary, 45 N.C. 286, 1 Busb. Eq. 286 (1853)

Aug. 1853 · Supreme Court of North Carolina

45 N.C. 286, 1 Busb. Eq. 286

THOMAS TODD AND WIFE against WILSON ZACHARY AND OTHERS.

Some time before 1829> a deed was made conferring a life estate in land upon A. and Ilia wife; and about the Same time A. conveyed this land in fee to B.; the wife survived A., and died in 1849 :■ — Held, that the possession of B. did not become adverse to those having the remainder after the life estate, until after the death of A.’s wife.

Where a deed is made to husband and wife, they are seised of the entirety as one per* son, and the survivor will take the whole estate.

Cause removed from the Court of Equity for Yadkin county, at its Fall Term, 1851.

In 1823, William Zachary, Sen., executed to his son, William Zachary, Jun., a deed in fee simple for a tract of land containing four hundred and ninety-two acres.

In 1828, the said William Zachary, Sen., and Jemima his wife, executed to the plaintiff Todd and his wife, who was their daughter, a deed in fee simple for three hundred and sixty-seven acres of land, (being the above tract of four hundred and ninety-two, deducting one hundred and twenty-five acres,) which is the land mentioned in the pleadings. Soon after the execution of this deed, the plaintiffs moved into the house upon the land where William Zachary and his wife were living, and lived in the same house with them, and they all carried on the farming-operations until the death of William Zachary, Sen., in 1849.

William Zachary, Jun., died in 1827, leaving a widow and several children his heirs at law. Afterwards the land was sold by a decree of the Court of Equity for partition, under a bill filed by the heirs of William Zachary, Jun., and was purchased by the defendant, Courts, and one Clingman, under whom the defendants, Hauser and Wilson, claim. After the death of Je-mima Zachary, Hauser and Wilson brought an action of ejectment. aginst the plaintiffs, and ejected them.

The plaintiffs allege that William Zachary, Sen., in 1823, when he executed the deed to William Zachary, Jun., was very old and infirm, and much addicted to the intemperate us$ of ardent spirits, and although capable of making a deed, when not subject to any undue influence, was very easily imposed on by any one who would furnish him with liquor ; and they allege that he was procured by his son William to execute the said deed by undue influence — that he furnished him with liquor, and induced him to sign the deed when he was drunk, or so nearly so, as to be an easy prey to any one Who would take advantage of his -.condition ; and they aver that the defendants, Courts and Clingman, at the time of their purchase of Hauser and Wilson, had notice of their claim. The plaintiffs further insist, that their long continued possession, for more than twenty years, under color of title, has given them a good title. The prayer is, that Hauser and Wilson be declared trustees, and for a conveyance and an account of the profits since their eviction.

The defendants deny the allegationjhat the deed was procured from William Zachary, Sen., by undue influence, or while he was under the effect of ardent spirits. On the contrary, they aver that he was sober, and executed the deed in consideration of money, which William, Jun., had paid for him. J3y way of information, they aver that William, Jun., executed to William Zachary and his wife Jemima, a. deed for the land during their lifetime ; and they produce the deed — which was registered in 1829.' They aver that under this deed the widow Jemima held possession of the whole of the land until her death in 1849, and the plaintiffs merely lived with her ; and they aver that by force of this deed, the widow of William, Jun., was deprived of her dower. In further information, they aver that the plaintiff, Todd, accepted a deed from William, Sen., and William, Jun., for one hundred and twenty-five acres, the part of the four hundred and ninety-two acres not included in the deed under which the plaintiffs set up claim ; which deed was executed in 1825, and registered in 1828 — under which the plaintiff, Todd, had the benefit of the one hundred and twenty-five acres ; and they do not admit notice of the plaintiffs'’ claim at the time of their purchase.

The plaintiffs replied to the answer, and, at the hearing, much testimony was read, the force and effect of which will be seen in the opinion delivered by this Court.

Mitchell, for the plaintiffs.

Boyclen, for the defendants.

PearsoN, J.

In regard to the last point, supposing the plaintiffs at liberty to rely in this Court upon the ground that they had acquired a good title by adverse possession and color, it could not avail them, because the possession is satisfactorily accounted for, by the fact that Jemima Zachary, under the deed of ’William Zachary, Jun., was entitled to a life estate in the whole tract; for after the death of her husband, she took the whole by survivor-ship — such being the legal effect of a deed to husband and wife, who are seised of the entirety as one person. Of course then, those claiming under William, Jun., had no right to the possession until after her death.

In regard to the first and main point, the plaintiffs have failed to prove their allegation ; and the weight of evidence is on the side of the defendants.

The bill is dismissed, but we cannot give costs, as the plaintiffs sue in forma pawperis.

Per Curiam, Bill dismissed.