DAWKINS et al. v. DAWKINS et al. (Supreme Court of North Carolina. Dec. 2, 1889.) ESTOPPEL-JUDICIAL SALE. 1. Receipt by heirs of a decedent of their shares in the purchase money of land purchased at partition sale by decedent in his life-time, and ordered by the court to be conveyed to his surety, who paid the price, and acquiescence in such order for 10 years, without objection, and without showing an excuse for their delay, estop them to object to the order because of irregularities. 2. The fact that such heirs gave receipts for their shares as heirs of another person than the deceased purchaser is immaterial. Appeal from superior court, Richmond county; H. G. CONNOR, Judge. W. K. Dawkins and others began a suit in 1861 for partition of the lands of Jane Dawkins, deceased. A sale was ordered, and George Dawkins, Jr., became the purchaser, and gave bond for the price, with Randolph McDonald as surety. W. K. Dawkins and others, as heirs of the purchaser, George Dawkins, Jr., who had previously died, filed a petition in 1884 to set aside a judgment order entered in 1874, directing that the land be conveyed to McDonald, who had paid the price. A judgment granting the petition was reversed on appeal, and the cause sent back, when, after report of a referee, the petition was dismissed, and petitioners appeal. Burwell & Walker, for petitioners. Jones & Tillett, for respondents. | 1875, $48.44 in full of her share as an heir of Jesse Dawkins; S. S. Covington, Effy J. Covington, and Flora B. Caddell received August 10, 1875, $32.29%, in full of their Jane Dawkins received May 3, 1876, $49.60 shares as heirs of Jesse Dawkins; Mary in full of her share as heir of Jesse Dawkins, and Margaret Ann Caddell received November 15, 1876, $16.14 in full of her share as heir of Jesse Dawkins. Upon consideration of this report the former orders and opinion of this court, and the whole case, the court dismissed the petition praying that the judgment therein mentioned be set aside. The petitioners, having excepted, appealed. Among other things the court said in the opinion in the former appeal in this case: "But we do not now decide that the order of 1874 shall be vacated; for, however irregular it may be, it may be sustained as a valid order, if the heirs of George Dawkins have given their sanction to it by receiving their shares of the purchase money paid into the office by Randolph McDonald. If they have received their shares of the purchase money, it would be a gross injustice to the heirs or assignees of McDonald to set aside the order of 1874, and have the title made to them, without a full indemnity to McDonald or his assignees. But if they had offered, or were still to offer, the indemnity, we think their acquiescence in the original order would debar them from setting up any title to the land." What is thus said rests MERRIMON, C. J. When this case was be- upon the ground that, if the heirs of George fore this court by a former appeal (93 N. C. Dawkins, who in his life-time purchased 283) some of the questions, both of law and the land in question, each received his share of fact, and some of the findings of fact, of the purchase money therefor, he must were so imperfectly presented by the record on that account be deemed and held to that the court found it very difficult to have impliedly assented to and acquiesced reach satisfactory conclusions, and re- in the irregular order complained of, directmanded it with authority to the court to ing the title to the land to be made to Ranallow amendments of the pleadings, and to dolph McDonald, who paid the purchase do whatever it might deem necessary to re- money, as security for George Dawkins, lieve the case from embarrassment and the purchaser; and also upon the further meet the ends of justice; and it was espe- ground of long acquiescence, 10 years, withcially directed "that a reference may be out complaint or any notice of dissatisfachad to ascertain whether any of the heirs tion on their part, so far as appears. It of George Dawkins have received their would be unjust in a high degree to allow shares of the purchase money paid into the the heirs to receive the purchase money office by Randolph McDonald, and, if so, and have the title to the land made to who they are, and what amounts they them without reimbursing the surety the have received; whether in full or in part of purchase money he had paid; and, moretheir shares, and, if in part, what part,' over, it seems to us that it would be unetc. Afterwards, in the court below, it just, after the surety had so paid the purwas so referred, and the referee made re- chase money, and, under an irregular orport, the material part of which is as fol- der of the court, had obtained title to the lows: An action was brought in the su- land, and had had possession of it for 10 perior court of law for Richmond county, years, then to compel him to surrender the by the then clerk and master in equity, to same upon receiving the money he had paid enforce collection of the purchase money as such surety, unless this should be done on said bond, and judgment was rendered for the most weighty considerations. The at spring term, 1874. The amount of said court will not allow parties to tempojudgment was paid into the office of the rize, trifle, and acquiesce in irregular proclerk of the superior court on 30th October, ceedings in actions, taking benefit of them 1874. None of this money has been paid to for unreasonable length of time, to the or received by the heirs of George Dawkins, prejudice of other parties, especially after Jr., as such. The following persons, who rights of third parties have supervened. are parties to this action, have received In this case, so far as appears, there was the amounts as stated as heirs of Jesse no reasonable excuse for the long delay to Dawkins, (their receipts in each case so ex-move to set the judgment in question aside. pressing,) to-wit: William K. Dawkins received on October 30, 1874, $143.10 in full of bis share as heir of Jesse Dawkins and assignee of the interest of George Dawkins, Sr.; Sarah A. Dawkins received May 5, It is said that the petitioners did not receive the purchase money paid into court by the surety, as heirs of George Dawkins, deceased, but as heirs of Jesse Dawkins, deceased, and this so appears from their respective receipts given for the same. But, | The plaintiffs allege that the word "heirs” nevertheless, they were heirs of George was by mistake omitted from the deed exeDawkins, and each received his or her cuted by said Nathan Ellis to his children, share of the purchase money of the land paid by Randolph McDonald, the surety of their ancestor, and this was the material fact. They could not avoid the consequences of receiving the money by a mere shift as to names and forms. It is further insisted that the surety, Randolph McDonald, did not pay all the purchase money for the land. It does not appear affirmatively that he did. It appears that W. K. Dawkins paid $193.10 of it, but whether he paid it on his own account, or as administrator of George Dawkins, deceased, does not appear affirmatively. It is singular and strange that no complaint was made on this account years ago; nor is any excuse shown for such long delay; nor is any explanation given now, to show that some arrangement was not made to the satisfaction of the parties interested, at the proper time and in the proper way. The order was acquiesced in for many years, and it must be taken that there was proper ground for it, else it would not have been, and, interested parties having knowledge of it, would not have allowed it to remain undisturbed for so long a period. We trust that the petitioners have suffered no wrong in the matter of their motion, but if, by possibility, they have, it is because of their own laches. The proceedings of the courts are not to be disturbed after a long lapse of time for light causes, especially when the interested parties had knowledge of and took benefit of them, directly or indirectly. It is found as a fact that the parties, the petitioners, did not have "legal notice" of the order complained of, but it appears that they in fact knew of it, and received the purchase money that gave rise to it. Judgment affirmed. VICKERS et al. v. LEIGH et al. (Supreme Court of North Carolina. Nov. 25, 1889.) DEEDS-REFORMATION-EVIDENCE-HARMLESS ERROR-JURY. 1. A deed reciting a consideration of "natural love and affection," after reserving an estate for the joint lives of the grantor and wife, conveyed land to the two children of the grantor and his wife, provided that any after-born child should share equally, and appointed a guardian for the children until they should become 21 years of age, when they were to "be entitled to take possession of said land and premises, free of all costs." Held, that the grantor intended to convey a fee to the children, and that the deed should be reformed by inserting the words "and their heirs, forever." 2. Error in the admission of evidence bearing on a certain issue is not prejudicial to the party in whose favor the jury finds on that issue. 3. Code N. C. § 1728, providing for withdraw ing the names of jurors having a suit pending and at issue, does not disqualify one interested, as a creditor, in a fund for which a receiver has sued. Appeals from superior court, Dunham county; BYNUM, Judge. The plaintiffs' assignor, John Hinton Ellis, was the son of one Nathan Ellis, and the plaintiffs are the heirs at law of Ann M. Vickers, a daughter of Nathan Ellis, through whom both parties claim title. the said Ann and John Hinton Ellis, dat- sonalty, dated August 24, 1838; (7) Patsy | the purchaser admitted the trust will not Ellis to Sullivan Leigh, deed dated Febru- be sufficient to entitle the plaintiffs to reary 2, 1846; (8) John H. Ellis to Riley Vick- lief. There must be proof of facts and cirers, deed dated May 15, 1846. The plaintiff cumstances inconsistent with the idea of a alleged, also, that Sullivan Leigh bought purchase for himself; and, where the facts the land in controversy at sheriff's sale, un- and circumstances relied on as corroboratder a parol agreement to convey to Nathan ing the purchaser's declarations are unsatEllis, and had the deed of Turrentine, sher-isfactory and susceptible of various and coniff, dated May 23, 1836, executed to himself; tradictory conclusions, some of which are and that said Sullivan Leigh suppressed bidders at said sale by stating that he was buying for Nathan Ellis; and that Nathan Ellis subsequently repaid to Leigh the amount that the latter bid and paid to the sheriff for the land. A number of witnesses were offered to establish the parol trust, chiefly by showing declarations of said Sullivan Leigh. It is not material to give the testimony and the exceptions to its admissions, for reasons that appear in the opinion of the court. The issues, and responses to them, were as follows: "(1) Was the word heirs' omitted by mistake of the draughtsman from the deed of 1824 of Nathan Ellis to his children? Answer. Yes. (2) Did Sullivan Leigh purchase the land in suit at the sheriff's sale of May 23, 1836, under an agreement, made with Nathan Ellis before the sale, that he, Sullivan Leigh, would buyand hold the same as trustee for Nathan Ellis and his heirs, and that upon repayment of the purchase money he would reconvey to said Ellis and his heirs? A. No. (3) Has the purchase money so paid by Sullivan Leigh been repaid to him? A. Yes. (4) Was the deed of Nathan Ellis to his children, made February 16, 1824, intend-sufficiently strong, clear, and convincing to ed by him to convey the land therein described to them and their heirs? A. Yes. (5) Did Sullivan Leigh, by his conduct, words, or acts, suppress bidding at the sheriff's sale in 1836, by representing that he was buying the land for Nathan Ellis and his wife? A. Yes. (6) Have ten years elapsed since the commencement of the parol trust alleged by the plaintiffs? A. Yes. (7) What is the annual rental value of the land? A. $1,100." Following is the judge's charge: "A deed is a solemn act, in transactions concerning land; the most solemn known to the law, because of the special importance of its contents. It is a presumption of the law that a deed correctly shows and contains the intentions of the parties thereto; and the law gives it weight, as a paper of high dignity. Therefore the disposition of the law is to sustain every deed as it is written, and not to allow any change or amendment in it. The court instructs you that in this case there is no positive evidence of the intention of Nathan Ellis to create an estate in fee in his children by his deed of February 16, 1824, and no such evidence that the word 'heirs' was left out of the said deed by mistake or ignorance of the draughtsman. Unless the evidence is strong, clear, and convincing, it is the duty of the jury to sustain that deed as it is written. A mere preponderance of the testimony will not be sufficient to justify a finding for the plaintiffs. Where it is sought to convert the purchaser of a tract of land at public sale into a trustee, upon the ground that he made the purchase as the agent of the debtor, the legal title having been made to the purchaser, mere parol proof that consistent with the defendants' claim, they The defendants excepted to the charge as given, and because his honor declined to SOUTHEASTERN REPORTER, VOL. 10. give the special instructions, asked for by | warranted in finding such an agreement be(N. C. them, (exceptions Nos. 4, 5, 7, 8, 9, 10.) Up- tween Sullivan Leigh and Nathan Ellis and on the verdict as rendered by the jury, and his wife, the circumstances relied on to their findings in response to the issues sub- show that fact must be sufficiently strong, mitted, defendants moved for judgment, clear, and convincing to prove that fact to and excepted to the refusal of the court to their satisfaction. (5) In this case, there sign the judgment offered. Defendants' spe- is no evidence that the money used in purcial instructions, which his honor declined chasing the land at sheriff's sale, in 1836, to give as prayed, were as follows: "(4) was furnished by Nathan Ellis, or his wife In this case the jury are instructed that or children, and no evidence of inadequacy there is no evidence that Sullivan Leigh, of price; and the question for the jury is, is prior to the sheriff's sale, made any verbal the evidence sufficiently strong and convincagreement with Nathan Ellis, Patsy Ellis, ing that Sullivan Leigh did agree with Naor their children, that he would purchase than Ellis and his wife to buy it, and allow the land for them, and allow them to re- them to redeem it, and they did redeem it, deem on payment of the purchase money; or did Sullivan Leigh buy it, and let Ellis and there is no valid trust created between and his wife, and their children John Hinthe parties which will be enforced. (5) In ton and Ann Maria, hold it for their life?" this case, there is no evidence that the mon- (9) His honor added to defendants' ninth ey used in the purchase of the land at sher- instruction: "And the burden is upon the iff's sale in 1836 was furnished by Nathan plaintiffs by clear, strong, and convincing Ellis; no evidence of any prior agreement evidence to satisfy the jury that they had between Ellis and Leigh; no inadequacy of not abandoned it.” price, Leigh simply getting the remainder after the life-estate of John Hinton and signed by the judge, reforming the deed by The plaintiffs tendered a judgment to be Ann Maria Ellis; and no evidence what- writing the words " ever sufficient to engraft a parol trust on the names of the grantees, and also declarthe deed from Sheriff Turrentine to Sulli-ing Sullivan Leigh a trustee, and requiring and their heirs" after van Leigh. (7) To entitle the plaintiff to him to convey to plaintiffs. The defendrecover for slander of title of real property, ants moved the court to declare that there express or actual malice must be shown; was no sufficient evidence of the mistake or and, if the words were used in asserting the parol trust, and that the finding that defendants' claim of title after having con- the purchase money has been repaid to Sulsulted with counsel, who advised him that livan Leigh was inconsistent with the findhis claim to title was valid, no malice can ings in response to other issues, and was be inferred by the jury and the plaintiff can- not warranted by the evidence. The court not recover damages for slander of title. rendered judgment as follows, after reciting (8) That there is no evidence that the word the issues and findings: "It is thereupon 'heirs,' or other words of inheritance, was considered and adjudged by the court that omitted by mistake of the draughtsman upon the evidence before the jury, and their from the deed of Nathan Ellis to John Hin- finding in response to the issues, the plainton and Ann Maria Ellis. (9) That the tiffs are not entitled to have the deed cordeed from Nathan Ellis to John Hinton and rected, and that, notwithstanding the verAnn Maria having been executed and re-dict of the jury, the defendants are entitled corded in February, 1824, and the deed from Turrentine, sheriff, to Sullivan Leigh having been recorded in May, 1836, was notice to the parties and the world of the title that each of them claimed, and an action to reform the one by having the word 'heirs' inserted, and to engraft a parol trust upon the other, should have been brought within ten years from the registration of said deeds. Otherwise, the plaintiffs, and those under whom they claim, would be presumed to have abandoned their equitable rights. (10) That if the jury believe that Sullivan Leigh purchased the land at the sheriff's sale upon trust for Nathan Ellis and his wife, Patsy Ellis, and their heirs, then Nathan Ellis and Patsy Ellis became in equity seised of said land in fee by entireties, and Patsy Ellis, having survived Nathan Ellis, became, as survivor, sole seised of said land, and the fee passed by her deed of May, 1846, and became vested in Sullivan Leigh; and plaintiffs cannot recover. honor charged: "(4) In this case, there is His no direct evidence that Sullivan Leigh, prior to the sheriff's sale, made any verbal agreement with Nathan Ellis, or Patsy Ellis, or their children, that he would purchase the land for them, and allow them above.) The trend of judicial decisions for AVERY, J., (after stating the facts as to redeem on payment of the purchase mon-years has been towards relaxing the rigor ey, and there is no evidence of any kind of the common-law rule that without that he ever made any such agreement with words of inheritance no estate of greater the children; and, before the jury would be dignity than for life could be created by to judgment of this court. It is therefore adjudged and decreed that the defendants are the owners in fee-simple of the lands described in the pleadings after the death of John Hinton Ellis; that until the death of John Hinton Ellis the plaintiffs are the owners of the land; that the defendants are not entitled to the immediate possession of the one-half interest of Ann Maria Vickers, the deed of Nathan Ellis to John Hinton Ellis and Ann Maria Ellis, vesting in them an estate for their joint lives and the life of the survivor; and that, until the death of John Hinton Ellis, the defendants take nothing; and at the death of John Hinton Ellis the defendants are entitled to the remainder in fee-simple; that the defendants are not entitled to any rents and profits arising from the land until after the death of John Hinton Ellis; that the defendants recover their costs of suit in this case, to be taxed by the clerk." Both parties appeal. Graham, A. W. Graham, and J. S. Manning, deed. While devises were held after the the marriage, should convey to them simstatute of wills to be but a species of alien- ply a life-estate, limited upon that reserved ation, the courts construed them more lib- for himself and wife, and leave the remainerally than deeds, and where, without the der in fee-simple, undisposed of, when he use of the word “heirs," as by inserting the seemed to be making permanent provision word "forever," the testator indicated an for the present and prospective issue of his intent to pass an estate in fee, it was held, marriage after the death of his wife and on the ground that testators were gener- himself. So, looking to the nature of the ally inops consilii, that the instrument deed, and the plain purpose of providing should be so interpreted as to effectuate his for his infant children after the death of his purpose. Then followed the liberal princi- wife and himself, that is apparent from its ple in the act of 1784, (Code, § 2180,) that a terms, we must declare, in furtherance of devise of real estate to any person should this manifest purpose, ascertained from the be held to be a devise in fee, unless it plainly wording of the deed, that there was a misappear from some part of the will that the take of the draughtsman in failing to insert testator intended to convey an estate of after the names of the said children, in the less dignity. The liberal tendency of the deed above mentioned, the words “and age in reference to deeds culminated in the their heirs, forever." It is not necessary act of 1879, (Code, § 1280,) providing the for us to consider all of the exceptions resame rule of construction for deeds as for lied upon by counsel in presenting the apdevises. But prior to the passage of that peals of both parties in this court. His statute this court had in numerous cases honor should have held, upon an inspection held that where the word "heirs" was in- of the deed executed by Nathan Ellis, Febserted, out of the habendum in a deed, un-ruary 16, 1824, and admitted to have been less it plainly appeared to be a part of the properly proved and registered, that it covenant of warranty or of quiet enjoy- should be corrected as already indicated. ment, the deed would be construed by It would follow that the plaintiffs were entransposing it to its proper place, in order titled to judgment that the deed be reto create an estate in fee; and this ruling formed as demanded, and for costs of acwas predicated upon the idea of carrying tion. The fact that his honor submitted out the apparent intent of the grantor, as the first and fourth issues to the jury, innearly as the rules of law would admit. volving a question of law, does not impair Phillips v. Thompson, 73 N. C. 543; Phillips the right of the defendants, as the jury dev. Davis, 69 N. C. 117; Hodges v. Fleetwood, cided it correctly. A large number of excep102 N. C. 122, 9 S. E. Rep. 640. Citing Coke tions relied on by the defendants become and Kent, Judge DANIEL, in Armfield v. immaterial now, for the reason that they Walker, 5 Ired. 580, says: "It is a rule of related to testimony offered to prove by law that if two constructions can be placed parol the mistake that we have held is on a deed, or any part of it, that shall be shown with sufficient clearness by the langiven to it which is most beneficial to the guage of the deed. Exceptions numbering grantee." The idea of giving effect to the 20, based upon the refusal of the court to grantor's purpose, gathered from every give instructions asked by the defendant, part of his deed, led this court, in adminis- and numbered 4 and 8, or to tell the jury, as tering the principles of equity, to announce requested at the close of the evidence, that the doctrine that when the court was en- the plaintiffs had not offered sufficient testirely satisfied, from the declared purpose timony to support a finding that there was and nature of a deed, and the context of a mistake, in response to the first issue, are that portion where the word "heirs" of this character, though the judge did tell would naturally belong, that it was the in- the jury, in substance, what was asked, and tention of the grantor to convey a fee-sim- disregarded the finding in response to the ple, and the omission was an oversight, first issue after verdict. there was a plain equity to have the mistake corrected. Rutledge v. Smith, Busb. Eq. 283. ceptions to the refusal of the court to give instructions numbered 4, 5, 9, and 10, asked by defendants. The verdict on the second issue was in favor of the defendants, and they have not suffered by reason of any error in the adThe facts appearing from the face of the mission of testimony tending to establish deed are very clearly indicative of the in- the parol trust. It is therefore unnecestent of Nathan Ellis, the grantor. After sary to consider objections to its compereserving an estate for the joint lives of tency; and this disposes of exceptions numhimself and his wife, he conveys a remain-bered from 9 to 19, both inclusive, and exder to the two children, at that time the only issue of his marriage with his said wife, but with a proviso that any child thereafter born of the marriage with her should take an equal share with the two already in esse. The deed further provides that Sullivan Leigh, the brother of his wife, under whom the defendants claim, should, as guardian of the two children, have the authority incident to that relation over the land till they should arrive at the age of 21, when they would "be entitled to take possession of said land and premises, free from all costs." It is most unnatural to conclude that a father, having provided a maintenance for life for himself and wife, and attempted by deed to appoint a guardian for 1 Code N. C. § 1728, provides for withdrawing the the two children, who are the only issue of | names of jurors having a suit pending and at issue. The first exception grew out of an objection to the competency of a juror, because he was interested, as a creditor, in a fund for which W. W. Fuller, as receiver, had brought a suit. The juror was not a party to an action pending and at issue in the court, and therefore did not come under the description in the disqualifying statute.1 The exception will not be sustained. The objection to the admission of the deeds read in evidence was not insisted upon. If it had been, however, we see no rea |