Banks v. . Shannonhouse , 61 N.C. 284 ( 1867 )

The petition had been filed in the county court, and having made the heirs of William F. Banks parties thereto, sought a (285) partition of certain lands of which he died seized in 1863, and an account of all advancements of real and personal estate received by the parties from the deceased. Among the parties defendant were B. J. Shannonhouse and wife, Mary, who were charged with having been largely advanced in realty and personalty.

These defendants denied that they had been advanced in lands; and in regard to personalty, which they admitted that Mrs. S. had received, they objected that a large part of it consisted of slaves, the title to which the deceased had warranted to her forever, and claimed that as these had been taken from her by the act of the government (emancipation) the amount at which they had been charged by the deceased should be reduced. They admitted that one Harvey, who was a former husband of Mrs. S., had purchased a tract of land for full value from the deceased.

Evidence was offered tending to show that the deceased, in selling to Harvey, had allowed him, in the way of advancement, $4,000, out of the $5,860 which was set forth in the deed to Harvey as the price of the land.

The referee, who was ordered by the county court to take an account of the advancements, charged Mrs. Shannonhouse with the full value of the slaves and with the $4,000 said to have been allowed to Mr. Harvey on the price of the land. This report having been excepted to, was set aside(pro forma) by the county court, and upon appeal to the Superior Court, was confirmed by his Honor, pro forma. Thereupon the defendants Shannonhouse and wife appealed. 1. An advancement to a son-in-law is an advancement to the daughter.Bridgers v. Hutchings, 11 Ire., 68. See Rev. Code, ch. 38, Rule 2.

2. The recital of a consideration in a deed for land does not (286) conclude the question of advancement: especially in cases of mistake and misapprehension of the effect of the deed. Streatorv. Jones, 3 Hawks, 423; Jordan v. Blount, 2 Dev. Eq., 555; Kimbroughv. Smith, ibid., 558; Jones v. Spaight, 2 Mur., 89; Creedle v. Creedle, Bus., 225; White Tudor Lead. Cas. Eq., Part I, Vol. 2, 564; Quarles v.Quarles, 4 Mass. 680; Bulkly v. Noble, 2 Pick., 337; Meeker v. Meeker,16 Conn. 383. The first exception of defendants, Shannonhouse and wife, is allowed.

The deed of Banks, the father of Mrs. Shannonhouse, to Harvey, her first husband, is an absolute conveyance to him in fee simple of a tract of land in consideration of $5,860. She is not named in the deed, and takes nothing under it; so, standing alone and without explanation, it can furnish no ground whatever to support the allegation of an advancement to her.

Waiving all objections to the evidence offered by the petitioners, and taking the fact to be that the father supposed he was making an advancement to his daughter, by making this conveyance to her husband, to the amount of $4,000 in part of the purchase money, it is perfectly clear that Mrs. Shanonhouse [Shannonhouse] has received of her father no land by way of advancement, and nothing as equivalent therefor, or as a substitute for it.

Mr. Smith relied upon Bridgers v. Hutchings, 11 Ire., 68, where it is held, a gift of personal property to a husband is an advancement to the wife, and insisted that there was no difference between a gift of personal property and a gift of land.

In our opinion there is a very essential difference. If personal (287) property be given to a wife, it instantly, jure mariti, belongs to the husband; so it is immaterial whether the gift be made to the wife or to the husband. But if land be given to the wife it remains hers, and the husband can only become entitled to a life estate as tenant by the curtesy; whereas, if it be conveyed to the husband, the wife takes nothing, save a collateral right to have dower in case she survives; so it cannot be said in any sense that she has received of her father any land by way of advancement.

Mr. Smith suggested that the wife has an equity, on the ground of mistake, to convert the heirs of her first husband into trustees for her, to the extent of this $4,000, and for that reason it should be treated as an advancement. We can see no reason why she should be excluded as an heir, and be forced to take upon herself alone the risks of setting up an equity against the heirs of her first husband. The mistake or inadvertence was on the part of their common ancestor, and his equity to have the matter put right developed upon all his heirs; and the way is open for the heirs, if so advised, to file a bill in order to set up this equity. Apart from this, it may be that should Mrs. Shannonhouse take dower of the estate of her first husband in respect to this $4,000 worth of land, the other heirs of her father may have an equity against her for contribution, but that possibility can in no wise support the allegation that she has received of her father land by way of advancement.

There is error in the order refusing to allow the first exception.

The second exception is not allowed. The slaves constituted an advancement as of their value at the time they went into the possession of Mrs. Shannonhouse, and their "political death" afterwards is the same in legal effect as if they had died a natural death.

There is no error.

The appeal being from an interlocutory order refusing to allow both exceptions, Shannonhouse and wife are entitled to the costs (288) of this Court.

This opinion will be certified to the end that further proceedings may be had in the court below.

PER CURIAM. Ordered accordingly.