Ross v. . Hendrix , 110 N.C. 403 ( 1892 )

Both parties claimed the land under the same person (George K. Hendrix, deceased), who was the husband of one of the plaintiffs and the father of the other. The plaintiffs relied on three deeds, executed in 1887 and 1888; and the defendants set up an equity with notice, and introduced testimony tending to show that the widow of said Hendrix, defendant, had lived on the land sixteen years, i. e., since her marriage, and she had been in possession since her husband's death, twelve years; that the land was bought by him with her money, showing the amount which went in it. The deceased was heard to acknowledge that his wife's money bought the land. It appeared also that the defendant, his widow, laid claim to the land, and so informed plaintiff. (404)

The plaintiff's counsel insisted that the defendant Nancy Hendrix had failed to establish by proof the equity claimed by her, and asked the court to charge the jury that there is no evidence to go to them upon the second issue, as to the alleged agreement between the said George K. Hendrix and the defendant Nancy, his wife, that her money was used in paying for the land at the assignee's sale, or, if it was so used, that it was upon any agreement made at the time, or before that time, between her husband and herself that the land was to be hers, or that she was to have the title or any interest in the land.

Plaintiff's counsel also asked the court to charge the jury that the possession or occupancy of the land by Nancy Hendrix, under the circumstances of this case, she being entitled to dower in the land, and her possession of the same as the widow of the deceased George K. Hendrix did not have the effect to fix the plaintiff with constructive notice of her claim to an equity in the land, and that they should find the fourth issue in favor of the plaintiff.

The court declined to charge as requested, and the plaintiff excepted, and appealed. We are of opinion that there was sufficient testimony to be submitted to the jury for the purpose of establishing at least a resulting trust in the defendant Nancy Hendrix. It appears that she sold her land after her marriage, which occurred some sixteen years before the trial of this action. The sale then having been made since 1868, the proceeds arising therefrom was her separate property, and these proceeds having been invested in the land in controversy (405) by her husband, it must follow, in the absence of any agreement to the contrary, that a trust resulted to her. Kirkpatrick v.Holmes, 108 N.C. 206.

We are also of opinion that the possession of the entire tract of land for twelve years by the said Nancy after the death of her husband, accompanied as it was by acts indicating a claim to its exclusive ownership, was constructive notice of her equity, and that the plaintiff is affected therewith.

It is true that if dower had been assigned in the land occupied by her, there would have been no constructive notice; but there was no assignment of dower, and she occupied the entire tract under the circumstances mentioned. This possession, while not adverse as between the widow and the heirs (Page v. Branch, 97 N.C. 97), so as to bar their entry, was sufficient to put a purchaser upon inquiry, and he must be deemed to have had notice of all that such an inquiry would have disclosed. Bryan v.Hodges, 107 N.C. 492; Staton v. Davenport, 95 N.C. 11.

The exception to the ruling upon the statute of limitations was not very seriously pressed by counsel. The possession of the defendant Nancy was consistent with her equitable ownership, and she only sets up the trust for the purpose of protecting such rightful possession. The statute of limitations does not apply to such a case. Farmer v. Daniel, 82 N.C. 152.

We think that, under the circumstances, it is proper to permit George Hendrix, the heir of defendant Nancy, who died pending the appeal, to come in and adopt her answer. The other exceptions are also without merit.

No error.

Cited: Ray v. Long, 128 N.C. 91; S. c., 132 N.C. 892.

(406)