Vance v. . Vance , 118 N.C. 864 ( 1896 )

Defendants appealed. (867) The defendants, in their answer to the petition for dower, admitted that the legal title to each and every lot or parcel of land described in the petition was in the husband at the time of his death, but they averred that one of the parcels (the Bee Tree tract) in equity belonged to them, and that the petitioner, therefore, was not entitled to dower therein. Issues of fact were raised by the pleadings, and under section 256 of The Code the case was transferred to the civil-issue docket for trial. At January term, 1896, upon the case being called, the defendants' counsel stated that, as the answer set forth facts which constituted an equitable defense and counterclaim and prayed for affirmative relief, he thought there should be a reply to the same by the petitioner. The counsel of the petitioner thought a replication unnecessary. It was then agreed that a jury trial should be waived and that the judge should pass upon the issues of fact and law and render judgment accordingly. The defendant's counsel then moved for judgment upon the answer, on account of the failure of the petitioner to make replication. Upon our first examination of the matter of the motion for judgment we were inclined to the view that an equitable counterclaim could be set up in the answer; that if no replication was filed the clerk would on his own motion send the matter on to the judge, in chambers, as under the old chancery practice, for his orders and directions as to how to administer the equities; (868) and that if issues of fact were raised concerning the alleged equities the case would be transferred to the ensuing term of the court for the trial of the issues. But upon fuller investigation we are of opinion that the clerk, in special proceedings, has no power to make any order or decree granting affirmative equitable relief. Bragg v. Lyon,93 N.C. 151. New matter, by way of avoidance, may be set up in the answer containing equitable rights, and when such rights exist they ought to be pleaded before the clerk, but when pleaded they amount to no more than an equitable defense. This question has not been directly presented to this Court before, but the same principle of pleading has been applied to actions before a justice of the peace, where equities were set up in the answer. Lutz v. Thompson, 87 N.C. 334; McAdoo v. Callum, 86 N.C. 419. The motion to dismiss the petition for failure on the part of the plaintiff to reply to the answer was properly overruled by his Honor.

A jury trial was waived by the parties and the issues of fact and law were, by consent, tried by the judge. His Honor found as facts, in substance: (1) That in 1888 the husband of the petitioner purchased the land called the Bee Tree tract, took a deed for it and had it registered; that the vendor owed a debt of $2,000 to Baylus and one of $1,500 to Davidson, secured by mortgage upon the land, which the vendee agreed to pay, and that he did pay them in 1891; that in 1890 or 1891 the husband of the petitioner, under a power of attorney from his children by a former marriage, who were all of full age, sold a part of the real estate of his former deceased wife (mother of the children who gave the power of attorney), in which he had a life estate as tenant by the courtesy, and from the proceeds of the sale paid the debt, referred to, of Baylus and Davidson. (2) That the husband of the petitioner, Zebulon B. Vance, died in April, (869) 1894 (in Washington, D.C.), regarding Charlotte as his place of residence, having voted there in 1892. All and every part of the testimony went to prove the fact as found by his Honor, and there was nothing in the averments of the answer intimating that the deed was not written just as it ought to have been — no intimation that the deed was taken by mistake, accident or fraud. The case was argued before us simply on the point of practice, which we have decided against the defendants. On the facts found by his Honor the court concluded and adjudged:

"1. That the petitioner is entitled to dower in the Bee Tree tract of land, as well as the other lands mentioned in the petition.

"2. That the house in Charlotte was not the last usual place of residence of the said Zebulon B. Vance.

"It is therefore adjudged by the court that the petitioner is entitled to dower in all the lands described in her petition. It is further adjudged that the same be allotted to her in the manner provided by law."

An order was also made for an account to be taken of the rents which have been collected since April, 1894, and that the petitioner's part thereof be ascertained. The defendants appealed.

We see no error in the rulings made by his Honor, and the judgment seems to be a proper one.

No error.

Cited: Austin v. Austin, 132 N.C. 266; Hoggard v. Jordan, 140 N.C. 619;Levin v. Gladstein, 142 N.C. 494; Webster v. Williams, 153 N.C. 311.

(870)