Tolar v. . Tolar , 16 N.C. 456 ( 1830 )

The prayer was that the defendant might be compelled to execute to the plaintiff another deed for the same property.

The defendant denied every allegation of the bill as to the execution of the deed, and averred that he was very illiterate, and also old and infirm; that he had once executed a will, which he supposed was the paper mentioned by the plaintiff, by which he divided all his property equally among all his children, and insisted that to be the only instrument he had ever executed disposing of his property; and that if it was not a will, it had been falsely read to him. This he admitted had been destroyed.

Upon replication, many depositions were taken, a statement of (457) which will be found in the opinion of the Court. The plaintiff does not call upon the Court for its assistance to supply any defect or rectify a mistake in the voluntary deed of gift which is the subject of the present dispute, but to restore to him the evidence of a legal title, the deed of gift of which he has been deprived (as is admitted in the answer) by the defendant's own conduct.

It appears that the defendant was an old man, and that his mind labored under the infirmities incident to old age. But none of the numerous witnesses examined in the case say that he was incapable of transacting his business or of making a contract.

It is clear that the deed of gift was not executed with precipitancy, but with some deliberation. Arthur Jones states, in his deposition, that he saw the defendant at his father's, and he told him he was on his way to Hopton Coor's to get him to write a deed of gift, and that he intended to give all his property to Barden, the plaintiff. He says further that he and the family remonstrated with the plaintiff against the impropriety of giving all to one child. He persisted in his determination to do so, and said if Hopton Coor would not write it for him, he would get some other person to do it. He would not return until he had accomplished it. This happened two or three days before the delivery of the deed of gift. Calvin Coor says, in his deposition that the defendant went to the house of Hopton Coor, about 20 February, 1821; that he appeared to be in his senses; that he (458) wrote a deed of gift for him; that he signed it, and that he and Hopton Coor attested it as witnesses; that by the deed of gift he conveyed all the land that he had in possession, and six negroes by the names of Dorcas, Hardy, Britton, Zeny, and Jonas; that the name of the other negro he does not recollect; that the deed was read over to the defendant; that he expressed his satisfaction with it; that it was delivered to Barden Tolar, the plaintiff; that he told the plaintiff to go and have it recorded, but that in consequence of something Hopton Coor said, the defendant observed it would be time enough to have it recorded after his death, and told plaintiff to let Hopton Coor keep it, upon which the plaintiff delivered it to Hopton Coor. In the most important facts stated by this witness he is supported and corroborated by the testimony of Dorcas Coor. Arthur Jones states that in a short time afterwards he saw the defendant and was told by him that he had executed the deed of gift, and that it was left with Hopton Coor.

At this stage of the inquiry it may be assumed that title to the property contained in the deed of gift became vested in the plaintiff; for although it had been placed in the possession of Hopton Coor, it had been previously delivered to the plaintiff, and his placing it there was his own act. The title to the property had previously passed to him. That act was not obligatory upon him. He might have had it recorded when he pleased. Several depositions have been read to prove that the defendant, on several occasions, declared that he had conveyed all of his property to the plaintiff, excepting perhaps his hogs, chickens, etc., and that he had no right to exercise acts of ownership over it. Other depositions have been read to prove that he did, on various occasions, exercise acts of ownership over it, and treated it as his own. These circumstances relative to the management of the estate prove nothing on either side. It was natural, when father and son lived together, that each of them should occasionally use the property and treat it (459) as if it was his own.

It does not appear that after the defendant had regained possession of the deed of gift, and destroyed it, which was a few days after he executed it, that the possession of the property was in any respect changed until the plaintiff left his father's and went to live by himself. Until then, the possession accompanied the title, whether it was in the father or in the son. After their separation, it does not appear that the father had such an adverse possession of either the land or negroes as would give him a title under the statute of limitations.

Depositions have been read to prove that the plaintiff himself did not consider that he had a right to the land or negroes. Some of the depositions say that the plaintiff was an ignorant man. Perhaps he might have thought that his title was divested by the destruction of the deed of gift. If such was the case, his misconception of his rights should not injure him. It is admitted by the defendant in his answer that some days after the execution of the deed of gift by him, he went to Hopton Coor's house and applied for it; that Dorcas Coor delivered it to him, and he destroyed it.

From an examination of the whole case, I am of opinion that the defendant be decreed to convey to the plaintiff all the land that he was possessed of at the date of the deed of gift, and that the master ascertain the identity of it; that he also convey to him the six negroes, with their increase since the date of the deed of gift; that he ascertain the name of the sixth negro, not recollected by Calvin Coor, and that this conveyance be made by such a deed as the master shall approve, without warranty.

PER CURIAM. Decree accordingly.

Cited: Morris v. Ford, 17 N.C. 418; Tate v. Tate, 21 N.C. 23; Thomasv. Thomas, 32 N.C. 125; Plummer v. Baskerville, 36 N.C. 268; Smith v.Turner, 39 N.C. 441; Walker v. Coltraine, 41 N.C. 82; Crump v. Black,ibid., 323; Tyson v. Harrington, ibid., 331; Brendle v. Herron, 88 N.C. 386.

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