Hayes v. Ricard , 244 N.C. 313 ( 1956 )

93 S.E.2d 540 (1956) 244 N.C. 313

Virginia Lamm HAYES and husband, J. F. Hayes; Bessie H. Lamm; Zelma Lamm Poythress and husband, T. M. Poythress, and Temple Ann Hayes, an infant appearing herein by her next friend, J. W. Harrison
v.
Eunice Williamson Decker RICARD and Free Will Baptist Orphanage, Inc.

No. 238.

Supreme Court of North Carolina.

June 26, 1956.

Gardner, Connor & Lee, by Cyrus F. Lee, Wilson, for defendant Eunice W. Ricard, appellant.

Lamb, Lamb & Daughtridge, by V. F. Daughtridge, Wilson, Cooley & May, by Hubert E. May, Nashville, for plaintiffs, appellees.

HIGGINS, Justice.

At the outset it is necessary to determine whether this action is simply to remove cloud upon title or whether it is a suit in ejectment. The nature of the action is not determined by what either party calls it, but by the issues arising on the pleadings and by the relief sought.

The plaintiffs alleged they are owners and entitled to possession of the land in controversy; that the defendant claims under a void conveyance; and that she is in wrongful possession and is unlawfully receiving the rents and profits. They asked that they be declared to be the owners; that the defendant's conveyance be canceled; that her possession be declared to be wrongful and that she be ousted and be required to account for rents and profits; and that a receiver be appointed pending the controversy.

The defendant denied the plaintiffs' claim of ownership, alleged title in herself and that she is lawfully in possession and lawfully receiving the rents and profits.

Analysis of the pleadings fixes this as an action in ejectment. Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316; Brite v. Lynch, 235 N.C. 182, 69 S.E.2d 169; Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451; Vick v. Winslow, 209 N.C. 540, 183 S.E. 750; Satterwhite v. Gallagher, 173 N.C. 525, 92 S.E. 369; Prevatt v. Harrelson, 132 N.C. 250, 43 S.E. 800; Hines v. Moye, 125 N.C. 8, 34 S.E. 103; Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. We quote from the Baldwin case, supra [243 N.C. 113, 90 S.E. 2d 319]: "* * * But where, as here, defendants are in actual possession, and plaintiffs seek to recover possession, the action in essence is in ejectment."

The cases cited and relied upon by the plaintiffs to sustain their argument that this is simply an action to remove cloud upon title do not sustain their position. Ely v. New Mexico & Arizona R. R. Co., 129 U. S. 291, 9 S.Ct. 293, 32 L.Ed. 688, decided by the Supreme Court of the United States, was an action to remove cloud upon title. The plaintiff alleged (1) it was the owner; (2) the defendants claimed an interest adverse to the plaintiff; (3) that the defendants owned no interest. The plaintiff asked (1) that defendants be required to set forth their claim, (2) that a decree be entered that plaintiff's title is good and that the defendants have no interest, (3) that an injunction issue barring the defendants asserting any further claim. The defendants demurred and the demurrer was sustained by the Supreme Court of Arizona, 2 Ariz. 420, 19 P. 6. The Supreme Court of the United States reversed. The allegations of the complaint, admitted by the demurrer, are only that the plaintiff is owner and that defendants actually have no interest but are attempting to assert an interest.

In Pressly v. Walker, 238 N.C. 732, 78 S.E.2d 920, the plaintiffs alleged that as trustees of the Reformed Presbyterian Synod they are entitled to hold church property for the benefit of local congregations and that after a division in their Sardis Church the defendants and others took possession and claimed ownership and use of the property; that their possession is wrongful. The defendants demurred. Judge Pless overruled the demurrer and on appeal this Court affirmed. The allegations of the complaint, deemed admitted, were sufficient to entitle the plaintiff to remove the cloud.

In the case of Barbee v. Edwards, 238 N. C. 215, 77 S.E.2d 646, 651, the plaintiff brought an action to remove as a cloud upon his title a trustee's deed made 18 years after a purported sale under a deed of trust. The plaintiff claimed to have paid the amount due before the sale. At the close of the plaintiff's evidence a judgment of involuntary nonsuit was entered. The plaintiff's cause of action was based on the invalidity of the trustee's deed on the ground the purported sale was made after the amount due the cestui que trust had been paid in full and the right to sell thereby destroyed. This Court reversed the judgment of nonsuit and in the opinion Justice Johnston said: "Here the plaintiff neither alleges nor attempts to prove that the defendant is in possession. The defendant's possession, if any there be, is left for the defendant to prove under his special pleas. The plaintiff asks nothing by way of accounting and redemption." (Emphasis added.) His showing entitled him to proceed under G.S. § 41-10 to remove the cloud.

In the case of Speas v. Woodhouse, 162 N.C. 66, 77 S.E. 1000, 1001, the plaintiff sought to remove cloud upon title and to restrain waste. The dispute arose over the legal effect of a partition deed executed to a husband and wife by the latter's brother in the division of land they inherited from their father. The plaintiff claimed as heir of the deceased wife. The defendant, the surviving husband, claimed by right of survivorship. This Court held: "The deed * * * did not convey and create any new estate, but only operated to sever the unity of possession between the tenants in common * * *. It [the land] constituted the wife's separate estate and she could not be deprived of it by the fact that in a deed from her brother the husband was named as co-owner", and that the plaintiff was entitled to have the deed removed as a cloud upon her title.

Analysis of the foregoing cases cited by the plaintiffs serves to emphasize the fact that the case at bar is more than an action to remove a cloud upon title— that it contains all the essentials of an action in ejectment. In this, as in all ejectment cases, the plaintiffs must recover on the strength of their own title.

"Where in an action for the recovery of land and for trespass thereon defendant denies plaintiff's title and defendant's trespass, nothing else appearing, issues of fact arise both as to title of plaintiff and as to trespass by defendant—the burden of proof as to each being on plaintiff. Federal Farm Mortgage Corp. v. Barco, 218 N. C. 154, 10 S.E.2d 642. In such an action plaintiff must rely upon the strength of his own title. This requirement may be met by various methods which are specifically set forth in Mobley v. Griffin [supra]." Smith v. Benson, 227 N.C. 56, 40 S.E.2d 451, 453; Moore v. Miller, 179 N.C. 396, 102 S.E. 627.

In this case the burden of establishing title, therefore, is on the plaintiffs. In discharging the jury, entering judgment, declaring the plaintiffs to be the owners, and in ousting the defendant from possession of the land in dispute, the able trial judge committed error which makes it necessary to send the case back to the Superior Court of Wilson County for a jury trial. Ordinarily, it would be unnecessary to say more. However, we deem it not inappropriate to discuss some of the other questions raised by the assignments of error in the hope that the discussion will facilitate the trial.

More than 300 exceptions were taken to the exclusion of evidence. Manifestly, to discuss them seriatim would extend this opinion beyond reasonable bounds. The most that can be hoped for is to point out for the guidance of the attorneys and the court somewhat indefinite boundary lines separating competent from incompetent evidence. Left, however, to the trial court is the responsibility of ruling on objections to specific questions and answers as the occasion may require.

The plaintiffs examined Mr. Lucas as to the purchase of the Phillips farm by Mr. Lamm and the payment of the full purchase price by him, "and that no part of it was paid by anyone else." He testified he kept a file of Mr. Lamm's papers. Among others, plaintiffs' Exhibit No. 1, the deed from Stamper to Lamm; and plaintiffs' Exhibit No. 4, the quit-claim deed from the Stampers to the defendant Ricard. The witness further testified he delivered Exhibit No. 1 to the plaintiff, Mrs. Hayes, and Exhibit No. 4 to the defendant Ricard. He testified that Stamper was a real estate broker and acted as agent of Mr. Lamm.

At the time of the purchase of the farm, payment of the purchase price, the execution and delivery of the deed, Mr. Lucas was attorney for Mr. Lamm. At the time he testified in the trial he was one of the executors of Mr. Lamm's will. When the plaintiffs elected to examine this witness about the purchase, payment of the purchase price, the execution and delivery of the deeds, that Stamper acted as agent, they waived their right to keep their communications privileged. It became the right of the defendant to cross-examine the witness and to introduce pertinent evidence of other witnesses relating to those matters. The rule, with citation of authority, is thus stated by Wigmore:

"A privileged person would seldom be found to waive if his intention not to abandon could alone control the situation. There is also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his immunity shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must be final. * * *

"The client's offer of his own or the attorney's testimony as to a specific communication to the attorney is a waiver as to all communications to the attorney on the same matter; for the privilege of secret consultation is intended only as an incidental means of defense, and not as an independent means of attack, and to use it in the latter is to abandon it in the former." Wigmore on Evidence, Vol. 8, 3rd Ed., sec. 2327.

The examination of Mr. Lucas, attorney and executor, with respect to the purchase of the Parker-Phillips farm, etc., was likewise a waiver of G.S. § 8-51 with respect to the matters about which he testified. However, the waiver did not extend to other and independent transactions. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156; Batten v. Aycock, 224 N.C. 225, 29 S.E.2d 739; Walston v. Coppersmith, 197 N.C. 407, 149 S.E. 381; Pope v. Pope, 176 N.C. 283, 96 S.E. 1034; Phillips v. Interstate Land Co., 174 N.C. 542, 94 S.E. 12.

It follows, therefore, that the trial court committed error in excluding so much of the cross-examination of the witness Lucas as related to the transaction about which he testified on direct examination. The direct examination made it competent for the defendant Ricard to testify and to present other evidence with respect to the transaction involved in Mr. Lucas' direct testimony. That waiver continues until the end of the case. "A waiver at one stage of the trial should be final for all future stages." Wigmore on Evidence, Vol. 8, 3rd Ed., sec. 2328.

Mr. Lucas stated the full consideration for the farm was paid by Mr. Lamm "and no part was paid by anybody else." The plain implication is the defendant Ricard paid nothing. With that statement in evidence against her she has the right to show what consideration she paid. The law recognizes that under certain conditions the term "consideration" sufficient to support a conveyance is not confined exclusively to the payment of money. If Mr. Lamm recognized he owed a debt to the defendant and it was his intention to pay the debt by having a tract of land conveyed to her, and she accepted the land in satisfaction of the debt, such would be sufficient consideration for the conveyance. Mr. Lucas would have testified on cross-examination, if permitted, that prior to the execution of the deed to the defendant Mr. Lamm executed a will in which he made substantial bequest for the defendant's benefit; and that after the deed was executed and the defendant placed in possession of the farm the will was changed and the bequest left out. The evidence was competent as tending to show that Mr. Lamm recognized his obligation to the defendant and that the obligation was discharged by the conveyance.

The record discloses that the plaintiffs adversely examined the defendant Ricard for the purpose of obtaining evidence for use in the trial as provided in G.S. §§ 1-568.1 to 1-568.16. That examination is a waiver of the protection afforded by G.S. § 8-51 to the extent that either party may use it upon the trial. Andrews v. Smith, 198 N.C. 34, 150 S.E. 670.

Likewise, if the plaintiffs at the former trial called the defendant Ricard as an adverse witness, examined her in detail about her relations with Mr. Lamm as the record tends to disclose, such examination also would seem to be a waiver of G.S. § 8-51 and would open the door for the defendant to testify in another trial in respect to the matters about which the plaintiffs examined her. They cannot force her to disclose facts favorable to them at one stage and thereafter deny her the right to disclose them when pertinent to her defense at another stage. Norris v. Stewart's Heirs, 105 N.C. 455, 10 S.E. 912; Meroney v. Avery, 64 N.C. 312.

The defendant Ricard alleged that by the acts, conduct and deeds of Grover T. Lamm the plaintiffs are estopped to deny her title and right to possession of the farm described in her deed; and that they are likewise estopped to assert and set up, in opposition to her title, the deed from the Stampers to Mr. Lamm. The plaintiffs claim as devisees under Mr. Lamm's will. They therefore stand in his shoes. They can assert no better claim than he could were he the plaintiff. Coward v. Coward, 216 N.C. 506, 5 S.E.2d 537. "``He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title and thus takes it with the burden attending it.'" Watford v. Pierce, 188 N.C. 430, 124 S.E. 838, 842.

The evidence offered and excluded tends to show that Stamper, agent, held only the naked legal title; that Grover T. Lamm was the equitable owner. So that when Stamper and wife, under the direction of Lamm, executed the quit-claim deed to the defendant Ricard the deed in legal effect became Lamm's deed and may be treated as such.

The defendant Ricard offered evidence of matters in pais which tended to support her claim of estoppel. Its exclusion was error.

Reversed.