Tiddy v. Graves.

CLARK, J., dissenting. A petition to rehear this case was granted, and the matter is before us again for consideration. The action was brought by the plaintiff to recover of the defendant a house and lot in the town of Greensboro. The property was devised by Mrs. Annie G. Reed, who was the wife of J. W. Reed, to her son by a former marriage, Thomas C. Tiddy. There was no devise or bequest to the husband, J. W. Reed, who was named executor in the will. After the death of the testatrix, Reed, the executor, had the will probated, and qualified (503) as executor. He remained in possession of the property for some years, and listed it for taxation in 1892, in 1893, and 1894, as his property. He failed to pay the taxes to the State and county and city of Greensboro, for those years, and a sale was made for that failure to pay taxes by the Sheriff of Guilford County and by the tax collector of Greensboro, and, no redemption having been made, deeds were executed by those officers respectively, to the purchaser, George C. Graves, a brother of the testatrix, nominated to be her executor, together with her husband, in her will. The property is worth $2,000. The plaintiff, before two years had expired from the day of the sale, tendered the purchaser the amount of taxes and costs and penalties in redemption of the property, which was declined. The plaintiff bases his right to redeem, mainly on an admission made by the defendant in his answer. The third allegation of the complaint was "That J. W. Reed, the husband of said Annie G. Reed, at her death became entitled to an estate by the curtesy in said land, and he is still surviving." In answer to that allegation, there is an unqualified admission, of its truth in the answer. In the trial below it was held by the Court that the defendant could not controvert that admission, although it was further held that "under sec. 6, Art. X, of the Constitution, the estate by curtesy is destroyed where the femecovert dies testate and devises the property, as in this case," and although "the husband, J. W. Reed, duly qualified as executor to said will, he can not claim a life estate as against the plaintiff, a devisee of this lot." It is necessary for us to discuss here only the first proposition. The Court, when the case was before us at the last term, in its opinion decided that the admission of the defendant was the admission of a pure matter of law, and therefore not binding on the defendant, and, of course, not binding on the Court. We were (504) treating the case as if it appeared from the pleadings that the marriage of Reed and the testatrix took place after the adoption of the Constitution of 1868. In the petition to rehear our attention was called to the fact that it is nowhere in the case directly stated when the marriage did take place. The complaint simply alleged the issuable fact that J. W. Reed, the husband of Annie G. Reed, at her death became entitled to an estate by the curtesy in her land. The probative evidentiary facts need not have been pleaded, and the defendant in his answer did not name the date of the marriage, nor did he prove it on the trial. It is true that the testratrix in her will named her husband to be guardian of her son, Thomas, and that might be a presumption that he was an infant — but it would be only a presumption — and that, therefore, the marriage occurred after 1868, the will having been written in 1890. The admission in the answer overcame the presumption, because, so far as the record discloses, the son, Thomas, might have needed a protector and friend, which the testatrix called guardian, even though he was more than 21 years of age. If there had been anything in the case going to show clearly, notwithstanding the admission of the defendant in the answer, that the marriage occurred after 1868, then the admission would have been an admission of law which this Court would not have respected, for the law would have been clearly the other way. For the reason pointed out, we now think that the admission of the defendant that Reed was entitled to an estate as tenant by the curtesy in the property was an admission of fact, and that his Honor below was correct in holding that the defendant was bound by it. We agree with his Honor below, too, that the plaintiff had the right to redeem the property from the sale by the city of Greensboro. The defendant's contention was that under the charter of the (505) city of Greensboro, there was no provision allowing a remainderman, or anyone else, to redeem land sold for city taxes after one year from the date of sale. We are of the opinion that sec. 99, chap. 119, Laws 1895, applies to land sold for city taxes as well as for State and county taxes. There is certainly no inconsistency between the Act of Assembly and the charter of Greensboro. And we are confirmed in this view when it is seen that sec. 3699 of The Code (Laws 1879, chap. 71, sec. 54), is in exactly the same words as sec. 99, Laws 1895. The retention of that section of the Act of 1879 in The Code seems to make it of general application.

Petition allowed, and judgment affirmed.