Muse v. Muse

72 S.E.2d 431 (1952) 236 N.C. 182

MUSE et al.
v.
MUSE et al.

No. 94.

Supreme Court of North Carolina.

September 17, 1952.

Cecil C. Jackson, Asheville, for plaintiffs, appellants.

Don C. Young, Asheville, for defendants, appellees.

DEVIN, Chief Justice.

The plaintiffs appealed at once from the order of Judge Rudisill setting aside the verdict on the third issue at June Term 1951, allowing the verdict to stand as to the first two issues, and granting a partial new trial on the issue of undue influence. This was heard at Fall Term 1951, and the appeal dismissed, this Court holding that these were matters within the discretion of the presiding judge. Muse v. Muse, 234 N.C. 205, 66 S.E.2d 689.

The plaintiffs now bring forward their exceptions noted in the first trial to the charge of Judge Rudisill on the first two issues. However, upon examination of the portions of the charge excepted to we discover no substantial error, and hence the verdict of the jury must be taken to have established the fact that the grantors in the deeds had sufficient mental capacity to execute the deeds in question.

On the trial before Judge Bobbitt at February Term, 1952, the plaintiffs noted numerous exceptions to the rulings of the court in the admission of evidence, and to his action in giving the jury peremptory instructions to answer the third and fourth issues in favor of the defendants. While some of the rulings of the court standing alone would not be approved, an examination of the entire record leaves us with the conviction that Judge Bobbitt was right in holding that there was no competent evience to support the allegations of fraud and undue influence on the part of the defendants, and that his instruction to the jury to that effect may not be held for error. In re Craven's Will, 169 N.C. 561, 569, 86 S.E. 587; In re Will of Turnage, 208 N.C. 130, 179 S.E. 332; Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; In re Will of Kemp, 234 N.C. 495, 67 S.E.2d 672. Likewise, on all the evidence we think the court correctly held, and so instructed the jury, that whatever cause of action M. A. Muse may have had was barred by the three-years' statute of limitations. Title, if any, vested in her in 1941. She was found to be mentally competent at that time, and she had knowledge of the facts now asserted by the plaintiffs. She died in 1949. G.S. § 1-52, subd. 9; Peacock v. Barnes, 142 N.C. 215, 55 S.E. 99; Blankenship v. English, 222 N.C. 91, 21 S.E.2d 891; Vail v. Vail, 233 N.C. 109, 116, 63 S.E.2d 202. The burden was on the plaintiffs to show this action was brought within the time allowed by law.

Plaintiffs contend that the deeds to the defendants being deeds of gift became void under G.S. § 47-26 for failure to have them registered within two years from "the making thereof." But this position is untenable as the evidence shows the deeds were signed and acknowledged April 22, 1940, and registered April 4, 1941. Though apparently bearing date in 1937, the time of "making" the deed, as the word is used in the statute, means date of execution. "The execution of a deed is not complete until the instrument is signed, sealed and delivered." Turlington v. Neighbors, 222 N.C. 694, 24 S.E.2d 648, 651.

Without undertaking to discuss seriatim all the exceptions noted by plaintiffs, we reach the conclusion that upon the whole case as shown by the record no substantial error has been made to appear and that the result reached below should not be disturbed.

No error.