Heirs at Law of Freeman v. Ramsey

Varser, J.

Plaintiffs’ first exception is to the exclusion of the evidence of Patton, son of Nancy Freeman by her first marriage, as to the laying off by three men of what the witness calls his mother’s dower; that George Freeman, an heir of Daniel E. Freeman, was there; that it was in 1873 and that the land was allotted to her “as her dower,” and witness gave one of the lines of the dower as “the conditional line between Daniel E. Freeman and Garrett Ramsey,” and said, “My mother lived on the dower until she sold it to David Lunsford.”

We think this evidence is competent. It was not, strictly speaking, the laying off or admeasurements of dower, as in cases or when the widow dissents from her husband's will of intestacy. 0. S., 4099, 4100, 4104, 4105.

The statutory method of allotment is exclusive. However, in the instant case, Nancy Freeman took under the will. The allotment need not have been made upon petition filed in Superior Court (C. S., 4105) in analogy to quasi dower under a will, but yet statutory as against creditors. C. S., 4108; Trust Co. v. Stone, 176 N. C., 270; Simonton v. Houston, 78 N. C., 408.

Dower has always been a favorite of the law. No mode of ascertaining and setting apart the substitute for dower as contemplated by C. S., 4098, is provided by statute, and none is expressly provided in the instant will, but such a beneficent provision for his widow cannot fail for want of a remedy. Hence, either the statutory method for allotting dower or an allotment or location of the same by the parties, as shown by the proffered evidence, is sufficient. Evidently the executor, George Freeman, treated this provision as mandatory, and the evidence shows that the widow accepted the allotment and continued in possession of the lands. Ex parte Avery, 64 N. C., 113; Simonton v. Houston, supra.

This evidence was also competent as tending to show and to locate the possession of Nancy Freeman, as widow, and to fix the limits of her possession, and to locate the land in the Revis-Lunsford deed, under which the defendants’ predecessor in title, Garrett Ramsey, purchased and went into possession. A location by the parties at or before the time of the transaction is competent. Allison v. Kenion, 163 N. C., 582. Recitals in the deeds under which the defendants held or now claim, or in the deeds under which Garrett Ramsey held, are evidence against the defendants that the dower or life estate of Nancy Freeman was properly allotted and located as therein stated. McMahon v. Stratford, 83 Conn., 386; Chandler v. Wilson, 77 Maine, 76; Norris v. Hall, 124 Mich., 170; Havens v. Sea Shore Land Co., 47 N. J. Eq., 365; Garwood v. Dennis, 4 Binn. (Pa.), 314. This rule also applies to recited sources of title. Garbarino v. Noce, 6 A. L. R., 1433, and cases cited in an elaborate note thereto; 18 C. J., 264.

It is the same in effect as conveying- land by a name which has become attached to a certain piece of land. 8 R. C. L., 1081; Smith v. Proctor, 139 N. C., 314.

The intention of the parties to the deed, as expressed therein, is evidenced by the clear statement that it was the lifetime interest or dower of Nancy Freeman, widow, that was conveyed. The deed is the only written evidence thereof and is competent. Dill v. Lumber Co., 183 N. C., 660.

Recitals in deeds are, as a rule, received in evidence against parties and privies. Baggett v. Lanier, 178 N. C., 129; Jenkins v. Griffin, 175 N. C., 184; Hattan v. Dew, 7 N. C., 260; Mordecai’s Law Lectures, 808.

Tbe defendants are not permitted to claim tbe lands covered by tbe widow’s life estate adversely to tbe beirs of Daniql E. Freeman during tbe lifetime of Nancy Freeman Revis. Tbe recital quoad tbe dower or life interest is an estoppel. Green v. Bennett, 120 N. C., 394.

We are further of tbe opinion tbat tbe defendants, wbo admittedly claim under Garrett Ramsey, cannot dispute tbe laying off or location of tbe boundaries of tbe life estate of Nancy Freeman under tbe will of Daniel E. Freeman. Tbe Revis-Lunsford deed and Lunsford-Ramsey deed both refer to and convey tbe widow’s interest wbicb sbe took under tbe Daniel E. Freeman will; and having obtained and enjoyed tbe use thereof from 1878 until tbe death of Nancy Freeman, in 1923, a period of 45 years, tbe defendants are now estopped to dispute tbe allotment and location thereof.

When tbe facts recited in deeds are of tbe essence of tbe contract, and where tbe intent of tbe parties to place a fact beyond question or to make it tbe basis of tbe contract is clear, tbe recital is effectual and operates as an estoppel against parties and privies. 2 Herman on Estoppel, 636; Bigelow on Estoppel (5 ed.), 366; Burns v. McGregor, 90 N. C., 222; Fort v. Allen, 110 N. C., 183; Walker v. Brooks, 99 N. C., 207; Brinegar v. Chaffin, 14 N. C., 108; Hill v. Hill, 176 N. C., 197; Drake v. Howell, 133 N. C., 166. Having entered into tbe possession of tbe lands in controversy under tbe Revis-Lunsford deed and tñe parol agreement with Lunsford, wbicb was later consummated in tbe Lunsford-Ramsey deed, tbe defendants are estopped to question tbe title of Nancy Freeman during her lifetime or now to assert their possession during her lifetime thereunder adversely to tbe plaintiffs, beirs at law of tbe deceased husband, under whom tbe widow claimed. Farmer v. Pickens, 83 N. C., 553; Love v. Edmonston, 23 N. C., 152; Dowd v. Gilchrist, 46 N. C., 353; Springs v. Schenck, 99 N. C., 551, 558.

Nancy Freeman was estopped to assert her possession as widow or tenant under tbe will against tbe beirs of her husband and, therefore, tbe defendants are likewise estopped. Callendar v. Sherman, 27 N. C., 711; Melvin v. Waddell, 75 N. C., 361; Malloy v. Bruden, 86 N. C., 251; Love v. McClure, 99 N. C., 295; Springs v. Schenck, supra; Mobley v. Griffin, 104 N. C., 112; Ladd v. Byrd, 113 N. C., 466; Everett v. Newton, 118 N. C., 919; In re Gorham, 177 N. C., 272; Timber Co. v. Yarbrough, 179 N. C., 335; Forbes v. Long, 184 N. C., 40; Malone on Real Property Trials, 205, 206; Gintrat v. Western Railway of Alabama, 19 L. R. A., 839, with, an elaborate note reviewing the authorities on the many' phases of this question.

The defendants contend, and the court below so held, that the dower not having been allotted, as provided by statute in cases of intestacy or upon a dissent, that the will of Daniel E. Freeman was insufficient to give the widow any title to any part of the Freeman land for life. This view cannot be sustained. We hold that the will of Daniel E. Freeman vested in Nancy Freeman a life estate in so much of his land as included within the boundaries set out in his will, when properly located. Broadhurst v. Mewborn, 171 N. C., 400; Boddie v. Bond, 158 N. C., 204; Sigmon v. Hawn, 86 N. C., 310; Boyd v. Redd, 118 N. C., 680; Blanton v. Boney, 175 N. C., 211; Warehouse Co. v. Warehouse Corp., 185 N. C., 518.

The description in the Freeman will is sufficient to be located by parol evidence. C. S., 992; Farmer v. Batts, 83 N. C., 387; Johnson v. Mfg. Co., 165 N. C., 105; Patton v. Sluder, 167 N. C., 500; Perry v. Scott, 109 N. C., 374; Bachelor v. Norris, 166 N. C., 506; Stockard v. Warren, 175 N. C., p. 286; Allen v. Sallinger, 108 N. C., 161.

The defendants contend that there is no proof that Garrett Ramsey held under the widow of Daniel E. Freeman. We are of the opinion that the testimony of the witness Lunsford, if found to be true, shows that he did.

However, aside from this testimony, we hold that when a party is in the possession of land and a registered deed or deeds are produced by the opposite party, nothing else appearing, it will be taken, prima facie, that he entered or held under such deed or deeds. Register v. Rowell, 48 N. C., 312; Bryan v. Spivey, 109 N. C., 71.

The defendants are in privity with Garrett Ramsey upon the instant record. Bryan v. Malloy, 90 N. C., 508.

We do not consider evidence which makes for the defendant upon a motion for judgment as upon nonsuit. Nash v. Royster, ante, 408; McAtee v. Mfg. Co., 166 N. C., 455; Cashwell v. Bottling Works, 174 N. C., 324; Builders v. Gadd, 183 N. C., 447; Lamm v. R. R., 183 N. C., 74; Brown v. R. R., 172 N. C., 604; Williams v. May, 173 N. C., 78.

Since it is admitted, however,-that the description in the complaint in the instant case and the description of the first tract in the action between Garrett Ramsey and G. W. Freeman and Ben Freeman, pleaded by defendants on estoppel against the heirs at law of G. W. Freeman and Ben Freeman, who are also heirs at law of Daniel E. Freeman, deceased, is the same, we will now consider its effect.

The allegation by Garrett Ramsey is that “he is the owner and entitled to the possession.” This is denied in the answer filed,. and the jury found for Garrett Ramsey and assessed damages for withholding possession. The judgment gave Garrett Ramsey only “the possession of the lands described in the complaint.” The estoppel is on,ly asserted against the heirs at law of G. W. Freeman and Ben Freeman. We are of the opinion that it cannot, in the instant action, operate as such against any of the plaintiffs. Garrett Ramsey was entitled, upon the Lunsford-Ramsey deed, to the possession of all the lands covered by the life estate of Nancy Freeman, who was then living, and was pro tanto the owner.

The heirs of Daniel E. Freeman had no right to the possession of the lands covered by her life estate during her life. The word “owner” is not sufficiently limited in scope to be determinative. Ownership may be complete or incomplete, special, reputed, legal or equitable. A tenant for life is the.“owner” for many purposes.

Its use is too varied to constitute an estoppel in the instant case. Black’s Law Dictionary (2 ed.), 865, 866.

A varied collection of the many uses of this term appears in 29 Cyc., 1549, and notes. See 6 Words and Phrases, 5134 et seq.

The claim now asserted by plaintiffs is not inconsistent with the rights of Garrett Ramsey as adjudged in the pleaded cause. He is presumed to have held at that time under Nancy Freeman Revis. While some of the plaintiffs, in the instant case, are privies to the defendant in the pleaded action, and would be estopped if that record was sufficient to constitute an estoppel (Owen v. Needham, 160 N. C., 381), we do not think it was necessary to determine any phase of the question now at issue in the trial thereof. Jones v. Beaman, 117 N. C., 263; Allred v. Smith, 135 N. C., 443. While ejectment was primarily possessory in character prior to 1868, it may, or may not, be determinative of the title since 1868; but in the pleaded record it appears only to have been possessory, and, therefore, not an estoppel on title. Benton v. Benton, 95 N. C., 559; Wicker v. Jones, 159 N. C., 102; Poston v. Jones, 19 N. C., 294; Wagon Co. v. Byrd, 119 N. C., 460; Caudle v. Morris, 160 N. C., 168; Long v. Baugas, 24 N. C., 290; Clothing Co. v. Hay, 163 N. C., 495; Whitaker v. Garren, 167 N. C., 658; Ferebee v. Sawyer, 167 N. C., 199; Johnson v. Pate, 90 N. C., 334; Falls v. Gamble, 66 N. C., 455; Isler v. Harrison, 71 N. C., 64; Yates v. Yates, 81 N. C., 396; Turnage v. Joyner, 145 N. C., 81; Bigelow on Estoppel, 397, 398.

Upon the instant record, and viewing the case in the light of the rule upon motion for judgment as upon nonsuit, now accepted by this Court, we are of the opinion that there is sufficient evidence upon which to submit this case to the jury, and, therefore, there must be a

New trial.