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Home My WebLink AboutEstate Records 1790-1970, Ervin, Susanna 1903Dt pie po 7 LLL , o Re a ee, en AS A ee - - : : , << irs the eS er Cea Ci Gop is a ke : : ee Ae Hon tment Hi eo... pee ge i oe — Aue k Ce frre etg Dogs £ as 7 = ope faa“ Asan, swe Ltn 25,790 B. Mary hh hy " Er v i n , Su s a n n a 19 0 3 ey) 2 5 ” a & = 3 ~ £0 6 1 Application for Letters of Administration.—Printed and for sale at Tne LaxoManrk Jon Orrice, Statesvilh ; =. 6, meneneinenn ee te ntan a APPLICATION FOR =——p-ane oF ADMINISTRATION In the matter of the Ad KZ tp cz g - being sworn, doth Say: ts dead, without leavine: any Will and aaa and hae... 0 Presta. as, “1 is the proper person entitled to Le ‘tters of L4H 4418 Norther, That the value of said estate, so far él . is about oe Ad prnistrs eentoe On fhe e estate of the Sig.. ee ae, ree Sas Kooy, Se ; o¢ ind that Mh My oe Le tee=- ee Le Leh x estas ncaa: cia sacle Adit > ee + e pti YH at Kip H 4 Vial <5 | Yar GCM AALAALO Le aa (/ ire entitled as heirs and distribntees thereof. Swary to and subscribed before a : ; LA: SANs. Wecka’ dua ciihce 18h. Wi ALA. Clerk Superior Court. err, CATE OF ADMINISTRATOR. STATE OF NORTH CAROLIN, A, 4 7 SS.-In the Superior Court: AS 4 teh t_@.4 COUNTY. c 4 y 8 et CAC- Pn cet te : ¢ ) pies do solemnly swear (or affirm) That IMelieve that sf ; died without leaving any last Will and Testament: and that I will we as uly ne ralland singular the Goods and Chattels, Rights and Credits of the seer. = Cee o<-C , and a true and perfect inventory thereof return as Atovided hy law; and that all other duties appertaining to the charge reposed in me, I will faithfully and honestly perform with the hest of my Skill and ability: So help me God. Subseryed ¢ and sw 8 hefore me fs 4 C tone eas i a ee , idministrator. Karbuia LA... Petition for Order to Sell Personal Property for Cash.—Printed and for Sale at Tur LANDMARK Jos OFFicr, Statesville, N.C.—1-31-’98-500 rv ’ ADE: showeth that: vad <A ‘ and creditors of the estate of said Ist. That it would best subserve the interests of the - WATE Wo cree terete cs icsaceccsniaaiens to sell the personal property belonging to said estate for cash, because said property would sell for about the same in cash as on a credit of six months, and because moreover the majority of the bidders at any proposed sale will probably be OUR ID IMIR. State of North Carolina, ) ¢ IN THE SUPERIOR COURT. County. It appearing thap has filed in this property belonging to the estate of the said> deceased, for cash: GtAs Ordered and yi to the highest bidder, fyrpash, “after twenty days’ notification posted at the Court House and four other public places in hee reeveewererrered County,” subject however to the confirma- tion of this Court, in case any creditor or legatee of said estate shall, on the day of sale, object to the completion of the sale of any article of personal property “on account of the insufficiency of the » deceased, shall have license to sell said property amount bid.” It is Furtber Ordered, That sai Les bide hegnGsihavs canbnnysk Was dicdeeeneenAddeabonndircabes bias uvccaces anh as aforesaid, make return of the proceeds of said sale to this Court. W This 2 es of Clerk Superior Court. PE T I T I O N FO R LI C E N S E TO SE L L PE R S O N A L PR O P E R T Y FO R CA S H , Wi t h Or d e r of Co u r t . In th e Su p e r i o r Co u r t of Co u n t y Ch . ch i c o x Mi d i a n ‘ pa i l Er v i n , Su s a n n a Claim and Delivery. —Printed and for sale at THE LANDMARK eet OFFICE, NO TH CAROLINA, Statesville, N.C, 12~27—-'98—1000 COURT, Defendant... eas the P laintiff, e . 2. gt Lf S a Cun chested A LAK amed, d, base duly s a sap rhe on Yr an yy a Accgsl Ou Anguetiod ty , “9 SARE ce hex: 1. Teat. he... now, “7 ls . immediate possession of the following described C C4 eg ae ee 2. That the property is ies claimed by formation and belief, is as followsS xZa—_A * pe : ee dean JOCEAGL t. That said property has not been taken for a tax assessment or fine pursuant to a Statute, or seized under an execution or attachment against the preperty of wee ». That the actual value of said propert ZA LASS — | = ao eg Dollars. c. TFT a iam said PRintiff. At.. about to commence the above entitled action in this Court against i 2 possession of said prppe rty the summons in which is hereto annexed. a, ZF (Syrorn before me this........ Reicaae RC ssieteictis ™ Affiant... County. » Aha > REQUISITION, Fo any Constable or other ae Officer an <ene a ¥—GREETING: , You are oe to take from the therein named the property described in aforesaid Affidavit an Defendant.. 1 deliver the same to Plaintiff. when ...he... giver? the bon¢ er by law. A. a - at A day of.4 Pe rreet enc isiiceas 4 / Biaivtin. | Defendant... J BOND. Whenever A flidavit has been made by the Plaintiff...in the action, that the Defendunt...therej ned A fir , wrongfully detaips?the property described in said Affidavit, of the value o . Leake Dollars, and Plaintiff... claina?the immediate delivery thereof in accordance with the Statute made in such case and provided. EREFORE, in consideration of the taking of said property by the Sheriff or other lawful Officer o CLL County by virtue of said Affidavit and requisition thereto en- eyed, do hereby undertake and become bound to said Defendant... in the sum of é die hivakesaavis eee 8 r the prosecution of this action by th County, against the Defendant and4or any wrongful detention of said property and for the return of same to said Defendant... and for any costs and damages said Defendant... may sustain by reason of this process should judgment be rendered against the Plaintiff... in this action. Signed, gealed and approved before me this)..................... Mp icles ae ea SEAL. ae geauled and approved be = me ~ af: cSobw [ ] LO ae Zo <—— 1 } <b the § / H GAROLINA, ee cats cecil County. . ’ htiec eee Seater Chase Yr Mowweee— Defendant... | J JUSTIFICATION OF SURETIES. ! j - tp eee CM A Legh Ogee pet EV SL kaw a asks bh cad series sad ae maketh oath that \ , ee ae " 1¢a= it a sworn to before me wee evacaavestsuivnis lA AL gy ber noswital [SEAL.] / Af / (y s sa i d o o Fo y DU L L O A L ‘\ X2 — , “L E A L UI Y I I M BY } UL pe q u o s e p Ay u e ‘j e W pu r 1H S TH 1 a ? > ee —— a n An W U4 ” oV t S 8) Id A fe e s Pu m p e p po w , — a -a p Aq pu e 4 0] oO F ti a l of er - we e r e e AQ H A V H G ON Y WI Y 9 _ , UI Y R W e p u l ) “p A a L v p y y y ur p a r k Ay ) Zi o s “W E Q 3 L SN U O L ~d o a d oy } uo r m s e s s o d Aw Ou Su r y e y pu e Su r PH a e y l d OY pe t e e t e y: ‘B e y “B O T So a ga g i t ; “- Magistrate's Summons in im and Delivery.—Sec. 70. Printed and for sale by Brady, The Printer, Statesville, N. C. s ‘ , f . ' ORTH CAROLJN : a Le Township. () a) o \ ‘aw 4 Ll a a : hor (FF ADA KL Before “7 J er — i eS ed r ; i County---GREETING : You AakE HEREBY CoMMANDED to Sieyatnon tiger -* .. to appear before ” an : a a , a Justice of the Peace im MMs Township, County og , on the PF day of Bu u e s n g ‘u i a s q 190F, at * o’clo 7 M. to answer complaint of 2 & we the plaintiff, for the wrongful detention of certain personal property, of the value of %2\S,9 2 and de- ’ scribed in the affidavit of saic Ac eK , Which is hereto annexed, and demanded a a a by said plaintiff ; and for cost. Hergin fail not, and of this summons make due return. oo” 7 C LP Quaka Justice of the Peace. Att z : - This AFP 445 REGO & 1090-4 Why Cg 2e 4 aa - Fee a s 7 of ie 5 Vid fae pi ills a LU, C4 ville Lensr | La fan: AG Mitt ie to. A Z , Ae ee LE ue hdeoay Wt os Mt ,cl,D fe ae - Uli ex. <> Pai ptiv Ctttl C4 We | 4e aie in, 0 fitted, Ex Ce rw rn OF bs GY be, BO 2. ct Mawes al 7 % zi L0e f Z 620 ty ge hie - 470 3 OA a7 + oa or “ans LE LIL Ce tc in COZ. -. ig re flee: Fed se Ce leire CKUAM DG Bua Ce.’ ecg Coo, Wh Laip le Ay Lc b yo Ct Zfo ve S$ se. | “> Lye DA 2. : . “EC Cn, laze 2 5 e mf ne ow Bu u e s n g ‘u i A i q £0 6 1 VY. yeaah n Lf tax ee Litckg 4 Atlee whip ip SB 4 i ZZ, a “— CELLED « a, AB a Oe, Ae ae PY fa o s ai e nn ee 5 £ f * a PO A ao a wo Sf oy : 72 ey 3 D4 FF : a y Gp Ag g y by ’ is ’ y \ \ \ y ) \Q .< : KX ~ ww ~ \ PL a OA ptert: A , Su s a n n a 19 0 3 Net Qurliuas Aye ole 0, Uhiles bwrrahs, roy Pe fe a oe iJ I Necnse ene sik PLT on Cacuat oe Qu fe ie Tent iat Wa. fasitins buf Came 18 Tita Pista efa a ob And thine, veal te f- oe dha fg hf haid ©) th. / Arnel POE, Gt th meeps a. eset pre oe pki es i/ hitlnact bls ueDeacaultidets laid tina a Orc thy Rprlinnrr a “er wr fash pp Direfabacasd forhasia hotel Porvols Gud Hu rae filha tip Baste. jhe ole fan clad 5 parti ferme bar ios yp a _ Ruol — a aud pactrecthasrssh. b dif dauk, F leuitiund _ Jat ddan pica ae Pp Wot ac odinhananee fone (POG >» Gvottov.k plat fi with: Oae# Ze eho bb” ane Biaify Mk oon ih 24.4 ler of, funsit0 Wc pluisff enue the dreysh Hotre if art tru ld af her han howe pris mer bry frog $0 Yor Makivg re te Genet tnd top Klar sith art ental ialins A en 2h “19 06 a et a JR Er v i n , Su s a n n a 19 0 3 h Carolina, aiGUGdLi VOUT; “ise fhe ALLS; > BQ LNLStrar > se Vv Tan hee Viendtg USS oD Vo e burke, LSQe, AQ Conneliy and North Carolina, In Justice's Sourt, Iredell County, Before J. P. Burke, Je P. Jno. He. Alley, administrator of Susenna Ervin, decaasad, V8 T. J. Yowell, To the Jugtice who tried this case, J. P. Burke, £8q., and to the defendant, T. J. Howell, and nis attorneys, J. B. Connelly and L. C. Caldwell, Esqs.: Take notice that the olaintiff in the above entitled action ap- peals to the Cuperior Court from the judgement rendered therein by said Justice on the 20th day of June, 1903, in favor of the defendant, and appeal is taken by the plaintiff because he ia advised tia: is contrary to law ani the svidenee in the case. he nereby notified to file with the clerk of the cuperior Court the papers in the cause together with his procesdings thereon at @« time prior to ten days before the beginning of our next Te:m of Y ~ the Superior rourt. June 2ond, 1905. ee ' ” — 3 Ae iat te CHLL 0h | Aa ko ee ee Attorneys for tne Plaintiff. ao O tigep aD (that ZL ) Aout ee. t > Dr Y Corn wry ) \y a Sle ales ae f Os Ape Que wa Pesuee for Are, te 7 4 te ecloK John H, Alley, administrator of # Special instructions prayed Susan Ervin tt by the plaintiff, vs, # T. J, Nowell # (1) The existence and attempted execution of the instru- ment or paper-writing on which the defendant relies is not dis- puted by the plaintiff, but the plaintiff says that Susan Ervin at the time she signed the same, did not have mental capacity sufficient to transact business involving a disposition of her property, and the plaintirf further says that even if she had such capacity, still the paper-writing in question is not valid for the reason that Susan signed the same under undue influence, exerted upon her by the defendant, Howell and that the witness D, I, Troutman assisted said Howell in the consumation of his purpose, so that whether or not the plaintiff is entitled to recover the property sued for depends upon whether the said paper-writing is an invalid instrument or not, (2) The jury are instructed that if they find that at the time of the alleged execution of the said paper-writing, the said Susan Ervém did not have mental capacity sufficient to transact Dusiness involving a disposition of her property, that is, that she did not understand the nature and character of the property disposed of, who the object of her Mmmx bounty was, and how she was disposing of it, and further find that the said Susan Ervin is dead and that the plaintiff is her duly qualified administragor, then the jury will answer the first issuo Yes, (3) The jury are instructed that if they find that the said Susan Ervin signed—amé the said paper-writing and executed the same by reason of undue influence upon her and find that she is dead and that plaintiff is her duly qualified administrator, then the plaintiff would be entitled to recover the property sued for, whether she had mental capacity sufficient to execute the same or not, (4) As to undue influence the jury are instructed that after proof of capacity and execution if juryxfind that such has been proved, the common law lays down no rule upon the subject; but submits the general question to the jury for a decision, according to their conclusions upon the actual facts of undue influence, imposition or the nature of the paper-writing, her knowledge of the contents of the paper, and assent thereto-— under the comprehensive inquiry whether a fraud has been practiced- where the maker's situation is such as to render the perpetration of a fraud aasily practioble, the jury may say, they are not satisifed one was not practiced, and thence infer its existence unless the contrary be clearly shown. (5) Upon such a subject the law cannot lay down as a test that a paper-—writing is or is not valid, when executed under one or more of the particular oircumstances, which the evidence tends to show in this case, but necessarily refers the facts, upon which its validity legally depends, to the decision of the jury under evidence as to all the circumstances attending its perpetra-— tion or execution, the condition, mental and physical, of the maker, the contonts of the instrument and the benefits provided in it for those actively concerned either in the perpetration or execution, (6) If the jury find that the contract in question was prepared by an attorney at the instance of the defendant Howell, that it was taken to the plaintiff’s intestate, Susan Ervin, by the defendant Howell, that Susan Ervin was a very old woman, that she was ignorant and childish, that it was not read over to her, and that she signed at at the request of the said Howell, then the jury are instructed that such things do not ordinarily take place in open, fair, and even Janded transactions, (7) The jury are instructed that if they find the facts to be as stated in the instruction numbered "6" just given then, the jury may infer therefrom that the execution of the said con~- tract or paper-writing by the said Susan Ervin was procured by imposition and fraud, unless the jury find that the contrary has been clearly shown by the evidence in the case, (8) If the jury find that the said paper—writing was executed by reason of undue influence as explained in these instructions, the jury will answer the first issue Yes, bree fesehsba-~/ 7 (10) If the jury find that at the time Susan Erwin executed the deed to the defendant Howell that the said Susan was a very old lady, that she was 80 or 84 years old, that sna’ veek in body and mind, that the said deed was made without any consideration or upon a very in- adequate consideration, that the defendant Howell to whom the deed was made lived very near her, that he had lived near her home on her land for several years, that he had influence with her, that she had children and grand children, that none of them lived with her, that she had not given any of children or grand children any of her land or personal property (amd the jury are instructed that there is no evidence of her having given her children or geand children any land or personal property) and further find that the defendant had the deed prepared by an attorney, that the defendant and D, I, Troutman & took the deed to her, that she signed it in their presence, that it was not all read to her, and that none of her children or grand ohild- ren were present when said deed was executed, then the jury are instructed that a court of equity wild nor permit the re to stand and that the same is invalid. Yer AA LV (11) “When there is great weakness of mind arising from age, sickness or any other cause in a person executing a conveyance of land, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside." (12) "when a person from infirmity and mental weakness, is likely to be easily influenced by others, transactions entered into by such person without independent advice will be set aside, if there is any unfairness in them. The principle upon which the court acts in such cases, applied to 4 conveyance of land obtained from a woman advanced in years, of doubtful sanity, being entirely by herself, without friends to take care of her, and confined to her house by sickness,” By: ek * (13) That if the jury find from the evidence that Susan Erwin was 80 or 84 years old, lived by herself, was sick and bed ridden at the time the deed was obtained and never recovered from said sickness, Bu u e s n g ‘u i A i q £0 6 1 and died in a short time thereafter; that while in this condition the defendant procured a deed to be prepared by an attorney and went to her home with his friends, and procured her Signature, there being no consideration or no adequate one paid thereform, the law will presume - f f undue influence and the jury should so find, Sy y | / /* 5 hh C A» « Ve ritfe (ee bh Gtstta,./ Attorneys for the Plaintiffs. Er v i n , Su s a n n a 19 0 3 Er v i n , Su s a n n a 19 0 3 vu u e s n g ‘u l A l q £0 6 ] North Carolina pe In the Superior Court, Iredell County ¢ fagust Term 1904, Mary E, Alley, wife of John H. Alley, Ellen Benfield, wife of J, M, Benfield, and child of Richard Martin, deceased, Mary Clodfelter, wife of Walter Clodfelter, James Martin, Augustus Martin, John Martin and William Martin, children of William Martin, deceased. vs. T. J. Howell Complaint, The plaintiffs, complaining of the defendant, allege:— Pirst:- That Susan Ervin late of Iredell County died intestate in said County on or about the 9th day of May 1903, and left her surviving the plaintiffs above named as her only heirs at law, That at the time of her death the said Susan Ervin was seized and possessed of the land hereinafter described, Second:— That the plaintiffs are the owners and entitled to the possession of the following described land, situate in Iredell County, adjoining the lands of G. M, Young, D. I, Troutman and others, and bounded as follows:- Beginning at a Spanish oak; thence running South 45 degrees East 50 poles to a stone; thence East 32 poles to a gum, Edmund Hoover's corner; thence South 110 poles to a post oak; thence West 86 poles to a pine in Jacob Troutman's line; thence North 25 degrees West to the beginning, containing 50 Scres, more or less, From the above boundaries is excepted 9 acres of land deeded by Susan Ervin to D. I. Trout- man and wife on the 19th of January, 1901, described as follows: Beginning at a stone on Collins’ line; thence North 86 degrees West 29 poles to a Stake, Collin's corner on Statesville road; thence with said road South 49 degrees West 25 poles to a stone; thence South 58 degreos East 56 poles to a stone on Young's line; thence with Young’s line North 4 degrees East 43 poles to the beginning, containing 9 acres, more or lese, = - Third:— That the defendant wrongfully and unlawfully withholds the possession of the said land from the plaintiffs. Fourth:=— That the annual rental value of the said land is Fifty Dollars. Wherefore, the plaintiffs demand judgment:- (1) For the possession of said land. (2) For the rental value of said land from the death of the said Susan Ervin until the trial of this action, (3) For the costs of this action to be taxed by the Clerk of this Court and for such other and further ief as the plaintiffs may be entitled, elie Attorneys for the , Phieantaben. Mary E. Alley being sworn says that the foregoing complaint is true to her own knowledge, except as to those matters therein alleged upon information and belief, and as to those matters, she believes it to be true, Sworn to and subscribed Lary ci before me, sigday of June 1904, Hay en 7 North Carolina # he Superior Court, Iredell County # Mary E, Alley, wife of John H, Alley, Bllen Benfield, wife of J. M, Benfield, and child of Richard Martin, deceased, Mary Clodfelter, wife of Walter Clodfelter, James Martin, Augustus Martin, John Martin, and William Martin, children of William Martin, deceased, vs, tT, d, Boweid J, Y 9am) This is to cortify that we have examined the case of the plaintiffs in the above ontitled action, and believe that he has a good and meritorious cause of a 2S W. Zr bhe 1 A\ CHa Kh CCL ACA o> 7 ae Attorneys, Mary =, Alley being sworn says: That she, and each and evory is of the above named plaintiffs muxm unable to give sureties, or make he deposit required by law, to enable them to prosecute the above entitled action against the defendant T, J. Howell, and therefore praysthat they may be allowod to sue in said action as g pauper prin Sworn to and subscribed before me, this the{/ Pay of Oc ' August 1904, In the above entitled action, upon the certificate and affidavit set forth, it is ordered: (1) That the above named plaintiffs be allowed to prosecute said action as paupers, (2) That no officer shall require of the plaintiffs any foe, and recover no costs excent, such as the plaintiffs may r ver This tho /Z day of Ameuet 1904, ; f Mh KL ro Clerk Superior Court, ecover, Er v i n , Su s a n n a 19 0 3 North Carolina In the Superior Court. Tredel}. Count; November Term, 1904, Mary F. Alley, wife of John MN. Alley, Flien hen?iold, wi fe of 7, M. Benfield, and child of Richard Martin, decesaed, Mery Clodfelter, wife of Walter Chodfelter, Janes: Mar, in, Augustus Martin, John Martin and Willian Vartin, childron of Willian “artin, deceaaed, The defendant, cones into fourt and enters & special appear- ance, and moves the Court, £0 dismiss this action, assigning as rea- 60ns therefor (1) That i+ appears that, no prosecutj on bond has heen Biven as required hy law. (2) That the attempted affidavit by Marz BE. Alloy, 4s not in conformity to the Statute, in that, it does not Statethat the affiant is not worth the anoint of the unaerteking ree quired hr law in any property whatsoew r, and that she is unable to ‘ive the sata undertaking, and (3) That the said affidavit is an ate Senpt upon the part of she plaintirr, Mary F. Alley, to make affidavit ror al). her co-plaintiffs, i he cet eee AN \ ( ai L YL Counsel for 4 ANSWER, The defendant asnawers the Complaint and Says: ~-Pirst- “e denies that Susan Frvin, died sejzed and possessed of the land deseribed in the second paragraph of the Complaint, ~Second- That he denies that the plaintiffs or any of them are the owners and entitled to the possession of land descrbbed in the second paragraph of the Complaint. ‘ -Third- He denies that he wrongfully and unlawfully withholds the ° possession of said land fron the plaintiffs, alleges that he is the owner in foe simple of said land, is now, and has been in possession of the land, uncer a valid deed, under known and visible houncari es for sone Length of time. 2 -Fourth- That he denies the allegations conteined in the forth par- E l agraph of the Complaint. Waving fully answered the defendant asks th t he go hence L° he hDrattreh lobe? 2G witho it a ‘Qre Atty for Defendant. j T. 7. Nowell, being duly sworn says that the foresoing answer true as of his own knowledge, except as to ratt rs ana things stat- therein upon information and helief and as to these he believes it he truce Sworn to and subscribed before me this the 26th day of November Me & “pelos $ x oe A del CC Ceca &, Mogae rm POE x col A jen ad ke ee a ACO, Oct lhe hen ( Ds ed's : nen Gite Mn a Ons ro Bee sb Cx r Kt ofa aie A So ee a, SVOl 1 L VWerurgar Set At SO cLeveaes fe Orga Cer fil ance, btit- Aer Heth [pew Wend ihr mer i ere [tan oe ad ey ae a / Bu u e s n g “u l a i q £0 6 1 hii otis Dea 7 eu / Pos ~ | LLary of hf lay 6Lf.~ aft er Las tng ea 4 ay tk ne iw, Barn) attain a: tag Le eee 4 prhe sii a eats | Le enlere Ghithanile bt Kwan Be tee ak . ei Aye i cnn ae Chic het la Sak than Lari er an Ci) ee hicfe 22 IN Mniprnb Kr, J a-Ahes Ph gee ct por, sasha ducg " hclllihcasaittl “ é ee / ee. ches [leliciuihias ko Ar4 2.21 ad ah ‘ f f v Pac ngpithe, si a efile pn ie oat a A Why th stlen af dar he tone dled st ae beni An, one Tell ei, ke a hl lead ror PE ae L3ad Arey. 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Mow ile +he existance and attempted execution of tne instrument or p: i uv wnlcn the defendant relies is not lisputed oy tne plaintif 1a SUSAN Ervin at the Lime } Sy the nave mental « sufficient to transa r propert} he plaintiff furthne "eWPibtins in guest x unaer T] 2 ~” co 7 4 5 2 £0 6 1 comprehen Situation pnence in S1veé whether a fraua has oeen practiced= where the maker's to render the perpetration of a fraud easily practica- isfied one was not practiced, andi itrary os clearly down as nds ; validity Oo all the clrcumstance sondition, mental and and the cenefits provided od either in > perpetration or execution, ny ed In question was prepared by al! that tie nurgan 2rvin, at the instance claintitir ntestate, SUSAN EZPVIN WA; wrjyting instruct Tnatructions asked hy defendant's counsel. The only question presented for the consideration of the Jury is, the mental capacity of Susan Erwin on the 9th dey of Merch, 1903, to execute the Deed to the defendant, Howell, introduced in evidenco. And the Court charges the Jury that before the plaintiff can set asieé this deed made hy their ancestor, on the groind of her mental incap- acits;, the, must prove to the satisfaction of the Jury such a de~ gree of nental weakhers on the part of Susan Frwin, as enounts to imhbecilitzy and renders her ineapable of uncerstanding and protecting her own interest. a oe ee } ASE Ne If, the Jimi should find from the evidence that Susan Erwin wes 84 yearsof age and her mind weak compared with what it had been ,hbecause of B1C: euse, et, if sho wiceerstood the nature of whet she was doing and knew the property she was disposing of, and knew the person to whom she was <iving it, and ‘iow she desired to dispose of it at the time she executed the deed, this in law woud te sufficient to make the deed valid. a: Cok ue oor ) 17-0 cee Mary E. Alley and othors. # v8. ft Issues, T, J. Howell # (1) Are the plaintiffs the owners and entitled to the posess— ion of the land described in the complaint? (2) Does the defendant wrongfully and unlawfully withhold the possession of the said land from the plaintiff? (3) What is the annual rental value of said land? North Carolina In the Superior Court Iredell Co omty October Term, 1905. Mary F. Alley et al vs This cause coming on to be heard at this term of the Court before His Honor R. R. Peebles Judge and @ Jury and being heard Uporm the—wrete-—recerg and the Jury having answered tle issue " Are the plaintiffs the owners and entitled to the possession of the Jand de- serihbed in the Complaint ? No. " Tt is therefore, considered and adjudged by the Court that the defencant, T. J. Fowell, 4s the owner of the land described in the Com lsint and entitled to the possession of the same. fing ee iii 3 oe Court\ that the ie ~— recover of the plaintNfs ris cost Pe be taxed by the Clerk of the Courte J) 2) KAA Bord Le eee ne ee —<- _ ——— ewww eS Judge vresiding. Ma r y EF . Al l e y et al Vs Lv l i 4. &. Ho w e l l JU D G N M N E W ? . Er v i n , Su s a n n a 19 0 3 VG i ie Ag Cocmrev Leanile, we nee ianetdne hes fa, Ff Aang tt 4 tin, ae aed —_ AY ttle Cl] be f. Ahern ac i OW) Grithad ete ger enties u bifow tn dhe / pay = = nears aa ta tli ther. puller, ble. se Op dais W fale: kel Obl 27 2 fash noe Lb Qe tC Chur Ogucrt | Yes P Mprtuutuce 220 Hite 2 aa Dac, , < 2 toveetl aS cre hy SUMMONS, North Carolina # In the Superior Court. Tredell County # Mary E. Alley, wife of John H. Alley, Fllen Benfield, wife of J. M. Benfield and child of Richard Martin, deceased, # Mary Clodfelter, wife of Walter Clodfelter,# James Martin, Augustus Martin, John Martin # Plaintiffs' case on and William Martin, children of William # appeal to the Martin, deceased Supreme Court. vs. # 7, J, Howell * This is a civil action in ejectment tried before his Honor R. B. Peebles, Judge and a jury at the October Term 1905 of the Sunerior Court of Tredell County, upon the following issues:— 1, Are the plaintiffs the owners and entitled to the possess-— ion of the land described in the complaint? 2. Does the defendant wrongfully and unlawfully withhold the possession of the said land from the plaintiffs? 3. What is the annual rental value of said land? The plaintiffs, the heirs at law of Susan Erwin, deceased, allege that they are tenants in common of the land described in the complaint and entitled to the possession of same, The defendat denies the allegation of the complaint and alleges that he is the owner in fee simple of said land under a deed which he contendm&s was executed by Susan Erwin, deceased, on the 7th day of March 1903. ' State of North Carolina, To the Sheriff of Iredell County—Greeting:-— You are hereby commanded to summon T, J, Howell, the defendant above named, if he be found within your County, to be and appear before the Judge of our Superior Court, at a Court to be held for the County of Iredell at the Court House in Statesvilb on the 9th Monday after the lst Monday of September, tho same being the 7th day of November 1904, and answer the complaint, a ncn gee tl AP r a FEF Wee F: - a Lae < (4) the owner in fee simple of said land, is now, and has been in possession of the land under a valid deed, under known and visible boundaries for some length of time, Fourth That he denies the allegations contained in the fourth par— agraph of the complaint. Having fully answered the defendant asks that he go hence without day. lL, C, Caldwell & J, RB, Connelly, Atty for Defendant. go ee Howell, being duly sworn says that the foregoing answer is true as of his ow knowledge, except as to matters and things Stated therein upon information and belief and his T. J. x Howell mark Sworn to and subscribed before me this the 26th day of November 1904, as to these he believes it to be true, W. W. Leinster, Dep. Clerk of Superior Court, Filed Nov. 26, /04, It was admitted upon the trial by the defendant that both the plaintiffs and the defendant claimed title to the land de- scribed in the complaint under the title of Susan Ervin, deceased, Plaintiffs introduced evidence to show that Susan Ervin died on the 9th day of May 1903; that they were her heirs at law; that at the time of her death Susan Ervin was seized and possessed of the land described in the complaint; and that the annual rental valte of said land was $40 to $45, ‘Then the plaintiff rested, The defendant introduced a deed from Susan Frvin to the defendant, dated March 7th., 1903 and registered March 12, 1903, covering the land described in the complaint, The defendant then introduced evidence of the rental value of said land and rested his case, The plaintiff replied by introducing evidence tending to shew that the said deed was void for that at the tine of its execution the said Susan Ervin was not of sufficient mental capacity to execute said deed, The plaintiffs offered to introduce evidence (5) of undue influence exerted over the said Susan Ervin at the time of the alleged execution of said deed by the defendant and his agents, The Court held as a matter of law that the question of undue influence had nothing to do with the case, and refused to admit evidence of same, Plaintiffs excepted, Plaintiffs' lst Exception, The plaintiffs offered to show evidence of gross inadequacy of consideration for said deed. The Court held as a matter of law that this question could not be considered in the case and refused to admit the evidence, Plaintiffs' excepted, Plaintiffs' second excention, EVIDENCE, Following are the notes of the evidence as taken by his Honor, J. P, Collins, witness for the plaintiffs tastified as follows:— Susan Ervin died 9th of May 1903, She lived at the time she died on the land in question, Annual rental value of land 740 to 45, Plaintiffs rested . Defemdant introduced in svidence a deed from Susan Ervin Maye 12, 1903, 4 Zef~Z/ “ALCP Ke to defendant, dated March 7, 1903, ae eh pe covering the land in question, Ostwalt, witness for the defendant testified as follows: Annual rental value of ssid land $25. Defendant rested, J. P. Collins, witness for the plaintiffs, re—called, testified as follows:- What was the value of the land at time deed was made? Defendant objected; objection overruled and defendant excepted, Think the land would have brought $410.00. What is the land worth now? Objection by defendant; objection sustained and plaintiffs excepted, 3rd Plaintiffs’ xwkek excention, She was about 84 when she died on or about °th of May 1903, I lived sbout 1/2 mile of her. I saw her in Feb. prior to her death. She could not write nor read writing. I don't know whether she could read printing or not. Had she ever made a will? Objection by defendant; overruled (6) and defendant excepted. Yes, I wrote her will and I had it, I had it about two years. Mrs. Urvin and the defendant came to my house and she said John I want my papers. I only had her will. I gave it to her and she put it in the fire. Nothing was given me in the will, This was about four years before deed was made, In Feb. I paid her a visit. I soon found her mind was unhinged, I could not keep her on one subject any length of time. She would bring in something foreign to what we were talking about. She would ask freequently the same question over. The next thing I paid attention to she said, John I can sell you some corn, I told her I did not need tobuy corn, She then told me to whom she had sold corn, I don't remember the names. I sold corn to Ulyses' brother, she said, My wifs said maybe you sold to Charlies Troutman, She said yes, Ulyses’ brother. Thoy were not brothers, Ulyses Ostwalt had two brothers, one lived 1/2 mile from her. She had received her support prior to this time from this land so far as I know, She had no other means, If her mind when she made the deed was in the same condition as whm I saw her in Feb., I don't think she had mental capacity to under- stand in a reasonable manner the nature and effect of making the deed in question, No one lived in the house with her. Defendant lived in about seventy-five yards of her. Counsel for the plaintiffs propounded the following question to the witness:— In your opinion did Susan Ervin at the time the deed was signed have mind and intellisence sufficient to enable her to have a reasonable judgment of the kind and nature of the property she proposed to convey and to whom she was convey- ing it? Objection by defendant upon the ground that witness had not stated that he saw Rer at the time she made the deed. Ob-— jection by defendant overruled and defendant excepted, If her mind at that time was in the condition it was when I saw her in Feb, she was not. At the time I saw her I do not think she had mind enough to know how many children and grand children she she had, I don't thin she had mind enough to understand her children and grand childrens’ deserts from her with reference to their conduct as well as their needs, I do not think she had (7) mind enough to recall what she had dqne for them relatively. I do not think she had mind enough to know the amount and value of her property. What was the financial condition of Susans children and Mary Clodfelter and Ellen Renfield have homes grand children? on which they can make fairly a good living. The others have none. Cross—examination, Was not there a case tried between J, H, Alley, administra- tor of Susan Ervin and defendant, being the action spoken of in your direct examination involving the mental capacity of Susan to dispose of her personal property? Answer: Yes. / Did not the jury find that she did have such capacity? Objection by plain- tiff. Sustained and defendant excepted, Lived one-half mile of her for thirty years. I am her nephew. Prior to Feb. 15, 1903 how long had it been since you had been to see her? About threo years, I rented her land for my son—in- law in 1397, Defendant stayed there on her land about three years, then my son-in-law went there for one year and defendant went back, Defendant and Susan never were at my house but once. IT may have drawn the contract of renting for them, but if I did I don't think it was on that day. None of her children or Plaintiffs objected; objection grand children lived with her, overruled and plaintiffs excepted, Plaintiffs’ 4th Exception, There were two dwellings on this land. Susan lived in one and defendant and his family in the other, Defendant during her last years waited on Susan, Don't know who cut the wood for her. Mrs, J, P. Collins, witness for the plaintiff testified as follows: Knew Susan Ervin for 25 years, I saw her at her house the 6th day of March and in February 1903, I told her in Maroh that She had been regretting that John Alley had moved close to her, her daughter Mary Alley lived so far, she had lived at Hickory and moved to Catawba about 12 miles from her. She asked whom John Alley married and akked if he married a smart woman, T said aunt Susan don't you know your own daughter, I don't remenber that she made any reply-—she would jump from one subject to another-I think her memory was bad,she was weak but was up and (3) ‘ about. She had been complaining for several years, I don't think she had mental capacity sufficient to have a reasonable understanding of the nature and effect of making a deed conveying all her land-don't think sh had mind enough to know how many children and grand children she had-don't think she had capacity enough to make a deed, ° Cross—examined, Her tenants looked after her-Benfield, one of her gzandsons—in- law hauled some wood for her-—Idon't know whether Benfield hauled any wood while Howell was there or not. John Benfield, witness for the plaintiff testified as follows:— Tived four miles of Susan Ervin-married her grand daughter—knew AAtttte PL her for 25 years—was at her house in August 1902, again ‘ dn 1 tank A 1905—she would jump from one subject to another, little worse in tf © Sea Uan in August. I told her that John Alley had moved nearer "is and she asked who did hek marry. I told her he married her daughter Mary and she said, 0, yes, I ought to have known that. pu u e s n g ‘u I A I g She would tell you anything and in a little while would tell it to you again, Don't think she could read, In 1902 I saw Mr, £0 6 1 Howell and told him that grandmas' mind was powerfully off and he said they had to watch her to keep her from working Sundays. Sometimes he would tell me that she well or tolerably well and then again he would tell me that she was as"crazy as ever,” In May on Sunday before she died on Saturday night my wife was with me-she had been sick about a week-I told defendant that Susan was in @ critical condition—he said yes, she would have been in a worse condition had I left her last March like I come near of doing-she walked up and down the road and cried and I coneluded to stay with her—she did not in August gm and Jan. have mental capacity to make a deed, Counsel for plaintiffs asked the witness this question: nen did you and your wife first find out that the deed in question was made? Defendant objected, objection sustained, and plaintiffs excepted, Plaintiffs’ 5th Exception, She staid there two or three days when she was sick-was not 1S “u l A l g eu u 2 S we si s t Bi s b e e Ta l o n 1A gE Bo a al a i n ! “i r OS On s Pi a t t TA B S there when she died, Cross—examined. She was there Sunday—again Thursday and then after she died, I was not a witness on the Other trial, Mr. Howell attended to her matters for her-his wife was present at conversation had while she was sick, Re-—direct, I suppose defendant attended to her matters—before Howell went there I hauled g00d deal of wood for her-gave her several days' work, Mrs. Ellen Benfield, witness for the plaintiff testified as follows:— Cie I saw Susan in August 1902 and again, dwlky- 03-no other time until lived in four miles—we were friendly-she said Ellen, I suppose your children are grown IT heard she was sick- and married-T had my seven year Old daughter with me~she asked me what my father was doing~ I said grandma » you know my father is dead-yes, she said I had forgotten it—father had been dead six years-Iheard conversation in January about Alley testified to by my husband-you could not keep her on one subjoot long-she could not remenber anything long- don't think she had mental capacity to make a deed, Cross—examined, She knew me in August and January-I went to 890 her about two times & year—spent the day in August and in January, Re-direct, He (meaning Howell) was not at home in January and I do not remember to have seen him wait on her in August, Mary E, Alley, witness for the plaintiff testified 88 follows:- Daughter of Susan-I was living 18 or 20 miles from Susan=she died 1903-I went to see her and Stayed one day and two nights- left Sunday-she died the following Saturday- May 9th I had to walk Six miles to get there after she died-I have no home-living on rented land- little personal property in my house-I am 52 yoars of age, Cross—examined, “ever went to see my mother during the year I lived at Hickory-—did not have money to Day expenses— I had not been to see her in (9) about three years before her sickness—I had husband and two sons-— Mrs. Howell told me TI had better stay and I told her I was not able to stay for I was not well, John Walters, witness for the Plaintiff testified as follows:— In 1905 I lived 1/2 mile from Susan—knew her for eight years-T lived on the place in 1897-About three months before she died I and my wife stayed there one-half day-she said if T had got justice I would have the dry kiln-I found she meant to Claim that her corner was behind the dry kiln-I don't know that there had ever been any controversy about the dry kiln—she said I sold Ulyses Brother some corn-T said he has got only two brothers, Prank and John Ostwalt—she said the man she sold the corn to lived in alittle house down there and pointed towards it, and I told her that that was Charlie Troutman-she Was acquainted with these parties -she would ask the sane question over and over again, Cross—examined, Defendant may have hauled her wood the year before I left, John Troutman, witness for the plaintiff testified as follows:— Lived within one mile of Susan in 1905-I saw her in winter and Spring before she died=she asked if knew how old her son Richard was— T told her I did not-she said he was just twelve years younger than she was— I told her she mst have been mighty young when she was married-she said she was— she was 14 or 15 vears old- she would ask tho same question over and Overy Don't think she had capacity to make & deod=-I could not Say that sho did not know the number of her children and grand ehildren-she was my great aunt. Dross—examined, Defendant lived there and took care of her-Gus, Martin lived there & while when defendant was living there-l don't know that any of her children and grandchildren helped to take care of her—never saw Alley there-have seen some of the Martins—saw Gus, and Jim, kh there-were not doing anything when I saw them ‘ Plaintiff rests, - f Zo a fens ) a jj oe x ~ ' é £ mr [ 4° fe LAO ca LS RAG Y Pre det) (10) wi Ry Troutman, witness for the defendant testified as follows:~— Lived one-fourth of a mile of Susan—knew her 30 or 35 years—I think her mind was about like it always had been-T an one of the subseribing witnesses—she sent for me on the 6th of March to come to her house-said she wanted me and my wife to come—-I was not at homes but TI and my wife went to see her-she seemed to be bright and alright-said she wanted me tO see if Mr, Connelly would come and fix some papers for her, and if he would not come to get him to Pix them-that he would know how to do it-that she wanted her prop-~ erty made over to Mr, Howall-I came to town next day and saw Mr, Connelly—he ssid he could not come—that he could fix up the papers anyway-I told Mr, Connelly that she wanted her property made over to Mr. Howell so ho would get it at her death, provided he would take care of her while She lived—tnis was on Priday I think-—Mr, Connelly wrote the deed and gave it to me and I kent it at my house until Monday morning-1 carried it to her house-as I passed defendant's house he went on with me-I told her that I had the pax oaper written by Mr, Connelly—that she could sign then as she wanted or not-I read the papers to her and explainea them to her- no one was present except she and L when T road the papers to her- T. S. Loftin came after a While, Mrs, Susan said she wanted Howell to have her property if he would take care of her the balance of her life— I told her that if he did not take care of her the papers would be no account—I wrote her name and she made her mark to it in presence of me and Toftin-I think she had capacity to make the deed—knew what she was doing-no one was living in the house ex- Cent defendant and his family—defendant employed my wifes to nurse her and paid her for it. Cross-exanined, Yowell came after mée—he, I and my wife wera present—she said she wanted me to come with ir, Howell, Yowell was present part of the time but not all the time—owell came before deed was signed- “owell sent after Toftin-T did not read all of the deed-did not read the boundaries—-two Or three weeks Since T had been there, Re=-dir +A I acu, Connolly reid over the papers to me before he save them to (11) defendant T. S, Toftin, witness for the wkmkmxkt22 testified as follows:— I am one of subscribing witnesses-T was passing and Mr. Howell told me he wanted me to call in and witness a deed—T think she knew What she was doing- I would see her sometimes every week, sometimes once in three weeks— I think she had mind enough to know what she was doing in making the deed—Nowell took care of her after deed was made, Cross—oxanmined, Howell told me Mr, Troutman wanted to see me-don't think T stayed more than 10 ininutes—he read a part of it to her and told her she was making her property over to Mr. Howell and she need not do it if she did not want to do it-I heard Troutman exnlain the deed to her-I am brother to Howell's sister. Re—direct, This was on Monday morning, A. P. Clark, witness for the defendant testified as follows:~ Troutman's character is good, so is loftin's, Rev. A, J, Burrus, witness for the defendant testified as follows:- On or about April Ist 1903 I went to visit Mrs. Ervin-stayed with her about one hour— I think she understood our conversation, Harriet Troutman, witness for the defendant testified as follows:— T went with ny husband that Friday night- I have known hervall my life-she told my husband that she wanted Mr. Connelly to fim the papers so that Mr. Howell would have the land after her death— before she said anything about fixing the papers she spoke of waht & hard timo she had had in life and said Mr. Howell had done more for her than any one else and she wanted him to have her property if he would stay there snd take care of her—I think she had mind enough to make a deed—knew the import and consequences of her act-— she was sick something over two weeks— I waited on her most of the time-sent after me— Nowell paid me for it- T do not know of any- thing that any of her children or grand children did for her for last few years of her life prior to the date of the deed, Cross—exanmined, Nowell was there part of the time but not all the time-he left~— Susan suggested Connelly—"lowell went on ahead of us- I did not tell Mrs. Benfield that Mrs. Ervin's mind was weak and had been Bu u e s n g ‘u i A l q £0 6 1 (12) getting sonfor twelve months— TI did not tell Mrs, Benfield that Mrs, Ervin sometimes did not know me—Towell paid me $10.00, John M, Ostwalt, witness for the defendant testified ag follows:- I live one-half mile fron Susan—knew her all my life-1 think she had sense enough to know what she doing in making the deed, Cross—exanined, I saw her occasionally—never saw anything the matter with her mind-I was steward of the churee and called frequeatly to get her quarterly dues, and I sometimes bought timber from her, Turner Ostwalt, witness for the defendant testified as follows: ~ T knew Susan all my life-I saw her in August before she died-— had not seen her before in four or five years— TIT snoke to her and said aunt Susan you do not know me-she said yes, that is Turner my boy-she hrd always called ne Turner my boy- I think she had capacity to make a deed— Troutman’s character is good—same of T, S. Loftin-character of Mrs, Troutman is good- Cross—exanmined, Talked to her about five or ten minutes, Defendant closes, Plaintiffs introduced deed from Susan Prvin to D, I. Troutman for the purnose of contradicting Tpoutman as to the date of the deed, Deed dated January 19, 1903, irs, Benfield, witness for the plaintiffs, re-called, testified as follows:— Mrs. Troutman and I were there Sunday before she died. Mrs, Troutman said che had noticed that Susan's mind had been failing her for twelve months; said that last swamer she would come down here and sometimes Susan would know her sometimes she would not, D, I, Troutman, witness for the defendant, re-called for the purpose of cross—examination, testified as follows:— T did not see any money pass that day (meaning the day the deed in question was executed), x ae (13) or paper-writing on which the defendant relies is not disputed by the plaintiffs, but the plaintiff says that Susan Ervin at the time she signed th» same, did not have mental eanvacity sufficient to transact business involving a disposition of her property, and the plaintiff further says that even if she had such capacity, still the paper writing in question is not valid for the reason that Susan signed the same under undue influence, exerted upon her by the defendant Howell, and that the witness D. I. Troutman assisted said Howell in the consumation of his purpose, so that whether or not the plaintiff is entitled to recover the property sued for depends upon whether the said paper—writing is an invalic instrument or not. Refused, because not based upon any evidence, Plaintiffs except. nN Plaintiffs’ Gti Exception. (2) If the said paper-writing is invalid then if jury believe the evidence the plaintiffs are entitled to recover, bu u e s n g “U I A I A Refused, Plaintiffs except. Plaintiffs’ $+h. Exception. £0 6 1 (3) The jury are instructed that if they find that at the time of the alleged execution of the said paper-—writing, or deed, the said Susan Frvin did not have mental capacity sufficient to transact business involving a disposition of her property, that is that she did not understand the nature and character of the property disposed of, who the object of her bounty was, and how she was disposing of it, (and further find that the said Susan Ervin is dead and that the plaintiffs are her lawful heirs) then the plaintiffs are entitled to recover in this case,” The above instruction was maodified by his Honor by striking out that part of same included in the brackets, and given as modified, Plaintiffs ae 0 e ba 2 rl, AOWVAL except, ““ Lo PV7T cw © 7 : 7 ea thuiilies ~AS w < « Q in: fone ee j . ; la , * g ee | é ¢ Lvs -—~s- Plaintiffs’ 8th.Exception, 2-9 clue (Heemta yy Or > (i. poe | Q< df ‘ ~ opt (4) The jury are instructed that if they find that the £- said Susan Ervin signed the said deed or paper-writing and executed the same by reason of undue influence upon her and find that she is dead and that plaintiffs are her lawful heirs, then the plaintiffs (14) would be entitled to recover the land sued for, whether Susan Ervin had mental capacity sufficient to execute said deed or not. Refused. Plaintiffs except. Plaintiffs' 9th Exception, (5) As to undue influence the jury are instricted that after proof of capacity and execution if the jury find that such has been proved, the common law lays down no rule upon the sub-— ject; but submits the general question to the jury for a decision, according to their conclusion upon the actual facts of undue in- fluence, imposition or the nature of the paper-writing, her knowledge of the contents of the paper, and assent thereto, under the comprehensive inquiry whether a fraud has been practiced— where the maker's situation is su¢éh as to render the perpetration of a fraud easily practicable, the jury my say, they are not satisfied one was not practiced, and thence infer its existence unless the contrary be clearly shown, Refused, Plaintiffs excent. — Bu u e s n g ‘u l A l g Plaintiffs’ -t0Sh Exception. (6) Upon such a subject the law cannot lay down as a test £0 6 ! that a paper-writing is or is not valid, when executed under one or more of the particular circumstances, which the evidence tends to show in this case, but necessarily refers the facts, upon which its validity legally depends, to the decision of the jury under evidence as to all the ciroumstances attending its perpetratm or execution, the condition, mental and physical, of the maker, the contents of the instrument and the benefits provided in it for those actively coneerned either in the perpetration or execu- tion, Refused except as covered by the charge. Plaintiffs except, cot A Plaintiffs’ ith Exception, (7) If the jury find that the deed in question was pre- pared by an attorney in the absence of Susan Ervin, at the in- stance of the defendant, Howell, that it was taken to the plain- tiffs' intestate, Susan Ervin by the defendant Howell, that Susan Ervin was a very old woman, that she was ignorant and childish, that it was not read over to her, and that she signed it at the request of the said Howell, then the jury sre instructed that Bran. 415}— that such things do not ordinarily take place in open, fair and even handed transactions, Refused. Plaintiffs except, Jir> a aoe tt bal Cen ek Pere 2 porter Plaintiffs’ t®&th Exception, | ro \n weer we (8) The jury are instructed that if they find the facts to be as stated in the instruction numbered "7" just given them, the Jury may infer therefrom that the execution of the said desa or paper-writing by the said Susan Ervin was procured by imposi- tion and fraud, unless the jury find that the contrary has been clearly shown by the evidence in the case, Refused, Plaintiffs except. _ Ae oo Plaintiffs’ 43th Exception. (9) ted by reason of undue influence as explained in these instructions, If the jury find that the said paper—writing was execu- that the plaintiffs are the lawful heirs of the said Susan Ervin, then the plaintiffs are entitled to recover the land sued for. Refused... Plaintiffs except. 3 / gr Plaintiffs’ 24th Fxcention, (10) If the jury find that at the time Susan Ervin executed the deed to the defadant Howell that the said Susan was a very old lady, that she was 80 or %4 years old, that she was weak in body and mind, that the said deed was made without any consideration or upon & very inadequéte consideration, that the defenda t Howell to whom the deed was made lived very near her, that he had lived near her home on her land for several years, that he had influence with her, that she had children and grand children, that mamuxefxthn none of them lived with her, that she had not given any of children or grand children any of her land or personal property( and the jury are instructed that there is no evidence of her having given her children or grand children any land or personal prop- erty) and further find that the defendant had the deed prepared by an attorney, that the deferdant and D, I. Troutman took the deed to her, that she signed it in their presence, that it was not 411 read to her, and that none of her children or grand cnildren were present when said deed was executed, then the jury are instructed that a Court of equity will not permit the deed to stand and that the same is invalid, Refised, Plaintiffs except, » » 5 A C 1 , a ; Ls» gt a dicen Plaintiffs’ 15th Exception, Zu fox ~ Lhe ff { amounting to absolute disqualification, and the consideration given for the property is &rossly inade- quete, a court of equity will, upon proper and seasonable applica- tion of the injured party, or his representatives or heirs, inter fere and Set the conveyance aside,” Refused, Plaintiffs except, Plaintiffs’ 16th Exception, (12) “When a person from infirmaty and mental weakness, is likely to be easily influenced by others, transact iong entered into by such person without independent advise will be set Abide, if there is any unfairness in them, The principle upon whict. the Court acts in such Cases, applied to a conveyance of land obtained from a woman advanced in years, of doubtfl sanity, being entirely by herself, without friends to take care of her, and confined to her house by sickness,” Refused, Plaintiffs excent, CT) 2 P ~~” e wn > 3 5 pm Plaantiffs' 17th Exception. (13) That if the jury find from the evidence that Susan £0 6 1 Ervin was 80 or 84 years old, lived by herself, was sick and bed- ridden at the time the deed was obtained and never recovered from said sickness and died in a short time thereafter; that while in this condition the defendant procured a deed to be prepared by an attorney and went to her home with his friends, and procured her Signature, there being no consideration or no adequate one paid therefor, the law will presume undue influence and the jury should so find, Refused, Plaintiffs except. 7 —, f $5"—~ 7 Plaintiffs’ 1sth “xception, _ nse frie fat pon the said Susan ad held as a rany evidence reply to the influence/was’ Ot pleaded, 7 id deed, Plaintiffs except. ere Oe Exception, eu u e s n g ‘u i a r g £0 6 1 4 lf fo 4 Q : Ys 2 ¥y Ake H bhod G Leslie for A ft 44 ifn. re Le 2. oe ica re Ow Le, Ltée ar ae U*AeJ be ch. coal ae R41 a za.2 ww , oc La 9 aT fre, ex.£ ahh h 2 Je OG b ou Ya nti A az fhswd af an C7! han aa ies is am 1 Weert ph a0, af frst ) to Pfr chk ee A fink Cu clas Cerne) i O14 Aff AK dL 10h. 0 a bin RY (fy 4 tay ot / LG Pb” beh ee. Ltograa wink af Cth nstiiel, ) fe 43 _p- 2 B&g Quik ve we , v4 Bu u e s n g ‘u l A l g £0 6 1 The Court held as a matter of law that the Only question that could be considered upon the present state of the pleadings was whether the said Susan Ervin at the time such deed was executed had "sense enough to make a deed.” Plaintiffs except, Plaintiffs’ 20th Exception, The Court refused to admit evidence of gross inadequacy of consideration, and held as a matter of law that such had nothing to do with the case, Plaintiffs excent, Plaintiffs’ 2ist Exception, The Court refused to intruct the jury that undue influence might be inferred by the jury from proof of great weakness of mind, extreme old age, and gross inadequacy of consideration, Plaintiffs excnet, Plaintiffs’ 22na Exception, | It was testified to th tne defendant's witness D. I. Trout— man and his wife Harriet Troutman that before the deed in question was drawn and executed the said Susan Ervin stated that she wanted the defendant to have her property after her death and that she requested the said D, I, Troutman to come to Statesville with the defendant Nowell and procure a deed to be drawn 7 2. 2 & Connelly, an attorney, so that after her death the defendant _ Would get the land. It was shown by the deed itself, introduced in evidence by the defendant, that the deed which the said Susan did Sign was not so drawn, that it did not reserve to the said Susan her life estate as she had requested, but that it was drawn 80 as to convey an absolute fee-simple without condition or reservation, The plaintiffs contended before the jury that this was strong evidence that the said Susan did not have sufficient mental capacity to execute the deed, for she had Signed a deed entirely different in form and effect from the one she had instructed to be drawn, The Court held as a matter of law that this was no evidence Of weakness of mind nor of undue influence and S80 expressed his o~ pinion to the Jury and told them that they could not consider such fact; that it had nothing to do with the case, Plaintiffs except, Plaintiffs’ 23rd Exception, (18) His “onor further charged the jury as follows:-— ‘that he had asked counsel for the plaintiffs to furnish him with one authority that a deed had been set adide for want of consider- ation or undue influence when not alleged in the pleadings and that if the counsel would do so he would change his mind and his ruling; Ww that the counsel had failed to furgish him a single authority, but that during the trial he himself had found five or six authorities directly in point holding the contrary position and sustaining his ruling. To this statement to the jury the plaintiff excented, Plaintiffs’ 24th Excention, That notwithstanding that he had told the counsel for the plaintiffs that want of consideration or inadequacy of considera- tion had nothing to do with the case and that it could not be considered by the jury, yet the counselwho last addressed the jury for the plaintiffs closed his spsech by telling the jury to con- stitute themselves a Court of equity and set the deed aside for want of consideration, To this statement to the jury, plaintiffs excepted, for the reason that according to the recollection of the counsel, the counsel did not so state to the jury. 25th Exception, That in the trial of a case before Judge Graves, Dan Hugh McLean, who was & man Of a sense of humor, started to read a statute to the jury, and that Judge Graves told him not to do it, Whereupon McLean insisted that he had a right to do it, that the law autnorized him to argue the law and the facts to the jury, and started again to read it, and that Judge Graves told him he could read it, but that if he did so he would put him in Jail, and that McL3an looked at the Judge and saw that the Judge was in earnest, whereupon McLean said to the Judge that he believed he would not read it. ‘ow, that he, his Honor, Judge Peebles, did not go that far, to put counsel in jail when they did not in their argument to the jury conform to his rulings, but that he allowed them to read the authority to the jury and then he told the jurythat there was nothing in it, that it had nothing to do with the case, To this statement to the jury plaintiffs excepted, Plaintiffs’ 26th Exception, (19) The above instruction referred to the fact that the counsel who first addressed the Jury started to read to the jury the holdinng of the Court in the case of Allore vs, Jewell, 25 Lawyers' edition United States Supreme Court reports, at page se, and the Court stopped the counsel but stated that the counsel could read it to the jury, but that he would tell the jury that it had nothing to do with the case, That it had been surprising to the Court that learned law-— yers should argue that it was necessary to prove a nominal con— sideration in a deed of bargain and sale. To this statement to the Jury the plaintiffs excepted, Plaintiffs' 27th Exception. (The above instruction as to nominal consideration concerned the fact that plaintiffs had proved that the $10.00 recited in the deed as part of consideration had not been paid by grantee Howell and the counsel for the plaintiffs in commenting upon the inadequacy of consideration as they contended had referred to the fact that 4 < 5 ” oc na x Ss = F<) the said $10.00 even had not been paid). His Honor then read to the jury the following from Paine £0 6 1 vs, Roberts, in the 82 North Carolina Reports at page 451: "The law does not require that persons should be able to disvose of property with judgment and discretion, It is sufficient if they understand what they are about. Susceptibility to undue influence will not vitiate an instrument operating inter vivos or after death, unless it was induced by fradulent practices,” To this instruction the plaintiffs excepted, Plaintiffs’ 28th Exception. His Honor further instructed the Jury as follows:- That all the mental capacity necessary for the old woman to have was the ability to know that she was conveying all her property to the defendant and ee defendant was to do what was recited in «x the deed, To this exeption. tie plaintiffs excepted, Plaintiffs’ 29th Exception, That the fact that she died in about two months after after the deed was executed and sooner than was expected did not give a Court, much less a jury, the right to take the land from the de- fendant and give it to the plaintiffs if she know what she, doing when she made the deed, To this instruction plaintiffs excepted, Plaintiffs’ 30th Excention, a Pure That counsel for the plaintiffs in phis-argunent to the jury had referred to what they called natural justice, By this he sup»osed they meant the love and affection that the old woman Mrs, Frvin had for her children and grand children, “hat this had nothing to do with the case. To this instruotion plaintiffs excepted, Plaintiffs’ 31st Excention, His Nonor further instructed the jury as follows:- That there was not a particle of evidence to show that there was any fraud or undue influence practiced on the old woman by any one. To this instruction plaintiffs excepted. Plaintiffs’ 32nd Exception. His Yonor told the jury that the evidence showed that at the time Mrs, Ervin executed the deed she had one daughter living and a whole raft of grand children and that none of them had looked after her. To this instruction the plaintiffs excepted, Plaintiffs' 33rd Exception, His Honor stated to the jury that it would be a sad day in- deed when old people approaching death and when their kin folks had stayed away from them that a stranger who had taken care of them should be treated as if he were guilty of fraud, To this instruction plaintiffs excepted, Plaintiffs’ 34th Exception, His Honor further instructed the jury as follows: That Mrs, Ervin had the right to give her property away and to do what she pleased with it provided she knew what she was doing. To this instruction plaintiffs excepted, Plaintiffs’ 35th Exception, That according to the recollection of the Court there was not a witness for the plaintiffs who was not interested in the suit excent one, That counsel for the plaintiffs had argued that the witnesses for the plaintiffs had not been attacked. The Court instructed the jury that one of the ways of attacking a witness was to show that he was interested; that whenever that was shown the character of the witness was then attacked; that that itself impeached it, and that the jury should serutinize the testimony of the said witnesses. To this instruction the plaintiffs excented, Plaintiffs’ 36th Exception, His Honor further instructed the jury as follows:-— That his Honor didn't remember that the defendant put on any witnessmm that was interested in the suit, that it was stated i yesterday by counsel for plaintiffs in his argumentto the jury that the witness D., I, Troutman had made a mistake or told a story; that he got a deed from the old woman, Mrs. Ervin, in 1901, when the deed as registered showed it was in 1903; that Troutman went home last night and got the original desd and it showed that he was right, and that although the evidence had closed and one counsel had addressed the Jury, that the Court could not let such injustice be done the witness and had permitted the original deed to be put in evidence, That even after that counsel for mxx bu u e s n g “U I A I A plaintiff had argued to the jury that still Troutman was interestéd £0 6 1 to the extent of wanting the fact found that Mrs. Ervin had mental capacity to make a deed fearing that his title might not be good because, as the court said, way before the execution of the deed to defendant, he Troutman had bought land from her, That there was no evidence that Troutman's title had been im- peached, That if it was admitted that it had a tendancy to impeach his title that it was a circumstance that cut both ways, for that Troutman had paid $3.00 per acre and that & if he was willing to do that, that was a circumstance to show that Troutman thought that she was in her right mind, To this instruction plaintiffs excepted, Plaintiffs’ 37th Fxception, His Honor stated to the jury that the counsel:ifor the plaintiffs had argued to the jupy that the testimony of the wit- ness D, I, Troutman showed that Mrs. Ervin's instructions to hin was to have Connelly draw the deed to the defendant reserving to her a life estate in the land, whereas, the deed was drawn conveying to the defendant the absolute estate in fee simple and (22) not reserving her a life estate and only providing in the deed as a consideration for the deed that defendant should support her as stated in the deed. His Honor told the jury that the difference between reserving a life estate in the deed to the old woman and providing that defendant should support her as stated in the deed was to his Honor’s mind the difference be- tween tweedledum and tweedledee, for the reason that if defendant had not supported her as provided in the deed she could have had the land sold for her support, that the part of the deed providing for her support constituted a charge or lein on the land in her favor. To this instruction plaintiff excepted, Plaintiffs’ 38th Exception. Mis Honor instructed the jury that there was no evidence of undue influence, and that there was no evidence of fraud, To this t — instruction plaintiffs excepted. vr ,.40_ : Pe >t Ne Se ey r ’ ) LA —f Plaintiffs’ 39th Exception. His Honor instructed the jury that the only question for them was whether Mrs, Ervin had sense enough to know that she was conveying her land and that defendant was to support her, To this ! ci. instruction plaintiffs excepted. , . 1 pore O-efe oy Plaintiffs’ 40th Exception. In _ uk The Court further instructed the jury that if defendant had not supoorted her she could have had the land sold since the oo provision in the deed for her support constituted a lein upon the ~ ee T> this instruction plaintiffs excerted. Plaintiffs’ 4lst Exception, Nis Honor told the jury that her own lawyer wrote the deed. To this instruction the plaintiffs excepted, Plaintiffs’ 42nd Exception, He instructed them that if the deed was read over to her that she ratified it by signing it. To this instruction the nlaintiffs excepted, Plaintiffs’ 43rd Exception, And further his Honor told the jury that where a person cannot read a deed and does not ask to have it read to her and signs it she is bound by it. To this instruction plaintiffs excepted, Plaintiffs' 44th Exception, But in this case his Honor instructed the jury that the said deed was read to Mrs. Ervin according to the testimony of Troutman except the boundaries, “is Honor further instructed the jury that in making up their verdict they had a right to consider the fact that from the evidence Mrs, Ervin had sense enough to look out for herself by getting the defendant to look after her; that she had sense enough J)» a/, not only to make a good bargain, but a very good bargain; that fet dit. she had sense enough to get a christian gentlemen like the defend— 7 Zs... D ant to care for her; that the fact that she died in two months after x 3. aQ) CA% MAW; / t the deed was executed did not change the situation; that she did know but what she would become helpless and that she was not looking out for herself, To this instruction the plaintiffs excepted, Plaintiffs’ 45th Exception, dr fea | . The Court told the jury that to show legal fraud only re- ~ mt “ quired a preponderance of evidence, but to show equitable fraud binty cy. —, Bu u e s n g ‘u l A r q required clear, strong and convincing proof, To this instruction A 2 oo ; Epa a7 S Wd 22 yu rok aintiffs excepted, for the reason. phat, it was likely to mislead S boosh Zs Lilt Op pp tut of i pl HAL KY (o Mew dL, eh bee aces haacenmeieailaamemniaatoes the jury as the Court refused to submit the question of equitable fraud to the jury and as the Court was charging them as to proof clear, strong and convincing they may have con- ceived the idea that it applied to this case, Plaintiffs’ 46th Exception, There was a verdict for the defendant as set out in the record, the jury answering the first issue No, and for a new trial. Plaintiffs' moved to set the verdict aside, Motion denied. Plaintiffs excepted. Plaintiffs’ 47th Exception, JUDGMENT . This cause coming on to be heard at this term of the court before his Honor R, B, Peebles, Judge and a jury and being heard and the jury having answered the issue”Are the plaintiffs the owners and entitled to the possession of the land described in the complaint? No." It is therefore considered and adjudged by the Court (24) that the defendant T. J. Howell is the owner of the land described in the complaint and entitled to the possession of the same, R. B. Peebles, Judge Presiding, To this judgment the plaintiffs excented, Plaintiffs’ 48th Exception, Plaintiffs appealed to the Supreme Court. Notive of appeal waived, The plaintiffs upon affidavit as required by law, within five days after the sdjournment of Court, obtained an order from the Clerk of the Superior Court of Iredell County allowing them to appeal in forma pauperis, which affidavit and order will be attached to the case on appeal and record in this cause, By agreenent of counsel the plaintiffs are allowed thirty days after Court to serve case on appeal and the defendant is allowed thirty days therafter to serve counter case or ex-— ceptions, Furches, Coble & Nicholson, Attorneys for the Plaintifrs. 7 5 nm ban} n = = s & £0 6 1 FP NORTH CAROLINA, ) 704, Uheyr0m, 20@ SUPREME ——— Vie Je oe red Gounty. Tf Fowl ee fo — | ’ Thi cause om On to be argued upon the transcript of the record from the Superior Court of he be County:—upon consideration whereof, this Gourt is of opinion that there is Wo error in the record and proceedings of said Superior Court. It is therefore consid 1d a, the 7s s that the opinion of the Court. as delivered by the Honorable Vi Yad . Justice, be certified to the said Superior Court, to the intent that — ula Cfinetd And it is considered and adjudged further, that the Ve Sd 3 the costs of the appeal in this Court incurred, Go Le a dollars ($7 og — ), to-wit, the sum of and execution issue therefor. A True Copy: Clerk of the Supreme Gourt. /) SUPREME COURT OF NORTH CAPOLINA; Feb, term, 1906. # 857, Iredell, Mary E. Alley et al, appellants y. 7. J. Howell. Furches & Coble and Geo, B, Nicholson for plaintiffs a ellant L. C, Caldwell and J. B. Connelly for defendant appettant appellee, CLARK, C. J This was an action of ejectment the plaintiffs claiming as heirs at law of Susan Ervin, and the defendant as her grantee. In the conm- plaint the plaintiffs alleged and relied upon their legal title only and there being no averment of undue influence, inadequate consideration or fraud in the treaty, the court properly excluded evidence offered to prove such, and also refused prayers based upon the assumption that evi- dence to that effect had been admitted, There must be allegata as well as probata, The judge properly admitted evidence upon the question of the mental capacity of Susan Ervin to execute the deed, as that went to the issue whether lesa] title had passed to the defendant, and evidence (if offered) of fraud in the factum would also have been competent, Mobley v. Griffin, 104 N. ¢, 112; Jones v, Cohen, 82 N. C, 80; Youn v, Greenlee, Id. 346, Fraud (net in the factum), undue influence or want Of consid- eration are matters foreign to an allegation of legal title, and can not be put in evidence unless the defendant has notice by appropriate allegations in the complaint that he may come to trial preparedto defend an attack on those gronnds, This has been the settled practice and rests upon the principle of fair play, that those matters only should be contested at the trial which come within the scope of the sllegations, It is true the averments here omitted were matters Of equitable jurisdiction under the former system of Pleading, but it is not on that ground that they are re- tuired to be pleaded but because when the plaintiffs merely allege, as here, that they are'owners and entitled to the possession", the defendant has notice only that his legal title is assailed, For exactly the same reason an equitable defence can not be proven un- less set up in the answer. Talbert v. Becton, 111 N. C, 548; Hinton v, Pritchard, 102 N. C, 94; see also McLaurin v. Cronly, 90 N. C. 50, in which the matter is so Clearly stated, citing McKee vy, Lineberger, 69 N. C, 217; Shelton v, Davis, Id, 824; Rand v, Bank, 77 N. C. 152 and Carpenter v, Huffsteller, 87 N. C, 278, that further discussion by us is unnecessary, eu u e s n g ‘u l A l q £0 6 ! The counsel for plaintiffs are correct in asserting that the distinction between law and equity is abolished, that is that they are no longer ad- ministered in separate forums, but the proposition before us is simply the maintenance of the justand reasonable doctrine that there mast be allega- tion as well as proof, The plaintiffs could readily have cured the defect by asking to amend (Joyner v. Early, 189 N. C. 49) and if that were refused in the discretion of the court, the plaintiffs could have taken a non-suit and have brought 2 new action, with a complaint making the necessary alle- gations, Wright v. Ins. Co., 188 N. C. 488 passed upon the guestioa& of immaterial defects in the pleadings, @e i1@@@ q@on 1m CROIGDA 00 Cituteit dud) Grane im the racicia,, and held that the court would give any relief justified by the complaint and proof whether it was the specific relief demanded or not, It in no wise controverts what is said above. Stokes Ve Taylor, 104 N. C, 394 and Fulps v. Mock, 108 N. C, 601 merely hold that in an action to recover upon a contract, if proof is made upon which a recov- Can ory = had upon a quantum meruit this is not a fatal variance, citing Jones v, Mial, 82 !, C, 258, In Shelton v, Davis, 69 N. C. 824, Pearson, C. J. says that one may “sue for a horse and recover a cow" (which Blackstone thought an absurdity) “but he must penne leave to amend by striking out ‘horse’, and inBerting "cow!" came was a case Of variance, but here the defect is greater, the failure to state the true cause of action, In Rand v. Bank, 77 N, C, 164, Pearson, J, again says tha can not be tolerated that plaintiffs should file a skeleton of a complaint and eke out a cause of action" by proof of matters not alleged, and thus convict the defendant of frand and undue influence, without notice in the complaint of such charges, There are several other exceptions but upon examination we find that they do not require discussion and indeed they are not presented in the appellant's brief. Jones v, Ballou, 189 N. C, 527; Peoples v, Railroad, 137 N. C. 98; Currie v. Railroad, 185 N. C, 537; State v. Register,1383 N. C, 751, We take note however that some of these exceptions are to the evidence or remarks of the judge or other matter Occurring during the trial and that these exceptions thereto were not taken at the time, as required by the statute. Rev. Sec. 554 (2); State v. Pierce, 183 N. C. 740 2 5 : ” S n cS) = = 2 £0 6 1 It is too late to make such exceptions after the trial, which the statute permits only as to exceptions to the charge, which alone may be made by appellant for the first time in making out his case on appeal. Rev. Sec, 554 (8); 591, The statutory requirements as to exceptions are Summarised, Taylor v, Plummer, 105 N.C, 56 and Lowe v, Flliott, 107 N. ¢, 718, which have been repeatedly cited since; Hicks v. Kenan, 188 N. C. 338, NO ERROR, Haale by WUlluw = Sige’ a GC, fo, Cy fCC€ as oy oo gales ‘hho Keg CE. feo Bets balla V b0 Oritithen © O4L.1 : Lyi tte Arie. ae pee elim AGE Pr eect = ioe ee woeonmnp sD WHR se ” Er v i n , Su s a n n a 19 0 3