Citizens Bank of Marshall v. Gahagan

196 S.E. 827, 213 N.C. 511, 1938 N.C. LEXIS 122

• Court: Supreme Court of North Carolina
• Decided: May 4, 1938
• Status: Published

Opinion

Stacy, C. J.

It is conceded in plaintiff’s brief that the settlement of "Wade Gahagan’s estate would have been subject to no criticism or objection from the plaintiff, hut for the assignment by Leslie Gahagan of his interest in the Luther 0. Griffith contract. This assignment hears date 23 May, 1924. Payments to the Cook heirs were made prior thereto and shortly thereafter, up to June, 1924, but just how much was paid to them after the execution of the assignment is not readily discernible from the record. Moreover, plaintiff’s cashier, who was trustee in the Griffith deed of trust and who handled the matter for the hank, testified that the $10,726 credited or disbursed to the Cook heirs “was deducted from the timber cut from the Cook land.” The theory upon which the settlement of the estate proceeded was, that the Cook heirs were entitled to a portion of the funds derived from the Griffith contract, either by reason of the deed of 7 May, 1921 (which does not appear in the record), or by virtue of the will which makes reference to the provisions of this deed.

The trial court took the view, however, that such procedure was not permissible, since the deed was returned to Wade Gahagan without registration. The conclusion is a non sequiiur. The return of the deed did not ipso facto reinvest title in the grantor. Robbins v. Rascoe, 120 N. C., 79, 26 S. E., 807; Lynch v. Johnson, 171 N. C., 611, 89 S. E., 61. The contrary instruction was erroneous. 8 R. C. L., 987. And, besides, it does not appear that the Cook heirs surrendered possession with the return of the deed; nor is it conceded that the deed was one of gift. Allen v. Allen, 209 N. C., 744, 184 S. E., 485.

The plaintiff interposed no objection to the settlement of the estate, albeit it had full knowledge of how the matter was being handled, particularly as its cashier was trustee in the deed of trust and made the disbursements. It is a rule of general acceptance that one who stands by and sees another dealing with property in a manner inconsistent with his own rights, and makes no objection, will be regarded as having abandoned any claim or demand at variance with his silence or acquiescence. McNeely v. Walters, 211 N. C., 112, 189 S. E., 114; Marshall v. Hammock, 195 N. C., 498, 142 S. E., 776; Stith v. McKee, 87 N. C., 389; Mask v. Tiller, 89 N. C., 423; Mason v. Williams, 66 N. C., 564; Saunderson v. Ballance, 55 N. C., 322; Lentz v. Chambers, 27 N. C., 587; Bird v. Benton, 13 N. C., 179; Despard v. Despard, 53 W. Va., 443. Compare Burnett v. Supply Co., 180 N. C., 117, 104 S. E., 137.

However, as tbis is not an administration suit, Rigsbee v. Brogden, 209 N. C., 510, 184 S. E., 24, or one to surcharge and falsify tbe account of the executors, Thigpen v. Trust Co., 203 N. C., 291, 165 S. E., 720, and estoppel has not- been pleaded, we refrain from pursuing the matter further, as a new trial must be awarded on other grounds, i.e., erroneous instructions. It does not follow as a matter of law that payment to the Cook heirs was a wrongful diversion of moneys arising from the timber contract, of which plaintiff can complain. There was error in the court’s peremptory instruction to this effect.

The defendants are entitled to another hearing. It is so ordered.

New trial.

Seawell, J., took no part in the consideration or decision of this case.