Geer v. . Geer

14 S.E. 297, 109 N.C. 679

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

SHEPHERD, J. :

1. We see no force in the first exception. It appears that the ‘‘suit or proceeding” in the old court of equity was transferred to the Superior Court, and it being constituted there, it would seem very clear that a transcript was unnecessary. Constitution of 1866, Art. 4, § 25; C. C. P. of 1868, §§ 400, 142; Stanly v. Massingill, 63 N. C., 558; Mason v. Miles, 63 N. C , 564; Commissioners v. Blackburn, 68 N. C., 406.

2. The objection that the “petition did not state facts sufficient to give the Court jurisdiction,” is equally untenable. It is true that the proceeding was ex parte, and that the parties might have united in a sale without invoking the aid of the Couru but this- did not prevent them from having a divisi >n or sale b}7 judicial proceedings. The peLition was filed by the heirs of John Geer, Sr., and after describing the 1 md and the respective interests of the, parties as tenants in common, it prayed that the land might “be disposed of in an equitable manner amongst them, either by partition or sale, as your Honor may think most beneficial to the parties,” etc. The petition surety stated sufficient facts to confer jurisdiction, and it was expressly provided that such a proceeding was cognizable by a court of equity. Rev. Code, ch. 82, §§1, 6. See also Skinner’s heirs, ex parte, 2 D. &. B. Eq., 64.

3. The third exception to the admission of the “deed” of the Clerk, because it had no seal, is also overruled. The Court very properly held “ that the objections had respect rather to the legal effect of the paper than to its admissibility as evidence.”

4. The remaining exceptions, that the plaintiff could not recover upon said paper-writing, and that, admitting that it conferred the equitable title, it was necessary that it should be pleaded as such, cannot, in our opinion, be sustained.

It has been fully settled that a plaintiff may recover in ejectment upon an equitable title (Taylor v Eatman, 92 N. C., 601; Murray v. Blackledge, 71 N. C., 492; Condry v. Cheshire, 88 N. C , 375); and where, upon the face of record evidence, like that before us, the Court would, in a direct proceeding, as a matter of course, order the correction'of a merely formal defect in the execution of its decree, it is unnecessary (though perhaps the better practice) to .set forth the facts in the pleading.

The same is true where it appears from the documentary evidence that the dry legal title only is outstanding in another, but where it is necessary to establish such equitable ownership by extrinsic testimony, then the facts should be pleaded, the rule being that whenever, in such cases, it was, under the former system, necessary to invoke the aid of a "court of equity, the facts necessary to warrant such equitable relief must now, under 1he present practice, he specifically set forth in the pleadings.

Affirmed.