Ross v. . Hendrix

Supreme Court of North Carolina

Ross v. . Hendrix

15 S.E. 4, 110 N.C. 403

CourtSupreme Court of North Carolina

DecidedFebruary 5, 1892

StatusPublished

Cited by9 cases

This text of 15 S.E. 4 (Ross v. . Hendrix) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ross v. . Hendrix, 15 S.E. 4, 110 N.C. 403 (N.C. 1892).

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Opinion

Shepherd, J.:

We are of opinion that there was sufficient testimony to be submitted to the jury for the purpose of establishing at least a resulting trust in the defendant Nancy Hendrix. It appears that she sold her land after her marriage, which occurred some sixteen years before the trial of this action. The sale then having been made since 1868, the proceeds arising therefrom was her separate property, *405 and these proceeds having been invested in the land in controversy by her husband, it must follow, in the absence of any agreement to the contrary, that a trust resulted to her. Kirkpatrick v. Holmes, 108 N. C., 206.

We are also of opinion, that the possession of the entire tract of land for twelve years by the said Nancy after the death of her husband, accompanied as it was by acts indi-eating a claim to its exclusive ownership, was constructive notice of her equity, and that the plaintiff is affected therewith.

It is true, that if dower had been assigned in the land occupied by 'her, there would have been no constructive notice; but there was no assignment of dower, and she occupied the entire tract under the circumstances mentioned. This possession, while not adverse as between the widow and the heirs (Page v. Branch, 97 N. C., 97), so as to bar their entry, was sufficient to put a purchaser upon inquiry, and he must be deemed to have had notice of all that such an inquiry would have disclosed. Bryan v. Hodges, 107 N. C., 492; Staton v. Davenport, 95 N. C., 11.

The exception to the ruling upon the statute of limitations was not very seriously pressed by counsel. The possession of the defendant Nancy was consistent with her equitable ownership, and she only sets up the trust for the purpose' of protecting such rightful' possession. The statute of limitations does not apply to such a case. Farmer v. Daniel, 82 N. C., 152.

We think that, under the circumstances, it is proper to permit George Hendrix, the heir of defendant Nancy, who died pending the appeal, to come in and adopt her answer. The other exceptions are also without merit.

No error.

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Shepherd, J.:

We are of opinion that there was sufficient testimony to be submitted to the jury for the purpose of establishing at least a resulting trust in the defendant Nancy Hendrix. It appears that she sold her land after her marriage, which occurred some sixteen years before the trial of this action. The sale then having been made since 1868, the proceeds arising therefrom was her separate property, *405 and these proceeds having been invested in the land in controversy by her husband, it must follow, in the absence of any agreement to the contrary, that a trust resulted to her. Kirkpatrick v. Holmes, 108 N. C., 206.

We are also of opinion, that the possession of the entire tract of land for twelve years by the said Nancy after the death of her husband, accompanied as it was by acts indi-eating a claim to its exclusive ownership, was constructive notice of her equity, and that the plaintiff is affected therewith.

It is true, that if dower had been assigned in the land occupied by 'her, there would have been no constructive notice; but there was no assignment of dower, and she occupied the entire tract under the circumstances mentioned. This possession, while not adverse as between the widow and the heirs (Page v. Branch, 97 N. C., 97), so as to bar their entry, was sufficient to put a purchaser upon inquiry, and he must be deemed to have had notice of all that such an inquiry would have disclosed. Bryan v. Hodges, 107 N. C., 492; Staton v. Davenport, 95 N. C., 11.

The exception to the ruling upon the statute of limitations was not very seriously pressed by counsel. The possession of the defendant Nancy was consistent with her equitable ownership, and she only sets up the trust for the purpose' of protecting such rightful' possession. The statute of limitations does not apply to such a case. Farmer v. Daniel, 82 N. C., 152.

We think that, under the circumstances, it is proper to permit George Hendrix, the heir of defendant Nancy, who died pending the appeal, to come in and adopt her answer. The other exceptions are also without merit.

No error.

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Bluebook (online)

15 S.E. 4, 110 N.C. 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-hendrix-nc-1892.

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