Towe v. Penland

57 S.E.2d 652, 231 N.C. 504, 1950 N.C. LEXIS 473

• Court: Supreme Court of North Carolina
• Decided: March 1, 1950
• Status: Published

Opinion

Stacy, C. J.

It may be doubted whether any sufficient evidence appeared on the hearing to show that Sadie Bartlett Hall was a party to the agreement between the petitioners and respondents, “providing for the disposition and ownership of the property described in the petition.” But however this may be, a new trial seems necessary by reason of the admission of incompetent hearsay evidence from several witnesses who professed to state what the deceased, Mrs. Hall, had related to them as the understanding between her children. This was prejudicial to the cause of the petitioners. Moreover, the record evidence seems to leave no doubt as to the cotenancy.

The fact that petitioners offered contradictory hearsay evidence did not render competent the hearsay evidence offered by the respondents.

The cases of Allen v. Allen, 213 N.C. 264, 195 S.E. 801, and Coward v. Coward, 216 N.C. 506, 5 S.E. 2d 537, cited by respondents, are not in point as applied to the facts of the instant record. Note, the deceased held no deed to Lot No. 12.

Whether the respondents would be entitled to equitable relief in a different proceeding is not before us for decision.

There are other exceptions worthy of consideration appearing on the record, but as they are not likely to occur on the further hearing we omit any present rulings thereon.

For the errors as indicated, a new trial is ordered.

New trial.