{
  "id": 8624379,
  "name": "FANNIE M. PEEL, E. S. PEEL, MARY A. DANIEL, H. D. DANIEL, N. R. DANIEL, N. T. DANIEL, BELL HARDISON, J. M. HARDISON, HELEN HARDISON, W. G. HARDISON, FANNIE GETSINGER, P. E. GETSINGER, MYRTLE I. HUGH, and JAS. R. DANIEL, by Their Guardian, HATTIE DANIEL, and HATTIE DANIEL, v. ALTON B. COREY and A. R. COREY",
  "name_abbreviation": "Peel ex rel. Daniel v. Corey",
  "decision_date": "1928-09-26",
  "docket_number": "",
  "first_page": "79",
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    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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  "last_updated": "2023-07-14T19:28:30.620798+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "FANNIE M. PEEL, E. S. PEEL, MARY A. DANIEL, H. D. DANIEL, N. R. DANIEL, N. T. DANIEL, BELL HARDISON, J. M. HARDISON, HELEN HARDISON, W. G. HARDISON, FANNIE GETSINGER, P. E. GETSINGER, MYRTLE I. HUGH, and JAS. R. DANIEL, by Their Guardian, HATTIE DANIEL, and HATTIE DANIEL, v. ALTON B. COREY and A. R. COREY."
    ],
    "opinions": [
      {
        "text": "ClaeKSON, J.\nFrom a perusal of the record the only material propositions of law that seem to be involved: (1) Is the estoppel plead by the defendants good in law?' (2) Under the facts in this action in the chain of plaintiff\u2019s title is a deed duly acknowledged before a notary public in due form, but not attested by his notarial seal, competent as evidence tending to show title? (3) Do the children of John Edward Cook, the half-brother (half blood) inherit equally with those of the whole blood ?\nFrom the record plaintiffs\u2019 contention is that the land in controversy was owned by (1) Mary Emily Hardison, (2) Hannah Daniel, (3) John Edward Cook\u2019s children as tenants in common. That Mary Emily Hardison owned a third interest and she willed all her interest in the land on the west side of the Jamesville and Washington Road to defendant, Alton B. Corey, and that on the east side (or remainder) to the children of W. H. and Hannah Daniel and John Edward Cook. Plaintiffs claim that they are the owners of the two-thirds interest through Hannah Daniel and John Edward Cook. From the language in the will of Mary Emily Hardison, we can see nothing that would estop plaintiffs from making the claim. Nor do we think the evidence of the fact that Hannah Daniel was present when the will of Mary Emily Hardison was read and executed and what she said, if competent, indicated that the devise to the children of Hannah Daniel was conditioned upon Hannah Daniel surrendering to defendant, Alton B. Corey, her (Hannah Daniel\u2019s) interest in the land on the west side of the Jamesville and Washington Road. The testimony on the subject, if competent, indicated only that Hannah Daniel and her husband \u201chad talked it oyer and that was their mind, to give him the west side of the road anyhow, if they had anything to do with it.\u201d There is no sufficient language in the will, or otherwise, to base an estoppel.\nThe doctrine of estoppel is at some length set forth in Winstead v. Farmer, 193 N. C., at p. 410. It is.there said: \u201cThe doctrine of estop-pel by conduct as extracted from Pichard v. Sears, 6 A. & E., 469, and Freeman v. Cooke, 2 Ex., 654, may, without attempting scientific precision, be thus stated: Where one person by his words or conduct represents a certain state of things to exist, and thereby induces \u2014 no matter whether he intended it or not \u2014 another to alter his opinion, that other is not to be prejudiced by the perfidy or fickleness of the first person.\u201d Cook v. Sink, 190 N. C., 620; Meyer v. Reaves, 193 N. C., 172; Trust Co. v. Collins, 194 N. C., 363.\nWe do not think, from the facts, the principle of election applies. The principle is thus stated in 28 R. C. L. (Wills), sec. 318: \u201cWhere a testator, after devising property owned by him to one beneficiary, assumes to devise to another property belonging to the first devisee, the devisee of the property owned, by the testator if he accepts the devise with knowledge of all the facts, is precluded from asserting a claim to his own property devised to the other beneficiary. In other words a legatee claiming under a will that devises away property of which he is owner can have the benefit of his legacy only upon renouncing in favor of the devisee his right to the property devised. The beneficiary must elect between keeping his own and taking what is given by the will. . . . In order to make a case of election, it is well settled that the intention of the testator to give that which is not his own must be clear and unmistakable. It is not, however, necessary that such intention should be expressly declared, but it may be gathered from the whole and every part of the instrument.\u201d\nAs to the second proposition: C. S., 3179, is as follows: \u201cOfficial acts by notaries public shall be attested by their notarial seals.\u201d C. S., 3297, is as follows: \u201cWhen proof or acknowledgment of the execution of any instrument by any maker of such instrument, whether a married woman or other person or corporation, is had b\u00e9fore any official authorized by law to take such proof and acknowledgment, and such official has an official seal, he shall set his official seal to his certificate. If the official before whom the instrument is proved or acknowledged has no official seal he shall certify under his hand, and his private seal shall not be essential. When the instrument is proved or acknowledged before the clerk or deputy clerk of the Superior Court of the county in which the instrument is to be registered, the official seal shall not be necessary.\u201d\nFrom an examination o\u00a3 tbe registered deed certified to this Court, we find the clerk of the Superior Court has the following certificate: \u201cDo hereby certify that the due execution of the foregoing instrument has been properly proved, as appears from foregoing seals and- certificates. Therefore let the instrument with the certificates be registered.\u201d The presumption is against defendants\u2019 contention. See Johnson v. Lumber Co., 147 N. C., 249; Roberts v. Saunders, 192 N. C., 191.\nIt is contended by plaintiff: \u201cAnyway, this deed is not essential to the plaintiff\u2019s recovery, as both grantors and grantees are parties plaintiff in this action and the cause of action would exist in favor of the grantors in the deed if the deed were excluded from evidence.\u201d The record so indicates. We see no prejudicial error to defendant in the assignment of error on this aspect of the case.\nAs to the third proposition, we think the children of John Edward Cook, the half-brother (half blood) inherit equally with those of the whole blood. The widow Cook had one child, John Edward Cook; she married James Hardison and had five Hardison children, the two grandsons to whom Jesse Hardison willed the land, viz.: (1) David E. Hardison, and (2) Jesse H. Hardison, and also (3) Mary Emily Hardi-son, (4) Sallie Ann Hardison, and (5) Hannah Daniel. James Hardi-son was living when his father,. Jesse Hardison, died. David E. and Jesse H. Hardison were purchasers.\nIn Yelverton v. Yelverton, 192 N. C., at p. 617, Brogden, J., says: \u201cWhat is purchase in law? \u2018Purchase in law denotes the acquisition of an estate in lands by a man\u2019s own agreement or act in contradistinction to acquisition by descent from an ancestor. The popular signification of the word purchase, i. e., to buy, falls far short of the comprehensive meaning given to the word by the law. If land be given to a man by deed or will, in fee or in fee tail, he is a purchaser. But there is this distinction in the case of a gift by will: If the ancestor devised his whole estate to his heir at law in the identical manner in which it would have descended to the heir if no devise had been made, the heir takes by desc\u00e9nt and not by purchase. But he must take the same estate and in the same subject-matter to come under the rule.\u2019 Mordecai\u2019s Law Lectures, Vol. 1, 648.\u201d Welch v. Gibson, 193 N. C., at p. 689; Clark v. Clark, 194 N. C., 288. The land must be treated as a, new acquisition by David E. and Jesse H. Hardison.\nPecurson, J., in Osborne v. Widenhouse, 56 N. C., at p. 239, 240, says: \u201cNoah Furr acquired the land in controversy as devisee under the will of his grandfather, Paul Furr. At the death of the devisor, Henry Furr, the father of Noah, was living, and would have taken the land as his heir, had he died without making a will; so Noah at the death of Paul, his grandfather, was not \u2018his heir or one of his heirs,\u2019 and, nece's-sarily, took the land as a purchaser in its general sense, and not in tbe peculiar mode which, under the statute, is made to have the like effect as a descent. He took by devise, and could not have claimed as heir of his grandfather, had the latter died intestate. This is settled in Burgwyn v. Devereux, 1 Ire. Rep., 586, where the matter is fully elaborated, and the construction of the rule of descent is fixed. It follows that the land must be treated as a new acquisition by Noah Furr, and is transmitted to his uncles and aunts on the mother\u2019s side as well as those on the side of the father.\u201d See C. S., 1654, Rules 4, 5 and 6. Paul v. Carter, 153 N. C., p. 26, and Noble v. Williams, 167 N. C., 112, are not applicable under the facts in this case.\nWe can see no evidence of adverse possession from the facts appearing in the record. It may be that defendants only received the lamb\u2019s share, but we cannot disturb the well-settled devolution of real property.\nFor the reasons given in the judgment below, we find\nNo error.",
        "type": "majority",
        "author": "ClaeKSON, J."
      }
    ],
    "attorneys": [
      "Ward & Grimes and B. A. Gritcher for plaintiff.",
      "A. B. Dunning for defendants."
    ],
    "corrections": "",
    "head_matter": "FANNIE M. PEEL, E. S. PEEL, MARY A. DANIEL, H. D. DANIEL, N. R. DANIEL, N. T. DANIEL, BELL HARDISON, J. M. HARDISON, HELEN HARDISON, W. G. HARDISON, FANNIE GETSINGER, P. E. GETSINGER, MYRTLE I. HUGH, and JAS. R. DANIEL, by Their Guardian, HATTIE DANIEL, and HATTIE DANIEL, v. ALTON B. COREY and A. R. COREY.\n(Filed 26 September, 1928.)\n1. Wills \u2014 Rights anil Liabilities of Devisees and Legatees \u2014 Election.\nWhere a devise of land is clearly stated in the will as unconditional, it may not be otherwise shown by parol that the devise was in lieu of other lands owned by the devisee, and thus put him to his election, or stop him from claiming under the will by his being present at the time the will was probated, and not making objection..\n2. Deeds and Conveyances \u2014 Requisites and Validity \u2014 Form and Contents \u2014Notarial Seals.\nWhere a deed in the chain of title of the plaintiff bears the certificate of the clerk of the court of the county of its registration that the instrument has been properly proved as appears from the foregoing seals and \u25a0 certificates, the presumption is against the defendant\u2019s contention to the contrary, and the validity of the deed will be upheld when it has been duly acknowledged before a notary public in due form, but not attested by his notarial seal, C. S., 8179, 3297, and, Held, no prejudicial error when the parties plaintiffs to the action are grantors and grantees in the deed.\n3. Descent and Distribution \u2014 Nature in General \u2014 Heirs Designated. in Devise.\nA grandson of the devisor of lands does not take lands by descent from him when his father is living at the time of his grandfather\u2019s death, even though he takes the same lands and interest under the devise that he would have taken under the descent had his father not been living, and he acquires a new estate by purchase, descendible to his heirs at law under the cannons of descent. C. S., 1654, Rules 4, 5, 6.\nAppeal by defendants from Clayton Moore, Special Judge, at January Special Term, 1928, of MaetiN.\nNo error.\nThis is an action involving the title to about 150 acres of land, on the west side of the Jamesville and Washington Road in Martin County, N. C. It was alleged in the complaint that the plaintiff, Fannie M. Peel, was the owner of a one-third undivided interest, the other plaintiffs are the owners of a one-third undivided interest, and the defendant, Alton B. Corey, is the owner of a one-third undivided interest. The defendants plead sole seizin, adverse possession for the statutory period and estoppel. The action was instituted to restrain defendants from cutting and removing timber from the land. It was tried on the theory as an action for partition.\nJesse Hardison owned about 1,300 acres of land on both sides of the Jamesville and Washington Road in Martin County. On 5 September, 1858, he executed a will leaving this real property (after the life estate to his wife) to his two grandsons, David R. and Jesse H. Hardison. After the death of Jesse Hardison the will was duly probated in 1859. David R. and Jesse H. Hardison went into possession of the land. The grandson Jesse H. Hardison never, married and died intestate. He left surviving him David R. Hardison, the owner of one-half interest in the land and as his heirs at law to the other half (1) David R. Hardison and his sisters, (2) Mary Emily Hardison, (3) Sallie Ann Hardison, (4) Hannah Daniel and a half-brother, (5) John Edward Cook. Their mother married a Cook and had one child, John Edward Cook, and then married James Hardison, son of Jesse Hardison, and had the children above mentioned. James Hardison was the father of David R. and Jesse H. Hardison and was living at the death of his father, Jesse Har-dison, who made the will and left the land to his two grandsons, David R. and Jesse H. Hardison.\nIt appears that Sallie Ann Hardison died intestate. John Edward Cook died intestate leaving as his heirs at law John S., T. O., and H. D. Cook. Then David R. Hardison died intestate some six or seven years ago, leaving (1) Mary Emily Hardison, (2) Hannah Daniel, who married W. H. Daniel, and (3) the children of John Edward Cook. After David R. Hardison\u2019s death, the two surviving sisters lived on the place. Mary Emily Hardison died leaving a will dated 26 June, 1923, probated 3 September, 1923. In item 2 of the will she devised to Alton B. Corey, defendant, \u201cAll of the land on the west side of the Jamesville and Washington Road, it being the residence on which I now live, including all of the buildings.\u201d In item 3 she says, \u201cI leave the remainder of my land to be equally divided between all of the children of W. H. and Hannah Daniel and John Edward Cook.\u201d At that time she owned the interest in the land which she inherited from her brothers and sister. Hannah Daniel thereafter died, leaving a will, dated 5 February, 1925, probated 1 February, 1926. In it she gives to her seven living children and the child of her deceased son, James A. Daniel, \u201cAll my interest in David R. Hardison and Jesse Hardison tracts of land.\u201d On 24 December, 1925, John S., T. C., and H. D. Cook and their wives (the heirs of John Edward Cook) conveyed all of their interest in the entire 1,300 acres to Noah T. Daniel and others, and on 25 March, 1927, Noah T. Daniel and others conveyed to Fannie M. Peel, the plaintiff, an undivided one-third interest in the lands on the west side of old Jamesville and Washington Road, the land in controversy. On 19 May, 1927, this action was brought alleging a tenancy in common, as follows: One-third in Fannie M. Peel, one-third in Noah T. Daniel and others, and one-third in Alton B. Oorey in the land on the west side of the Jamesville and Washington Road.\nThe issue submitted to the jury and their answer thereto was as follows: \u201cAre the plaintiffs the owners and entitled to two-thirds of the lands described in the complaint, as alleged? Answer: Yes.\u201d\nThe court below instructed the jury that if they believed the evidence and found the facts to be as testified to, they would answer the issue \u201cYes,\u201d otherwise \u201cNo.\u201d Numerous exceptions and assignments of error were made by defendant. The material ones and other necessary facts will be set forth in the opinion.\nWard & Grimes and B. A. Gritcher for plaintiff.\nA. B. Dunning for defendants."
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