Nash County NcArchives Court.....Ex-Parte, Griffin 1906
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a November 28, 2011, 7:53 pm

Source: N C Reports
Written: 1906

Griffin, Ex-Parte

(Filed September 25, 1906)

Deeds - Advancements - Presumption - Parol Evidence - Recitals - Consideration

1. The doctrine of advancements is based on the idea that parents are presumed 
to intend, in the absence of a will, an "equality of partition" among their 
children; hence, a gift of property or money is prima facie an advancement; 
but this presumption may be rebutted.

2. Parol evidence is competent to rebut the presumption as to an advancement 
arising upon the face of a deed and to show the real intention of the parent.

3. The presumption of an advancement raised upon the words in a deed, "in 
consideration of a gift," is not rebutted in the absence of evidence that some 
substantial consideration passed and that it was not in fact a gift nor 
intended as an advancement.

4. Where a father conveyed to his daughter four acres of land in consideration 
of $25, the receipt of which was acknowledged, and the further consideration 
that she pay to her father one-half the crops for ten years, provided he 
should live ten years, and there was evidence that she paid the $25 and 
delivered one-half the crops as stipulated, and there was no evidence in 
regard to the value of the land, the presumption arises that the conveyance 
was a sale, and not a gift or advancement.

5. The recital in a deed that the consideration was paid, in the absence of 
any testimony to the contrary, would control, and the status of the parties be 
the same as if the payment of the recited consideration was proven.

Special Proceeding by Della Griffin and others, ex-parte, pending in the 
Superior Court of Nash, and heard on appeal from the Clerk by Judge E. B. 
Jones by consent, at chambers, at Wilson, NC, on 26 February, 1906.

From the judgment rendered the petitioner, Henrietta Robbins, appealed.

F. A. Woodard, Battle & Cooley and R. T. Barnhill for Henrietta Robbins.
T. T. Thorne for Mahala Farmer.

NC Supreme Court Justice Connor, J. - This is a special proceeding for the 
purpose of having partition of the lands which descended to petitioners as the 
heirs at law of their father and grandfather, John J. Sharp, deceased.

The only question presented on the appeal of petitioner Henrietta Robbins for 
our decision relates to the exception to his Honor's ruling upon the claim 
made by the other petitioners in regard to advancements alleged to have been 
made to her.

It appears from the record that the ancestor of the petitioners on 31 March, 
1883, "in consideration of a gift to Henrietta Lancaster," since married to 
petitioner Robbins, conveyed to her for life and then to her children a small 
parcel of land, the value of which is not shown.

There was evidence tending to show the circumstances under which the deed was 
executed which we do not deem necessary to set forth. Pearson, C. J., 
says: "The doctrine of advancements is based on the idea that parents are 
presumed to intend, in the absence of a will, an 'equality of partition' among 
their children; hence, a gift of property or money is prima facie an 
advancement, that is, property or money paid in anticipation of distribution 
of his estate; but surely this presumption may be rebutted," etc. James v. 
James, 76 NC, 331 (the word "not" is omitted in the quotation from the 
language of the deed, both in the headnote and in the opinion. This is 
manifest; otherwise the conclusion is a non sequitur). In Harper v. Harper, 92 
NC, 300, the principal announced in James v. James is approved, and it is 
further said that parol evidence is competent to rebut the presumption arising 
upon the face of the deed and show the real intention of the parent; that the 
introduction of such testimony does not contravene the rule prohibiting the 
contradiction by parol of a recited consideration, but may be heard for the 
purpose of showing the intention of the parent. These cases are followed in 
Kiger v. Terry, 119 NC, 456.

The question is not whether the presumption raised upon the recited 
consideration may be rebutted, by showing merely a valuable consideration 
understood in its technical sense, but whether some substantial consideration 
passed, and that it was not in fact a gift nor intended as an advancement. 
Considered from this point of view, we do not think the testimony, accepting 
it as true, rebutted the presumption raised upon the words "in consideration 
of a gift." The exception in respect to the deed of March, 1886, cannot be 
sustained.

On 24 March, 1905, Mr. Sharp executed a deed conveying to Mrs. Robbins four 
acres of land "for and in consideration of twenty-five dollars to him paid by 
the said Henrietta Robbins, the receipt of which is hereby acknowledged, * * * 
and the further consideration, that the said Henrietta Robbins pay to the said 
John J. Sharp for the term of ten years from the date of the said deed, 
providing the said J. J. Sharp shall live ten years from the date of the said 
deed, one-half of all the fruits and crops that shall be raised on said lands."

There was uncontradicted testimony that she paid the recited consideration of 
$25 and delivered one-half the crops made during the year 1905. Mr. Sharp died 
during the fall of that year. There was no evidence in regard to the value of 
this land. Adopting the same principle invoked in regard to the other deed, 
the presumption arises that the conveyance of March, 1905, was a sale and not 
a gift, and there is therefor no presumption that is was an advancement. We 
find nothing in the testimony tending to rebut this presumption. The appellee 
says that the testimony of Mrs. Robbins that she paid $25 for the land 
conveyed 24 March, 1905, is incompetent by reason of sec. 590 of The Code 
(Rev., sec. 1631). The record shows no exception to its introduction. If, 
however, it had been excluded, the recital that the consideration was paid, in 
the absence of any testimony to the contrary, would control and the status of 
the parties be the same.

We think the Clerk ruled correctly that the value of this land was not to be 
charged to Mrs. Robbins as an advancement, hence the exception to his Honor's 
ruling in that respect must be sustained. As the parties have agreed upon a 
method of ascertaining the value of the land for which the appellant must 
account, the judgment must be so modified that when the amount is fixed she 
will be charged therewith, and further proceedings had in accordance with the 
rights of the parties and the practice of the Court. Each party will pay her 
own cost in this Court. 

The judgment is Modified and Affirmed.

Additional Comments:
In the NC Supreme Court Fall Term 1906

File at: http://files.usgwarchives.net/nc/nash/court/exparte2079gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 7.2 Kb