Garner v. . Horner

Brogden, J. Failure to comply with C. S., 2515, renders a deed void, although it is good as color of title. Best v. Utley, 189 N. C., 361; Whitten v. Peace, 188 N. C., 298. This statute also applies to. conveyances by the wife of her land, in trust to another, for her husband. Best v. Utley, 189 N. C., 361; Davis v. Bass. 188 N. C., 200. *541 For tbe purpose of showing that tbe deed from Annie Jane Horner and her husband, J. T. Horner, to G. ~W. Horner was intended as a conveyance in trust for her husband, and thus within the contemplation of the statute, plaintiffs offered in evidence paragraph 10 of the amended answer of defendants, as follows, to wit: “It is admitted that G. W. Horner was not a bona fide purchaser of said land from Annie J. Horner, and never paid anything therefor' — that at the time of the execution of the conveyance by Annie J. Horner and husband, J. T. Horner, to G. ~W. Horner, the said Annie J. Horner was in declining health, and said conveyance was executed and delivered to said G. W. Horner at the request of the said Annie J. Horner in anticipation of her approaching death, which occurred soon thereafter, having been executed by her for the purpose of ultimately vesting title to said land in fee in her husband, J. T. Horner.” So that, nothing else appearing, the deed from Annie J. Horner and her husband to G. ~W. Horner being void by. reason of failure to comply with the law, the plaintiffs as heirs at law of Annie J. Horner, would be entitled to the property by virtue of the fact that said deed did not divest the title. But the plaintiffs go further and offer in evidence part of paragraph 11 of defendants’ amended answer, as follows, to wit: “The successive conveyances from A. J. Barrett to Annie J. Horner, and from Annie J. Horner and husband to G. W. Horner, and from G. "W. Horner and wife to J. T. Horner, as hereinbefore mentioned, were all executed and delivered for the purpose of ultimately vesting the title to said land in J. T. Horner in fee simple.” This evidence so offered by the plaintiff is a denial that Annie J. Horner held the title to the land under the deed from A. J. Barrett in her own right but merely as trustee for her husband, and that she received the title from Barrett as a trustee only, and “for the purpose of ultimately vesting the title to said land in J. T. Horner in fee simple.” Therefore, upon plaintiffs’ own evidence, it was error for the trial judge to charge the jury: “If you find the facts to be true as testified to by the several witnesses and as appear in the record, you will answer that first issue, yes.” There are many other exceptions in the record, but we express no opinion as to them, for the reason that a new trial must be awarded for the error specified. New trial.